Hamlin v Watkins - [2019] ACTSC 24

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hamlin v Watkins
Citation:	[2019] ACTSC 24
Hearing Date:	5 February 2019
DecisionDate:	5 February 2019
Before:	Loukas-Karlsson J
Decision:	See [39]
Catchwords:	CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – appeal from Magistrates Court – appeal against sentence – whether appellant’s prospects of rehabilitation had been considered – whether appellant afforded procedural fairness – appeal allowed
Legislation Cited:	Crimes Act 1900 (ACT) s 375 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 Criminal Code 2002 (ACT) s 310 Magistrates Court Act 1930 (ACT) Part 3.10, ss 208, 209
Cases Cited:	Bethke v Phelan [2016] ACTSC 328 Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 Huggard v Murray [2016] ACTSC 246; 312 FLR 104 McDonald v The Queen [1994] FCA 108; 48 FCR 555 Moutrage v Haines [2008] ACTSC 36 Slipper v Turner [2015] ACTSC 27; 294 FLR 164 Taylor v The Queen [2014] ACTCA 9 Zdravkovic v The Queen [2016] ACTCA 53
Parties:	Shay Hamlin (Appellant) Nicole Watkins (Respondent)
Representation:	Counsel P Edmonds (Appellant) M Fernandez (Respondent)
Solicitors Paul Edmonds and Associates (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 51 of 2018
Decision under appeal:	Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 12 September 2019 Case Title: Watkins v Hamlin Court File Number: CC 3657 of 2018

LOUKAS-KARLSSON J:

Introduction

On 12 September 2018, Chief Magistrate Walker made the following orders in relation to Mr Shay Hamlin (the appellant):

(a)Convicted of committing aggravated robbery (in company) on 4 March 2018 (CC18/3657) and sentenced to 27 months of imprisonment, with a non-parole period of 15 months; and
(b)Convicted of possessing a drug of dependence on 20 April 2018 (CC18/8070) and sentenced to 1 month of imprisonment, concurrent with the above sentence.

This is an appeal against the sentence of 27 months with a non-parole period of 15 months for the offence of aggravated robbery in company on 4 March 2018.

This is an offence contrary to s 310 of the Criminal Code 2002 (ACT), which on conviction carries up to 25 years' imprisonment. The appellant elected to have the matter dealt with in the Magistrates Court (s 375 of the Crimes Act 1900 (ACT)). The offence therefore carries a maximum of five years' imprisonment or a financial penalty.

The Appeal

The appellant relies upon the grounds outlined at paragraphs 4(i) and (v) of the Amended Notice of Appeal only, and those grounds of appeal are as follows:

(a)the Chief Magistrate erred by not having regard to a relevant consideration, being the appellant's prospects of rehabilitation (Ground 1); and
(b)the Chief Magistrate did not afford procedural fairness to the appellant by giving him notice that she was not then persuaded on the current evidence that he had been of prior good character as an adult prior to the offences (Ground 2).

Further evidence was tendered before me on the usual contingent basis, that evidence relating…

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 Hamlin v Watkins

Details

AGLC: Hamlin v Watkins [2019] ACTSC 24
Case: [2019] ACTSC 24
Decision Date

CaseChat Overview and Summary

Shay Hamlin (the appellant) appeals against the sentence of 27 months with a non-parole period of 15 months for the offence of aggravated robbery in company on 4 March 2018, contrary to s 310 of the Criminal Code 2002 (ACT). The offence was committed with a friend, Ms Inglis, who was known to the store staff. The appellant was arrested three days later and subsequently charged with the offence. The appellant pleaded guilty at an early stage and there was some delay in the proceedings prior to sentence. The appeal concerns the sentence imposed by the Chief Magistrate on 12 September 2018. The appellant submits that the Chief Magistrate erred in not having regard to a relevant consideration, being the appellant's prospects of rehabilitation (Ground 1), and that the Chief Magistrate did not afford procedural fairness to the appellant by giving him notice that she was not then persuaded on the current evidence that he had been of prior good character as an adult prior to the offences (Ground 2). In relation to Ground 1, the court found there had been a specific error in relation to this ground. The question of rehabilitation is an important matter that ought to have been specifically referred to on the facts of this case. The court also found that, in light of the finding in relation to Ground 1, it was not necessary to deal with Ground 2. The appeal is upheld in relation to Ground 1. The sentence of the Magistrates Court imposed on 12 September 2018 in relation to the aggravated robbery is set aside, and the appellant is re-sentenced. The court re-sentenced the appellant to 24 months of imprisonment, commencing 3 September 2018, and concluded 2 September 2020, with a non-parole period of 11 months, commencing 3 September 2018 and concluding 2 August 2019. The appeal is upheld, and the sentence is varied. The appellant will be eligible for parole on 2 August 2019.

Orders