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I would like to take this opportunity to thank Armstrong Legal and specifically Mr Thomas Allen for representing me in my recent case. At the outset, I would like to thank Mr Allen for the very professional delivery of his legal service. From the first time that I met Mr Allen, I was very impressed with his demeanour and delivery as he made me feel at ease knowing the severity of my case. Mr Allen not only gave me the possible positive outcomes of the case but also the realisation of the worst-case scenario as far as sentencing goes. … I will certainly be recommending Armstrong Legal to any of my friends or family needing representation in criminal matters. Thank you so very much.
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I just wanted to thank you for representing me on Monday, I was overjoyed & relieved with the outcome. I don’t think it could have gone any better. All the best, I hope you got to celebrate this one instead after work, you forever made a difference in my life.
I know I thanked you before we parted company but please allow me to reiterate in writing my sincere deepest thanks for defending me in court today. … Armstrong Legal certainly has a great Lawyer you are a credit to the company and I'm quite sure you will secure a very successful future! … My Kindest Regards and Thanks
Throughout Angela has been the consummate professional. She maintained a calm, yet strong demeanour remained informative and completely open in her communication and took complete ownership of the situation. We felt confident we finally had an advocate to steer us out of the nightmare we were in, and she did so with great respect and sincerity. I cannot speak more highly of Angela. She has literally rescued our family from what looked very much like a hopeless future.
Words can’t describe how grateful I am to Trudie Cameron being my solicitor and to Andrew Tiedt presenting my case in the court. They both have been very supportive and amazingly professional and effective. I’ve got an absolutely fantastic outcome I couldn’t even dream about.
Soon after meeting Andrew I knew he was the solicitor I wanted to handle my matter. He immediately sprang into action which brought me stability and hope during a tumultuous time in my life. Andrew was never afraid to give me straight answers to my tough questions which is a true mark of integrity. He is clearly at ease in the court environment and I believe his calm and measured demeanour went a long way to helping me secure the best result from my day in court. I would certainly recommend you approach Andrew if you need assistance.
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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.
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.
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.
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