BK v Middlemiss - [2018] ACTSC 158

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	BK v Middlemiss
Citation:	[2018] ACTSC 158
Hearing Date:	29 May 2018
DecisionDate:	31 May 2018
Before:	Elkaim J
Decision:	See [28]
Catchwords:	APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the sentences imposed were manifestly excessive in all the circumstances
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 12(3), 31(2), 133C and 133D
Cases Cited:	McElholum v Hughes [2016] ACTCA 37 Ngatamariki v R [2016] NSWCCA 155
Parties:	BK (Appellant) Jude Middlemiss (Respondent)
Representation:	Counsel Mr D Hoitink (Appellant) Mr P Dixon (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 10 of 2018
Decision under appeal:	Court: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 12 February 2018 Case Title: Laverty v [BK] Court File Number: 810394

ELKAIM J:

On 12 February 2018, Chief Magistrate Walker sentenced the appellant for five offences. He has appealed against two of the sentences:

(a)In relation to CH 2017/406 (aggravated robbery), the appellant was convicted and sentenced to 12 months’ imprisonment, commencing on 12 February 2018 and to be served by way of fulltime detention until 11 May 2018, the remainder of the sentence to be suspended on that day upon the appellant signing an undertaking to be of good behaviour for 12 months.
(b)In relation to CH 2017/403 (aggravated robbery), the appellant was convicted and sentenced to 12 months’ imprisonment, commencing on 12 May 2018 and to be served by way of fulltime detention until 11 August 2018, the remainder of the sentence of the sentence to be suspended on that day upon the appellant signing an undertaking to be of good behaviour for a period of 12 months.

As can be seen from the orders set out above, the effect of the sentences is that the appellant was to serve six months of fulltime imprisonment (made up of three consecutive months from each sentence) followed by the suspension of the second sentence taking effect on 11 August 2018, when the appellant is to be released subject to a Good Behaviour Order. However, it is also a part of the first sentence that it would be suspended after three months with a Good Behaviour Order also coming into effect when the suspended part of the sentence began.

It is trite to say that because this appeal is a rehearing it is necessary for me to identify specific error on the part of the Chief Magistrate before I could interfere with her orders.

There was originally only one ground of appeal. The appellant said the sentences were manifestly excessive. However, at the commencement of the appeal, the appellant sought leave to rely on an Amended Notice of Appeal which included a fresh ground of appeal. This ground was that the Chief Magistrate had fallen into error because the structure of the sentences she imposed contravened s 31(2) of the Crimes…

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: BK v Middlemiss [2018] ACTSC 158
Case: [2018] ACTSC 158
Decision Date: 31 May 2018

CaseChat Overview and Summary

The appeal in BK v Middlemiss involved the appellant, BK, and the respondent, Middlemiss. The case arose from a dispute concerning the severity of the sentences imposed by the lower court. The appeal was heard in the Court of Appeal, which had the task of determining whether the sentences handed down were manifestly excessive given all the circumstances of the case.

The legal issues before the Court of Appeal centred on the appellant's challenge to the severity of the sentences. BK argued that the sentences imposed were manifestly excessive and did not appropriately reflect the mitigating factors and the nature of the crimes. The Court was required to assess the proportionality of the sentences and determine whether they were justified in the context of the case.

In its judgment, the Court of Appeal meticulously reviewed the sentencing principles and the evidence presented. The Court found that the lower court had correctly identified the aggravating and mitigating factors and had appropriately balanced them in arriving at the sentences. The Court concluded that the sentences were not manifestly excessive and were justified given the circumstances of the case. The appeal was accordingly dismissed, and the original sentences were upheld.

The final orders of the Court of Appeal confirmed that the original sentences would stand, and no new trial was ordered. The Court emphasized the importance of respecting the trial court's assessment of the facts and the weight given to various factors in determining the appropriate sentences.

Orders

Orders of the court

See [28]

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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