Benjamin Minear v Luke James Collyer

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BENJAMIN MINEAR v LUKE JAMES COLLYER [2008]
ACTSC 139 (17 December 2008)

APPEAL − appeal from decision of the Magistrates Court of the ACT − principles for determining appeals.
APPEAL − appeal considerations − admissibility of further evidence on appeal − Magistrates Court Act 1930 (ACT).
APPEAL − role of the DPP on appeal − appropriateness of DPP defending a sentence more severe than the one originally imposed − whether the DPP bound by original submissions on sentence.
CRIMINAL LAW − sentencing principles − nature of errors in relation to pleas of guilty.
CRIMINAL LAW − sentencing principles − error by Magistrate in treating appellant’s criminal history as a matter of aggravation.
CRIMINAL LAW − sentencing principles − whether Magistrate erred in treatment of appellant’s remorse and rehabilitation efforts.
CRIMINAL LAW − offences − act of indecency − assault occasioning actual bodily harm − common assault.

Crimes Act 1900 (ACT), subs 60(1), ss 24, 26
Crimes (Sentencing) Act 2005 (ACT), ss 10, 33, 35, 37, 77, 78
Magistrates Court Act 1930 (ACT), s 214
Criminal Appeal Act 1912 (NSW), subs 6(3)
Family Law Act 1975 (Cth), subs 93A(2)

Lowndes v The Queen (1999) 195 CLR 665
Baxter v R [2007] NSWCCA 237 (10 August 2007)
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357
R v Thomson; R v Houlton [2000] NSWCCA 309 (17 August 2000)
Veen v The Queen (No 2) (1987) 164 CLR 465
CDJ v VAJ (1998) 197 CLR 172
Everett v The Queen (1994) 181 CLR 295
R v Fowler [2007] ACTCA 4 (3 April 2007)
Raeyers v Casey [2008] ACTSC 123 (18 November 2008)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 93 of 2007

Judge:              Penfold J
Supreme Court of the ACT

Date:               17 December 2008

IN THE SUPREME COURT OF THE     )
   )           No. SCA 93 of 2007
AUSTRALIAN CAPITAL TERRITORY            )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:     BENJAMIN MINEAR

Appellant

AND:                LUKE JAMES COLLYER

Respondent

ORDER

Judge:   Penfold J
Date:   17 December 2008
Place:   Canberra

THE COURT ORDERS THAT:

  1. The appeal is allowed.

  1. The appellant will be re-sentenced.

Introduction

  1. Benjamin Minear has appealed from three sentences imposed in the Magistrates Court.  These relate to:

(a)one offence of committing an act of indecency without consent, under subs 60(1) of the Crimes Act 1900 of the ACT (the Crimes Act);

(b)one offence of assault, under s 26 of the Crimes Act; and

(c)one offence of assault occasioning actual bodily harm, under s 24 of the Crimes Act.

  1. The maximum penalties for the act of indecency and the assault occasioning actual bodily harm include 5 years imprisonment, and for assault the maximum term of imprisonment is 2 years. 

Background

The circumstances of the offences

  1. Late one night in August 2007 the appellant got into a taxi.  He was very intoxicated.  During the taxi-ride the appellant began to fondle…

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Details
Case
[2008] ACTSC 139
Decision Date

CaseChat Overview and Summary

Benjamin Minear appealed against his conviction and sentence, which was imposed by the Magistrates Court of the Australian Capital Territory. Minear was found guilty of indecency, assault occasioning actual bodily harm, and common assault. The appeal was brought against the sentence, arguing that it was excessive and that the Magistrate had erred in various aspects of the sentencing process.

The court had to determine whether the appeal was valid and if the appeal court could consider additional evidence. It was also necessary to assess if the Director of Public Prosecutions was appropriately defending a sentence that was more severe than the one originally imposed by the Magistrate. Furthermore, the court examined whether the Magistrate had erred in considering Minear’s criminal history, remorse, and rehabilitation efforts as factors in sentencing.

The court found that the appeal was valid and could consider new evidence. It held that the Director of Public Prosecutions was not bound by the original submissions on sentence and could argue for a more severe punishment if warranted. The court also concluded that the Magistrate had erred in treating Minear’s criminal history as an aggravating factor, and in underestimating the significance of Minear’s remorse and efforts towards rehabilitation. Consequently, the appeal was allowed and Minear was to be re-sentenced.

The final orders of the court were to allow the appeal and to re-sentence the appellant.

Orders

Orders of the court

1. The appeal is allowed.

2. The appellant will be re-sentenced.

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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