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Keen v Tither

Keen v Tither

Case [2010] ACTSC 130 15 October 2010

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BRENDON RICHARD KEEN v DARREN TITHER [2010]
ACTSC 130 (15 October 2010)

EX TEMPORE JUDGMENT

Criminal Code 1995 (Cth), s 147.1(1)
Crimes (Sentencing) Act 2005 (ACT), ss 41, 45(2), 46, 77, 77(1)(d), 78, 78(1)
Magistrates Court Act 1930 (ACT), s 214(4)
Criminal Appeal Act 1912 (NSW), s 6(3)

AB v The Queen [1999] 198 CLR 111
Baxter v The Queen (2007) 173 A Crim R 284
Carpenter v Purcell [2008] ACTSC 34
Craft v Diebert [2004] ACTCA 15
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Ledson v Taylor [2010] ACTSC 42
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2006) 228 CLR 357
R v Bell [2003] NSWCCA 305
R v Scerri (Unreported, Supreme Court of the ACT, Higgins CJ, 11 December 2009)
The Queen v De Simoni (1981) 147 CLR 383
R v Henry [2001] NSWCCA 521
R v Johnson [2005] NSWCCA 186
R v Simpson (2001) 126 A Crim R 525

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 61 of 2009

Judge: Penfold J
Supreme Court of the ACT

Date: 15 October 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 61 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:BRENDON RICHARD KEEN
Applicant

AND:DARREN TITHER
Respondent

ORDER

Judge:  Penfold J
Date:  15 October 2010
Place:  Canberra

THE COURT ORDERED AS FOLLOWS:

The appeal is upheld.
The sentence in the Magistrates Court is set aside.
The appellant is re-sentenced, by requiring him to sign an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for 12 months with security in the amount of $100.
The good behaviour order is subject to the conditions that:

(a) the appellant accept the supervision of ACT Corrective Services and obey all reasonable directions of the Chief Executive, or her delegate; and

(b) the appellant undertake such counselling, courses, programs or treatment as directed by his supervising officer.

Introduction

On 21 August 2009, Brendon Richard Keen was sentenced in the Magistrates Court to 3 months imprisonment to be served by way of periodic detention. The sentence was imposed in respect of an offence of common assault constituted by spitting on a policewoman who was receiving Mr Keen into the watch house, after he had been arrested for a breach of the peace. Mr Keen served 7 weeks of the 3-month sentence as periodic detention, but then by leave lodged an appeal against his sentence on 6 November 2009.

Background

At the hearing of the appeal on 27 May 2010, an amended notice of appeal was filed in Court without objection. That notice indicated that the appellant would seek to put further evidence before the Court, and identified the grounds of appeal as:

(a) first, that the sentence was too severe, having regard to the objective seriousness of the offence, the surrounding circumstances, the…

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 Keen v Tither

Details

AGLC: Keen v Tither [2010] ACTSC 130
Case: [2010] ACTSC 130
Decision Date

CaseChat Overview and Summary

The case of Keen v Tither [2010] ACTSC 130 (15 October 2010) involved an appeal against the sentence imposed on Brendon Richard Keen by the Magistrates Court. Mr Keen had been sentenced to three months imprisonment for the offence of common assault, which involved spitting on a police officer. He served seven weeks of the sentence by way of periodic detention before lodging an appeal on 6 November 2009. The grounds of appeal were that the sentence was too severe and that the sentencing Magistrate failed to give Mr Keen an opportunity to make submissions as to penalty. The respondent conceded that psychiatric evidence, which was not before the sentencing Magistrate, could be admitted on appeal. The prosecutor also conceded that the sentencing process was infected by error and that re-sentencing was therefore open. The Supreme Court found error in the sentencing process and set aside the sentence imposed by the Magistrates Court. The Court ordered a proper pre-sentence report and a forensic mental health assessment of Mr Keen. The Court found that a different sentence would be appropriate in this case, given the trivial nature of the offence and Mr Keen’s subjective circumstances. The Court re-sentenced Mr Keen by making a good behaviour order with a security of $100 and subject to the conditions that he accept the supervision of ACT Corrective Services and obey all reasonable directions of the Chief Executive, or her delegate, and that he undertake such counselling, courses, programs or treatment as directed by his supervising officer.

Orders