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.
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
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
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.
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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.