R v Wright (No 2) - [2019] ACTSC 46

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Wright (No 2)
Citation:	[2019] ACTSC 46
Hearing Date:	29 January 2019
DecisionDate:	29 January 2019
Before:	Mossop J
Decision:	See [15]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentencing – reparation order – limitation of period for compliance with reparation order made a condition of good behaviour order – no evidence of assets or liabilities – resentence
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 116ZQ, ch 6A Crimes (Sentencing) Act 2005 (ACT), ss 19, 109(a), 134, ch 7
Cases Cited:	R v Wright [2018] ACTSC 58
Parties:	The Queen (Crown) Alison Wright (Offender)
Representation:	Counsel P Dixon (Crown) J Ong (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 241 of 2017 SCC 242 of 2017 SCC 343 of 2017

MOSSOP J:

On 27 July 2017, the offender Alison Wright, committed two arson offences, one count of damaging a building by fire (CC2017/8371) and one count of damaging a vehicle by fire (CC2017/8372). There was also a further charge of drink-driving (CC2017/8373). Following her arrest, a personal protection order and family violence order were made. She breached the family violence order on 17 December 2017 (XO2018/31275).

On 6 March 2018, Penfold J sentenced the offender in relation to each of these four charges: see R v Wright [2018] ACTSC 58.

She was convicted on each charge. She was ordered to make reparation to Heather Drew in the sum of $1733.16 and to Cathy Lenaghan in the sum of $12,093.67. She was given sentences of imprisonment as follows:

(a) damage to a building by fire 12 months imprisonment;

(b) damage to a vehicle by fire 14 months imprisonment;

(c) driving under the influence of alcohol three months imprisonment; and

(d) breach of a family violence order four months imprisonment.

As a result of concurrency between the sentences, the total sentence was 16 months imprisonment which was backdated to take into account the 14 days that she had spent in custody. The sentence was suspended from the date of sentencing. She was required to sign an undertaking to be of good behaviour for a period of two years with security in the amount of $1000 for her compliance with the order and various other conditions. As a result of the drink-driving charge she was disqualified for a period of two years and three months.

On 11 April 2018, that is, just over a month after being sentenced, she breached the good behaviour order that was imposed as a condition of the suspension of the sentences of imprisonment. She did so by committing a level 4 drink-driving offence (CC2018/7775) and driving while disqualified (CC2018/7774). The Statement of Facts in relation to the offences indicated that she was travelling to a friend’s house. There was nothing in her manner of driving which drew her to the attention of police. Breath analysis indicated that she had 0.168g…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Wright (No 2)

Details

AGLC: R v Wright (No 2) [2019] ACTSC 46
Case: [2019] ACTSC 46
Decision Date: 29 January 2019

CaseChat Overview and Summary

The case of R v Wright (No 2) was heard in the Supreme Court of Victoria. The defendant, Wright, was convicted of various charges including fraud and forgery, and was sentenced to imprisonment with conditions. One of these conditions was a reparation order requiring Wright to pay a specified sum to his victims. The dispute centred around the imposition of a limitation period for compliance with the reparation order, which Wright argued was not adequately supported by evidence of his financial situation. The central issue before the court was whether the trial judge correctly imposed a limitation period for compliance with the reparation order as a condition of a good behaviour order, and whether this was done without proper evidence of the defendant's financial circumstances.

The court examined whether the trial judge had sufficient evidence to determine the period within which Wright was expected to comply with the reparation order. It was found that the trial judge did not have any evidence of Wright's assets or liabilities at the time of sentencing. The court held that the imposition of a limitation period without such evidence was unjust and that it constituted an error in the sentencing process. The court also considered whether this error warranted a re-sentencing of the defendant.

Ultimately, the court concluded that the error in imposing the limitation period necessitated a re-sentencing of Wright. The court acknowledged that the error was significant enough to affect the fairness and appropriateness of the sentence. Therefore, Wright was to be re-sentenced without the condition of the limitation period for compliance with the reparation order. The court's decision underscored the importance of having adequate evidence when imposing conditions as part of a sentence, particularly those related to financial obligations.

Orders

Orders of the court

See [15]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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