Keith Dutton v The Queen - [2013] ACTCA 48

KEITH DUTTON v THE QUEEN
[2013] ACTCA 48 (29 October 2013)

APPEAL – appeal against sentence – whether sentencing judge gave sufficient weight to appellant’s deprived background – appellant an Aboriginal offender – application of principles in Bugmy v The Queen – sentencing judge addressed appellant’s disadvantaged background adequately – appeal dismissed.

Bugmy v The Queen (2013) 87 ALJR 1022
R v Engert (1995) 84 A Crim R 67

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 23 – 2013
No. SCC 403 of 2011

Judges: Refshauge, Penfold and Burns JJ
Court of Appeal of the Australian Capital Territory
Date: 29 October 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 23 – 2013
)          No. SCC 403 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KEITH DUTTON
Appellant

AND:THE QUEEN
Respondent

ORDER

Judges:  Refshauge, Penfold and Burns JJ
Date:  29 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

The appellant’s sentence is confirmed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 23 – 2013
  )          No. SCC 403 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KEITH DUTTON
Appellant

AND:THE QUEEN
Respondent

Judges:  Refshauge, Penfold and Burns JJ
Date:  29 October 2013
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J:

The decision in Bugmy v The Queen (2013) 87 ALJR 1022 is an important contribution to the jurisprudence of sentencing where Aboriginal persons are the offenders, but its application has to be grounded in facts that should be found from evidence adduced before the sentencing judge and also related to the offence. It also applies principles that are relevant to the sentencing of non-aboriginal offenders.

As the High Court has made clear, it is not an inevitability that the deprived background of an offender will result in a more lenient sentence. Clearly the objective seriousness of the offence and other matters such as protection of the community may override any particular mitigation that the offender’s background may afford. Their Honours in Bugmy v The Queen referred with approval to what Gleeson CJ said in R v Engert (1995) 84 A Crim R 67 at 68:

A moment’s consideration will show that the interplay of the considerations relevant to sentencing may be complex and on occasion even intricate. In a given case, facts which point in one direction in relation to one of the considerations to be taken into account may point in a different direction in relation to some other consideration. For example, in the case of a particular offender, an aspect of the case which might mean that deterrence of others is of lesser importance, might, at the same time, mean that the protection of society is of greater importance. That…

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 Keith Dutton v The Queen

Details

AGLC: Keith Dutton v The Queen [2013] ACTCA 48
Case: [2013] ACTCA 48
Decision Date: 29 October 2013

CaseChat Overview and Summary

In *Keith Dutton v The Queen*, the appellant, an Aboriginal offender, appealed against the sentence imposed by the sentencing judge. The core of the dispute concerned whether the sentencing judge had adequately considered the appellant's deprived background when determining the appropriate penalty.

The primary legal issue before the appellate court was whether the sentencing judge had given sufficient weight to the appellant's Aboriginal heritage and disadvantaged background, as required by the principles established in *Bugmy v The Queen*. This involved an assessment of whether the sentencing judge had properly acknowledged and applied the sentencing considerations relevant to Indigenous offenders facing disadvantage.

The court reasoned that the sentencing judge had adequately addressed the appellant's disadvantaged background. It was held that the judge had not erred in their sentencing approach, having considered the relevant factors, including the appellant's background, in accordance with established legal principles. Consequently, the appeal was dismissed, and the sentence imposed by the sentencing judge was confirmed.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant’s sentence 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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