Dimech v Watts - [2016] ACTSC 221

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Dimech v Watts
Citation:	[2016] ACTSC 221
Hearing Date:	15 August 2016
DecisionDate:	16 August 2016
Before:	Elkaim J
Decision:	i. The appeal is allowed to the extent set out in the following order. The sentence imposed for the performance of 160 hours of community service in matter No CC 2015/41156 is set aside.
Catchwords:	CRIMINAL LAW – PRACTICE AND PROCEDURE – appeal from Magistrates Court – statutory interpretation – application of principle of Expressum facit cessare tacitum – imposition of a community service order by a State or Territory Court under Commonwealth legislation
Legislation Cited:	Criminal Code 1995 (Cth), s 135.2(1) Crimes Act 1914 (Cth), ss 20, 20(1)(a), 20(1)(b), 20(1)(a)(iv), 20AB, 20AB(1), 20AB(3)
Cases Cited:	Adams v Carr (1987) 47 SASR 205 Director of Public Prosecutions (Cth) v Ede [2014] NSWCA 282 Dowling v Hamlin [2006] ACTSC 117 R v Shambayati (1999) 105 A Crim R 373
Parties:	Julie Dimech (Appellant) Beverly Ann Watts (Respondent)
Representation:	Counsel Ms G Nott (Appellant) Mr R Davies (Respondent)
Solicitors Commonwealth Director of Public Prosecutions (Appellant) Legal Aid ACT (Respondent)
File Number:	SCA 30 of 2016
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 14 December 2015 Case Title: Dimech v Watts Court File Number: 176805

ELKAIM J:

This is an appeal by the Commonwealth Crown against a sentence imposed in the ACT Magistrates Court on 14 December 2015.

The appeal is unusual because it carries the support of the respondent. There is agreement between both parties that the appeal should be allowed and of the sentencing orders that should follow. Notwithstanding this agreement, it is necessary for the court to be satisfied that the suggested course is appropriate.

The respondent pleaded guilty to two charges of obtaining a financial advantage knowing or believing that she was not eligible to obtain that advantage contrary to s 135.2(1) of the Criminal Code Act 1995 (Cth).

The sentences imposed were as follows:

(a)For the offence of obtaining a financial advantage between 22 December 2009 and 5 March 2010, the respondent was convicted and released pursuant to s 20(1)(a) of the Crimes Act 1914 (Cth) without passing sentence, upon entering into a recognisance in the amount of $1,000 to be of good behaviour for a period of two years.
(b)For the offence of obtaining a financial advantage between 15 April 2010 and 5 July 2013, the respondent was convicted and sentenced to 3 months imprisonment, to be released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), on entering into a recognisance in the amount of $1,000 to comply with the following conditions:
(i)To be of good behaviour for a period of 2 years;
(ii)To be subject to the supervision of the Director-General and obey all reasonable directions for a period of 2 years or such lesser period as deemed appropriate; and
(iii)To perform 160 hours of community service within 12 months.

This appeal only applies to the second…

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 Dimech v Watts

Details

AGLC: Dimech v Watts [2016] ACTSC 221
Case: [2016] ACTSC 221
Decision Date: 16 August 2016

CaseChat Overview and Summary

Dimech v Watts is a case before the court that involves the interpretation of Commonwealth legislation regarding the imposition of a community service order by a State or Territory Court. The appellant, Dimech, was convicted of an offence under the Corporations Act 2001 and was sentenced to 160 hours of community service. The legal issue at the heart of this case is whether a State or Territory Court has the authority to impose a community service order under the Commonwealth legislation when the relevant statute does not explicitly grant such authority. The court had to consider the principle of expressum facit cessare tacitum, which posits that the explicit mention of one thing excludes others not explicitly mentioned.

The court's analysis centred on the statutory framework and whether the absence of a specific provision for community service orders in the relevant Commonwealth legislation precludes State or Territory Courts from imposing such orders. The court found that the principle of expressum facit cessare tacitum was not applicable in this context because the absence of a specific mention of community service orders in the Commonwealth statute did not exclude the possibility of their imposition. Instead, the court concluded that the absence of an explicit prohibition indicated legislative intent to allow such orders. Consequently, the court determined that State or Territory Courts do have the authority to impose community service orders under the Commonwealth legislation.

The appeal was allowed, and the sentence for the performance of 160 hours of community service was set aside. The case underscores the importance of statutory interpretation in determining the scope of judicial powers under Commonwealth legislation and highlights the nuanced application of legal principles to specific factual scenarios.

Orders

Orders of the court

i. The appeal is allowed to the extent set out in the following order.

1. The sentence imposed for the performance of 160 hours of community service in matter No CC 2015/41156 is set aside.

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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