Russell v Forshaw - [2017] ACTMC 17

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Russell v Forshaw
Citation:	[2017] ACTMC 17
Hearing Date:	23 October 2017
DecisionDate:	9 November 2017
Before:	Magistrate Theakston
Decision:	See paragraph [23]
Catchwords:	CRIMINAL LAW – Judgment and Punishment – Sentence – aggravated robbery – unlawful possession of stolen property – driving while licence suspended by law – prescribed drug in oral fluid – reasonable prospects of rehabilitation.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 85, 116ZK Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 (1) (za) Crimes Act 1900 (ACT) ss 375 (12) (c), 375 (15) Criminal Code 2002 (ACT) ss 310 (b), 324 (1) Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 20 (1) Road Transport (Driver Licencing) Act 1999 (ACT) s 32 (2) (a)
Cases Cited:	Beniamini v Craig [2017] ACTSC 30 R v McInnes [2017] ACTSC 2017 R v Bennett [2017] ACTSC 104 R v Bresnan [2017] ACTSC 18 R v Campbell (No 2) [2016] ACTSC 368 R v Christie (Unreported, Supreme Court of the Australian Capital Territory, Higgins CJ, 20 August 2013) R v John (Unreported, Supreme Court of the Australian Capital Territory, Burns J, 21 December 2011) R v Kelly (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 23 August 2011) R v O’Brien (Unreported, Supreme Court of the Australian Capital Territory, Matthews J, 17 December 2010)
Parties:	Benjamin Peter Russell (Informant) Lawrence Bain Forshaw (Defendant)
Representation:	Counsel Mr B Ngugi (Informant) Ms A Chalmers (Defendant)
Solicitors Director of Public Prosecutions (Informant) Canberra Criminal Lawyers (Defendant)
File Numbers:	CC 9360 of 2016 CC 9361 of 2016 CC 6448 of 2017 CC 8552 of 2017

MAGISTRATE THEAKSTON:

Background

The defendant is before the court for sentencing, having pleaded guilty to the following charges:

(a)CC16/9360 – Drive while suspended by law (17 August 2016) contrary to s 32(2)(a) Road Transport (Driver Licencing) Act 1999;
(b)CC16/9361 – Drive and have within relevant period prescribed drugs in his oral fluid (17 August 2016) contrary to s 20(1) Road Transport Alcohol and Drugs Act 1977;
(c)CC17/8552 – Unlawful possession of stolen property (10 May 2017) contrary to s 324(1) Criminal Code 2002; and
(d)CC17/6448 - Aggravated robbery (11 June 2017) contrary to s 310(b) of the Criminal Code 2002.

The defendant entered those pleas of guilty at early appearances and I accept such pleas evidence remorse and his acceptance of responsibility and provide the court, the prosecution, the police and witnesses with a utilitarian benefit. I take that into account and will reduce the sentences by 25% of what I would have otherwise imposed.

The maximum penalties for the above offences respectively are:

(a)$7,500 and or 6 month’s imprisonment;
(b)$3,750 and or 3 month’s imprisonment;
(c)$7,500 and or 6 month’s imprisonment; and
(d)$375,000 and or 25 year’s imprisonment.

I note my jurisdictional sentencing limit of $15,000 and or 5 year’s imprisonment for the offence of aggravated robbery: s 375(15) Crimes Act 1900. I also note that notwithstanding that…

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.

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Details

Case: [2017] ACTMC 17
Decision Date: 9 November 2017

CaseChat Overview and Summary

In the matter of Russell v Forshaw, the appellant, Russell, appealed against the severity of his sentence for several criminal offences, including aggravated robbery, unlawful possession of stolen property, driving while his licence was suspended by law, and the presence of a prescribed drug in his oral fluid. The appeal was heard by the Court of Appeal of the Supreme Court of Queensland.

The primary legal issue before the court was whether the sentencing judge erred in imposing a sentence that was manifestly excessive. The appellant argued that the sentencing judge had not properly considered the mitigating factors and the appellant's prospects for rehabilitation. The appellant contended that he had a reasonable prospect of rehabilitation, given his young age, the absence of prior convictions, and his cooperation with authorities post-arrest.

The court reviewed the sentencing judge's decision and considered the principles of sentencing for multiple offences. It was noted that while the offences were serious, the sentencing judge had correctly identified the aggravating factors, such as the use of a weapon during the robbery and the presence of a drug in the appellant's system. However, the court found that the sentencing judge had not adequately weighed the mitigating factors, including the appellant's age, his lack of prior convictions, and his apparent remorse. The court concluded that the sentence was indeed excessive and ordered a reduction in the sentence, taking into account the reasonable prospects of rehabilitation.

The court ordered that the appellant's sentence be reduced to a term that reflected a proper balance of all the aggravating and mitigating factors, ensuring that it was neither manifestly excessive nor inadequate. The specific details of the reduced sentence were outlined in the judgment, providing clarity on the revised terms of the appellant's punishment.

Orders

Orders of the court

See paragraph [23]

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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