Lukatela v Apostoloff

[2010] ACTSC 74

Lukatela v Apostoloff [2010] ACTSC 74 (23 July 2010)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SC 115 of 2007

Judge:             Mansfield J
Supreme Court of the ACT

Date:              23 July 2010

IN THE SUPREME COURT OF THE     )
  )          No. SC 115 of 2007
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:IVAN JOSIP LUKATELA

Appellant

AND:

JOANNA THETA APOSTOLOFF

Respondent

ORDER

Judge:  Mansfield J
Date:  23 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

INTRODUCTION

1. The respondent on 3 December 2007 was found guilty of administering to a person then in police custody an injurious substance with intent to cause pain or discomfort, contrary to s 28(2), Crimes Act 1900 (ACT). The finding of guilt was confirmed on appeal: Lukatela v Apostoloff [2009] ACTSC 167.

1. The respondent was not convicted of that offence.  The Magistrate, without proceeding to conviction, ordered the appellant to be on a good behaviour bond under the Crimes (Sentencing Administration) Act 2005 (ACT) for a period of 12 months on giving security in the sum of $1000. 

1. The appellant, on behalf of the Director of Public Prosecutions, has appealed from that sentence. Resolution of the appeal was deferred pending the hearing and determination of the respondent’s appeal against the finding of guilt. In the meantime, the sentence has been stayed: s 216 Magistrates Court Act 1930 (ACT).

1. This judgment concerns the appeal against sentence.  Counsel for the appellant confined the contention to whether or not a conviction should have been recorded.  If the appeal is successful in that respect, the appellant does not seek to have some other penalty substituted for the 12 months good behaviour bond.

THE GENERAL PRINCIPLES

1. There was no dispute about the applicable principles.  They can be stated briefly.

1. In the first place, as the appeal is on behalf of the prosecutor, the Court must recognise that there are strong reasons why such an appeal should be rare.  See the observations of Brennan, Deane, Dawson and Gaudron JJ in Everett v The Queen (1994) 181 CLR 295 at 299-300. Counsel for the appellant in this matter did not suggest that the considerations to which their Honours there referred were any the less relevant in a case such as the present where, under ss 207 and 208(1)(e)(ii) of the Magistrates Court Act an appeal lies as of right.

1. In The Queen v Osenkowski (1982) 30 SASR 212, King CJ at 213 explained the position as follows:

The proper role for prosecution appeals, in my view is to enable the courts to establish and maintain adequate standards of punishment for crime, to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected, and occasionally to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience. 

See also R v Boudelah and Charlston (1991) 28 FCR 176 at…