Elson v Ayton

Case [2010] ACTSC 70


PAUL EDWARD ELSON v GREGORY PAUL AYTON, ADAM MATHEW SALIBA AND MELANIE THEA SLAVIN-MOLLOY
[2010] ACTSC 70 (15 JULY 2010)

APPEAL – appeal from ACT Magistrates Court – domestic violence offences.

APPEAL – grounds of appeal – Sentencing Magistrate amended the sentences on the bench sheet without providing parties with an opportunity to be heard on the amendments - the sentences imposed were manifestly excessive - Magistrate failed to apply principle totality – maximum penalty imposed.

APPEAL – Some of the offences were committed while offender on bail – repetition of assaults on the victim.

Magistrates Court Act 1930 (ACT), ss 28, 216, 218, Div 3.10.2, Pt 3.10
Crimes (Sentencing) Act 2005 (ACT), ss 61, 208(1)(e)(i), Pt 3.2

Court Procedures Rules 2006 (ACT), rr 6000, 6906
Magistrates Court Practice Direction No 1 of 2009

Hemphill S, Smith R, Toumbourou JW, Herrenkohl TI, Catalano RF, McMorris BJ, Romanuik H, “Modifiable Determinants of Youth Violence in Australia and the United States:  A Longitudinal Study” (2009) 42 ANZ Journal of Criminology 289

Saga v Reid & Anor [2010] ACTSC 59
Mill v The Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
Arman v Wall & Anor [2008] ACTSC 61
Markarian v The Queen (1995) 228 CLR 357
R v Bell [2005] ACTSC 123
R v Hamid (2006) 164 A Crim R 179
Talukder v Dunbar (2009) 194 A Crim R 545
R v McKay [2003] NSWCCA 32
R v Ingram (NSWCCA, 2 August 1993, unreported)
Morrison v The Queen [2009] NSWCCA 211
Whyms v Rowe [2004] ACTSC 18
R v Harris (2007) 171 A Crim R 267
Kelly v Crowe and Anor [2009] ACTSC 77
Jones v The Queen (1989) 166 CLR 409
R v Gorman [2009] ACTSC 7
R v Popovski (No 2) [2008] ACTSC 95
Hatton v Harris [1892] AC 564
In the Marriage of BA and SF Money (1986) 10 Fam LR 966
Ninnis v Miller [1905] VLR 669
In Re Harrison’s Share Under a Settlement, Harrison v Harrison [1955] 1 Ch 260
Covington-Thomas v Commonwealth (No 2) [2007] NSWSC 1059
Burrell v The Queen (2008) 82 ALJR 1221
Cotter v Corvisy (2008) 1 ACTLR 219
Veen v The Queen (No 2) (1988) 164 CLR 465
Halden (1993) 9 A Crim R 30
Storey (1984) 6 Cr App R(s) 104
R v Hally [1965] Qd R 582
Agostino v Cleaves [2010] ACTSC 19
Everett (1994) 73 A Crim R 550
Bowman (1993) 69 A Crim R 530
Charnock v Coady and Ors [2010] ACTSC 26
Johnson v The Queen (2004) 78 ALJR 616

Felix v Smerdon (1944) 18 ALJ 30
Wishart v Fraser (1941) 64 CLR 470
Hadba v The Queen (2004) 182 FLR 472
R v JG [2005] VSCA 74

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 73 of 2009

Judge:             Refshauge J
Supreme Court of the ACT

Date:               15 July 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 73 of 2009
AUSTRALIAN CAPITAL TERRITORY

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AGLC
Elson v Ayton [2010] ACTSC 70
Case
[2010] ACTSC 70
Decision Date

CaseChat Overview and Summary

The appellant, Elson, appealed against his conviction and sentence in the ACT Magistrates Court for multiple domestic violence offences. The respondent, Ayton, was the victim of these assaults. The court was required to determine whether the sentencing magistrate erred in amending the sentences without providing the parties an opportunity to be heard, whether the sentences were manifestly excessive, and whether the principle of totality was applied correctly.

The court held that the sentencing magistrate erred in amending the sentences without giving the parties an opportunity to be heard. The court also found that the sentences imposed were manifestly excessive and that the principle of totality was not applied correctly. The court noted that some of the offences were committed while the appellant was on bail and that there was a repetition of assaults on the victim. The court found that the maximum penalty was imposed for some of the offences.

The appeal was upheld, and the matter was remitted to the ACT Magistrates Court for resentencing. The court noted that the Magistrates Court should consider the principle of totality and provide an opportunity for the parties to be heard before imposing any sentence. The court also noted that the maximum penalty should not be imposed for every offence, and the court should consider the circumstances of each offence and the offender when imposing a sentence.

Orders

Orders of the court

1.

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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