MYLES EDWARD BALTHAZAAR v THE QUEEN [2012] ACTCA 26 (31 May 2012)
APPEAL AND NEW TRIAL – in general and right of appeal – appeal from single Judge of the Supreme Court of the ACT – sentence appeal – appeal dismissed.
APPEAL AND NEW TRIAL – sentence appeal – aggravated burglary and theft – sentence within range – no question of manifest excess.
APPEAL AND NEW TRIAL – sentence appeal – specific error – House v The King – insufficient weight given to a factor or circumstance not a specific error of the kind requiring appellate intervention.
APPEAL AND NEW TRIAL – sentence appeal – specific error – R v Hayes – common experience of burglary victims not an irrelevant consideration.
APPEAL AND NEW TRIAL – sentence appeal – specific error – concession made by Crown prosecutor – sentencing Judge’s discretion not circumscribed by Crown submissions.
CRIMINAL LAW – jurisdiction, practice and procedure – sentencing and punishment – non-conviction order – Crimes (Sentencing) Act 2005 (ACT) s 17(3) – conviction ordinarily follows finding of guilt – no requirement to expressly address factors where non-conviction order not appropriate.
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 1 of 2011 No. SCC 243 of 2010
Judges: Refshauge, Burns and Lander JJ Court of Appeal of the Australian Capital Territory Date: 31 May 2012
IN THE SUPREME COURT OF THE) No. ACTCA 1 of 2011 ) No. SCC 243 of 2010 AUSTRALIAN CAPITAL TERRITORY ) )
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
MYLES EDWARD BALTHAZAAR
Appellant
v
THE QUEEN
Respondent
Judges: Refshauge, Burns and Lander JJ Date: 3 November 2011 Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed
IN THE SUPREME COURT OF THE) No. ACTCA 1 of 2011 ) No. SCC 243 of 2010 AUSTRALIAN CAPITAL TERRITORY ) )
COURT OF APPEAL )
ON APPEAL FROM…
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.
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AGLC
Balthazaar v The Queen [2012] ACTCA 26
Case
[2012] ACTCA 26
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal against a sentence imposed by a single Judge of the Supreme Court of the Australian Capital Territory. The appellant, Balthazaar, had been convicted of aggravated burglary and theft.
The primary legal issues before the Court of Appeal were whether the sentencing Judge had erred in law, specifically by failing to give sufficient weight to a particular factor or circumstance, or by making a specific error of the kind that would warrant appellate intervention. The Court also considered whether the sentencing Judge had improperly taken into account the common experience of burglary victims and whether the Crown prosecutor's concession had improperly circumscribed the sentencing Judge's discretion. The Court also addressed the application of section 17(3) of the *Crimes (Sentencing) Act 2005* (ACT) concerning non-conviction orders.
The Court of Appeal applied the principles established in *House v The King* and *R v Hayes*. It held that while a sentencing Judge must consider all relevant factors, insufficient weight given to a particular circumstance does not automatically constitute a specific error requiring appellate intervention. The Court found that the sentencing Judge's discretion was not bound by the Crown prosecutor's submissions and that the common experience of burglary victims was a relevant consideration. Furthermore, the Court noted that a conviction ordinarily follows a finding of guilt, and there was no requirement for the sentencing Judge to expressly address factors supporting a non-conviction order when such an order was not deemed appropriate. The sentence imposed was found to be within the available range and not manifestly excessive.