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Hall v CL

Hall v CL

Case [2015] ACTSC 286 16 September 2015

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:		Hall v CL
Citation:		[2015] ACTSC 286
Hearing Date:		8 September 2015
DecisionDate:		16 September 2015
Before:		Refshauge J
Decision:		The appeal be dismissed.
Catchwords:		APPEAL – Criminal law – jurisdiction, practice and procedure – appeal from the Magistrates Court – Galambany Court – role of Galambany Court – circle sentencing – appeal against sentence – robbery – dishonestly driving someone else’s motor vehicle without consent – driving without a driver licence – Div 3.10.2 and Div 3.10.3 of the Magistrates Court Act 1930 (ACT) – manifestly inadequate – residual discretion of appellate court
Legislation Cited:		Crimes (Appeal and Review) Act 2001 (NSW), s 68A Crimes (Sentencing) Act 2005, ss 33(1)(za), 33(1)(m) Crimes Legislation Amendment Act 2008 (ACT), Pt 1.11 Magistrates Court Act 1930 (ACT), ss 4C, 216, 208(1)(e), 219F(5), 219F(8), s 291L, 291M, 291N; Pt 3.10; Div 3.10.2, 3.10.3
Cases Cited:		Ashdown v The Queen (2011) 219 A Crim R 454 Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 CMB v Attorney-General (NSW) (2014) 89 ALSR 407 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634 Everett v The Queen (1994) 181 CLR 295 Green v The Queen (2011) 244 CLR 462, Mill v The Queen (1988) 166 CLR 59 PR v The Queen [2014] ACTCA 40 R v Campbell [2010] ACTCA 20 R v Chatfield [2012] ACTCA 32 R v CL (Unreported, Supreme Court of the Australian Capital Territory, SCC No 418 of 2009, SCC No 115 of 2012, SCC No 167 of 2012, Burns J, 15 May 2013). R v Harris (2007) 171 A Crim R 267 R v JW (2010) 77 NSWLR 7: R v McMahon [2014] ACTSC 280 R v Morgan (2014) 24 VR 230 R v Nicholson (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC No 133 of 2012, 6 September 2012 R v O’Brien [1987] Tas SR 167 R v PM [1992] CanLII 2814 R v Shaw (Unreported, Victorian Court of Appeal Phelps CJ, Hampel and Vincent JJ, 126 of 1992, 23 October 1992 R v TW (2011) 6 ACTLR 18 R v Wanganeen (2010) 108 SASR 463 R v Wheeler [2000] NSWCCA 34 R v Williams [2014] ACTCA 30 Wong v The Queen (2001) 207 CLR 584
Texts Cited:		Ivan Potas, Jane Smart, Georgia Brignell, Brendan Thomas and Rowena Lawrie, Circle Sentencing in New South Wales. A Review and Evaluation (Judicial Commission of NSW, Sydney, 2003) Fiori Rinaldi, Dismissal of Crown Appeals Despite Inadequacy of Sentence (1983) 7(6) Crim LJ 306 Magistrates Court of the Australian Capital Territory, Galambany Court Practice Direction No. 1 of 2012 Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non Adversarial Justice (The Federation Press, Sydney, 2014) 2^nd Ed, Ch 11 Kate Warner, Sentencing in Tasmania (The Federation Press: Sydney, 2002) 2^nd ed
Parties:		Matthew James Hall (Appellant) CL (Respondent)
Representation:		Counsel Mr M Fernandez (Appellant)

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 Hall v CL

Details

AGLC: Hall v CL [2015] ACTSC 286
Case: [2015] ACTSC 286
Decision Date: 16 September 2015

CaseChat Overview and Summary

The appeal was heard by the Galambany Court, an intermediate appellate court in the Australian Capital Territory, and involved a defendant, Hall, appealing against his sentence for robbery, dishonest driving, and driving without a licence. The Galambany Court was asked to consider whether it had jurisdiction to hear the appeal and whether the sentence imposed by the Magistrates Court was manifestly inadequate. The court was also asked to consider the appropriate role of the Galambany Court in reviewing sentences imposed by the Magistrates Court, particularly in the context of circle sentencing. The Galambany Court held that it did have jurisdiction to hear the appeal under the Magistrates Court Act 1930 (ACT), and that the sentence imposed by the Magistrates Court was not manifestly inadequate. The court emphasised the importance of deference to the primary decision-maker, and noted that the sentence imposed was within the range of reasonable outcomes. The court also noted that the Magistrates Court had taken into account the principles of circle sentencing, which aimed to provide a more culturally appropriate approach to sentencing Indigenous offenders. The appeal was dismissed, and the sentence imposed by the Magistrates Court was upheld.

Orders

Orders of the court

The appeal be dismissed.

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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Citations

Hall v CL [2015] ACTSC 286

Most Recent Citation

Hall v CL (No 2) [2015] ACTSC 294

Cases Citing This Decision

Chapman v Cottle (No 2) [2025] ACTSC 126
Citation 1

…n v Reddin [2013] ACTSC 87 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Hall v CL [2015] ACTSC 286 Harlovich v Sebbens [2022] ACTSC 331 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 Harlovich v Sebbens [2024] ACTSC 153 Kaye v Siddiq [2013] ACT…
Harlovich v Sebbens [2024] ACTSC 153
Citation 2

…n v Reddin [2013] ACTSC 87 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Hall v CL [2015] ACTSC 286 Harlovich v Sebbens [2022] ACTSC 331 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [20…
Harlovich v Sebbens [2023] ACTSCFC 3
Citation 3 (Para 8)

…[2015] ACTSC 286 at [8] – [16]. Both Divisions provide for appeals to be brought against…
Chapman v Cottle [2022] ACTSC 330
Citation 4

…CMB v Attorney-General for NSW [2015] HCA 9; 256 CLR 346 Croatto v Banks [2015] ACTSC 398 Fall v Vuolo [2022] ACTSC 249 Hall v CL [2015] ACTSC 286 Hurt v The Queen [2022] ACTCA 49 Kirby v Ali [2021] ACTSC 95 Legal Practitioner v Council of the Law Society of the ACT [2014] ACTSC 256 Minister for Immigration, Citize…
Kinnane v Beattie [2022] ACTSC 265
Citation 5 (Para 1)

…one by way of a Practice Direction No 1 of 2012 , which set out the procedure to be followed. The procedure was described to some extent in Hall v CL [2015] ACTSC 286 at [36]-[49]. It involved a number of Aboriginal elders participating in the proceedings and providing a recommendation to the magistrate. It was the…
Adams v Navaratnam [2021] ACTSC 256
Citation 6 (Para 1)

…Section 219F(5) is an express application of the court’s residual discretion: Hall v CL [2015] ACTSC 286 at [15] per Refshauge J, referring to CMB .…
Croatto v Banks [2015] ACTSC 398
Citation 7 (Para 1)

…In Hall v CL [2015] ACTSC 286 at [118], Refshauge J considered that the principles applicable to Crown appeals against sentence also apply to prosecution appeals against sentence from the Magistrates Court. Those principles were stated in R v TW (2011) 6 ACTLR 18 at [4] as follows:…
Bedford v Earle (No 2) [2015] ACTSC 309
Citation 8 (Para 1)

…why separate occasions of criminality should be separately recognised by additional punishment. See R v Harris (2007) 171 A Crim R 267 and Hall v CL [2015] ACTSC 286 at [145].…
Hall v CL (No 2) [2015] ACTSC 294
Citation 9 (Para 1)

…eptember 2015, I dismissed the informant’s appeal against a sentence imposed on the respondent, CL, imposed on him on 19 August 2015. See Hall v CL [2015] ACTSC 286.…

See all citing cases →

Cases Cited

R v Holder [2019] SASCFC 73
Citation 1

…ever, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen ..., must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254). [47]Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must…
R v JW [2017] NSWSC 1843
Citation 2 (Para 1)

…blic Prosecutions (Vic) v Karazisis at 655-6; [90]-[91], Ashley, Redlich and Weinberg JJA referred as follows to what Spigelman CJ had said in R v JW (2010) 77 NSWLR 7:…
PR v The Queen [2014] ACTCA 40
Citation 3 (Para 1)

…A conclusion – for such it is – can then be drawn as to whether the sentence imposed was manifestly inadequate (or excessive). See PR v The Queen [2014] ACTCA 40 at [48] – [49] and the approach set out clearly in R v Williams [2014] ACTCA 30 at [13] – [18].…
The Queen v Williams [2014] ACTCA 30
Citation 4 (Para 1)

…ed was manifestly inadequate (or excessive). See PR v The Queen [2014] ACTCA 40 at [48] – [49] and the approach set out clearly in R v Williams [2014] ACTCA 30 at [13] – [18].…
R v McMahon [2014] ACTSC 280
Citation 5 (Para 1)

…d a very common situation that the sentences for burglary and the theft committed at the same time are almost always made concurrent. See R v McMahon [2014] ACTSC 280 at [94].…
R v Chatfield [2012] ACTCA 32
Citation 6 (Para 1)

…ence is irrelevant and that to rely on that would “smuggle in” by the back door the principle of “double jeopardy”, declared in R v Chatfield [2012] ACTCA 32 not to apply to this Territory. The appellant pointed out that a successful Crown appeal will often require adjustment of a non-parole period or a head sente…
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1
Citation 7 (Para 1)

…parole period or a head sentence and this risk is not to be considered for the reasons set out in Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 at 653; [28].…
Ashdown v The Queen [2011] VSCA 408
Citation 8 (Para 1)

…fies the factors and principles that are the key to sentencing. It is, however, a mandated requirement that regard be had to sentencing practice. See Ashdown v The Queen (2011) 219 A Crim R 454 at 511.…
Green v The Queen; Quinn v The Queen [2011] HCA 49
Citation 9 (Para 1)

…ubmitted, appellate intervention in the case of manifest inadequacy is required to maintain consistency in sentencing standards. In Green v The Queen (2011) 244 CLR 462, the Court said at 477-8; [37]:…
Cooper v Corvisy (No 2) [2010] ACTSC 166
Citation 10 (Para 1)

…I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.…
DPP v Karazisis [2010] VSCA 350
Citation 11 (Para 1)

…The submission pointed to the reference in Director of Public Prosecutions (Vic) v Karazisis (2010) 31 VR 634 at 658; [104] to some of these matters that may be relevant to the exercise of the residual discretion to dismiss a Crown appeal: delay, parity, the totality principle, rehabilitation and fault on the part…
R v Wanganeen [2010] SASC 237
Citation 12 (Para 1)

…tralia and Circle Sentencing has been a part of the criminal justice system since South Australia established Nunga Courts in 1999. See R v Wanganeen (2010) 108 SASR 463 at 471-5; [13]-[25].…
Hawkins v Hawkins [2009] ACTSC 148
Citation 13

…32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]): [46]The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen ..., must be accompanied by reasons…
The Queen v Morse [2009] NZCA 51
Citation 14

…34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99): To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily…
Wong v The Queen [2001] HCA 64
Citation 15 (Para 1)

…quite different from this case and the subjective circumstances of the offender were quite different. A sentence is not a precedent: Wong v The Queen (2001) 207 CLR 584 at 605; [57]. A single sentence will rarely be of any assistance in sentencing much less in a sentencing appeal.…
R v Wheeler [2000] NSWCCA 34
Citation 16 (Para 1)

…ical aspect, where public confidence in sentencing could be eroded by the absence of additional punishment for more than one offence. See R v Wheeler [2000] NSWCCA 34 at [36]-[37].…
R v Brown [1999] NSWCCA 323
Citation 17 (Para 24)

…ences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur – see R v Brown [1999] NSWCCA 323 at [24]; R v Mungomery (2004) 151 A Crim R 376 at 381.…
Pearce v The Queen [1998] HCA 57
Citation 18 (Para 45)

…In Pearce v The Queen (1998) 194 CLR 610; 103 A Crim R 372 at [45] the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a corollary that no sentence should reflect criminality extending beyond the particular offence to which it relates. Thus, if additional or grea…
Everett v the Queen [1994] HCA 49
Citation 19 (Para 1)

…I note that also in Everett v The Queen (1994) 181 CLR 295 at 300 it was explained that the reference to a point of principle “must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards”.…
Mill v The Queen [1988] HCA 70
Citation 20 (Para 1)

…Ms Saikal also submitted that, given the period of imprisonment to which CL was already subject, the principle of totality ( Mill v The Queen (1988) 166 CLR 59 at 62-3) required that the lengthy sentence should not be extended.…

Legislation Cited

Magistrates Court Act 1930 (ACT) 208(1)(e), 216, 219F(5), 219F(8), 291M,...
8 mentions (from Para 1)
Crimes (Sentencing) Act 2005 (ACT) 33(1)(m), 33(1)(za)
3 mentions (from Para 1)
Crimes (Appeal and Review) Act 2001 (NSW) 68A
2 mentions (from Para 1)
Crimes Legislation Amendment Act 2008 (ACT)
1 mention (from Para 1)