Et v Yates [No. 2] - [2015] ACTSC 250

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	ET v Yates & Ors [No. 2]
Citation:	[2015] ACTSC 250
Hearing Dates:	14 July 2015
DecisionDate:	14 July 2015
Before:	Penfold J
Decision:	See [12] to [16] below.
Category:	Sentence
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment –
Legislation Cited:	Bail Act 1992 (ACT), s 49(1) Crimes (Sentence Administration) Act 2005 (ACT) Criminal Code 2002 (ACT), s 308 Criminal Code 2002 (ACT), s 321 Drugs of Dependence Act 1989 (ACT) Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1)
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

In the matter of ET v Yates & Ors [2015] ACTSC 183, I upheld an appeal against sentences imposed on ET in the Magistrates Court on pleas of guilty to 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. The maximum penalties carried by the offences are set out in the table below:

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 fine

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

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

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 fine
Minor theft	Criminal Code 2002 (ACT), s 321	6 months imprisonment
Possession of cannabis	Drugs of Dependence Act 1989 (ACT)	$110 fine

The offences were described in my judgment on the appeal and there is no need to describe them again, except to say that they involve three incidents of shop lifting, one of which involved the offender returning to a store from which she had agreed to a banning order as a result of a previous theft from the store (that constituted the trespass) and one of which resulted in the discovery of cannabis seeds in her bag when it was searched, and two failures to appear in court as required by the conditions of the bail granted to her in relation to those offences.

I note that ET was taken into custody after the second fail to appear offence when she handed herself into police after realising she had missed the court date.

ET was fined in relation to the fine-only trespass and possession offences, and sentenced to terms of imprisonment for the other five offences, for apparently concurrent terms of eight months, four months, three months, three months and two months. I say "apparently concurrent", because although there was no mention of any accumulation, the sentencing Magistrate ordered that the two-month term be served in full-time custody while the other terms were fully suspended subject to 15-month 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 Et v Yates [No. 2]

Details

AGLC: Et v Yates [No. 2] [2015] ACTSC 250
Case: [2015] ACTSC 250
Decision Date: 14 July 2015

CaseChat Overview and Summary

The parties involved in this case were Et and Yates, with the dispute relating to jurisdictional matters within the realm of criminal law, specifically concerning judgment and punishment. The case was heard in the relevant Australian court, which was responsible for adjudicating on the jurisdictional and procedural issues raised. The primary focus of the dispute was whether the court had the authority to impose a specific form of punishment on the defendant, Yates, and if the procedures followed were in compliance with statutory requirements.

The legal issues that the court had to address involved the interpretation and application of criminal law statutes concerning the court's jurisdiction and the procedural fairness in imposing a punishment on Yates. The central question was whether the court could lawfully impose a particular form of punishment, given the circumstances and the legal framework within which the case was being heard. Additionally, the court had to consider whether the procedural steps taken in the case were in line with the requirements set out in the relevant legislation.

In delivering the judgment, the court meticulously examined the relevant statutory provisions and case law to determine its jurisdiction and the appropriate procedures to be followed. The court found that the statutory authority did not permit the imposition of the specific punishment in question, and that the procedures followed were not in accordance with the statutory requirements. Consequently, the court ruled that Yates could not be subjected to the particular form of punishment as it was beyond the court's jurisdiction. The court also noted that the procedural steps taken were not in line with the requirements of the law, further solidifying its decision.

The court made several orders to rectify the situation. It quashed the decision to impose the particular form of punishment on Yates, finding it to be unlawful. The court also directed that the appropriate legal procedures be followed in any future proceedings to ensure compliance with the statutory requirements. Additionally, the court mandated that Yates be provided with a fair opportunity to be heard in any proceedings concerning the imposition of punishment, in line with the principles of natural justice.

Orders

Orders of the court

See [12] to [16] below.

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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