Et v Yates - [2015] ACTSC 183

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	ET v Yates & Ors
Citation:	[2015] ACTSC 183
Hearing Dates:	29 May 2015
DecisionDate:	14 July 2015
Before:	Penfold J
Decision:	The appeal is allowed and ET will be re-sentenced.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – 19‑year-old offender with troubled background and history of juvenile offending – apparently good prospects of rehabilitation – seven relatively minor offences – five terms of imprisonment imposed – two months to be served in full-time custody – sentence manifestly excessive – offender to be re-sentenced. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – plea of guilty discounts expressed as sentences that would have been increased but for pleas of guilty – whether concurrent sentences should be served concurrently or whether one or more could be suspended while one or more to be served in full-time custody.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 71(1)
Cases Cited:	House v The King (1936) 55 CLR 499 R v Said El Masri [2005] NSWCCA 167 R v Doan (2000) 50 NSWLR 115 Roy Anthony Ursino v Luke Roland Read; Roy Anthony Ursino v The Queen [2005] ACTSC 106 Siganto v The Queen (1998) 194 CLR 656 The Queen v Williams [2014] ACTCA 30
Parties:	ET (Appellant) Paul Ronald Yates (First Respondent) Nathan Thomas Weaver (Second Respondent) Romy Hearn (Third Respondent) Beau Tennant (Fourth Respondent) Megan White (Fifth Respondent)
Representation:	Counsel Mr H Jorgensen (Appellant) Mr S McLaughlin (All Respondents)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (All Respondents)
File Number:	SCA 20 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 26 February 2015 Case Title: Yates, Weaver, Hearn, Tennant and White v ET Court File Numbers: CC14/7644; CC14/11486; CC14/9282; CC14/8271; CC14/5917; CC14/11941; CC14/2710

Background

ET has appealed against sentences imposed in the Magistrates Court on 26 February 2015.

ET was sentenced for a total of seven offences, being one theft, two failures to appear on a bail undertaking, one trespass, two minor thefts and one possession of cannabis. Those offences carry the following maximum penalties (fines may also be imposed for the offences carrying terms of imprisonment):

Offence Relevant legislation Maximum penalty

Theft Criminal Code 2002 (ACT), s 308 10 years imprisonment

Fail to appear on a bail undertaking Bail Act 1992 (ACT), s 49(1) 2 years imprisonment

Trespass Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1) $1,100

Minor theft Criminal Code 2002 (ACT), s 321 6 months imprisonment

Possession of cannabis Drugs of Dependence Act 1989 (ACT) $110

Offence	Relevant legislation	Maximum penalty
Theft	Criminal Code 2002 (ACT), s 308	10 years imprisonment
Fail to appear on a bail undertaking	Bail Act 1992 (ACT), s 49(1)	2 years imprisonment
Trespass	Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)	$1,100
Minor theft	Criminal Code 2002 (ACT), s 321	6 months imprisonment
Possession of cannabis	Drugs of Dependence Act 1989 (ACT)	$110

Although the consent to the Magistrates Court exercising jurisdiction in relation to the theft offence limited the sentence that could be imposed to 5 years imprisonment rather than the 10 years available in the Supreme Court, this did not mean that the sentencing Magistrate was required to…

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 Et v Yates

Details

AGLC: Et v Yates [2015] ACTSC 183
Case: [2015] ACTSC 183
Decision Date: 14 July 2015

CaseChat Overview and Summary

In the case of Et v Yates, the respondent, Yates, appealed against his sentence following a conviction for seven relatively minor offences. The appellant, Et, applied for the appeal to be dismissed. The sentencing court had imposed five terms of imprisonment, with two months to be served in full-time custody. The appellant contended that the sentence was manifestly excessive and that the sentencing judge had failed to consider the appellant's prospects of rehabilitation and background, which were pertinent to the sentencing decision.

The court was required to determine whether the sentence imposed by the trial judge was manifestly excessive and whether the concurrent sentences should be served concurrently or if one or more could be suspended while one or more was to be served in full-time custody. The court also considered whether the sentence reflected a plea of guilty discount.

The court found that the sentence imposed was manifestly excessive and that the sentencing judge had failed to adequately consider the appellant's prospects of rehabilitation and background. The court held that the sentence should be quashed and the appellant should be re-sentenced. The court further held that the concurrent sentences should be served concurrently, but that one or more of the sentences could be suspended while one or more was to be served in full-time custody. The court found that the sentence reflected a plea of guilty discount.

The appeal was allowed and the appellant was to be re-sentenced. The court did not make any orders as to costs.

Orders

Orders of the court

The appeal is allowed and ET will be re-sentenced.

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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