SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Barrett (a pseudonym) v Pemberton | ||||||||
| Citation: | [2025] ACTSC 152 | ||||||||
| Hearing Date: | 3 April 2025 | ||||||||
| Decision Date: | 15 April 2025 | ||||||||
| Before: | Baker J | ||||||||
| Decision: | Appeal dismissed | ||||||||
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – family violence offence – contravene family violence order – application for non- conviction order – intoxication – conviction recorded APPEAL – Appeal from Magistrates Court – adequacy of reasons – whether sentence manifestly excessive – appeal | ||||||||
| dismissed | |||||||||
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 10, 17, 34B, 35, 37 Family Violence Act 2016 (ACT), s 43 | ||||||||
| Magistrates Court Act 1930 (ACT), pt 3.10 | |||||||||
| Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 Barnes v Lodding [2020] ACTCA 23 | ||||||||
| Field v Unas [2019] ACTSC 13 | |||||||||
| Forster-Jones v The Queen [2020] ACTCA 31 | |||||||||
| Hasan v The Queen [2010] VSCA 352; 31 VR 28 Hawker v The Queen [2020] ACTCA 40 | |||||||||
| Hayne v Zheng [2023] ACTSC 326 | |||||||||
| House v The King [1936] HCA 40; 55 CLR 499 Mohindra v The Queen [2020] NSWCCA 340 | |||||||||
| R v AB [2022] NSWCCA 3 | |||||||||
| R v Miller [2019] ACTCA 25; 279 A Crim R 232 R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 | |||||||||
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |||||||||
| Stanley v DPP (NSW) [2023] HCA 3; 278 CLR 1 Wyper v The Queen [2017] ACTCA 59; 19 ACTLR 288 | |||||||||
| Parties: | John Barrett (a pseudonym) (Appellant) | ||||||||
| Jessica Louise Pemberton (Respondent) | |||||||||
| Representation: | Counsel | ||||||||
| JR Walker (Appellant) | |||||||||
| E Bayliss (Respondent) | |||||||||
| Solicitors | |||||||||
| Hugo Law Group (Appellant) | |||||||||
| Director of Public Prosecutions (Respondent) | |||||||||
| File Number: | SCA 44 of 2024 | ||||||||
| Decision Under Appeal: |
| ||||||||
| Court File Number(s): CAN 6483 of 2024 | |||||||||
| BAKER J: | |||||||||
| Introduction | |||||||||
| 1․ | On 20 August 2024, John Barrett (the appellant) pleaded guilty to one count of | ||||||||
| contravening a family violence order contrary to s 43(2) of the Family Violence Act 2016 | |||||||||
| (ACT). The maximum penalty is 500 penalty units or five years imprisonment or both. | |||||||||
| 2․ | On 30 August 2024, Magistrate Wilson (the Magistrate) convicted the appellant and | ||||||||
| sentenced him to a six-month good behaviour order. | |||||||||
| 3․ | By way of a Notice of Appeal filed on 24 September 2024, the appellant appealed against | ||||||||
| that sentence. At the conclusion of the hearing on the appeal, the appellant was granted | |||||||||
| leave to amend his Notice of Appeal to add an additional ground. | |||||||||
| 4․ | The grounds as particularised in the Amended Notice of Appeal are as follows: |
(a) That the learned Magistrate erred by not expressing an assessment of the objective seriousness of the offending conduct.
(b) That the learned Magistrate erred by not specifying and/or applying a discount for the appellant’s guilty plea.
(c) That the learned Magistrate erred by not giving adequate reasons in respect of the appellant’s guilty plea.
(d) The sentence is manifestly excessive. (e) The learned Magistrate…
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Details
- AGLC
- Barrett (a pseudonym) v Pemberton [2023] ACTSC 326
- Case
- [2025] ACTSC 152
- Decision Date
CaseChat Overview and Summary
In the matter of Barrett (a pseudonym) v Pemberton, the appellant, also known as Barrett, appealed against a decision of the Magistrates Court of Victoria. The dispute arose from an incident where Barrett contravened a family violence order by entering a prescribed area. The matter was heard and determined in the Court of Appeal, which had to decide several legal issues. These included whether the trial judge adequately considered the relevant circumstances of the offence and the appropriate sentence. Additionally, the court needed to assess whether the sentence imposed was manifestly excessive and if the trial judge's failure to record a non-conviction order was a material error.
The Court of Appeal considered the trial judge's assessment of the circumstances and the appropriateness of the sentence imposed. It was found that the trial judge had provided adequate reasons for the sentence, taking into account all relevant factors, including the seriousness of the breach of the family violence order and the appellant's intoxication at the time of the offence. The court concluded that the sentence was not manifestly excessive and that any failure to record a non-conviction order did not constitute a material error. The appeal was dismissed, and the original conviction and sentence were upheld.
In light of the Court of Appeal's findings, the orders made were that the appeal was dismissed, and the original conviction and sentence imposed by the Magistrates Court were affirmed.
The Court of Appeal considered the trial judge's assessment of the circumstances and the appropriateness of the sentence imposed. It was found that the trial judge had provided adequate reasons for the sentence, taking into account all relevant factors, including the seriousness of the breach of the family violence order and the appellant's intoxication at the time of the offence. The court concluded that the sentence was not manifestly excessive and that any failure to record a non-conviction order did not constitute a material error. The appeal was dismissed, and the original conviction and sentence were upheld.
In light of the Court of Appeal's findings, the orders made were that the appeal was dismissed, and the original conviction and sentence imposed by the Magistrates Court were affirmed.
Orders
Orders of the court
Appeal dismissed
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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