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Kirby v Ali

Kirby v Ali

Case [2021] ACTSC 95 25 May 2021

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Kirby v Ali
Citation:	[2021] ACTSC 95
Hearing Dates:	29 April and 12 May 2021
DecisionDate:	25 May 2021
Before:	Robinson AJ
Decision:	See [70]
Catchwords:	CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Crown appeal against sentence – review appeal – failure to comply with bail undertaking – whether Magistrate erred in accounting for pre-sentence custody attributable to other offences – specific error established – sentence manifestly inadequate – appeal allowed – resentenced CRIMINAL LAW – STATUTORY INTERPRETATION – construction of Division 3.10.3 of the Magistrates Court Act 1930 (ACT) – interaction between the Crown appeal sentencing discretion and “substantial miscarriage of justice” – discretion to not intervene where no miscarriage of justice is occasioned by an error
Legislation Cited:	Bail Act 1992 (ACT), s 49(1) Criminal Appeal Act 1912 (NSW), s 5D(1) Crimes (Sentencing) Act 2005 (ACT), ss 62, 63 Magistrates Court Act 1930 (ACT), ss 219B, 219D, 219F, Division 3.10.3 Supreme Court Act 1933 (ACT), ss 37E, 37O(7)
Cases Cited:	CMB v Attorney General(NSW) [2015] HCA 9; 256 CLR 346 Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503 Griffiths v The Queen (1977) 137 CLR 293 Knight v Victoria [2017] HCA 29; 261 CLR 306 Massey v Naspe [2012] ACTSC 161 Mill v The Queen (1988) 166 CLR 59 Nguyen v The Queen [2016] HCA 17; 256 CLR 656 R v Ali [2017] ACTSC 366 R v Ali (No 2) [2019] ACTSC 356 R v Ali (No 4) [2020] ACTSC 350 R v McHugh (1985) 1 NSWLR 588 R v Ralston [2020] ACTCA 47 Wronski v Raue [2012] ACTSC 87
Parties:	Joel Kirby ( Appellant) Haider Ali ( Respondent)
Representation:	Counsel K McCann ( Appellant) P Edmonds ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Appellant) Paul Edmonds & Associates ( Respondent)
File Number:	SCA 59 of 2020
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Lawton Date of Decision: 21 December 2020 Case Title: The Police v Haider Ali Court File Number: CC 10819 of 2019

ROBINSON AJ:

Jurisdiction

In this proceeding the Crown appeals from orders made by Magistrate Lawton in sentencing Mr Ali (the respondent) consequent upon his plea of guilty.

The Supreme Court has jurisdiction to entertain the appeal pursuant to Division 3.10.3 of the Magistrates Court Act 1930 (ACT). The appeal is brought by way of a review appeal pursuant to s 219D(e) contending that the sentence or penalty was manifestly inadequate or otherwise in error.

At the commencement of the hearing the parties were agreed in respect of the principles which apply in respect of a Crown appeal and the circumstances where, even if error is established justifying the resentencing of an offender, the Crown must also negate any reason why the “residual discretion” of the court not to interfere should be exercised. The parties took these principles from cases such as the High Court’s decision…

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 Kirby v Ali

Details

AGLC: Kirby v Ali [2021] ACTSC 95
Case: [2021] ACTSC 95
Decision Date

CaseChat Overview and Summary

This case involves an appeal by the Crown against the sentence imposed on Haider Ali by Magistrate Lawton. The Crown argues that the sentence was manifestly inadequate and that the Magistrate erred in accounting for pre-sentence custody attributable to other offences. The Supreme Court of the Australian Capital Territory heard the appeal on 29 April and 12 May 2021, and delivered its decision on 25 May 2021. The court found that the Magistrate erred in his approach to sentencing, particularly in accounting for the pre-sentence custody, and that the sentence imposed was manifestly inadequate. The court allowed the appeal, resentenced the respondent, and ordered that the Crown pay the respondent's costs of and incidental to the appeal.

The legal issues in this case revolve around the interpretation of the relevant sentencing provisions and the appropriate approach to sentencing in cases where the offender has been in pre-sentence custody. The court had to consider whether the Magistrate erred in accounting for the pre-sentence custody and whether the sentence imposed was manifestly inadequate. The court also had to consider the discretion available to it under Division 3.10.3 of the Magistrates Court Act 1930 (ACT) in reviewing the sentence.

The court found that the Magistrate erred in his approach to sentencing by accounting for the pre-sentence custody in a manner that was not in accordance with the relevant sentencing provisions. The court held that the Magistrate was required to determine whether he would backdate the sentence in order to determine a proper sentence in conformity with the Crimes (Sentencing) Act 2005 (ACT), rather than accounting for the period of custody leading up to the disposition of the case. The court also found that the sentence imposed was manifestly inadequate, as it did not reflect the objective circumstances of the offending.

In relation to the discretion available to the court under Division 3.10.3, the court held that the Division is self-contained and that it is to be applied by the courts in accordance with the explicitly expressed criterion. The court declined to apply the Crown sentencing appeal jurisprudence to the review process under Division 3.10.3, as it considered that the application of a further discretionary consideration under the Division, in addition to the explicit criterion, would be antithetical to the process contained in the Division.

The court resentenced the respondent to a period of imprisonment of 12 months for the offence of failing to comply with a bail undertaking, after allowing a discount for his plea of guilty. The court ordered that the sentence commence on 21 March 2021 and finish on 20 March 2022, with a non-parole period commencing on 21 July 2019 and expiring on 20 April 2021. The court also ordered that the Crown pay the respondent's costs of and incidental to the appeal.

Orders