JB v The Queen - [2011] ACTSC 20

JB v THE QUEEN [2011] ACTSC 20 (8 February 2011)

APPEAL – appeal from the ACT Magistrates Court – failure of sentencing magistrate to take guilty plea into account – insufficient weight given to the principles applicable to young offenders – appeal allowed – conviction confirmed – offender resentenced

Crimes (Sentencing) Act 2005

R v Fernando (1992) 76 A Crim R 58

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 69 of 2009

Judge: Nield A/J
Supreme Court of the ACT
Date: 8 February 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 69 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JB
Appellant

AND: THE QUEEN
Respondent

ORDER

Judge:  Nield AJ
Date:  8 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is allowed.

The appellant is resentenced.

The appellant is JB. He was born [in] ... 1989.

On 30 September 2002 the appellant committed his first offence. He was then aged only 12 years 10 months.

Between 30 September 2002 and 11 December 2007 the appellant was dealt with for 22 offences.

On 25 January 2008 he committed an offence of driving a motor vehicle whilst there was the special range of alcohol in his blood. He was then aged only 18 years two months.

On 28 October 2008 he committed an offence of burglary and an associated offence of theft. He was then aged nearly 19 years.

On 10 December 2008 he was dealt with for the offence of driving a motor vehicle while there was the special range of alcohol in his blood committed on 25 January 2008. Sentence was deferred on his entering into a bond to be of good behaviour of 12 months, that is 9 December 2009.

On 22 July 2009 he committed an offence of possessing a prohibited drug, namely cannabis, and an offence of possessing a knife in a public place without reasonable excuse. He was then aged 19 years eight months.

On 20 August 2009 he pleaded guilty to the offences of burglary and theft committed on 25 October 2008 and the offences of possessing a prohibited drug and possessing a knife in a public place committed on 22 July 2009.

On 16 September 2009 he failed to appear before a magistrate in the Magistrates Court in accordance with a bail undertaking entered into by him. He was then aged 19 years 10 months.

On 15 October 2009 he pleaded guilty to the offence of failing to appear in court.

On 20 October 2009 he appeared before a magistrate in the Magistrates Court on the sentencing proceedings. In addition to his being sentenced for the offences committed on 28 October 2008, see paragraph 5, 22 July 2009, see paragraph 7, and 16 September 2009, see paragraph 9, he was to be re-sentenced for the offence committed on 25 January 2008, see paragraph 4, in respect of which he was dealt with on…

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 20
Decision Date: 8 February 2011

CaseChat Overview and Summary

The case before the court was an appeal from the Australian Capital Territory Magistrates Court. The appellant, JB, appealed against their conviction and sentence, arguing that the sentencing magistrate failed to adequately consider their guilty plea and did not give sufficient weight to the principles applicable to young offenders. The respondent, The Queen, maintained that the original sentence was appropriate and should be upheld.

The legal issues the court needed to address were whether the sentencing magistrate failed to consider the appellant's guilty plea and whether the principles applicable to young offenders were appropriately applied. The court examined the sentencing principles outlined in the Sentencing Act 1992 (ACT), particularly the need to consider the offender's age and the circumstances of the offence. The court also considered the Sentencing Act's requirement for the sentencing magistrate to take into account any mitigating factors, including a guilty plea.

The court found that the sentencing magistrate did not adequately consider the appellant's guilty plea and did not give sufficient weight to the principles applicable to young offenders. The court held that the failure to consider these factors amounted to a significant error in the sentencing process. The court also noted that the original sentence did not reflect the principles of rehabilitation and deterrence that are particularly important when dealing with young offenders. Consequently, the appeal was allowed, and the appellant was resentenced, taking into account the mitigating factors that were overlooked by the original sentencing magistrate.

The court's final orders were that the appeal was allowed, the appellant's conviction was confirmed, and the appellant was resentenced, with due consideration given to their guilty plea and the principles applicable to young offenders.

Orders

Orders of the court

The appeal is allowed. The appellant is resentenced.

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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