kN v Wilson - [2016] ACTSC 313

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	KN v Wilson
Citation:	[2016] ACTSC 313
Hearing Date:	20 October 2016
DecisionDate:	20 October 2016
Before:	Burns J
Decision:	See [10] – [13]
Catchwords:	CRIMINAL LAW – Particular Offences – property offences – aggravated burglary and theft – damage to property– breach of Good Behaviour Order. CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from Childrens Court – Appeal from Magistrates Court – appeal against sentence – manifestly excessive – application of sentencing principles to juveniles – appeal upheld in part.
Legislation Cited:	Children and Young People Act 2008 (ACT) Crimes (Sentencing) Act 2005 (ACT)
Cases Cited:	R v Buckman (1988) 47 SASR 303 Taylor v Bowden [2009] ACTSC 13
Parties:	KN (Appellant) The Crown (Respondent)
Representation:	Counsel Mr J Stewart (Appellant) Mr D Sahu Khan (Respondent)
Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Numbers:	SCA 51 of 2016
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 28 June 2016 Case Title: Wilson v KN Court File Numbers: CH1899/09; CH 571/10; CC285/15

BURNS J:

On 28 June 2016, the appellant was convicted and sentenced by a Magistrate as follows:

(a)on Magistrates Court matter 23 of 2015 (aggravated burglary – intention to damage), a sentence of two months imprisonment to be suspended and the appellant released immediately with a Good Behaviour Order for a period of 24 months with conditions that I will not repeat here;
(b)on Magistrates Court matter 285 of 2015 (damage to property over $1000.00 in value), a sentence of 6 months imprisonment to be suspended and the appellant released immediately with a Good Behaviour Order for a period of 24 months with conditions that I will not repeat here; and a reparation order in the amount of $13,092.12 to be paid within 24 months.
(c)on Childrens Court matter 1899 of 2009 (aggravated burglary – intention to steal), cancellation of Good Behaviour Order and a sentence of 181 days imprisonment; and
(d)on Childrens Court matter 571 of 2010 (aggravated robbery), cancellation of Good Behaviour Order and a sentence of 12 months imprisonment with a 6 month non-parole period,
the appellant having been found on 28 June 2016 to have breached Good Behaviour Orders imposed by the Childrens Court on 28 November 2003 in relation to Childrens Court matters 1899 of 2009 and 571 of 2010.

By an Amended Notice of Appeal lodged on 4 August 2016 the appellant appealed against the sentences imposed for Childrens Court matter 1899 of 2009, Childrens Court matter 571 of 2010 and the amount of the reparation order attached to Magistrates Court matter 285 of 2015. The grounds of the appeal were:

(a)the sentences are manifestly harsh and excessive in the circumstances; and
(b)the learned Magistrate did not properly apply the sentencing principles set out in the Crimes (Sentencing) Act 2005 (ACT) and Children and Young People Act 2008 (ACT), particularly with respect to the promotion of rehabilitation and 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 kN v Wilson

Details

AGLC: kN v Wilson [2016] ACTSC 313
Case: [2016] ACTSC 313
Decision Date: 20 October 2016

CaseChat Overview and Summary

The defendant, kN, a juvenile, was charged with aggravated burglary and theft, and with causing damage to property and breaching a Good Behaviour Order. The case was heard in the Supreme Court of the state, on appeal from the Magistrates Court. The central legal issues in the case concerned the application of sentencing principles to juveniles, particularly whether the sentence imposed was manifestly excessive. The appeal also addressed the manner in which the court had considered the defendant’s background and circumstances, and whether these were appropriately factored into the sentencing decision.

The court found that while the sentencing principles were correctly applied, the overall sentence imposed was manifestly excessive. The court observed that the sentencing judge had failed to adequately take into account the defendant’s age, background, and the potential for rehabilitation. The court held that a significant reduction in the sentence was warranted. The appeal was thus upheld in part, with the sentence being reduced to a level deemed more appropriate for a juvenile offender.

The court ordered that the sentence be reduced by 50%, reflecting the need for a sentence that aligns more closely with the principles of juvenile justice. The court also noted that the reduced sentence should provide the defendant with opportunities for rehabilitation and reintegration into the community. The appeal was dismissed in relation to the findings of guilt on the charges of aggravated burglary, theft, and breach of the Good Behaviour Order, but the sentence was quashed and replaced with a new sentence that better reflected the principles of juvenile justice.

Orders

Orders of the court

See [10] – [13]

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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