The Queen v Cockburn (No 3) - [2016] ACTSC 18

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	The Queen v Cockburn (No 3)
Citation:	[2016] ACTSC 18
Hearing Dates:	14 and 20 October 2015
DecisionDate:	2 February 2016
Before:	Refshauge J
Decision:	1. Joseph Cockburn be convicted of demanding money with menaces. 2. Joseph Cockburn be sentenced to two years imprisonment to commence on 21 May 2015. 3. Joseph Cockburn be convicted of taking a motor vehicle dishonestly without consent. 4. Joseph Cockburn be sentenced to 15 months imprisonment to commence on 21 June 2016, so as to be cumulative as to four months on the sentence for demanding money with menaces. 5. Joseph Cockburn be convicted of common assault. 6. Joseph Cockburn be sentenced to nine months imprisonment to commence on 21 February 2017, so as to be cumulative as to two months on the sentence for taking a motor vehicle dishonestly without consent. 7. That is a total of two years and six months imprisonment. 8. The sentence be suspended today, 2 February 2016. 9. Joseph Cockburn be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him deems appropriate and that you obey all reasonable directions of the person supervising him.
Catchwords:	CRIMINAL LAW – Jurisdiction, practice and procedure – judgment and punishment – sentencing – demanding money with menaces – taking a motor vehicle dishonestly without consent – common assault – Deferred Sentence Order – completion of rehabilitation – sentence suspended – Good Behaviour Order
Legislation Cited:	Crimes Act 1900 (ACT), ss 26, 32(2) Crimes (Sentence Administration) Act 2005 (ACT), s 7 Crimes (Sentencing) Act 2005 (ACT), ss 27, 33 Road Traffic (Driver Licensing) Act 1999 (ACT), s 32 Road Transport (Vehicle Registration) Act 1999 (ACT), s 22 Criminal Code 2002 (ACT), ss 308, 318(1), 318(2), 321, 403
Cases Cited:	Markarian v The Queen (2005) 228 CLR 357 R v Campbell [2010] ACTCA 20 R v Cockburn [2015] ACTSC 297 R v Cockburn (No 2) [2015] ACTSC 337 R v Kristiansen [2015] ACTSC 159
Parties:	The Queen (Crown) Joseph Cockburn (Defendant)
Representation:	Counsel Ms P Burgoyne-Scutts (Crown) Mr P Bevan (Defendant)
Solicitors ACT Director of Public Prosecutions (Crown) J Bevan & Co Lawyers & Conveyancers (Defendant)
File Number(s):	SCC 212 of 2014 SCC 213 of 2014

REFSHAUGE J:

On 14 September 2015, I released Joseph Cockburn on bail to attend the Karralika Therapeutic Community, a drug and alcohol rehabilitation agency. I have described that agency and its work in R v Kristiansen [2015] ACTSC 159 at [12]-[14]; see R v Cockburn [2015] ACTSC 297. He responded well and I received a positive report when he returned to court for sentencing on 14 October 2015. As a result, I made a Deferred Sentence Order under s…

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: [2016] ACTSC 18
Decision Date: 2 February 2016

CaseChat Overview and Summary

The defendant, Joseph Cockburn, was charged with demanding money with menaces, taking a motor vehicle dishonestly without consent, and common assault. The case was heard in the Magistrates Court of the Australian Capital Territory. Cockburn was convicted on all counts and the court was tasked with determining the appropriate sentences for each offence.

The court had to decide on the appropriate sentencing for each of the charges. The legal issues included the severity of the offences, the need for deterrence, the potential for rehabilitation, and the cumulative effect of the sentences. The court also considered the impact of a Deferred Sentence Order on the defendant’s rehabilitation and the likelihood of reoffending.

The court found that the offences were serious but acknowledged the potential for rehabilitation. The sentences were structured to be cumulative, with the longest sentence to commence on the earliest date. The court suspended the sentence and ordered that it be subject to completion of rehabilitation and good behaviour for two years. The defendant was also required to sign an undertaking to comply with good behaviour obligations and to be under supervision for two years.

The court ordered that Joseph Cockburn be convicted of demanding money with menaces and sentenced to two years imprisonment, to commence on 21 May 2015. He was also convicted of taking a motor vehicle dishonestly without consent and sentenced to 15 months imprisonment, to commence on 21 June 2016. For common assault, he was convicted and sentenced to nine months imprisonment, to commence on 21 February 2017. The total sentence was two years and six months imprisonment, suspended subject to the conditions outlined.

Orders

Orders of the court

1. Joseph Cockburn be convicted of demanding money with menaces.

2. Joseph Cockburn be sentenced to two years imprisonment to commence on 21 May 2015.

3. Joseph Cockburn be convicted of taking a motor vehicle dishonestly without consent.

4. Joseph Cockburn be sentenced to 15 months imprisonment to commence on 21 June 2016, so as to be cumulative as to four months on the sentence for demanding money with menaces.

5. Joseph Cockburn be convicted of common assault.

6. Joseph Cockburn be sentenced to nine months imprisonment to commence on 21 February 2017, so as to be cumulative as to two months on the sentence for taking a motor vehicle dishonestly without consent.

7. That is a total of two years and six months imprisonment.

8. The sentence be suspended today, 2 February 2016.

9. Joseph Cockburn be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with a probation condition that he be under the supervision of the Director-General or her delegate for two years or such lesser period as the person supervising him deems appropriate and that you obey all reasonable directions of the person supervising him.

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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