R v XXL - [2019] ACTSC 294

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v XXL
Citation:	[2019] ACTSC 294
Hearing Dates:	16 October and 13 December 2019
DecisionDates:	18 October and 13 December 2019
Before:	Mossop J
Decision:	See [42] and [48]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – burglary – offender under 18 years old at time of offence – later offence of aggravated robbery when an adult – whether s 80 of the Crimes (Sentencing) Act 2005 (ACT) constrains the availability of an intensive correction order for the latter offence – it does if a good behaviour order is imposed for the first offence – intensive correction order made for aggravated robbery
Legislation Cited:	Criminal Code Act 2002 (ACT), s 310 Crimes (Sentencing) Act 2005 (ACT), ss 11, 78, 80, 133B, 133C, 133D, 133G Crimes (Sentence Administration) Act 2005 (ACT), s 108(2)(a) Magistrates Court Act 1930 (ACT), s 90A
Cases Cited:	Azzopardi v The Queen [2011] VSCA 372; 35 VR 43 R v Goodge [2019] ACTSC 297
Parties:	The Queen (Crown) XXL (Offender)
Representation:	Counsel D Sahu Khan (Crown) R Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 57 of 2019 SCC 115 of 2019

MOSSOP J:

Reasons given on 16 October 2019

The offender, XXL, has pleaded guilty to a charge of burglary contrary to s 311 of the Criminal Code 2002 (ACT), committed on 28 June 2015 (CH2019/140). The offence carries a maximum penalty of 14 years’ imprisonment, 1400 penalty units or both. The proceedings in relation to this charge have been transferred to this court under s 90A of the Magistrates Court Act 1930 (ACT).

He has also pleaded guilty to a charge of aggravated robbery contrary to s 310 of the Criminal Code committed on 2 July 2019 (CC2018/14718). The maximum penalty for that offence is 25 years’ imprisonment, 2500 penalty units or both.

The plea of guilty to the charge of burglary puts him in breach of three good behaviour orders which were imposed on charges of possessing an offensive weapon with intent, destroying or damaging property not exceeding $5000 and common assault.

Facts

The Burglary

The facts in relation to the burglary were agreed. They were in summary as follows. The burglary occurred on 28 June 2015. The offender broke into the Trinity Christian School in Wanniassa. The alarm was activated at 1.25am and police attended and conducted a search of the school. They identified that someone had entered the electrical plant room and removed a circuit breaker from the switchboard. The point of entry was a double metal framed door with toughened glass panels. The door had been forced outwards causing one of the glass panels to break and the door handle was lying on the ground.

Next to a vending machine police located a pair of red handled scissors and a section of vacuum cleaner tube. There appeared to be blood on the pair 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 XXL

Details

AGLC: R v XXL [2019] ACTSC 294
Case: [2019] ACTSC 294
Decision Date: 13 December 2019

CaseChat Overview and Summary

The case before the court involved the respondent, referred to as XXL, who was convicted of aggravated robbery. Prior to this, XXL had been convicted of burglary when they were under 18 years old, for which they received a good behaviour order. The legal question before the court was whether the imposition of a good behaviour order for the first offence affected the availability of an intensive correction order for the subsequent aggravated robbery, in light of section 80 of the Crimes (Sentencing) Act 2005 (ACT). The court was required to determine if the earlier good behaviour order precluded XXL from being eligible for an intensive correction order for the later offence.

The court examined the legislative framework, focusing on the interplay between the good behaviour order imposed for the first offence and the potential for an intensive correction order for the later offence. It was noted that section 80 of the Act generally precludes the imposition of an intensive correction order if a good behaviour order has been imposed for an earlier offence. However, the court considered whether this legislative constraint applied in the specific context of an offender who had committed a later, more serious offence. The court found that the language of section 80 was not absolute and could be interpreted in a manner that allowed for the imposition of an intensive correction order in cases where the later offence was significantly more serious than the earlier one. The court reasoned that the imposition of an intensive correction order was appropriate in this case, given the seriousness of the aggravated robbery and the respondent's previous good behaviour order for a less serious offence.

In conclusion, the court determined that the imposition of a good behaviour order for the earlier offence did not categorically preclude XXL from being eligible for an intensive correction order for the aggravated robbery. The court found that the seriousness of the later offence warranted a different sentencing approach and that an intensive correction order was an appropriate response. The court made an order for an intensive correction order to be imposed on XXL for the offence of aggravated robbery.

Orders

Orders of the court

See [42] and [48]

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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