R v XXL

Case [2022] ACTSC 24 11 February 2022

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v XXL
Citation:	[2022] ACTSC 24
Hearing Date:	11 February 2022
DecisionDate:	11 February 2022
Before:	Mossop J
Decision:	See [46]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – breach of intensive correction order – further offence – recklessly inflicting grievous bodily harm – two additional offences of damaging property – offender was a young person at the time of initial offending – offender intended to strike ex-partner’s new partner but instead struck another person – intended conduct was in the nature of domestic violence offending – offending at upper end of mid-range of objective seriousness – medium to high risk of general reoffending – unresolved substance dependence – significant criminal history – plea of guilty – whether there is a “remainder of the offender’s sentence” under s 65 of the Crimes (Sentence Administration) Act 2005 (ACT) where the intensive correction order has expired at the date of sentence – no remainder exists – intensive correction order not cancelled – sentence of imprisonment imposed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 65, 79 Crimes (Sentencing) Act 2005 (ACT), ss 10, 63 Crimes Act 1900 (ACT), s 20 Criminal Code 2002 (ACT), ss 310, 403
Cases Cited:	Henry v The Queen [2019] ACTCA 5 R v Campbell [2010] ACTCA 20 R v Dimitrov (No 2) [2020] ACTSC 54 R v Gunner (No 2) [2021] ACTSC 300 R v Krook [2020] ACTSC 93 R v McBride [2017] ACTSC 102 R v Ngata [2020] ACTSC 9 R v Torbert [2015] ACTSC 331 R v Williams-Savage [2021] ACTSC 271 R v XXL [2019] ACTSC 94
Texts Cited:	Explanatory Memorandum, Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT)
Parties:	The Queen ( Crown) XXL ( Offender)
Representation:	Counsel M Dyason ( Crown) J Sabharwal ( Offender)
Solicitors ACT Director of Public Prosecutions ( Crown) Tim Sharman Solicitors ( Offender)
File Number:	SCC 105 of 2021

MOSSOP J:

Introduction

On 13 December 2019, I sentenced XXL to 28 months’ imprisonment for one offence of aggravated robbery (CH2018/14718) contrary to s 310 of the Criminal Code 2002 (ACT). I ordered that the sentence be served by way of intensive correction order (ICO). The ICO commenced on 12 December 2018 and was due to expire on 11 April 2021: see R v XXL [2019] ACTSC 94.

Prior to the expiry of the ICO, XXL committed further offences. On 10 November 2021, he pleaded guilty to committing one count of recklessly inflecting grievous bodily harm contrary to s 20 of the Crimes Act 1900 (ACT) (CC2021/1145) on 31 December 2020. The maximum penalty for this offence is 13 years’ imprisonment.

The offender has also asked the court to take into account two additional offences when sentencing him, being two counts of damaging property contrary to s 403 of the Criminal Code (CC2021/1146 and CC2021/1147). I will take these into account in the manner described in R v…

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 XXL

Details

AGLC: R v XXL [2022] ACTSC 24
Case: [2022] ACTSC 24
Decision Date

CaseChat Overview and Summary

In this case, XXL was sentenced by the Supreme Court of the Australian Capital Territory for the offence of recklessly inflicting grievous bodily harm, which occurred on 31 December 2020. The court was required to decide whether the sentence for the new offence should be backdated to the expiry date of an earlier intensive correction order (ICO) that the offender was serving at the time of the new offence. The court also needed to determine the appropriate sentence for the new offence, considering the offender's criminal history, the objective seriousness of the offence, and the subjective circumstances of the offender.

The court reasoned that the term of the ICO had expired before the offender was convicted of the new offence. Both parties contended that "remainder of the offender's sentence" should be interpreted as the remainder of the sentence as at the date of the offender being convicted or found guilty of the subsequent offence. The court adopted this interpretation, as it was reasonably open, and found that there was no remainder of the sentence to be imposed. The court decided not to cancel the ICO, as it was not in the interests of justice to do so.

In determining the appropriate sentence for the new offence, the court considered the objective seriousness of the offence, the subjective circumstances of the offender, and the need to deter the offender and others from committing similar offences. The court concluded that the appropriate starting point for the sentence was six years' imprisonment, reduced to five years and one month due to the plea of guilty. The non-parole period was set at approximately 60% of the head sentence, resulting in a minimum term of three years and one month's imprisonment to be served before eligibility for parole.

The final orders of the court were as follows:

1. On the charge of recklessly inflicting grievous bodily harm (CC2021/1145), the offender is convicted and sentenced to imprisonment for five years and one month commencing on 24 July 2021 and ending on 23 August 2026.
2. The non-parole period commences on 24 July 2021 and ends on 23 August 2024.

Orders