APPEAL – MAGISTRATE COURT APPEAL – Crown appeal against sentence – respondent convicted of two counts common assault – non-conviction orders imposed – whether Magistrate

made an assessment of the objective seriousness of the offences

– where offences committed while respondent under self-induced

drug intoxication – whether Magistrate misapplied principle in R v MT [2020] ACTSC 339 – whether self-induced drug intoxication mitigating, aggravating or neutral factor – R v Gagalowicz [2005] NSWCCA 452 distinguished – whether Magistrate erred in taking

into account consequences emanating from a conviction that

were not sufficiently supported by evidence – whether sentence manifestly inadequate – whether cogent or compelling

circumstances demonstrated reason to deviate from recording a

conviction – no cogent evidence that respondent’s prospects of rehabilitation would be jeopardised by imposition of convictions –

re-sentencing

Legislation Cited:

Crimes Act 1900 (ACT) s 26
Crimes (Sentencing) Act 2005 (ACT) ss 7, 17
Crimes (Sentencing Procedure) Act 1999 (NSW) s 21A(5AA)

Evidence Act 2011 (ACT)

Cases Cited:

Acuthan v Coates (1986) 6 NSWLR 472
Balthazaar v The Queen [2012] ACTCA 26
Beniamini v Craig [2017] ACTSC 30
Bialecki v Rollings [2020] ACTSC 344

CMB v Attorney-General for the State of New South Wales

[2015] HCA 9; 256 CLR 346
Delaney v The Queen [2013] NSWCCA 150; 230 A Crim R 581
Forster-Jones v The Queen [2020] ACTCA 31
Imbornone v The Queen [2017] NSWCCA 144
Kirby v Ali [2021] ACTSC 95
Lutz v JK [2016] ACTSC 200; 310 FLR 392
Martin v The Queen [2007] VSCA 291; 20 VR 14
Nguyen v The Queen [2016] HCA 17; 256 CLR 656
Proud v Sladic [2014] ACTCA 26
R v Avery [2018] ACTCA 57
R v BC (No 4) [2021] ACTSC 119
R v Coleman (1990) 47 A Crim R 306
R v Freeman-Quay (No 3) [2015] ACTSC 284
R v Gagalowicz [2005] NSWCCA 452

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Kilic [2016] HCA 48; 259 CLR 256
R v Loveridge [2014] NSWCCA 120; 243 A Crim R 31
R v Miller [2019] ACTCA 25
R v MT [2020] ACTSC 339
R v MT [2014] ACTSC 162
R v Ngata [2020] ACTSC 9
R v Smith [2021] ACTSC 114
R v Stacker [2020] ACTCA 34
R v Taylor [2015] ACTSC 43
Stewart v The Queen [2012] NSWCCA 183
Wood v The Queen [2019] NSWCCA 309

ZZ v The Queen [2013] NSWCCA 83

Parties:

Robert Bennett (Appellant)

Lorenz Martin Salunga Daley (Respondent)

Representation:

Counsel

A Williamson (Appellant)
M Kukulies-Smith (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)
Kamy Saeedi Law (Respondent)

File Number:

SCA 11 of 2021

Decision under appeal:

Court:	ACT Magistrates Court
Before:	Special Magistrate Campbell
Date of Decision:	5 March 2021
Case Title:	Bennett v Daley
Court File Numbers:

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 Bennett v Daley

Details

AGLC: Bennett v Daley [2021] ACTSC 159
Case: [2021] ACTSC 159
Decision Date

CaseChat Overview and Summary

Bennett v Daley [2021] ACTSC 159 was an appeal from a decision of the ACT Magistrates Court in which the Magistrate imposed non-conviction orders in respect of two charges of common assault. The appellant, the ACT Director of Public Prosecutions, appealed against the sentences imposed by the Magistrate on the grounds that the sentences were manifestly inadequate. The court held that the Magistrate had erred in not imposing convictions and that the sentences imposed were manifestly inadequate. The appeal was allowed, and convictions were recorded on each charge. A Good Behaviour Order was imposed on each charge for a period of 12 months.

Orders