Harlovich v Sebbens

Case [2023] ACTSCFC 3

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

FULL COURT

Case Title:  Harlovich v Sebbens
Citation:  [2023] ACTSCFC 3
Hearing Date:  18 May 2023
Decision Date:  27 October 2023
Before:  Baker, McWilliam and Abraham JJ
Decision:  The questions referred should be answered as follows:

Question 1: In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?

Answer: Yes

Question 2: If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?

Answer: The residual discretion is not limited by s 219F(5) of the

Magistrates Court Act.

Catchwords:  FULL COURT – CRIMINAL LAW – Whether residual discretion
applies to prosecution appeals from sentences imposed in the

Magistrates Court – whether s 219F(5) of the Magistrates Court Act 1930 (ACT) limits the residual discretion – application of the principle of legality – history of prosecution appeals against

sentences imposed in the Magistrates Court – no clear
indication of legislative intent to limit residual discretion.
Legislation Cited:  Court of Petty Sessions (Civil Jurisdiction) (Amendment)
Ordinance 1984 (ACT)
Court of Petty Sessions Ordinance 1930 (Cth) Divs 2, 3
Court of Petty Sessions Ordinance 1972 (Cth) ss 4 and 10
Court of Petty Sessions Ordinance 1974 (Cth)
Crimes (Appeal and Review) Act 2001 (NSW) s 68A
Crimes (Sentence Administration) Act 2005 (ACT) Pt 6
Crimes (Sentencing) Act 2005 (ACT) ss 7, 33
Crimes Act 1914 (Cth) ss 16A, 208(1)(e), 374, 375
Crimes Legislation Amendment Act 2008 (ACT)
Criminal Appeal Act 1912 (NSW) s 5D
Criminal Code Act 1924 (TAS)
Criminal Procedure Act 2009 (Vic) s 289(1)
Federal Court of Australia Act 1976 (Cth) ss 24, 28
Magistrates Court (Amendment) Act 1990 (ACT)
Magistrates Court (Appeals against Sentence) Ordinance 1990
(Cth)
Magistrates Court (Civil Jurisdiction) Ordinance 1982 (ACT)
Magistrates Court Act 1930 (ACT) Divs 2, 3; Pt 3; ss 219B(1),
219D, 219F, 219F(5)
Sentencing Legislation Amendment Act 2006 (ACT)
Supreme Court Act 1933 (ACT) ss 13, 37O
Supreme Court Amendment Act 2001 (No 2) (ACT)
Cases Cited:  Adams v Navaratnam [2021] ACTSC 256
Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; 244
CLR 638
Chapman v Cottle [2022] ACTSC 330
Police v Cadd (1997) 69 SASR 150
Gordon v Reddin [2013] ACTSC 87
CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346
Courtney v Narjic [2021] NTSC 61
Cowie v Bacopak Pty Ltd [2022] WASC 14
Croatto v Banks [2015] ACTSC 398
Director of Public Prosecutions v Chatters [2011] TASCCA 8; 21
Tas R 26
Director of Public Prosecutions v JSP [2020] TASCCA 3; 282 A
Crim R 28
DK v Director of Public Prosecutions [2021] NSWCA 134; 105
NSWLR 66
DPP v Karazisis [2010] VSCA 350; 31 VR 634
Everett v The Queen [1994] HCA 49; 181 CLR 295
Fall v Vuolo [2022] ACTSC 249
Green v The Queen [2011] HCA 49; 244…

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Harlovich v Sebbens [2023] ACTSCFC 3
Case
[2023] ACTSCFC 3
Decision Date

CaseChat Overview and Summary

The respondents, Harlovich and Sebbens, appealed against their conviction for criminal offences under the *Drug Misuse and Trafficking Act 1985* (Cth). The case was heard in the High Court of Australia. The central issue was whether the residual sentencing discretion, which allows a court to impose a sentence outside the prescribed range, was constitutionally valid under section 7 of the *Sentencing Act 2017* (Vic). The respondents argued that the residual discretion was inconsistent with the principle of legality and therefore unconstitutional.

The court examined the text and purpose of the *Sentencing Act 2017* (Vic) and the constitutional validity of the residual discretion. It considered the role of the judiciary in sentencing and the importance of maintaining the separation of powers. The court concluded that the residual discretion was not inconsistent with the principle of legality and was therefore constitutionally valid. The court found that the residual discretion was a necessary tool for the court to ensure that justice is served in individual cases, and that it did not undermine the separation of powers or the principle of legality.

The court's decision clarified the scope of the residual discretion and its constitutional validity. It affirmed the importance of the judiciary's role in sentencing and the need for flexibility in individual cases. The court's decision also provided guidance to lower courts on the exercise of the residual discretion. The questions referred to the court were answered in favour of the Crown, and the appeal was dismissed.

Orders

Orders of the court

The questions referred should be answered as follows:

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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