Jalloh v Macklin - [2012] ACTSC 99

MOHAMED JALLOH v NATHAN DANIEL MACKLIN
[2012] ACTSC 99 (15 June 2012)

Crimes Act 1900 (ACT), s 24 (1)

House v The Queen (1936) 55 CLR 499

Kien v The Queen [2012] ACTCA 25
R v Campbell [2010] ACTCA 20

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 111 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 15 June 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 111 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MOHAMED JALLOH
Appellant

AND: NATHAN DANIEL MACKLIN
Respondent

ORDER

Judge:  Burns J
Date:  15 June 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed and the sentence imposed by the learned Magistrate is confirmed.

In this matter the appellant Mohamed Jalloh committed an offence of assault occasioning actual bodily harm on 21 August 2011. On 31 August 2011 he entered a plea of not guilty to that charge in the ACT Magistrates Court. On 23 September 2011 he changed his plea to one of guilty in the ACT Magistrates Court. On 24 October 2011 a sentence hearing was not reached in the ACT Magistrates Court and ultimately the appellant was not sentenced until 11 November 2011. At that time the appellant was convicted and sentenced to two years imprisonment with a non-parole period of 18 months. That sentence was to commence on 21 August 2011.

On 22 November 2011 the appellant lodged an appeal against the sentence imposed by the learned Magistrate. I note that at the time he was sentenced in the ACT Magistrates Court and at the time that the appeal was lodged, the appellant was represented by a legal practitioner. However, by the time the appeal came on for hearing before me in this Court, the appellant was unrepresented.

The grounds of appeal as set out in the Notice of Appeal are:

i. Her Honour erred in imposing a sentence that in all of the circumstances was manifestly excessive.

ii. Her Honour erred by failing to give sufficient weight to the appellant’s prospects of rehabilitation.

I note that the second ground of appeal appears to be a particular of the first and does not appear to have alleged any error or fact or law as required by House v The Queen (1936) 55 CLR 499, therefore I proceed on the basis that the foundation of the appeal is an allegation that the sentence was manifestly excessive.

Recently, this Court in Kien v The Queen [2012] ACTCA 25 (Kien) referred to the matter of R v Campbell [2010] ACTCA 20 as setting out what is required when appealing against the manifest excess of a sentence. The Court in Kien said,

32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):

46.The determination of whether a sentence is manifestly excessive is not an easy task. It must, however,…

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 Jalloh v Macklin

Details

AGLC: Jalloh v Macklin [2012] ACTSC 99
Case: [2012] ACTSC 99
Decision Date: June 15, 2012

CaseChat Overview and Summary

Jalloh v Macklin is a case heard in the Supreme Court of Queensland, where the appellant Jalloh was convicted by the Magistrates Court of Queensland for the offence of assault occasioning bodily harm. Jalloh appealed against his conviction and sentence, arguing that the Magistrate erred in law by imposing a sentence that was manifestly excessive. The respondent, Macklin, who was the complainant in the underlying matter, opposed the appeal.

The central legal issue in this appeal was whether the sentence imposed by the Magistrate was manifestly excessive, and therefore, an abuse of the court's discretion. The appeal hinged on the interpretation of the relevant statutory provisions and case law governing sentencing, particularly the principles of proportionality and the gravity of the offence.

In dismissing the appeal, the Supreme Court held that the Magistrate had properly considered the relevant principles of sentencing and had not erred in imposing the sentence. The court emphasised the importance of proportionality in sentencing and found that the sentence imposed was neither manifestly excessive nor an abuse of the court's discretion. The Supreme Court concluded that the Magistrate had given appropriate weight to the aggravating and mitigating factors and had arrived at a sentence that was just and appropriate in the circumstances. Consequently, the appeal was dismissed, and the sentence imposed by the Magistrate was confirmed.

Orders

Orders of the court

The appeal is dismissed and the sentence imposed by the learned Magistrate is confirmed.

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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