This article was written by Andrew Fraser - Senior Associate - Canberra

Andrew works in the areas of criminal law and traffic law, providing practical advice in all of his clients’ matters. Andrew has, over many years, developed positive working relationships with prosecutors, magistrates and judges. His no-nonsense approach means he has a reputation for putting forward the best case possible for clients. Andrew has won many matters for his clients, including...

R v EC; R v Kit; R v Sharp: Assessing Criminal Responsibility


In the early years of the 20th century, Australia’s first Chief Justice, Sir Samuel Griffith, said that the hardest task in the law was assigning the appropriate level of criminal responsibility to the infinite variety and complexity of matters that came before the courts. Since then, the task for sentencing judges has become ever more complex with more and more legislation specifying the factors and principles that must be taken into account when dealing with those who have pleaded guilty to, or been found guilty of, crimes.

R v EC; R v Kit; R v Sharp

The ACT Supreme Court decision of R v EC; R v Kit; R v Sharp handed down in July 2020 gave a glimpse of some of the complexities of assessing a defendant’s level of criminal responsibility. In that case, three people were sentenced by one judge in relation to the same incident. Of the three defendants sentenced together, one was an adult (22 years old) and two were children (both 17).

The facts were that the adult had recruited the juveniles as well as another adult and together, the four of them barged into someone’s home. The adult offender had a machete, which he swung as well as pushing an occupant’s head through a glass panel. The other man had a gun and discharged it in the home, wounding a pit bull terrier. One of the juvenile offenders did not enter the house but was found to have been aware of the potential for violence. The second child did not even get out of the car.

What charges were laid?

All the offenders were charged with different offences to reflect their different levels of culpability.

The adult was charged with aggravated burglary, for which the maximum penalty is 20 years’ imprisonment. The juvenile who was aware of the potential for violence in the offending was charged with being “knowingly concerned” in an aggravated burglary, for which the maximum penalty is 20 years, just the same as for the principal offence. The juvenile who did not get out of the car was charged with aiding and abetting an aggravated burglary. The maximum penalty for this offence is the same as for a principal offender: 20 years. The adult offender was also charged with assault occasioning actual bodily harm, for which the maximum penalty is imprisonment for five years.

Principles enlivened

The case raised a legal issue known as ‘parity’. This is the principle that like cases should be treated alike. However, in this case, the court was also faced with the difficulty of sentencing an adult together with juveniles. This added another mandated consideration: rehabilitation had to receive greater weight in respect of the children.

Justice Burns’ findings

While the maximum penalty was the same for each of the three defendants charged together, Justice John Burns found varying levels of criminal responsibility for each of them. Unsurprisingly, the adult who entered the home with the machete (and in the company of the other man who discharged the firearm) and caused injury received the more severe sentence as he bore the highest level of criminal responsibility.

Justice Burns said, “It is accepted that there are legitimate reasons to distinguish between the roles played by each of you in this offence.” His Honour found that the adult had been “intimately involved” in the planning and execution of what had been “a serious example of this type of offending.”

The criminal acts and the role each person played individually is just one matter for consideration on sentence. The subjective features of each offender also have to be taken into account: these are the three perpetrators’ personal characteristics, particularly including any criminal histories. The adult and the child who was in the yard had criminal histories. The boy who stayed in the car did not.

The adult received a very significant discount on his sentence (40 per cent) for a reason that was redacted in the published judgment. The judgment did note, however, that police had confirmed that he had previously been, and was no longer, a member of an outlaw motorcycle gang.

Pre-Sentence Reports were prepared to assist the court. References were also tendered for each of the defendants. All of these things had to be considered by Justice Burns as well as the seven “purposes of sentencing” and the 27 “relevant considerations” spelt out in the Crimes (Sentencing) Act 2005.

On top of this came an issue of cumulation for the adult between the sentences imposed on him for the aggravated burglary and the assault occasioning actual bodily harm. Cumulation means that a judge can order some of the different sentences to be served at the same time, meaning the total time to be served in prison is shorter.

Two of the three defendants in this matter had been held in custody for some time since the offending. This was another factor that the Judge had to measure in arriving at the appropriate sentence.

Penalties imposed

The adult was sentenced to imprisonment for three years and nine months for the burglary and nine months for the assault (five months of which was made concurrent with the burglary sentence). Because he was already serving another prison sentence, Justice Burns had to turn his mind to a further consideration: establishing a new non-parole period. This he did, extending the existing release date by 14 months.

The child in the yard was released at the time of the decision, his sentence of two years and five months being suspended from that date. He had spent nine months in custody on remand for this offending and a longer period in relation to other offending.

The child who stayed in the car received a wholly suspended jail sentence. He had spent no time in custody, being the only one granted bail while the proceedings worked their way through court.

Sentences are often appealed by defendants, and, less frequently, by the Prosecution on grounds of manifest excess or inadequacy respectively. A whole other range of considerations come into play in appeal courts.

As the above case shows, the complexity of criminal matters can be great. If you are charged with a criminal offence, you should seek specialist advice. The team at Armstrong Legal in Canberra deal exclusively with criminal and traffic law matters.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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