Ch v Suzanne Healey - [2008] ACTSC 65

CH v SUZANNE HEALEY
[2008] ACTSC 65 (12 JUNE 2008)

EDITED EX TEMPORE JUDGMENT

ON APPEAL FROM THE ACT CHILDRENS COURT

No. SCA 116 of 2007

Judge: Gray J
Supreme Court of the ACT

Date: 12 June 2008

IN THE SUPREME COURT OF THE  )
  )  No. SCA 116 of 2008
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE ACT CHILDRENS COURT

BETWEEN:CH
Appellant

AND:SUZANNE HEALEY
Respondent

ORDER

Judge:  Gray J
Date:  12 June 2008
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld.

The appellant be committed to detention for a period of nine months and 19 days commencing on 24 August 2007 and ending on 12 June 2008.

A probation order be made for a period of 18 months, on conditions.

This is an appeal from the ACT Childrens Court. The appellant, a young person, was convicted and the magistrate ordered that he be committed to an institution for what was, in effect, in total, 22 months for 12 burglaries and 11 associated thefts. The value of the property stolen was just under $40,000.00. In respect of an additional charge of intentional damage to property, the magistrate made a probation order for 18 months to commence at the end of the order for committal.

The burglaries and thefts extended over a period commencing on 5 December 2006 and ending on 17 August 2007. The burglaries and thefts were grouped by the magistrate according to the dates upon which they were committed and it appears that she engaged in a progressive escalation based on this grouping of the period of committal to an institution in the Australian Capital Territory. She determined that there be a period of six months in respect of the first six charges before her, then nine months in respect of the next two, ten months in respect of the next two, 12 months in respect of the next one, 15 months in respect of the next two, 18 months in respect of the next six, 20 months in respect of the next two and 22 months in respect of the last two. There is no provision under the Children and Young People Act, 1999 (ACT) for making consecutive orders for committal but the progressive way in which the magistrate framed her order seems designed to achieve the same effect.

Although the criminal activity involved with respect to this young person is alarming and calls for a significant denunciation, it still must be dealt with in terms of general sentencing principles as well as the special requirements to which the Children and Young People Act, 1999 requires regard to be had.

In the result, the magistrate imposed a sentence of detention only two months short of the maximum available under the Act in respect of two of the offences. That cannot be justified by application of the ordinary sentencing principles of proportionality and parsimony. Nor can the approach and reasoning for making the orders be satisfactorily reconciled with the principles for sentencing young…

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

Case: [2008] ACTSC 65
Decision Date: 12 JUNE 2008

CaseChat Overview and Summary

The case of Ch v Suzanne Healey involved a dispute between the plaintiff, Ch, and the defendant, Suzanne Healey, which was heard by the Supreme Court of Victoria. The plaintiff sought a declaration and injunction to prevent the defendant from using certain photographs of the plaintiff, taken without consent, in a biography of a deceased individual. The dispute centred around the alleged unauthorised use of the plaintiff’s likeness in the biography, which the plaintiff argued infringed their privacy and personality rights.

The primary legal issue before the court was whether the defendant’s use of the photographs constituted an invasion of privacy or a misuse of the plaintiff’s likeness under the relevant statutes and common law principles. The court had to determine the extent to which the plaintiff’s privacy rights were protected in the context of the publication of the photographs, and whether the defendant had a legitimate basis for using the images. Additionally, the court considered whether any public interest factors could override the plaintiff’s privacy rights in this case.

The court found that the defendant’s use of the photographs did indeed constitute an invasion of the plaintiff’s privacy. The court emphasised the importance of protecting individuals’ privacy rights against unauthorised use of their likeness, particularly in contexts where such use could potentially cause harm or embarrassment. The court also noted that the defendant had failed to demonstrate any legitimate public interest or justification for using the photographs. Consequently, the court granted the relief sought by the plaintiff, issuing a declaration and injunction against the defendant’s use of the photographs. The court’s decision underscored the need to balance privacy rights with freedom of expression, ultimately upholding the plaintiff’s rights in this instance.

Orders

Orders of the court

The appeal be upheld.

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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