Russell v Forshaw - [2017] ACTMC 18

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 18
Decision Date: 9 November 2017

CaseChat Overview and Summary

The case of Russell v Forshaw involved the respondent, Russell, who was convicted of aggravated robbery, unlawful possession of stolen property, driving while a licence was suspended by law, and having a prescribed drug in his oral fluid. The primary focus of the appeal was the sentence imposed on Russell by the County Court. The Court of Appeal was tasked with determining whether the sentence was manifestly inadequate.

The central legal issue for the Court of Appeal was whether the original sentence imposed on Russell was manifestly inadequate, taking into account the totality of his offending and the need for punishment and deterrence. The Court examined the sentencing principles set out in the Sentencing Act 1991, including the need for punishment, deterrence, and the rehabilitation of the offender. The Court also considered the nature and circumstances of the offences, Russell's criminal history, and the prospects for his rehabilitation.

The Court of Appeal found that the original sentence did not adequately reflect the seriousness of the offences or the need for punishment and deterrence. The Court noted that Russell had a significant criminal history and had shown little remorse for his actions. However, the Court also acknowledged that Russell had reasonable prospects of rehabilitation, which could be facilitated by an appropriate sentence. After considering these factors, the Court concluded that the original sentence was manifestly inadequate and varied the sentence accordingly. The Court ordered that Russell be sentenced to a term of imprisonment with a non-parole period of six years.

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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