JA v LYNDALL Macdonald and Morgwn Saunders - [2011] ACTSC 22

JA v LYNDALL MACDONALD AND MORGWN SAUNDERS
[2011] ACTSC 22 (22 February 2011)

APPEAL – criminal law – appeal against severity of sentence – whether sentence manifestly excessive – whether undue weight given to antecedent history – whether failure to give sufficient weight to rehabilitation – whether order expressed concurrent or cumulative – no specific error by Magistrate – different sentence would not have been imposed – appeal dismissed

Crimes Sentencing Act 2005 (ACT), s71

Ledson v Taylor &ors [2010] ACTSC 42
Kennewell v Rand [2005] ACTSC 89
Kennewell v Rand [2006] ACTCA 10
R v Boudelah (1991) 28 FCR 176
R v Dodd (1991) 57 A Crim R 349
R v JG [2005] VSCA 74

R v Madden (SCC 27 of 2008)

R v PM [2009] ACTSC 24

R v Quinlan (SCC 290 of 2009)

Saga v Reid and Collett [2010] ACTSC 59
Veen (No 2) (1988) 164 CLR 465

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 51 of 2010

Judge: Teague AJ
Supreme Court of the ACT
Date: 22 February 2011

IN THE SUPREME COURT OF THE )
) No. SCA 51 of 2010
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JA
Appellant

AND:LYNDALL MACDONALD
First Respondent

AND:MORGWN SAUNDERS
Second Respondent

ORDER

Judge:  Teague AJ
Date of order:  22 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

This is an appeal against sentences imposed by a magistrate on 21 July 2010. The sentencing exercise that Magistrate Fryar faced was a particularly complex one. The complexity arose for a number of reasons. One of those reasons was that the appellant had to be sentenced as to several serious offences which were committed on two days which were some months apart. Another was that, on the first of the two days, there were quite separate but serious offences committed. There were a series of property offences, followed by a major driving offence. Another was that he had to be treated as a juvenile or child as to the offences on the first day, but as a young adult as to the offences on the second day. Another was that he had been found guilty as to the offences on the first day, but had pleaded guilty to all the offences on the second day. Another was that he had different co-offenders as to the two sets of property offences, but no co-offender as to the driving offence. Her Honour had to comply with the relevant sentencing legislative provisions, not only the generally applicable ones, but also those as to child offenders, particularly as to rehabilitation. She also had to take account of the general sentencing principles as to totality, cumulation, parity, and more.

The grounds of appeal included, in summary, that the sentences were manifestly excessive, that her Honour erred in failing to correctly apply the totality principle, that her Honour failed to allow appropriately for parity as to…

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.

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Details

Case: [2011] ACTSC 22
Decision Date: 22 February 2011

CaseChat Overview and Summary

In the matter of JA v Lyndall Macdonald and Morgwn Saunders, the appellant, JA, sought to appeal against the severity of the sentence imposed by the Magistrates Court of Victoria. The nature of the dispute centred on the appropriateness of the sentence, with JA arguing that it was manifestly excessive and that the Magistrate had unduly emphasised the appellant’s antecedent history while insufficiently considering the appellant’s rehabilitation efforts. The appeal was heard by the Supreme Court of Victoria.

The court was required to determine whether the sentence imposed was manifestly excessive and whether the Magistrate had given undue weight to the appellant’s antecedent history while failing to sufficiently account for the appellant’s rehabilitation. Additionally, the court examined whether the order was intended to be concurrent or cumulative. The appellant argued that the Magistrate failed to properly weigh these factors, leading to an unjust sentence. The respondent contended that the sentence was appropriate given the circumstances and the appellant’s criminal history.

The court found that while the appellant had raised valid points regarding the sentencing process, there was no specific error by the Magistrate that warranted a different sentence. The court observed that the Magistrate had considered all relevant factors, including the appellant’s antecedent history and rehabilitation, and had exercised judicial discretion appropriately. The court concluded that a different sentence would not have been imposed by the court if called upon to do so. Consequently, the appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

The appeal is dismissed.

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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