R v Wsol - [2015] ACTSC 112

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Wsol
Citation:	[2015] ACTSC 112
Hearing Date:	24 April 2015
DecisionDate:	24 April 2015
Before:	Murrell CJ
Decision:	Sentenced to an effective sentence of three months’ imprisonment on the new charges and to the rising of the Court for the breach of good behaviour orders
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – dishonesty offences – obtaining property by deception – breach of good behaviour order
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 110 Criminal Code 2002 (ACT) ss 44(1), 324(1), 326
Parties:	The Queen (Crown) Kimberley K Wsol (Offender)
Representation:	Counsel Mr S McLaughlin (Crown) Mr C Lynch (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Offender)
File Numbers:	SCC 17 of 2014; SCC 35 of 2015

Murrell CJ:

The offender adheres to pleas of guilty entered in the Supreme Court to the following offences:

(a)On 2 March 2013, obtaining property by deception (two vacuum cleaners and one deep cleaner from Masters Home Improvement Australia Pty Ltd), contrary to s 326 of the Criminal Code 2002 (ACT) (the Criminal Code). The maximum penalty is 10 years' imprisonment and/or a substantial fine.
(b)On or about 2 March 2013, obtaining property by deception ($715 from Woolworths Limited), contrary to s 326 of the Criminal Code. The maximum penalty is 10 years' imprisonment and/or a substantial fine.
(c)On or about 3 March 2013, obtaining property by deception ($1,695 from Masters Home Improvement Australia Pty Ltd), contrary to s 326 of the Criminal Code. The maximum penalty is 10 years' imprisonment and/or a substantial fine.

The offender asks that the following additional offences of 2 March 2013 be taken into account when sentencing on offence (a) above:

(a)Attempt to obtain property by deception, contrary to s 326 of the Criminal Code (by virtue of s 44(1)).
(b)Unlawful possession of stolen property (a credit card), contrary to s 324(1) of the Criminal Code.

The pleas of guilty were entered in the Supreme Court after a fresh indictment was presented on 27 February 2015. The matters had been listed for trial to commence approximately two weeks later. There were negotiations as to the charges. Ordinarily, the offender would receive a discount for the pleas of guilty but I will not apply a discount in this case because the sentences that I intend to impose are low, and render a discount virtually meaningless.

The Offences

On 1 June 2012 Burns J placed the offender on good behaviour orders and associated suspended sentences for matters of dishonesty. The most serious matter was an offence of aggravated robbery. During the currency of the good behaviour orders, the subject offences were committed.

On 2 March 2013 the offender stole a wallet that contained a Westpac credit card. At about 5.15pm on that day, the offender attended the Masters Home Improvement store at Majura in possession of the credit card. This is the subject of the additional offence of…

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 Wsol

Details

AGLC: R v Wsol [2015] ACTSC 112
Case: [2015] ACTSC 112
Decision Date: 24 April 2015

CaseChat Overview and Summary

In the case of R v Wsol, the defendant was brought before the court to address allegations of obtaining property by deception and a subsequent breach of a good behaviour order. The court was tasked with determining the appropriate sentence for the defendant's criminal activities. The defendant had pleaded guilty to the charges, which included multiple instances of obtaining property by deception and a breach of a previously imposed good behaviour order. The court was required to weigh the seriousness of the offences and the breach, and to decide on a sentence that would serve as both a punishment and a deterrent.

The legal issues the court had to consider involved the appropriate sentencing principles for dishonesty offences, particularly given the defendant's history of similar behaviour and the breach of a good behaviour order. The court had to balance the need for deterrence and general deterrence against the possibility of rehabilitation. Additionally, the court needed to assess the aggravating and mitigating factors present in the case, such as the defendant's prior criminal record and the specific circumstances of the offences.

In delivering the judgment, the court noted the defendant's previous convictions for similar offences, which indicated a pattern of behaviour that warranted a robust response. The court also considered the breach of the good behaviour order as a significant aggravating factor, highlighting a disregard for the conditions set for the defendant's rehabilitation. The court ultimately determined that an effective sentence of three months' imprisonment was appropriate for the new charges, with the Court to be raised for the breach of the good behaviour orders. The sentence aimed to address the defendant's ongoing criminal conduct and to reinforce the seriousness of breaching court orders.

Orders

Orders of the court

Sentenced to an effective sentence of three months’ imprisonment on the new charges and to the rising of the Court for the breach of good behaviour orders

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.