AB v Forbes - [2018] ACTSC 134

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	AB v Forbes
Citation:	[2018] ACTSC 134
Hearing Date:	18 May 2018
DecisionDate:	18 May 2018
Before:	Elkaim J
Decision:	See [22]
Catchwords:	APPEAL – GENERAL PRINCIPLES – Appeal against sentence – whether the sentences imposed were manifestly excessive
Cases Cited:	McElholum v Hughes [2016] ACTCA 37 Ngatamariki v The Queen [2016] NSWCCA 155 Peverill v Crampton [2010] ACTSC 79 R v Skura [2004] VSCA 53 R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; 169 A Crim R 581
Parties:	AB (Appellant) Penelope Forbes (Respondent)
Representation:	Counsel Ms L Bewsher (Appellant) Mr T Hickey (Respondent)
Solicitors George Sten & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 5 of 2018
Decision under appeal:	Court: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 23 January 2018 Case Title: Director of Public Prosecutions v [AB] Court File Number: CC 11049 of 2016

ELKAIM J:

This is an appeal from a sentence imposed in the Magistrates Court on 23 January 2018. The appellant was sentenced as follows:

CC 16/11049 (Stalking) – Convicted and sentenced to 15 months’ imprisonment to be released after serving 6 months upon entering into a Good Behaviour Order for a period of 18 months
CC 17/11105 (Contravene Family Violence Order) – convicted and sentenced to 3 months’ imprisonment

The effect of the sentences is that the appellant was required to be in fulltime imprisonment for six months, up to 22 July 2018. On 7 March 2018, he was granted bail by Burns J, so that he has served one month and 13 days of his sentence.

In this appeal, the appellant complains that the sentence was manifestly excessive and that not enough weight was given to his background, his prospects of rehabilitation and to a psychologist’s report.

The notice of appeal indicated that an application would be made to rely upon fresh evidence. This application was made but only on the basis that the fresh evidence (a psychologist’s report) would only be relied upon if the appeal was successful and there was a need to resentence the appellant. Once this was explained, the respondent withdrew its objection to the evidence.

The principles to be applied in appeals of this nature were concisely set out by Refshauge J in Peverill v Crampton [2010] ACTSC 79 (‘Peverill’). His Honour said at [24]:

Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
-The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
-The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
-The appellate court must conduct a…

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.

Continue reading AB v Forbes

Details

AGLC: AB v Forbes [2018] ACTSC 134
Case: [2018] ACTSC 134
Decision Date: 18 May 2018

CaseChat Overview and Summary

AB has appealed against their sentence, arguing that the sentences imposed by the trial judge were manifestly excessive. The appeal was heard by the Full Court of the Supreme Court of Victoria. The primary issue before the court was whether the sentences imposed by the trial judge were manifestly excessive. The court was also required to consider whether the trial judge erred in failing to adequately consider the impact of the sentences on AB.

The court considered the principles relevant to appeals against sentences, including the need to ensure that sentences are proportionate to the seriousness of the offence and the circumstances of the offender. The court noted that the trial judge had considered the nature and circumstances of the offence, as well as AB's background and personal circumstances, in imposing sentence. The court found that the trial judge had appropriately weighed the aggravating and mitigating factors and had imposed a sentence that was within the range of sentences that could be considered appropriate for the offence. The court concluded that the sentences imposed were not manifestly excessive and dismissed the appeal.

The Full Court found that the trial judge had not erred in failing to adequately consider the impact of the sentences on AB, as the trial judge had already considered AB's personal circumstances in imposing sentence. The court further found that the trial judge had appropriately exercised their discretion in imposing the sentences, and that there was no basis for the appeal. The appeal was dismissed, and the sentences imposed by the trial judge were upheld.

Orders

Orders of the court

See [22]

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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