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 Full Court only required one vehicle to hear the issue. I interpolate to note that, of course, it may well have been possible for the respondent’s legal representatives to seek to be heard by the Full Court, for example, as an Amicus Curiae or interested party.

7․There was, however, in my view, an advantage in referring both matters on the same statement of legal question. First, the referral will ensure that the respondent’s legal representatives will be involved in the referred matter from the start. They can engage with the other parties and the Court as to a mutually convenient timetable for submissions and hearing date. Absent such a referral there is no guarantee that could occur. Second, referring both matters will ensure that the Full Court can canvass all arguments on the referred questions of law. Third, the prosecution expressly did not oppose the joint referral. 

8․I therefore made orders referring the legal questions in this matter in identical terms as in the other proceeding. The reasons justifying the referral of the legal questions to the Full Court and explaining the form of the questions are contained in my related judgment.

9․I note that similarly to that matter, the substantive appeal will then be resolved by me. There is no need for the parties to be put to the expense of re-agitating the substantive issues before the Full Court.

10․For obvious reasons, the wording of the questions referred in both matters were identical.

Orders

11․I confirm the orders I made on 1 December 2022 as follows:

(a)The matter be referred to the Full Court pursuant to s 13(3) of the Supreme Court Act 1933 (ACT) to answer the following questions of law:

(i)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?

(ii)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)?

(b)The matter is adjourned to 2.30pm on Thursday 8 December 2022 in the Court of Appeal index list.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson

Associate: Andrew Ray

Date: 2 December 2022