D'Elboux v Ramsay - [2022] ACTSC 258

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	D’Elboux v Ramsay
Citation:	[2022] ACTSC 258
Hearing Date:	23 September 2022
DecisionDate:	23 September 2022
Before:	Elkaim J
Decision:	(i) The appeal is dismissed. (ii) The convictions and sentences imposed by the Chief Magistrate on 15 June 2022 are confirmed. (iii) The stay generated by the appeal is removed, confirming that the release date for the appellant remains 8 December 2022.
Catchwords:	CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – where the appellant submits that the sentence imposed by the magistrate was manifestly excessive – previous time served in custody – concurrency – objective seriousness – appeal dismissed
Cases Cited:	Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Gillard v The Queen [2016] ACTCA 50
Parties:	Shane D’Elboux ( Appellant) Daniel Ramsay (First Respondent) Madeline Kluber (Second Respondent)
Representation:	Counsel E Chen ( Appellant) K McCann ( Respondents)
Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondents)
File Number(s):	SCA 21 of 2022
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Chief Magistrate Walker Date of Decision: 15 June 2022 Case Title: Police v D’Elboux Court File Number(s): CAN 9567 of 2021; CAN 1714 of 2021

Elkaim J

On 15 June 2022 the Chief Magistrate sentenced the appellant as follows:

(a)in respect of CC2021/9567 the existing good behaviour order is cancelled, and the offender is sentenced to 3 months’ imprisonment.
(b)In respect of CC2022/1714 the offender is sentenced to 6 months’ imprisonment.

The two sentences were entirely cumulative, the first beginning on 9 March 2022 and the second ending on 8 December 2022. Both terms of imprisonment had been reduced by 25 percent to reflect their respective pleas of guilty.

The notice of appeal was filed on 12 July 2022. There is only one ground of appeal: “The sentence was manifestly excessive”.

A sentence is manifestly excessive if it is “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321).

The appellant says the sentences are manifestly unjust for one or more of the following reasons:

(i)The terms of imprisonment were out of proportion to the circumstances of the offending.
(ii)There should have been a degree of concurrency between the two sentences.
(iii)Time previously served in custody was not appropriately taken into account.
(iv)Previous breaches of bail had been erroneously taken into account in assessing the objective seriousness of the offending.
(v)The appellant’s mental health condition should have precluded, or at least reduced, the consideration of general deterrence.

The Chief Magistrate summarised the two offences in this way:

Turning to the factual circumstances the offences under consideration arise from breaches of a family violence order taken out by family members to protect themselves from what appears to have been your drug-fuelled abuse and violence toward them.
And the first breach on 14 September 2021 came about when you remained in your family home without written consent of your mother to be there. Your behaviour on that…

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 D'Elboux v Ramsay

Details

AGLC: D'Elboux v Ramsay [2022] ACTSC 258
Case: [2022] ACTSC 258
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the appellant, Shane D’Elboux, appealed against the sentence imposed by the Chief Magistrate on 15 June 2022, arguing that the sentence was manifestly excessive. The respondents were Daniel Ramsay and Madeline Kluber. The appeal was heard by Elkaim J on 23 September 2022, and the decision was rendered on the same day. The appellant’s sole ground of appeal was that the sentence was manifestly excessive, and he argued that the sentences were out of proportion to the circumstances of the offending, there should have been a degree of concurrency between the two sentences, time previously served in custody was not appropriately taken into account, previous breaches of bail had been erroneously taken into account in assessing the objective seriousness of the offending, and the appellant’s mental health condition should have precluded, or at least reduced, the consideration of general deterrence.

The court considered the appellant’s arguments and found that the sentences were not manifestly excessive. The court noted that the appellant had a history of similar offences, and his criminal history included acts of violence. The court also noted that the appellant had breached earlier sentences that had allowed him to live in the community. The court found that the sentences were commensurate with the facts, including the appellant’s mental health. The court also found that there was no error in the assessment of objective seriousness, and whether or not certain matters were erroneously taken into account, such as breaches of bail, was beside the point. The court also found that there was no mandatory rule for concurrency or its absence where the offences occurred at entirely different times.

The appeal was dismissed, and the convictions and sentences imposed by the Chief Magistrate on 15 June 2022 were confirmed. The stay generated by the appeal was removed, confirming that the release date for the appellant remains 8 December 2022.

Orders