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Biddle v Gatherer

Biddle v Gatherer

Case [2021] ACTSC 236 20 September 2021

Appeal

Sentencing

Jurisdiction

Statutory Interpretation

Mistake of Law

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Biddle v Gatherer
Citation:	[2021] ACTSC 236
Hearing Date:	30 August 2021
DecisionDate:	20 September 2021
Before:	Loukas-Karlsson J
Decision:	See [44]
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – section 64(2)(e) of Crimes (Sentencing) Act 2005 (ACT) – mistake of law – remittal
Legislation Cited:	Crimes Act 1900 (ACT) ss 24, 375(10) Crimes (Sentencing) Act 2005 (ACT) pt 5.2, ss 61, 64, 64(2)(e), 65, 66, 72 Magistrates Court Act 1930 (ACT) pt 3.10, s 208(1)(d)(i)
Cases Cited:	Adams v R [2018] NSWCCA 139 Dwayhi v The Queen [2011] NSWCCA 67; 205 A Crim R 274 KN v The Queen [2019] ACTCA 37 Middleton v The Queen [2020] ACTCA 6 MT v The Queen [2021] ACTCA 26 Ng v R [2011] NSWCCA 227 Noble v Rappel [2020] ACTMC 8 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v AC [2015] ACTSC 240 R v AJ (Unreported, ACTSC, 29 July 2013) R v Beroukas [2021] ACTSC 172 R v BO (No 3) [2016] ACTSC 175 R v Brown [2017] ACTSC 284 R v Chevalier [2021] ACTSC 14 R v Davies (Unreported, ACTSC, 17 July 2013) R v Denniss [2018] ACTSC 239 R v Denniss [2019] ACTSC 283 R v Denniss [2021] ACTSC 15 R v DD (No 2) [2016] ACTSC 178 R v Dunn [2019] ACTSC 75 R v Holliday [2015] ACTSC 22 R v Islam [2015] ACTSC 99 R v JJ [2014] ACTCA 23 R v JJ (Unreported, ACTSC, 8 October 2013) R v KN [2020] ACTSC 218 R v KS; R v KN; R v KI (No 2) [2021] ACTSC 23 R v Lembke [2020] NSWCCA 293 R v MT [2020] ACTSC 339 R v NQ [2019] ACTSC 51 R v PM [2009] ACTSC 24 R v PM (No 2) [2015] ACTSC 358 R v Potts [2018] ACTSC 299 R v QH; R v CR [2020] ACTSC 178 R v Raeyers (Unreported, ACTSC, 26 November 2010) R v Rappel [2019] ACTCA 11 R v Roberts [2020] ACTSC 296 R v Shearer [2020] ACTSC 100 R v Tate (Unreported, ACTSC, 16 December 2010) R v Winters [2019] ACTSC 245 R v Yuen [2019] ACTSC 70 R v Yuen (Unreported, ACTSC, 21 May 2013) TM v Karapanos and Bakes [2011] ACTSC 74 Usher v R [2016] NSWCCA 276 Will v The Queen (No 2) [2021] ACTCA 14
Texts Cited:	Crimes (Sentencing) Bill 2005 (ACT)
Parties:	Bradley Matthew Biddle (Appellant) Mikaela Gatherer (Respondent)
Representation:	Counsel J White SC (Appellant) R Christensen (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 20 of 2021
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 4 June 2021 Case Title: Mikaela Gatherer v Bradley Matthew Biddle Court File Number: CC2021/760

LOUKAS-KARLSSON J:

Introduction

On 7 May 2021, Bradley Biddle (the appellant) was sentenced by Magistrate Campbell for assault occasioning actual bodily harm, by way of joint…

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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Details

AGLC: Biddle v Gatherer [2021] ACTSC 236
Case: [2021] ACTSC 236
Decision Date

CaseChat Overview and Summary

Bradley Biddle (the appellant) appeals against his sentence for the offence of assault occasioning actual bodily harm, by way of joint commission, contrary to s 24 of the Crimes Act 1900 (ACT). The appellant was sentenced by Magistrate Campbell to 18 months imprisonment, consecutive on the existing sentence, with the non-parole period expiring on 6 August 2022. The appellant appealed on the ground that the magistrate erred in her application of s 64(2)(e) of the Crimes (Sentencing) Act 2005 (ACT). The relevant provision precludes the setting of a non-parole period where the offence was committed while in lawful custody. The court found that the magistrate misapplied s 64(2)(e). The matter was remitted for re-sentencing by another magistrate.

Orders