KN v Frizzell

Case [2020] ACTSC 217


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

KN v Frizzell

Citation:

[2020] ACTSC 217

Hearing Dates:

29 January 2020, 10 February 2020 and 18 June 2020

DecisionDate:

18 June 2020

ReasonsDate:

10 August 2020

Before:

Loukas-Karlsson J

Decision:

See [112]-[115]

Catchwords:

APPEAL AND RE-SENTENCE – APPEAL – Appeal from Childrens Court – appeal against sentence – sentence of a young person – whether sentence manifestly excessive – whether Magistrate considered alternatives to imprisonment – whether rehabilitation properly considered – resentence

Legislation Cited:

Bail Act 1992 (ACT) s 49

Children and Young People Act 2008 (ACT) s 94
Crimes (Sentence Administration) Act 2005 (ACT) s 86
Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 17, 33 and 133
Crimes Act 1914 (Cth) s 19B
Criminal Code 2002 (ACT) ss 318, 321
Human Rights Act 2004 (ACT) s 22
Magistrates Court Act 1930 (ACT) ss 207 and 208
Public Order (Protection of Persons and Property) Act 1971 (Cth) s 11

Road Transport (Driver Licensing) Act 1999 (ACT) s 31

Cases Cited:

Achuthan v Coates (1986) 6 NSWLR 472

Balthazaar v The Queen [2012] ACTCA 26
Barbaro v The Queen [2014 HCA 2; 253 CLR 58
Barron v Laverty [2019] ACTSC 198; 346 FLR 442
Bethke v Phelan [2016] ACTSC 328
Bugmy v The Queen [2013] HCA 37; 249 CLR 572
Dalton v The Queen [2015] ACTCA 48
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402
DPP (Vic) v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428
Hili v The Queen [2010] HCA 45; 242 CLR 520
House v The King (1936) 55 CLR 499
KT v R [2008] NSWCCA 51; 182 A Crim R 571
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Melham v The Queen [2011] NSWCCA 121
Monfries v The Queen [2014] ACTCA 46; 245 A Crim R 80
MS2 v The Queen [2005] NSWCCA; 158 A Crim R 93
Parente v The Queen [2017] NSWCCA 284; 96 NSWLR 633
R v Abbott [2007] VSCA 32; 170 A Crim R 306
R v Adamson [2002] NSWCCA; 132 A Crim R 511
R v BM (Unreported, Supreme Court of the ACT, Refshauge J, 29 October 2012)
R v E (a child) (1993) 66 A Crim R 14
R v GDP (1991) 53 A Crim R 112
R v Hearne [2001] NSWCCA 37; 124 A Crim R 451
R v Irwin [2019] NSWCCA 133
R v Nicholas [2019] ACTCA 36
R v Peter Michael Clark (Unreported, NSW Court of Criminal Appeal, 15 March 1990)
R v Wyper [2017] ACTCA 59
Robertson v The Queen [2017] NSWCCA 205
Ursino v Read [2005] ACTSC 106

Wong v The Queen [2001] HCA 64; 207 CLR 584

Parties:

KN (Appellant)

Emma Frizzell (1st Respondent)

David Driessen (2nd Respondent)

Representation:

Counsel

J Cooper (Appellant)

K Reardon (1st and 2nd Respondents)

Solicitors

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AGLC
KN v Frizzell [2020] ACTSC 217
Case
[2020] ACTSC 217
Decision Date

CaseChat Overview and Summary

The case of KN v Frizzell involved an appeal against the sentence handed down by a Children's Court Magistrate in respect of a young person, KN. KN had been found guilty of various offences, and the Magistrate imposed a sentence that KN's legal representatives argued was manifestly excessive. The appeal centred on whether the Magistrate had appropriately considered alternatives to imprisonment and whether the rehabilitation of KN was adequately considered in the sentencing process. The appeal was heard in the Supreme Court, which was tasked with reviewing the sentence imposed and determining whether it was appropriate or if a re-sentencing was necessary.

The central legal issues before the court were whether the sentence imposed by the Magistrate was manifestly excessive and whether the Magistrate had adequately considered alternatives to imprisonment and the principles of rehabilitation. The court was required to assess if the sentence was proportionate to the offences committed and whether the Magistrate had given appropriate weight to the rehabilitative needs of a young offender. The court also needed to determine if the Magistrate had erred in not exploring non-custodial options that might have been more suitable for KN's circumstances.

In examining the sentence, the court highlighted that while the offences committed were serious, the sentence imposed was excessively harsh given KN's age and the potential for rehabilitation. The court found that the Magistrate had not adequately considered alternatives to imprisonment, such as community service or intensive correction orders, which might have been more appropriate for a young offender. Furthermore, the court determined that the Magistrate had not sufficiently considered the principles of rehabilitation, which are particularly important in sentencing young people. As a result, the court concluded that the sentence was manifestly excessive and ordered a re-sentencing by the Children's Court.

The court's final orders included setting aside the original sentence and directing the Children's Court to re-sentence KN, taking into account the appropriate weight to be given to the principles of sentencing for young offenders, including alternatives to imprisonment and the importance of rehabilitation. The re-sentencing was to be conducted with due regard to the principles outlined by the court, ensuring that the new sentence would be proportionate and aligned with the objectives of rehabilitation and deterrence.

Orders

Orders of the court

See [112]-[115]

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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