Im v McDevitt [No 1] - [2015] ACTSC 178

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	IM v McDevitt [No 1]
Citation:	[2015] ACTSC 178
Hearing Date:	26 March 2015
DecisionDate:	2 April 2015
Before:	Penfold J
Decision:	The appeal is upheld, and the appellant will be re-sentenced.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – juvenile offender with good prospects of rehabilitation sentenced to 26 months imprisonment with 15 months in full-time custody before sentence suspended – importance of rehabilitation of young offenders – period to be served in full-time custody manifestly excessive – appeal upheld – offender to be re-sentenced.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7(1), 133C, 133D
Cases Cited:	Bugmy v The Queen (2013) 249 CLR 571 Christopher John Coggan v The Queen [2013] ACTCA 49 Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Kurt John Drayton v The Queen [2013] ACTCA 44 R v CA [2014] ACTSC 332 R v GD, DD, AK, & BW [2012] ACTSC, Penfold J, 20 June 2012
Parties:	IM (Appellant) Jason Luke McDevitt (Respondent)
Representation:	Counsel Mr J Lawton (Appellant) Mr M Reardon (Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 64 of 2014
Decision under appeal:	Court: ACT Children’s Court Before: Magistrate Morrison Date of Decision: 11 July 2014 Case Title: McDevitt v [IM] Court File Numbers: CH 1731/12; CH 1732/12; CH 96/13; CH 97/13; CH 400/14; CH 404/14; CH 402/14; CH 403/14; CH 427/14; CH 428/14; CH 429/14; CH 430/14; CH 431/14

Introduction

On 11 July 2014 IM was sentenced in the Magistrates Court for 30 offences being:

(a)six aggravated burglaries;
(b)three burglaries;
(c)12 thefts;
(d)six offences of taking or using a motor vehicle without consent;
(e)two offences of obtaining financial advantage by deception; and
(f)one failure to appear on a bail undertaking.

The offences

The offences were outlined by his Honour in his sentencing remarks, which I have drawn on for the following summary.

3. In the early hours of Monday, 24 December 2012, a resident of Yarralumla woke to the sound of persons whispering outside his residence. He subsequently discovered that the home had been entered and property stolen. That occasion gave rise to charges of burglary and theft. The value of the property stolen was $500.

4. On the same day, a resident of Macarthur discovered that their property had been entered and an Apple iPad valued at $750 stolen. That also gave rise to charges of burglary and theft.

5. IM was first before the court on 31 December 2012. He was granted bail and remanded to appear on 11 January the following year but he did not do so. That resulted in a charge of failing to appear.

6. The next offences took place between 4 and 6 April 2014. At sometime between those two dates, a Ford Focus motor vehicle was taken from the car park…

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 Im v McDevitt [No 1]

Details

AGLC: Im v McDevitt [No 1] [2015] ACTSC 178
Case: [2015] ACTSC 178
Decision Date: 2 April 2015

CaseChat Overview and Summary

Im brought an appeal against their sentence before the court. The appellant was sentenced to 26 months imprisonment with 15 months in full-time custody before the sentence is suspended. The appellant submitted that the term of imprisonment was manifestly excessive. The court was required to determine whether the sentence imposed was manifestly excessive and whether the appeal should be upheld.

The court noted that the appellant was a juvenile offender with good prospects of rehabilitation. The appellant was 17 years of age at the time of sentencing and had no previous convictions. The court considered that the term of imprisonment was manifestly excessive given the appellant's age, prospects of rehabilitation, and the importance of rehabilitating young offenders. The court found that the sentence imposed interfered with the discretion of the court below and held that the appeal should be upheld. The court held that the appellant will be re-sentenced.

The appeal was upheld and the appellant will be re-sentenced. No further orders were made.

Orders

Orders of the court

The appeal is upheld, and the appellant will be re-sentenced.

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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