Turner v Raiser
[2021] ACTSC 21
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Turner v Raiser |
Citation: | [2021] ACTSC 21 |
Hearing Date: | 1 February 2021 |
DecisionDate: | 18 February 2021 |
Before: | Burns J |
Decision: | See [33]–[34] |
Catchwords: | APPEAL – Magistrates Court Appeal – appeal against sentence – whether Magistrate erred in imposing non-association orders – consideration of s 23 of the Crimes (Sentencing) Act 2005 (ACT) – consideration of Robb v Uren [2019] ACTSC 312 |
Legislation Cited: | Crimes Act 1900 (ACT) s 35A |
Cases Cited: | Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 |
Parties: | Jaymie Leam Turner (Appellant) Daniel Raiser (Respondent) |
Representation: | Counsel Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) |
| Solicitors P Bevan (Appellant) N Deakes (Respondent) | |
File Number: | SCA 49 of 2020 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 16 September 2020 Case Title: The Police v Jaymie Leam Turner Court File Numbers: CC 8666 of 2020; CC 8668 of 2020 |
BURNS J:
This is an appeal from a decision of a Magistrate to impose non-association orders when sentencing the appellant for offences of affray and making a threat to kill. The offences were committed on 19 July 2020 and the appellant was sentenced on
16 September 2020 after entering pleas of guilty. The appellant had been convicted of an earlier offence of affray in the ACT Magistrates Court on 24 February 2020, the offence having occurred on 18 January 2019. He was placed on a Good Behaviour Order for a period of 18 months for that earlier offence.
An Agreed Statement of Facts tendered in the ACT Magistrates Court stated the basis for the charges:
About 12:05am on Sunday 19 July 2020, a fight occurred at Kokomo’s, located at 1 Genge Street, Canberra City, in the Australian Capital Territory (ACT). The fight involved numerous Outlaw Motorcycle Gang (OMCG) members from the Comanchero Motorcycle Club.
Police arrived a short time later and observed multiple persons with serious injuries requiring medical attention. Police organised medical assistance from ACT Ambulance Service (ACTAS).
Whilst Police were waiting for ACTAS to arrive a cordon was setup around the injured OMCG members and Police attempted to control the other OMCG members that were highly agitated at the location.
One of the members was identified as the defendant.
The defendant was extremely agitated and aggressive towards Police and all other members of the public present.
The defendant attempted to walk past the Police cordon but was stopped by Police. The defendant repeatedly pointed his finger and hand into the face of Police and screamed; “I’ll fucking break your nose cunt!”, at a close distance.
Police attempted to deescalate the defendant by talking with him calmly and asking him to stay back so that medical assistance could be provided to the injured parties.
At one stage Police had to place a hand on the chest of the defendant to prevent him entering the cordon and tell him to stay back. The defendant screamed; “Don’t touch me! I’ll fucking knock you out!”, before swinging his right arm and hand towards Police and pushing one Police Officer in the chest.
Police again tried to deescalate the situation given the serious circumstances of the injured parties and told the defendant to stay back.
About 12:25am, Police were still maintaining the cordon when a member of the public called out to the defendant.
The defendant yelled; “Shut the fuck up cunt!”, and ran towards the member of the public at speed. On reaching the member of the public, the defendant swung his right fist and struck the member of the public in the face while yelling; “Shut the fuck up cunt!” again.
Police took hold of the defendant and took him to the ground and placed him under arrest. While he was on the ground being arrested by two police officers, several other police officers stood nearby. The defendant yelled several times “My mate’s on the ground dying over there.” He also said to police “you just knocked me out.”
Police were unable to identify the member of the public who was struck by the defendant.
A short time later the defendant was searched and conveyed to the ACT Watch House where he was lodged. Mr Turner was assessed by a nurse at the ACT Watch House.
While at the ACT Watch House the defendant’s identity was confirmed using his ACT Driver’s licence number [redacted]. Police are satisfied that the colour image matched that of the defendant.
About 4:00am on Sunday 19 July 2020, Detective Acting Sergeant Daniel VICKERS (D/A/Sgt VICKERS), Senior Constables Andrew HULL and Ryan FUDERER, and Constable Victoria JONES attended cell 21 to speak with the defendant.
The defendant asked if his friend had died as a result of an incident earlier in the evening. D/A/Sgt VICKERS advised his friend had died. The defendant became upset, arose with clenched fists from the bed and appeared aggressive. Police closed the door to the cell and the defendant demanded to know why he could not be granted Watch House Bail.
D/A/Sgt VICKERS told him it was not possible due to the breach of his GBO. The defendant smashed both palms into the window of the cell door and yelled at D/A/Sgt VICKERS words to the effect of;
Fucken dog! I’m going to find your kids and your partner and I’m going to fuck them all up. I’m gonna wait outside the station and watch where you live, and I will fucken shoot you. Fuck you. You have no idea what’s going to happen to you cunt, no idea, fuck you, fuck you, you think I give a fuck.
At a sentence hearing before the Magistrate, the informant sought an order under the provisions of Part 3.4 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The Magistrate received evidence from a police officer attached to the
Criminal Investigations Gangs Taskforce about the activities of
Outlaw Motorcycle Gangs (OMCG) and their involvement in criminal activities. She testified that the Comanchero Outlaw Motorcycle Gang (the Comancheros) is a recognised OMCG and that the appellant is believed to be associated with the Comancheros as a “nominee”. A nominee is someone who is not yet a full member of an OMCG, but is being sponsored for membership by a full member. The officer testified that the appellant had told her that he was at a residence on 19 July 2020 when he received a telephone call from a member of the Comancheros, who I will identify by the initials TG. TG was distressed and “demanding that [the appellant] attend the location of where they were”. The appellant drove to the city and went to the location where the offence occurred. The officer testified that two other persons associated with the Comancheros were also contacted “and their attendance were (sic) requested”. There was no evidence that the appellant was aware of any request for the two individuals to attend the location of Kokomo’s.
The non-association order sought by the informant related to a substantial list of persons said to be members of or associated with the Comancheros. That became Exhibit H in the proceeding. A total of 29 names appear on the list. In cross-examination the officer agreed that prior to his arrest, the appellant had worked at a construction firm “owned by – and operated by – a Comanchero commander and associate”.
The Magistrate made the following orders:
(a)In relation to the charge of making a threat to kill (CC 2020/8868), the appellant was convicted and sentenced to six months’ imprisonment, commencing on 19 July 2020. He ordered the release of the appellant after four months with a Good Behaviour Order for a period of 12 months. He further ordered that the appellant not associate with any Outlaw Motorcycle Gang member, including those persons whose names were listed in Exhibit H, for a period of nine months.
(b)In relation to the charge of affray (CC 2020/8666), the appellant was convicted and sentenced to two months’ imprisonment cumulative upon the sentence imposed for the offence of making a threat to kill “and fully suspended with a Good Behaviour Order in the same terms and commencing on the same date” as that imposed on the charge of making a threat to kill.
At the time of sentencing the appellant, the Magistrate said, regarding the application for a non-association order:
[I]t is clear to me that because of the previous offending in relation to affray and the evidence which is before me in relation to the defendant’s ongoing and frequent association with the relevant club that an order would serve the purpose of preventing the offender from committing further offences and also assist the offender to manage things that may make the offender more likely to commit further offences. They are relevant considerations at s 23(1)(b)(ii) and (iii).
Of course, I am required to be satisfied that it is necessary and reasonable to make the orders requested. What is also clear is it is a relevant offence because it is an offence of personal violence. I note the comments in Robb v Uren [2019] ACTSC 312. The comments are by his Honour Burns J at paragraph 23 and that he reads the word ‘reasonable’ in that context and in light of the Human Rights Act 2004, to require that there is a demonstrable and substantial connection between the particular offence for which the offender is being punished and the making of and the terms of any non-association order.
Now, there is strength in the submission by Mr Bevan that the defendant at the time of the offending here, particularly when on the street, was not associating with any members of the outlaw motorcycle gang at the time, but it is clear from the evidence that he attended at the request of a member and due to his relationships with that club and with the members of that club and but for his affiliation with that club, he simply wouldn’t be there and he certainly would not have acted in the way he did.
In those circumstances, I am satisfied there is a demonstrable and substantial connection between the offending, namely, the affray offence for which the offender is being punished, and the non-association order that has been requested, and so for those reasons I will make an order in the terms that are requested and I incorporate the names listed in Exhibit H.
Although it is not clear from the orders pronounced by the Magistrate, the perfected orders of the ACT Magistrates Court show that the Magistrate made non-association orders in the same terms with regard to each offence.
In the present appeal the appellant asserts in the Amended Notice of Appeal that the Magistrate fell into error in making the non-association orders. The grounds of appeal relied upon by the appellant are:
(a)Ground 1 – there was not a demonstrable and substantial connection between the threat to kill offence and the making of, and the terms of, the non-association order.
(b)Ground 2 – it was not reasonable or necessary to make the non-association orders.
(c)Ground 3 – his Honour erred in making a non-association order for the affray offence as it was not a “relevant offence”.
Legislation
The following provisions of the Sentencing Act are relevant:
Part 3.4 Non-association and place restriction orders
21 Definitions—pt 3.4
In this Act:
non-association order means an order prohibiting an offender from —
(a)being with a named person, or attempting to be with the person; or
(b)being with a named person or communicating in any way (including electronically) with the person, or attempting to be with the person or to communicate in any way (including electronically) with the person.
place restriction order means an order prohibiting an offender from being in, or within a stated distance of, a named place or area or attempting to be in, or within the stated distance, of the place or area.
22 Application—pt 3.4
This part applies if a court makes any of the following orders for an offender in relation to an offence:
(a) an intensive correction order;
(b) a drug and alcohol treatment order;
(c) a good behaviour order.
23 Non-association and place restriction orders—when may be made
(1)The court may make a non-association order or place restriction order for the offender if—
(a) the offence is a relevant offence; and
(b) the court is satisfied that it is necessary and reasonable to make the order for 1 or more of the following purposes:
(i) preventing the offender from harassing anyone or endangering the safety or welfare of anyone;
(ii) preventing the offender from committing further offences (including a relevant offence);
(iii) assisting the offender to manage things that may make the offender more likely to commit further offences (including a relevant offence) if not managed.
Note See s 133I for an additional consideration that applies in sentencing a
young offender.
(2) The restriction imposed on the offender by a non-association order or place restriction order, and the period of the order, must not be unreasonably disproportionate to the purpose for which the order is made.
(3) To remove any doubt, this section is additional to the court’s other powers under this Act or any other territory law.
(4) In this section:
harm—see the Criminal Code, dictionary.
personal violence offence means—
(a)an offence that involves causing harm, or threatening to cause harm, to anyone; or
(b)a family violence offence.
relevant offence means—
(a)an offence against the Criminal Code, part 4.1 (Property damage offences) that is punishable by imprisonment for 5 years or more; or
(b)an offence against the Criminal Code, chapter 6 (Serious drug offences); or
(c)an offence against the Criminal Code, chapter 7 (Administration of justice offences) that is punishable by imprisonment for 5 years or more; or
(d)an offence against the Firearms Act 1996 that is punishable by imprisonment for 20 years or more; or
(e)an offence against the Crimes Act 1900, section 114B (Money laundering); or
(f)a personal violence offence; or
(g)an offence prescribed by regulation.
Note A reference to an offence includes a reference to a related ancillary offence, eg attempt and conspiracy (see Legislation Act, s 189).
24 Non-association and place restriction orders—maximum period
(1)A non-association order or place restriction order—
(a) must be for a period not longer than—
(i) if the order is made with an intensive correction order or a drug and alcohol treatment order—24 months; or
(ii) in any other case—12 months; and
(b) must state when it starts and the period for which it operates.
(2)To remove any doubt, the period of a non-association order or place restriction order is not limited by the term of any other sentence imposed for the offence for which the order is made.
Example
Sean is convicted of an offence. The court decides that the appropriate penalty is 6 months imprisonment served by intensive correction and a place restriction order.
The place restriction order may be for longer than 6 months (but not longer than 24 months).
The term “harm” for the purpose of s 23 is defined in the Dictionary to the
Criminal Code 2002(ACT):
harm means—
(a) physical harm to a person, including unconsciousness, pain, disfigurement, infection with a disease and any physical contact with the person that a person might reasonably object to in the circumstances (whether or not the person was aware of it at the time); and
(b) harm to a person’s mental health, including psychological harm, but not including mere ordinary emotional reactions (for example, distress, grief, fear or anger);
whether temporary or permanent, but does not include being subjected to any force or impact that is within the limits of what is acceptable as incidental to social interaction or to life in the community.
The decision in Robb v Uren
In the course of giving his Honour’s reasons for making the non-association orders, the Magistrate referred to my decision in Robb v Uren [2019] ACTSC 312 (Robb v Uren). Both the appellant and the respondent referred to that decision in their submissions. It is appropriate to briefly touch upon that decision.
The appellant, Robb, entered a plea of guilty in the ACT Magistrates Court to committing an offence of assault occasioning actual bodily harm jointly with a man named Katoa. Both Robb and Katoa were members of the Comancheros. The offence occurred at the Hellenic Club in Phillip when Robb and Katoa were present with their families for a social occasion. The incident which resulted in the offence of
assault occasioning actual bodily harm had no connection to Robb and Katoa’s membership of the Comancheros. It arose out of an argument concerning the conduct of a female who was with the offenders. Both Robb and Katoa were charged. In sentence proceedings for the offender Katoa, the prosecution did not seek a
non-association order and none was made. In sentencing the offender Robb, a different Magistrate of his Honour’s own motion requested that the prosecution provide him with a list of names of those known to be members of the Comancheros. His Honour then proceeded to make a non-association order.
On appeal it was submitted that there was an insufficient connection between offending and Robb’s membership of the Comancheros to justify making the order. The terms of s 22 of the Sentencing Act have subsequently been amended to add “a drug and alcohol treatment order” to the list of orders that may incorporate a non-association order, but that aside, the relevant provisions remain the same. With regard to those provisions, I said, at [18]-[25]:
18. The statutory preconditions to the making of a non-association order in relation to an offence are:
(a) the court must make an Intensive Correction Order or a Good Behaviour Order;
(b) the offence must be a relevant offence;
(c) the court is satisfied that it is necessary and reasonable to make the order for one or more of the purposes set out in s 23(1)(b).
19. The purpose for which an order can be made, as set out in s 23(1)(b), are expressed in particularly broad language. A literal reading of s 23(1) would give to a court a wide discretion to make a non-association order for a relevant offence so long as the court was satisfied that it was “necessary and reasonable” to make the order for one of the purposes set out in s 23(1)(b). In particular, the section does not in its terms, require any connection be demonstrated between the circumstances of the offence and the decision to make the order, or the terms of the order. The further limit on the making of a non-association order found in s 23(2) is that the restriction imposed by the order must not be “unreasonably disproportionate” to the purpose for which the order was made.
20. It may reasonably be inferred that the purpose of the order was to prevent further offending, and to help the appellant manage his association with the Comanchero OMCG, which was likely to lead to further offending if not managed.
21. Unlike a number of other jurisdictions, the ACT does not have consorting laws. In fact, s 15(2) of the Human Rights Act 2004 (ACT) (HRA) guarantees the right to freedom of association. This guarantee is subject “only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society”: s 28(1) HRA.
22. So far as possible to do so consistently with its purpose, a Territory law (such as the relevant provisions of the Sentencing Act) must be interpreted in a way that is compatible with human rights: s 30 HRA. The effect of s 30 of the HRA is to enjoin the courts to interpret the provisions of s 23 of the Sentencing Act in such a way as to achieve consistency with the right to freedom of association to the extent that it is possible to do so. This, in turn, means that whether it is “necessary and reasonable” to make an order, and in determining whether the order is not “unreasonably disproportionate” to the purpose for which the order was made, a judicial officer must take into account the necessity to interpret s 23 of the Sentencing Act in such a way as to preserve the right of freedom of association. In other words, the apparently broad discretion given by s 23 to make an order is narrowed by the necessity to interpret the provision consistently with the right to freedom of association guaranteed by the HRA.
23. In most cases this will mean that there will need to be a demonstrable and substantial connection between the particular offence for which the offender is being punished and the making of, and terms of, any non-association order. Without such connection, the making of an order could not be reasonable or necessary, bearing in mind the provisions of the HRA.
24. In the present case it was not alleged that the appellant was engaged in any activity connected to his membership of the Comanchero OMCG at the time he committed this offence. It was not alleged that the appellant and Katoa were wearing clothing which identified them as members of Comanchero OMCG. The appellant and Katoa were at the club with family, and not with regard to any event associated with the Comanchero OMCG.
25. It is true that both the appellant and Katoa were members of the Comanchero OMCG. In that narrow sense it may be said that there was a connection between the offence and the appellant’s association with the Comanchero OMCG, but that connection is tenuous; it certainly cannot be described as causal. There was no evidence that the appellant and Katoa had jointly participated in other criminal offending, and the circumstance of the present offence establish that it was spontaneous and situational.
In Robb v Uren I identified the tension between the provisions of Part 3.4 of the Sentencing Act and the guarantee of freedom of association provided by the
Human Rights Act 2004(ACT) (the HRA). I resolved that tension by reading the requirement that a proposed non-association order be “necessary and reasonable” as requiring that a “demonstrable and substantial connection” be established between the relevant offence and the proposed order.
The appellant’s submissions
The appellant submitted that a non-association order can only be made if an offender commits a “relevant offence”: s 23(1)(a). He submitted that the offence of affray is not a relevant offence as identified in paragraphs (a) to (e) of the definition of that term in s 23, it is not an offence prescribed by regulation for paragraph (g) and it is not a “personal violence offence” for paragraph (f) of the definition. The appellant referred to s 35A(1) of the Crimes Act 1900 (ACT) which sets out the elements of the offence of affray (relevantly for present purposes), as follows:
(1)A person commits an offence if –
(a) the person engages in conduct; and
(b) the conduct is violence or the threat of violence; and
(c) the violence or threat is directed towards someone else; and
(d) the violence or threat would be likely to cause a reasonable person to fear for his or her safety.
The appellant submitted that affray is not a relevant offence for the purpose of s 23 of the Sentencing Act because it is not a “personal violence offence”: see s 23(4)(f). It is not such an offence, he submitted, because it is not an offence which has an element of causing harm or threatening to cause harm to anyone.
The second submission advanced by the appellant was that there was no sufficient connection between the facts relied upon by the prosecution for the offence of making a threat to kill and the appellant’s association with the Comancheros to justify the making of the non-association order. In addition, the appellant submitted that the Magistrate had given no reasons for making a non-association order in sentencing for the offence of making a threat to kill. The appellant accepted that the offence of making a threat to kill is a personal violence offence and thus a relevant offence for the purpose of s 23. His submission, however, is that the threats he made at the police station were not made in the context of any activity connected to the Comancheros but in the context of personal grief over the death of a friend. The appellant submitted that the non-association order made by the Magistrate infringed his right to freedom of association guaranteed by s 15(2) of the HRA.
The respondent’s submissions
The respondent submitted that before I can interfere with the order made by the Magistrate, I must be satisfied that the Magistrate made an error of fact or law, took into account irrelevant material or failed to take into account relevant material, or that the sentence imposed by the Magistrate was manifestly excessive, unreasonable, plainly unjust or wrong: Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151.
With regard to the offence of affray, the respondent submitted it was a
“personal violence offence” for the purpose of s 23 of the Sentencing Act because it is an element of the offence, as set out in s 35A of the Crimes Act, that an accused person engaged in violent conduct or made threats of violence towards another. Thus, the respondent submitted, it is “apparent that the offence of affray is a violent offence against a person”.
The respondent submitted that the evidence before the Magistrate was sufficient to allow the Magistrate to make the non-association orders. The respondent submitted that the evidence established that the appellant’s presence at the scene of the offences, which was also the scene of gang-related violence, was demanded by a fully-fledged member of the Comancheros. The respondent submitted that “but for” his association with the Comancheros the appellant would not have been at the scene and would not have committed the offence.
The respondent further submitted that membership of or association with an OMCG is a fact relevant to assessing an offender’s character and prospects for rehabilitation, citing R v Pishdari [2018] SASCFC 94; 274 A Crim R 91, [21]-[25]. The Magistrate was therefore entitled to make the order consistent with the objects of making an order as set out in s 23(1)(b).
The present case could be distinguished from that in Robb v Uren, the respondent submitted, because the facts in Robb v Uren showed that the co-offenders, who were both members of the Comancheros, had attended the venue where the offence took place with their families for a social occasion entirely unconnected with their membership of the Comancheros.
Consideration
As I observed in Robb v Uren, the Comancheros OMCG is not a proscribed organisation in the Australian Capital Territory. It is lawful for anyone to join the organisation or to associate with its members. Freedom of association is guaranteed by s 15(2) of the HRA and is “subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society”: s 28(1) HRA. Courts are obliged to interpret ACT legislation in a way which is compatible with human rights so far as it is possible to do so consistent with the purpose of the legislation: s 30 HRA. The principles which I expressed in Robb v Uren were not challenged in the present appeal.
The appellant’s submission that the offence of affray is not a relevant offence for
s 23(1)(a) of the Sentencing Act because it is not a personal violence offence as defined in that provision, is misguided. It assumes an unnecessarily restrictive approach to the first limb of the definition of “personal violence offence” in s 23(4). Whether an offence is one that involves causing harm or threatening to cause harm to another is not determined simply by considering the elements of the offence as they appear in the legislation. What is required is a consideration of the proven acts of the offender in committing the offence and a determination whether those acts establish that the offence committed by the offender is one that involves causing harm or threatening to cause harm to someone. In other words, the word “offence” in the first limb of the definition of personal violence offence in s 23(4) is not directed to the elements of the offence, but to the circumstances of the offence. There is no good reason to restrict the operation of s 23 in the way suggested by the appellant, considering the stated objectives of the provision.
The remaining grounds of appeal are directed towards sufficiency of the facts in the proceeding before the Magistrate to justify the making of the non-association orders. It is necessary to consider the facts of each charge separately.
With regard to the charge of affray, the Magistrate was entitled to find on the evidence before his Honour that the appellant had attended the scene of that offence because he was directed or requested to do so by a member of the Comancheros. His conduct at the scene, abusing and fighting with other members of the public, does not support the suggestion that his attendance was because of personal concern for a friend. The appellant did not give evidence in the proceeding before the Magistrate, so that it was not possible for the Magistrate to determine the nature of the relationship between the appellant and those members of the Comancheros who were injured in the violence on 19 July 2020. The Magistrate was entitled to infer that the reason for the appellant’s attendance at the scene and his subsequent conduct at the scene was directly linked to his association with the Comancheros. In other words, it was because of his affiliation with the Comancheros rather than for some other reason.
In determining to make a non-association order for the offence of affray, the Magistrate took into account the circumstances of the offence of affray that the appellant committed on 18 January 2019. The prosecution’s Statement of Facts for that offence revealed that the appellant was involved in inter-gang violence at the
Southern Cross Club in Woden when members and associates of the Comancheros, including the appellant, confronted members of the Nomads OMCG. The Magistrate was entitled to view the offence of affray which occurred on 19 July 2020 as a further instance of the appellant becoming involved in violence because of his association with the Comancheros. The Magistrate was entitled to find that there was, adopting the language I employed in Robb v Uren, a “demonstrable and substantial connection” between the affray offence and the appellant’s association with the Comancheros. It was further open to the Magistrate to determine that it was necessary and reasonable to make the order to prevent the appellant from committing further offences and to assist the appellant in managing his relationship with the Comancheros, which if not managed, increased the risk of him re-offending.
For these reasons the appeal should be dismissed as regards the order made by the Magistrate on the offence of affray.
Turning to the offence of making a threat to kill, the appellant submitted that the Magistrate gave no reasons for making a non-association order on that offence and that the facts before the Magistrate were insufficient to justify the making of the order.
It is true that in giving his Honour’s reasons for making the non-association orders the Magistrate did not specifically refer by name to the offence of making a threat to kill. As the perfected orders of the ACT Magistrates Court make it clear that the Magistrate imposed non-association orders on each offence, it is reasonable to infer that his Honour’s reasons related to both offences. I would not overturn the Magistrate’s decision on this ground.
Of more substance is the submission that the evidence before the Magistrate did not justify the making of the order; in other words, that there was no sufficient connection between the offence and the order as to make it necessary and reasonable to make the order. At the time he committed the offence of making a threat to kill, the appellant was in police custody, having been arrested for the offence of affray. There was no evidence of any connection between the appellant’s conduct in custody and his association with the Comancheros. The Magistrate appears to have adopted a form of “but for” test: but for his association with the Comancheros, the appellant would not have been in custody and would not have committed the offence. The respondent supported this approach in the present appeal. The adoption of a but for test runs the risk of encouraging the identification of an almost endless line of preceding events as causative of or connected with the relevant offending. But for the fact that both Robb and Katoa were both associated with the Comancheros they probably would not have been dining together at the Hellenic Club, but as I said in Robb v Uren this connection is too tenuous to justify the making of a non-association order. The connection was simply too remote from the offending behaviour to justify the making of a
non-association order.
In my opinion the conduct of the appellant in the threat to kill offence has no sufficient connection to the non-association order sought by the prosecution as to make it necessary and reasonable to make the order to achieve one of the purposes set out in s 23(1)(b) of the Sentencing Act. The appeal should be allowed with regard to the
non-association order imposed for the offence of making a threat to kill.
Orders
On the charge of affray (CC 2020/8666) the appeal is dismissed.
On the charge of making a threat to kill (CC 2020/8668) the appeal is allowed and the order of the Magistrate imposing a non-association order for that offence is set aside.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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