Ayala v Poole (No 2) - [2017] ACTSC 85

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Ayala v Poole (No 2)
Citation:	[2017] ACTSC 85
Hearing Date:	1, 5 April 2016
DecisionDate: Reasons Date:	6 April 2016 28 April 2017
Before:	Refshauge ACJ
Decision:	1. The sentences of periodic detention made in respect of the counts of common assault are set aside and the following orders are made under s 61 of the Crimes (Sentence Administration) Act 2005 (ACT). 2. On the first count of common assault (CC14/11582), the sentence of six months imprisonment is confirmed and imposed, to commence on 12 March 2016. 3. That sentence be suspended today. 4. Jarome Ayala be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service condition that he perform 144 hours of unpaid community work within 18 months from today. 5. On the second count of common assault (CC14/11583), the sentence of six months imprisonment is confirmed and imposed, to commence on 12 March 2016. 6. That sentence be suspended today. 7. Jarome Ayala be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service work condition that he perform 144 hours of unpaid community work within 18 months from today. 8. The hours of community work to be performed according to Order 7 are to run concurrently with the hours of work to be performed under Order 4. 9. Jarome Ayala attend ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4:00pm today, 6 April 2016.
Catchwords:	APPEAL – GENERAL PRINCIPLES – Appeal from Magistrates Court – appeal dismissed – sentence confirmed – re-sentencing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – periodic detention – periodic detention not available – sentence related order – order contrary to law – sentence stayed – “serving a sentence of imprisonment” – re-open sentencing – re-sentencing CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – re-sentencing – common assault – family violence matters – mental health problems – depression – anxiety – post traumatic stress disorder – resistant to counselling or treatment – alcohol use – evidence from author of Court Duty Report – not suitable for community service work – finding of unsuitability overridden – extend time to perform community service work – sentence suspended – Good Behaviour Order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 11, 12(2), 55, 61, 901, Pt 5.4, Ch 20 Crimes (Sentence Administration) Act 2005 (ACT), s 6 Crimes (Sentencing and Restorative Justice) Amendment Act 2016 (ACT) Magistrates Court Act 1930 (ACT), ss 216, 218 Parole Act 1976 (ACT)
Cases Cited:	Ayala v Poole [2016] ACTSC 63 Hadba v The Queen (2004) 146 A Crim R 291 Hall v CL (No 2) [2015] ACTSC 294 Jovanovic v The…

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 Ayala v Poole (No 2)

Details

AGLC: Ayala v Poole (No 2) [2017] ACTSC 85
Case: [2017] ACTSC 85
Decision Date: 28 April 2017

CaseChat Overview and Summary

Ayala v Poole (No 2) involved the appellant, Jarome Ayala, appealing against his sentence in the Magistrates Court. Ayala was convicted of two counts of common assault in the context of family violence and sentenced to six months imprisonment on each count, with the sentences to run concurrently. The sentences were to be served by way of periodic detention. Ayala appealed to the Supreme Court of the Australian Capital Territory, challenging the sentence on the grounds that it was contrary to law and that the sentence related order requiring him to perform community service was also contrary to law.

The legal issues the court had to decide were whether the sentence of periodic detention was available, and if the sentence related order was valid. The court found that the periodic detention sentence was not available as it was contrary to law. The court also found that the sentence related order requiring Ayala to perform community service was contrary to law as it was not appropriate for him given his mental health issues, including depression, anxiety, and post-traumatic stress disorder, and his resistance to counselling or treatment. The court found that Ayala was not suitable for community service work, but this finding was overridden and the time to perform the community service work was extended.

The court dismissed Ayala's appeal and confirmed the sentence of six months imprisonment on each count of common assault, to commence on 12 March 2016. The sentences were suspended and Ayala was required to sign an undertaking to comply with the offender's Good Behaviour Obligations and to perform 144 hours of unpaid community work within 18 months. The hours of community work were to run concurrently. The court also made an order for Ayala to attend ACT Corrective Services to be processed for his sentence.

The final orders of the court were that the sentences of periodic detention were set aside and replaced with a sentence of six months imprisonment on each count of common assault, to commence on 12 March 2016. The sentences were suspended and Ayala was required to sign an undertaking to comply with the offender's Good Behaviour Obligations and to perform 144 hours of unpaid community work within 18 months. The hours of community work were to run concurrently. Ayala was also ordered to attend ACT Corrective Services to be processed for his sentence.

Orders

Orders of the court

1. The sentences of periodic detention made in respect of the counts of common assault are set aside and the following orders are made under s 61 of the Crimes (Sentence Administration) Act 2005 (ACT).

2. On the first count of common assault (CC14/11582), the sentence of six months imprisonment is confirmed and imposed, to commence on 12 March 2016.

3. That sentence be suspended today.

4. Jarome Ayala be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service condition that he perform 144 hours of unpaid community work within 18 months from today.

5. On the second count of common assault (CC14/11583), the sentence of six months imprisonment is confirmed and imposed, to commence on 12 March 2016.

6. That sentence be suspended today.

7. Jarome Ayala be required to sign an undertaking to comply with the offenders Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from today with a community service work condition that he perform 144 hours of unpaid community work within 18 months from today.

8. The hours of community work to be performed according to Order 7 are to run concurrently with the hours of work to be performed under Order 4.

9. Jarome Ayala attend ACT Corrective Services, Eclipse House, London Circuit, Canberra City by 4:00pm today, 6 April 2016.

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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