Harlovich v Sebbens

[2022] ACTSC 331

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Harlovich v Sebbens

Citation:

[2022] ACTSC 331

Hearing Date:

1 December 2022

DecisionDate:

1 December 2022

Reasons Date:

2 December 2022

Before:

Loukas-Karlsson J

Decision:

See [11]

Catchwords:

APPEAL – APPEAL FROM MAGISTRATES COURT – referral to Full Court – where related issue arose in another matter which prosecution submitted should be referred for consideration of Full Court – whether this matter should also be referred – where respondent sought matter be referred so that the respondent’s representatives could be heard at the Full Court hearing – where appellant did not oppose referral – referral made

Legislation Cited:

Supreme Court Act 1933 (ACT) s 13

Cases Cited:

Chapman v Cottle [2022] ACTSC 330

Parties:

Gregory Harlovich (Appellant)

Carla Lee Sebbens (Respondent)

Representation:

Counsel

A Williamson SC (Appellant)

J Cooper (Respondent)

Solicitors

ACT Director of Public Prosecutions (Appellant)

Aboriginal Legal Service NSW/ACT (Respondent)

File Number:

SCA 10 of 2022

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Hopkins

Date of Decision:          31 March 2022

Case Title:  Harlovich v Sebbens

Court File Number(s):   CC  6685/2021

Loukas-Karlsson J:

Introduction

1․On 1 December 2022 I listed this matter for hearing on an urgent basis. The reason for the listing was to hear from the parties in relation to whether this matter should be referred along with another matter (Chapman v Cottle) to the Full Court pursuant to s 13(3) of the Supreme Court Act 1933 (ACT) to consider the issue of whether the Court retains a residual discretion not to intervene on a prosecution appeal from a sentence imposed in the Magistrates Court.

2․The prosecution had sought the referral in Chapman v Cottle and the respondent in that matter consented to the referral given the importance of the issue and the lack of clarity arising from conflicting lines of authority in this Court.

3․Ultimately, I indicated at the joint hearing that I would be referring Chapman v Cottle to the Full Court, with the reasons for that referral ultimately published on 2 December 2022: Chapman v Cottle [2022] ACTSC 330.

4․Having made that indication at the hearing on 1 December 2022, I then heard from the parties in this proceeding regarding whether this matter should similarly be referred and from all parties on the form of the appropriate question(s) to include in the referral.

Consideration

5․Counsel for the respondent indicated that he sought to be heard by the Full Court at the hearing of the question(s), as the issue was of significance in this matter. That, of course, must be accepted. The question of whether I have a residual discretion to decline to intervene may affect how I approach the appeal if I accept the prosecution’s submissions that the sentencing Magistrate erred.

6․In circumstances where the respondent sought to be heard by the Full Court, counsel for the appellant quite properly indicated that the prosecution did not oppose this matter being similarly referred. Counsel, however, noted that technically the…