James William McEwan v Simon Vincent Rohan (No. 2) - [2013] ACTSC 54

JAMES WILLIAM MCEWAN v SIMON VINCENT ROHAN (No. 2)
[2013] ACTSC 54 (22 March 2013)

CRIMINAL APPEAL – EVIDENCE – appeal from Magistrate – appellant convicted of making an intentional threat to kill – application to adduce fresh evidence on appeal – s 214 Magistrates Court Act 1930 (ACT) – whether necessary or expedient to receive material in the interests of justice – evidence of hardship on children caused by appellant’s imprisonment – necessary and expedient to receive in the interests of justice – evidence of appellant’s experience of his Aboriginality – not necessary and expedient to receive in the interests of justice – application granted in part

CRIMINAL APPEAL – appeal from Magistrate – appellant sentenced for making an intentional threat to kill – appeal against sentence – sentence imposed at first instance was appropriate – fresh evidence of hardship upon appellant’s family changes appropriate disposition – appeal upheld & appellant resentenced

McEwan v Rohan [2012] ACTSC 181

Crimes Act 1900 (ACT) s 30
Crimes (Sentencing) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT), s 214

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 79 of 2012

Judge: Burns J
Supreme Court of the ACT

Date: 22 March 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 79 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

JAMES WILLIAM MCEWAN
Appellant
v

SIMON VINCENT ROHAN

Respondent

ORDER

Judge:Burns J
Date:22 March 2013
Place:Canberra

THE COURT ORDERS THAT:

The application to adduce fresh evidence is granted in part.

i. The material relating to the hardship to his children occasioned by the appellant’s incarceration is allowed.

ii. The material relating to the appellant’s experience of his Aboriginality as a child and as a young man is refused.

The appeal against sentence is upheld.

i. The conviction and sentence of 18 months’ imprisonment imposed by the Magistrate are confirmed.

ii. The balance of the sentence is suspended upon the appellant entering into a Good Behaviour Order.

On 17 September 2012, the appellant was convicted of an offence contrary to s 30 of the Crimes Act 1900 (ACT), alleging that on 26 December 2011 he made a threat to another person to kill that person, and intended that the person to whom the threat was made would fear that the threat would be carried out, and made that threat without lawful excuse and in circumstances in which a reasonable person would have feared that the threat would be carried out.
On conviction he was sentenced to 18 months’ imprisonment with a non-parole period of 12 months.
The appellant appealed from both the conviction and sentence. At the hearing of the appeal, in respect of the conviction imposed by the sentencing Magistrate on 19 October 2012, it was indicated that the appellant at that time was not in a position to pursue the appeal against sentence. In addition to which, of course, if the appeal against conviction had been successful there would have been no requirement for…

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 James William McEwan v Simon Vincent Rohan (No. 2)

Details

AGLC: James William McEwan v Simon Vincent Rohan (No. 2) [2013] ACTSC 54
Case: [2013] ACTSC 54
Decision Date: 22 March 2013

CaseChat Overview and Summary

The appellant, James William McEwan, appealed against his conviction and sentence imposed by a Magistrate for making an intentional threat to kill. McEwan was also seeking to adduce fresh evidence to the appeal, including evidence of hardship caused to his children by his imprisonment and evidence of his experience of his Aboriginality as a child and as a young man. The appeal was heard in the Supreme Court of the Australian Capital Territory.

The legal issues before the court were whether it was necessary and expedient to receive the fresh evidence in the interests of justice, and whether the sentence imposed was appropriate. The court had to consider the provisions of s 214 of the Magistrates Court Act 1930 (ACT) to determine if the fresh evidence should be admitted. The court also had to consider the principles of sentencing to determine if the sentence was appropriate.

The court found that the evidence of hardship caused to the children by the appellant’s imprisonment was necessary and expedient to receive in the interests of justice, as it was relevant to the appellant’s rehabilitation and the welfare of his children. However, the evidence of the appellant’s experience of his Aboriginality was not necessary and expedient to receive in the interests of justice, as it was not relevant to the offence or the sentence. The court held that the sentence imposed was appropriate, but the fresh evidence of hardship caused to the appellant’s family changed the appropriate disposition. The appeal against sentence was upheld, and the appellant was resentenced with the balance of the sentence suspended upon the appellant entering into a Good Behaviour Order.

The orders made by the court were that the application to adduce fresh evidence was granted in part, with the material relating to the hardship to his children occasioned by the appellant’s incarceration allowed, and the material relating to the appellant’s experience of his Aboriginality as a child and as a young man refused. The appeal against sentence was upheld, with the conviction and sentence of 18 months’ imprisonment confirmed, and the balance of the sentence suspended upon the appellant entering into a Good Behaviour Order.

Orders

Orders of the court

1. The application to adduce fresh evidence is granted in part. i.The material relating to the hardship to his children occasioned by the appellant’s incarceration is allowed.

ii.The material relating to the appellant’s experience of his Aboriginality as a child and as a young man is refused.

2.The appeal against sentence is upheld.

i. The conviction and sentence of 18 months’ imprisonment imposed by the Magistrate are confirmed.

ii. The balance of the sentence is suspended upon the appellant entering into a Good Behaviour Order.

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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