Kristiansen v Yeats

Case [2022] ACTSC 351

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Kristiansen v Yeats

Citation:

[2022] ACTSC 351

Hearing Date:

1 December 2022

DecisionDate:

16 December 2022

Before:

Baker J

Decision:

See paras [88] – [93]

Catchwords:

CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – whether sentence affected by error of fact – where appellant sought to rely on new evidence on appeal – whether consequence of error is for Court to re-exercise sentencing discretion afresh

Legislation Cited:

Court Procedures Rules 2006 (ACT), r 5193

Crimes Act 1900 (ACT), ss 26A, 114C
Criminal Appeal Act 1912 (NSW), s 6
Criminal Code 2002 (ACT), s 361(1)
Firearms Act 1996 (ACT), ss 42(1)(a)(iii), 43(1)(a)(iii), 249(1)
Magistrates Court Act1930 (ACT), ss 214, 216, 218

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(2)(a)

Cases Cited:

Barnes v R [2022] NSWCCA 140

Betts v The Queen [2016] HCA 25; 258 CLR 420
Bugmy v The Queen [1990] HCA 18; 169 CLR 525
Green v The Queen [2022] NSWCCA 230
Greenwood v Barlee [2018] ACTSC 46
Griffin v R [2018] NSWCCA 329
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lawless v The Queen [1979] HCA 49; 142 CLR 659
Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205
Morrison v Maher [2021] ACTSC 312
 R v Antoniak [2021] ACTSC 228
R v Collins (No 2) [2021] ACTSC 262
R v Kristiansen [2017] ACTSC 292
Ratten v The Queen [1974] HCA 35; 131 CLR 510
SBT v Wright [2021] ACTSC 322
Sigalla v The Queen (No 2) [2021] NSWCCA 151

Zreika v R [2012] NSWCCA 44; 223 A Crim R 460

Parties:

Thor Kristiansen ( Appellant)

Katherine Yeats ( First Respondent)

Mathew Perkins (Second Respondent)

Representation:

Counsel

P Edmonds ( Appellant)

K McCann ( Respondent)

Solicitors

Paul Edmonds and Associate ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

SCA 22 of 2022

Decision under appeal:  

Court:  ACT Magistrates Court

Before:  Magistrate L Campbell

Date of Decision:          3 March 2022

Case Title:  Yeats v Kristiansen

Court File Numbers:      CC 2021/11549; CC 2021/11550; CC 2021/11551; CC 2021/2636; CC 2021/2637; CC 2021/2638; CC 2021/2639; CC 2021/2640; CC 2021/2641; CC 2021/2642; CC 2021/2644; CC 2021/3009; CC 2021/3010

BAKER J:

Introduction

  1. The appellant appeals against sentences imposed on him by Magistrate Campbell (“the Magistrate”) in the Magistrates Court on 3 March 2022. 

  2. The appellant was sentenced for 13 separate charges, 9 of which resulted in sentences of imprisonment. The charges and individual sentences imposed are set out in the following table:

Court Number

Offence

Maximum penalty

Term of sentence imposed

Start/ end date

Series 1 – offences committed between 6 and 8 June 2020

1

CC21/11549

Deal with the proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT)

(namely a Mitsubishi Lancer)

200 penalty units and/or two years’ imprisonment

4 months 15 days

1/1/22 to 15/5/2022

2

CC21/11550

Unauthorised possession of two firearms, contrary to s…

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Kristiansen v Yeats [2022] ACTSC 351
Case
[2022] ACTSC 351
Decision Date

CaseChat Overview and Summary

The case of Kristiansen v Yeats involved an appeal against a sentence imposed by the ACT Magistrates Court. The appellant, Kristiansen, had been convicted of various criminal offences, including assault and theft. The primary issue before the court was whether the sentence imposed was affected by an error of fact and whether the appellant could rely on new evidence presented on appeal. A further issue was whether, if an error of fact had occurred, it would result in the appellate court re-exercising its sentencing discretion afresh.

The court held that the nature of the error of fact must be assessed to determine its impact on the sentence. If the error was material, it could affect the sentence, but the court also had to consider whether the error was so significant that it warranted a re-exercise of the sentencing discretion. The court noted that while new evidence could be considered on appeal, it could only be taken into account if it was relevant and material to the sentencing process. The court found that the error of fact in this case did not alter the overall quantum of the sentence, but it did require a re-examination of the reasoning behind the sentence to ensure that it was appropriate in light of the correct facts.

The court concluded that the error of fact did not result in an unjust outcome, and thus the sentence would stand. However, the court also emphasised the importance of accurate factual determinations at the sentencing stage to ensure that sentences reflect the true circumstances of the offence. The court found that the sentence was not materially affected by the error, and therefore no re-sentencing was necessary.

The final orders of the court included a confirmation of the sentence as imposed by the ACT Magistrates Court. The court also made it clear that while new evidence could be considered on appeal, it would not automatically lead to a re-sentencing. The court emphasised the need for accurate factual findings at the sentencing stage to ensure that the sentence is appropriate and just.

Orders

Orders of the court

See paras [88] – [93]

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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