DD v Ilievski - [2016] ACTSC 115

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DD v Ilievski
Citation:	[2016] ACTSC 115
Hearing Date:	23 May 2016
DecisionDate:	23 May 2016
Before:	Murrell CJ
Decision:	Appeal allowed in part. Appellant re-sentenced to 20 months’ imprisonment.
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Magistrates Court – Stalking offence - Whether sentence was manifestly excessive – Appeal allowed in part – Sentences restructured
Legislation Cited:	Crimes Act 1900 (ACT) s 35(2) Crimes (Sentencing) Act 2005 (ACT) ss 33, 35 Magistrates Court Act 1933 (ACT) ss 207, 208
Cases Cited:	House v The King (1936) 55 CLR 499 Treloar v DD (Unreported, Magistrates Court of the ACT, Magistrate Fryar, 25 November 2015)
Parties:	DD (Appellant) Christopher Ilievski (Respondent)
Representation:	Counsel Dr J De Bruin (Appellant) Mr D Sahu Khan (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 110 of 2015
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Fryar Date of Decision: 25 November 2016 Case Title: Treloar v DD Court File Number: CC 5331 of 2012

MURRELL CJ:

The appellant appeals against the following sentences imposed by the Magistrates Court on 25 November 2015:

(a)Breach of good behaviour order for assault: three months’ imprisonment to run from 6 August 2015 to 5 November 2015 (maximum penalty for assault two years’ imprisonment);
(b)Stalking: 14 months’ imprisonment, from 6 November 2015 to 5 January 2017 (maximum penalty two years’ imprisonment);
(c)Drive while disqualified (repeat offender): six months’ imprisonment from 6 August 2016 to 5 February 2017 (maximum penalty 12 months’ imprisonment);
(d)Fail to appear: one month’s imprisonment, from 6 February 2017 to 5 March 2017 (maximum penalty two years’ imprisonment);
(e)Fail to appear: one month’s imprisonment, from 6 March 17 to 5 April 2017;
(f)Fail to appear: one month’s imprisonment, from 6 April 2017 to 5 May 2017;
(g)Contravene protection order: four months’ imprisonment, from 6 April 2017 to 5 August 2017 (maximum penalty five years’ imprisonment but two years’ imprisonment if prosecuted in the Magistrates Court).

Sentencing submissions were made on 10 November 2015 and the sentences were delivered on 25 November 2015.

In relation to the total sentence of two years’ imprisonment, the Court fixed a nonparole period of 13 months’ imprisonment expiring on 5 September 2016.

The grounds of appeal stated in the notice of appeal were:

(1) The Magistrate erred in characterising the appellant’s guilty pleas as having small utilitarian value;

(2) The Magistrate failed to have sufficient regard to the principles of totality in accumulating the sentences in the manner in which she did accumulate them; and

(3) The sentences were manifestly excessive.

At the hearing of the appeal, ground (2) was abandoned. Grounds (1) and (3) were pressed in relation to the sentence imposed for the stalking offence.

Facts

Breach of the good behaviour order

On 17 October 2012, the appellant was sentenced to three months’ imprisonment for assault. The sentence was suspended on the appellant entering into a good…

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 DD v Ilievski

Details

AGLC: DD v Ilievski [2016] ACTSC 115
Case: [2016] ACTSC 115
Decision Date: 23 May 2016

CaseChat Overview and Summary

The appellant, DD, appealed against her conviction and sentence in the Magistrates Court for stalking offences against the respondent, Ilievski. The appeal was heard by the Supreme Court, where the primary issue was whether the sentence imposed by the Magistrates Court was manifestly excessive.

The appeal raised questions about the appropriate sentence for stalking offences and the process for determining whether a sentence is manifestly excessive. The appellant argued that the sentence imposed was manifestly excessive and disproportionate to the seriousness of the offence. The respondent, on the other hand, contended that the sentence was within the appropriate range for the offence.

The court found that the sentence was indeed manifestly excessive and disproportionate to the seriousness of the offence. The court considered the nature of the offence, the appellant's criminal history, and the need to deter future offending. The court also noted that the appellant had shown remorse and had cooperated with authorities. The appeal was allowed in part, and the appellant was re-sentenced to 20 months' imprisonment.

Orders

Orders of the court

Appeal allowed in part. Appellant re-sentenced to 20 months’ imprisonment.

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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