Lumby v Cooper

[2008] ACTSC 53

JOSHUA LUMBY v GRAEME ROBERT COOPER [2008] ACTSC 53 (16 June 2008)

CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – error by Magistrate – failure to provide reasons for decision – Magistrates Court Act 1930 (ACT).

CRIMINAL LAW – sentencing principles – non-conviction order – failure to take account of relevant considerations – Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW – obligations to unrepresented defendant.
CRIMINAL LAW – offences – offensive behaviour in a public place – Crimes Act 1900 (ACT).

Crimes Act 1900 (ACT), s 392
Crimes (Sentencing) Act 2005 (ACT, s 17)
Magistrates Court Act 1930 (ACT), s 214
Penalties and Sentences Act 1992 (QLD), s 12(2)
Sentencing Act 1991 (VIC), s 8(1)
Explanatory Memorandum, Crimes (Sentencing) Bill 2005 (ACT)

Higgs v The Queen ([1999] FCA 1562)
Lowndes v The Queen (1999) CLR 665 at 671-672
House v The King (1936) 55 CLR 499 at 505
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357 at 371
R v Thomson & Houlton (2000) 49 NSWLR 383
Acuthan v Coates (1986) 6 NSWLR 472
Chatfield v Rhynehart ([2008] ACTSC 47
Kent v Arley [2007] ACTSC 66
Rajski v Scitec Corporation Pty Ltd (unreported, NSW Court of Appeal, 16 June 1986, BC8601930)

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 90 of 2007

Judge:             Penfold J
Supreme Court of the ACT

Date:              16 June 2008

IN THE SUPREME COURT OF THE     )
  )          No. SCA 90 of 2007
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:JOSHUA LUMBY

Appellant

AND:GRAEME ROBERT COOPER

Respondent

ORDER

Judge:  Penfold J
Date:  16 June 2008
Place:  Canberra

THE COURT ORDERS THAT:

(a)         the appeal is allowed;

(b)        the application to adduce further evidence is allowed;

(c)        the conviction recorded by the learned Magistrate and the fine imposed, but not the finding of guilt, are set aside; and

(d) a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT), being an order directing that the charge be dismissed, is substituted. .

Introduction

1. This is an appeal from a conviction and penalty imposed in the Magistrates Court in respect of a charge of offensive behaviour under s 392 of the Crimes Act 1900 (ACT).

Background

The offence

1. At about 4:00am on 27 July 2007, the appellant was pointed out to police officers conducting mobile patrols on London Circuit, Canberra City near Mooseheads Nightclub.  Police observed that the appellant appeared to have been urinating against a pillar.  They apprehended the appellant and took him to the Watch House.

Court processes

1. The appellant appeared in the Magistrates Court on 2 August 2007, entered a plea of guilty, and was sentenced immediately.  The appellant asked that a conviction not be recorded.

1. The learned Magistrate accepted that the appellant felt “genuine remorse and contrition” for his actions and commended him for his letter of apology to Mooseheads, but convicted the appellant…