Ashley Inder v Phillip Cantwell
[2013] ACTSC 55
•22 March 2013
ASHLEY INDER v PHILLIP CANTWELL
[2013] ACTSC 55 (22 March 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 87 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 22 March 2013
IN THE SUPREME COURT OF THE )
) No. SCA 87 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ASHLEY INDER
Appellantv
PHILLIP CANTWELL
Respondent
ORDER
Judge:Burns J
Date:22 March 2013
Place:Canberra
THE COURT ORDERS THAT:
The respondent is to pay the appellant’s costs of the appeal at 50 per cent of the appropriate costs as either agreed or as assessed
This is an application for costs following on the Crown conceding an appeal in relation to a sentence imposed in the Magistrates Court with respect to proceedings for breach of a Good Behaviour Order which was dealt with before the sentencing Magistrate on 5 October 2012.
On that date, the appellant was convicted of a charge of common assault and a fine and various other costs and levies imposed. At that time, it was alleged by the Director of Public Prosecutions that the imposition of that conviction meant that the appellant was in breach of a Good Behaviour Order that had earlier been imposed by another Magistrate on 23 November 2011.
That Good Behaviour Order was imposed as part of a Suspended Sentence Order that was made by the learned sentencing Magistrate at that time. Her Honour imposed an aggregate sentence of 11 months’ imprisonment of which 3 months was to be served by way of full-time imprisonment, 3 months was to be served by way of periodic detention and the balance being 5 months was to be suspended with a Good Behaviour Order for a nominated period.
It is quite clear from reading her Honour’s sentencing comments that she intended the Good Behaviour Order to commence as at the date when that part of the sentence which she imposed was suspended. In other words, the Good Behaviour Order did not come into effect until after the appellant had completed the period of full-time imprisonment and also the period of periodic detention.
The offence committed by the appellant, which was treated by the second Magistrate on 5 October 2012 as being a breach of the Good Behaviour Order imposed by the first Magistrate, in fact was committed during the period when the appellant was serving the periodic detention portion of the sentence which had been imposed on 23 November 2011.
As such, the Good Behaviour Order was not in force at that time. For that reason, the Crown conceded the appeal with respect to the imposition of the suspended part of the sentence which had been imposed by the second Magistrate.
It is quite clear to me that this situation should have been discovered by both counsel appearing for the informant and also those who were representing the appellant in the proceedings before the Magistrate. However, it seems to me that the greater fault lies with those who were representing the informant.
After all, it was the allegation brought by the informant that there had been a breach of the orders imposed by the first Magistrate that gave rise to the error. As the moving party the informant should have ensured that the matter which was being relied upon as a breach was in fact a breach of the orders made by the Magistrate.
However, it seems to me that there was also some fault, as I have said, on the part of those representing the appellant. The appropriate costs order in my view should be that the respondent is to pay the appellant’s costs of the appeal at 50 per cent of the appropriate costs as either agreed or as assessed.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 3 April 2013
Counsel for the Applicant: Mr M Kukulies-Smith
Solicitor for the Applicant: Kamy Saeedi Lawyers
Counsel for the Respondent: Mr A Webb
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of Hearing: 22 March 2013
Date of Judgment: 22 March 2013
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