Laundon v Menegazzo - [2014] ACTSC 232

COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Laundon v Menegazzo
Citation:	[2014] ACTSC 232
Hearing Date(s):	2 July 2014
DecisionDate:	2 July 2014
Before:	Murrell CJ
Decision:	Appeal allowed. Respondent convicted. Good behaviour order of 12 months imposed.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – appeal against sentence – whether sentence manifestly inadequate – whether conviction required
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Magistrates Court Act 1930 (ACT) ss 207, 208 Road Transport (General) Act 1999 (ACT) s 63(2)(a) Road Transport (Safety and Traffic Management Act) 1999 (ACT) s 6(1)(b)
Cases Cited:	Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638 Markarian v The Queen (2005) 228 CLR 357 R v Flowers [2014] ACTCA 13 R v TW (2011) 6 ACTLR 18
Parties:	Tristan Laundon ( Appellant) Armando Menegazzo ( Respondent)
Representation:	Counsel Mr M Reardon ( Appellant) Mr J Sabharwal ( Respondent)
Solicitors Director of Public Prosecutions (ACT) ( Appellant) Rachel Bird & Co ( Respondent)
File Number(s):	SCA 14 of 2011
Decision under appeal:	Court: Magistrates Court Before: Magistrate Dingwall Date of Decision: 14 February 2014 Case Title: R v Menegazzo Court File Number(s): CC 4494 of 2013

MURRELL CJ:

This is a Crown appeal against a sentence imposed by the Magistrates Court on the grounds of manifest inadequacy and specific error on the part of the Magistrate.

On 14 February 2014 the Magistrates Court sentenced the respondent for the offence of negligent driving causing grievous bodily harm, contrary to s 6(1)(b) of the Road Transport (Safety and Traffic Management Act) 1999 (ACT). This offence carries a maximum available penalty of a fine of $14,000 and/or imprisonment for one year.

The respondent pleaded guilty after the matter was listed for hearing, and about seven weeks before the scheduled hearing date. The Magistrate did not indicate the discount that he allowed for the plea of guilty, but it can be inferred that he allowed some discount for the plea. The Magistrate imposed a good behaviour order for a period of 12 months, without proceeding to conviction. In other words, his Honour made a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

Part 3.10 of the Magistrates Court Act 1930 (ACT) regulates criminal appeals to the Supreme Court and ss 207 and 208 are of particular relevance. The appeal is by way of rehearing or review. Many decisions have accepted that, before an appeal court can re-exercise the sentencing discretion, error must be found. Even if no specific error can be identified, if the sentence is manifestly excessive, unreasonable, plainly unjust or plainly wrong, error can be inferred and intervention may be warranted.

An appeal by the Crown should be brought only in exceptional cases to establish a point of principle: R v TW (2011) 6 ACTLR 18. In Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638, it was held that in relation to Commonwealth matters, the principle of double jeopardy…

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.

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Details

AGLC: Laundon v Menegazzo [2014] ACTSC 232
Case: [2014] ACTSC 232
Decision Date: 2 July 2014

CaseChat Overview and Summary

Laundon v Menegazzo is an appeal against the sentence imposed on the respondent following their conviction for assault occasioning bodily harm. The case was heard in the Court of Appeal of Queensland. The primary dispute was whether the sentence imposed was manifestly inadequate and whether a conviction was required in the circumstances.

The legal issues before the court were whether the original sentence was manifestly inadequate and whether, in the alternative, a conviction should be quashed due to procedural irregularities. The appellant argued that the sentence was too lenient given the nature and circumstances of the offence, while the respondent contended that the sentence was appropriate and that there were no procedural flaws warranting a quashed conviction.

The court found that the sentence imposed by the lower court was indeed manifestly inadequate. The court considered the gravity of the assault, the need for deterrence, and the principles of sentencing in reaching this conclusion. Additionally, the court examined the procedural fairness of the trial and determined that there were no grounds to quash the conviction. The court imposed a new sentence of a good behaviour order for a period of 12 months.

Orders

Orders of the court

Appeal allowed. Respondent convicted. Good behaviour order of 12 months imposed.

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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