Aida ROSALES-SERRANO v Nathan Daniel Macklin
[2011] ACTSC 197
•2 December 2011
AIDA ROSALES-SERRANO v NATHAN DANIEL MACKLIN
[2011] ACTSC 197 (2 December 2011)
Crimes (Sentencing) Act 2005 (ACT), s 17
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 67 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 2 December 2011
IN THE SUPREME COURT OF THE )
) No. SCA 67 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:AIDA ROSALES-SERRANO
Appellant
AND: NATHAN DANIEL MACKLIN
Respondent
ORDER
Judge: Burns J
Date: 2 December 2011
Place: Canberra
THE COURT ORDERS THAT:
The conviction and the penalty imposed by the learned Magistrate are set aside.
The matter is remitted back to the learned Magistrate for further sentencing after further submissions have been made and, if necessary, evidence called in relation to the value of the damage
This matter took a most regrettable course before the learned Magistrate. In saying that, I do not criticise the learned Magistrate at all. The fact is that certain issues were not ventilated before the learned Magistrate which should have been ventilated by the parties, and in particular, by counsel for the appellant.
Whilst I am not particularly moved by much that has been put to me by Mr Collaery today, there are two matters that do give me concern. Firstly, it now transpires that there was no agreement as to the amount of damage that was occasioned to the vehicle of the complainant as a consequence of the appellant’s actions and the value of that damage. It was dealt with in a cursory way before the learned Magistrate. The prosecution at that time were not seeking compensation, but did mention a particularly high figure in terms of the value of the damage done to the complainant’s vehicle. It was not surprising that counsel for the appellant wished to convince the learned Magistrate that the damage done to the complainant’s vehicle was much less significant.
As I understand what then transpired, the appellant’s counsel obtained a copy of the quotation which had been provided to the complainant’s insurer, which suggested that the value of the damage occasioned was some $4,750.90. However, that only became available on the date of the sentence proceedings and it is clear that no appropriate opportunity arose in the course of the proceedings to challenge that document.
It may well have been a forensic decision on the part of counsel for the appellant, based upon the fact that at that time the representative of the prosecution had indicated to the learned Magistrate that the prosecution would not be opposing a disposition of the matter under s 17 of the Crimes (Sentencing) Act 2005 (ACT).
That leads me to the second matter which gives me concern. It does appear to me that counsel for the appellant may well have been led into believing that the court would look favourably upon the application under s 17 of the Crimes (Sentencing) Act 2005 (ACT) without any further submissions in that regard being pressed by him, based upon the concession which appears to have been made by the representative of the prosecution.
In my view, the appropriate course with respect to this matter is to set aside the conviction and the penalty imposed by the learned Magistrate, to remit the matter back to the learned Magistrate for further sentencing after further submissions have been made and, if necessary, further evidence called in relation to the value of the damage. Those are the orders that I make.
I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 8 December 2011
Counsel for the appellant: Mr B Collaery
Solicitor for the appellant: Collaery Lawyers
Counsel for the respondent: Ms S Tasneem
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 2 December 2011
Date of judgment: 2 December 2011
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