Kent v Arley

[2007] ACTSC 66

JENNIFER MARGARET KENT v NICHOLAS ARLEY
[2007] ACTSC 66 (8 August 2007)

APPEAL – Sentencing – failure to address sentencing magistrate on options – Crown concedes discretion to not record conviction appropriate.

Crimes (Sentencing) Act 2005, s 17

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 46 of 2006 

Judge:     Connolly J
Supreme Court of the ACT

Date:      8 August 2007

IN THE SUPREME COURT OF THE  )
  )  No. SCA 46 of 2006
AUSTRALIAN CAPITAL TERRITORY  )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JENNIFER MARGARET KENT

Appellant

AND:NICHOLAS ARLEY

Respondent

ORDER

Judge:  Connolly J
Date:  8 August 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. The conviction be set aside and in lieu thereof, pursuant to s 17 of the Crimes (Sentencing) Act 2005, no conviction be recorded.

1. The reparation order to remain.

1. This matter originally came before me as an appeal against conviction and sentence from the reasons of the learned Magistrate this morning.  After some discussion between counsel, it proceeded purely on an appeal against sentence.

1. It is apparent from the way the matter was dealt with in the Magistrates court that, following the handing down of extensive and careful reasons for a finding that the offence had been committed, the learned Magistrate, after indicating an assumption that nothing was known in relation to Ms Kent, was then rather quickly taken by her counsel to a suggestion that the matter proceed immediately to sentence.

1. The only real discussion that occurred then between counsel and the learned Magistrate was in relation to reparation orders.  There was no submission made at all in relation to a potential disposition which was to exercise the discretion.

1. It has long been a feature of ACT law now found in s 17 of the Crimes (Sentencing) Act2005, which allows a sentencer to find an offender guilty of an offence, but to deal with the offender in a manner which does not require the recording of a conviction.  That can be done after the Court considers the offender’s character, antecedents, age, health, medical condition, seriousness of the offence and any extenuating circumstances in which the offence was committed.  This is a case which, on its face, was suitable for the exercise of that discretion.

1. The learned Magistrate was not taken to that and was not given the benefit of any submissions in relation to that, which is unusual and does seem to me to amount to a basis for this Court to intervene.  I note that the Crown in its submissions did not demur from that proposition.  It seems to me, therefore, that there was an error not on the part of the Magistrate.  The learned Magistrate was lead into a position where the sentence she imposed can be subject to appellate review, because she was not taken to the section or given any submissions or material that would allow her to enliven her discretion to not impose a conviction. 

1. The justification does not impose a conviction which…