CRIMINAL LAW – Appeal – manifestly excessive – young offender –multiple offences-multiple breaches of conditional liberty – Youth Justice sentencing principles – “Bugmy” principles – “Verdins” principles – “Henry” principles on drug dependency –

relevance to sentencing – primacy of the promotion of rehabilitation – promotion of rehabilitation in a practical way – combination sentence – preparation for release to the community

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) ss 7,10, 12, 33, 133C,

133D, 133G,

Cases Cited:

House v The King (1936) 55 CLR 499
Bright v The Queen [2018] ACTCA 48
Tracey v The Queen [2020] ACTCA 51
AB v The Queen [1999] HCA 46; 196 CLR 111
MT v The Queen [2021] ACTCA 26
Bugmy v The Queen [2013] HCA 37
R v Verdins [2007] VSCA 102
R v Henry [1999] NSWCCA 111
R v KX [2020] ACTSC 349
R v OI [2020] ACTSC 286
Le Clair v The Queen; Achanfuo-Yeboah v The Queen [2017]
ACTCA 19
SBT v Wright [2021] ACTSC 322
Pearce v The Queen [1998] HCA 57
Johnson v The Queen [2004] HCA 15
R v Holder [1983] 3 NSWLR 245

Texts Cited:

David Thomas, “Principles of Sentencing” (Heinemann, 2nd ed,

1979)

Parties:

DC (a pseudonym) (Appellant)

Tristian Halstead (First Respondent)
Stephen Richardson (Second Respondent)

Shannon Snelleksz (Third Respondent)
Jessica Slater (Fourth Respondent)
Jack Bigmore (Fifth Respondent)

Ethan Waller (Sixth Respondent)
Troy Lawrence (Seventh Respondent)

Riley Snell (Eighth Respondent)
Johnson Zheng (Ninth Respondent)

Representation:

Counsel

S McLaughlin (Appellant)

S Janavkovic (Respondents)

Solicitors

ACT Legal Aid (Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number:

SCA 15 of 2023

Decision under appeal:

Court/Tribunal: ACT Childrens Court

Before: Magistrate Campbell
Date of Decision: 27 January 2023

Case Title: The Police v DC (a pseudonym)
Court File Number: CH631/2021, CH749/2021, CH750/2021,

CH850/2021 – CH852/2021, CH858/2021, CH861/2021,

CH936/2021,

CH947/2021,

CH28/2022

–

CH31/2022,

CH98/2022, CH379/2022, CH444/2022, CH1110/2022, CH
1111/2022, CH11115/2022

Norrish AJ:

Introduction

1․

The appellant appeals out of time against orders made in the ACT Children’s Court on

27 January 2023 when the appellant was sentenced by a Magistrate, sitting in the Warrumbul Circle Sentencing Court with Elders. The total sentence imposed was 17 months and 10 days imprisonment (ss 10 and 133G of the Crimes (Sentencing) Act

2005 (“the Act”) commencing on 22 February 2022 and expiring on 1 August 2023 just

before her 18th birthday. The appellant at the time of sentencing was 17 years of age. The sentences imposed related to 25 offences committed between 4 March 2021 and 24 September 2022. The backdating of the sentence beyond the date of her arrest in respect of the last series of offences on 24 September 2022 related to various periods when the appellant was remanded in custody, subsequently to be released on bail. The…

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 DC (a pseudonym) v Halstead

Details

AGLC: DC (a pseudonym) v Halstead [2023] ACTSC 84
Case: [2023] ACTSC 84
Decision Date

CaseChat Overview and Summary

In the case of DC (a pseudonym) v Halstead, DC appeals against the sentence imposed by the ACT Children’s Court, arguing that the sentences imposed, both individually and in total, are manifestly excessive. DC contends that the sentencing Magistrate failed to adequately consider the principles applicable to indigenous offenders, offenders with mental disabilities, and young people under the Crimes (Sentencing) Act 2005 (ACT), as well as her subjective circumstances and current sentencing practices. The Crown argues that the appeal should be dismissed as the complaints have not been substantiated. The court finds that while the sentencing Magistrate considered relevant principles and circumstances, the failure to provide for some form of supervision upon release did not give proper effect to the paramount purpose of promoting the rehabilitation of the young offender. The court orders that the sentence imposed in relation to the offence of “Take motor vehicle without consent” (CH2022/1110) be suspended after six months served, to permit a short period of supervision to give effect to the matters for which the appellant requires assistance and/or guidance in the community.

1. The appellant's name be referred to by the pseudonym "DC".

2. The appeals against all sentences imposed and other Orders made in respect of breaches of Good Behaviour Orders in the Children's Court on 27 January 2023 are dismissed except for the sentence imposed in relation to CH2022/1110.

3. In respect of the offence of "Take motor vehicle without consent" committed on 24 September 2022, the sentence of 8 months imprisonment to commence on 2 December 2022 and expire on 1 August 2023 is confirmed.

4. In respect of that sentence pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence of imprisonment will be suspended from 1 June 2023 upon the appellant entering into a Good Behaviour Order for a period of two months and one day expiring on 1 August 2023, with the standard conditions of the Crimes (Sentence Administration) Act 2005 and with the additional conditions that the appellant obey all reasonable directions of the Child Youth Protection Director-General as to accommodation, medical treatment, use of prescribed medication, and complying with a suitable NDIS package.

Orders