M C-N (a pseudonym) v The Queen - [2023] ACTCA 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:

M C-N (a pseudonym) v The Queen

Citation:

[2023] ACTCA 21

Hearing Dates:

27 February 2023; 17 March 2023

Decision Date:

17 May 2023

Before:

McCallum CJ, Loukas-Karlsson, Charlesworth JJ

Decision:

(1)	The orders in (1)-(10) of the sentence imposed on 1 June

2022 be set aside and substituted with the orders in (2)-
(10) below.

(2) The good behaviour order made in CH2019/903 is
cancelled and the appellant is to serve a term of
imprisonment of three months and 22 days to date from
and including 26 August 2021 to 17 December 2021.
(3) The good behaviour order made in CH2020/494 is
cancelled and the appellant is to serve a term of
imprisonment of two months to date from 26 August 2021
to 25 October 2021.
(4) In relation to the aggravated armed robbery committed on
22 May 2021 (CC2022/351), the appellant is sentenced to
a term of imprisonment of 18 months to date from 18
December 2021 and ending on 17 June 2023.
(5) In relation to the drive motor vehicle without consent
(CC2022/352), the appellant is sentenced to a term of
imprisonment of three months to date from 18 March 2023
to 17 June 2023.
(6) In relation count 1 of the indictment (CH2020/733), the
appellant is sentenced to a term of imprisonment of 15
months to date from 18 June 2023 to 17 September 2024.
(7) In relation to count 2 of the indictment (CH2020/734), the
appellant is sentenced to a term of imprisonment of 6
months to date from 18 March 2024 to 17 September
2024.
(8) In relation to count 3 of the indictment (CH2020/735), the
appellant is sentenced to a term of imprisonment of one
month to date from 18 August 2024 to 17 September
2024.
(9) Subject to order (10), pursuant to s 12 of the Crimes
(Sentencing) Act 2005 (ACT), any term of imprisonment
yet to be served as at 25 May 2023 be suspended from
that date.
(10) Pursuant to s 13 of the Crimes (Sentencing) Act 2005
(ACT), the appellant sign an undertaking to comply with
the good behaviour obligations under s 85 of the Crimes
(Sentence Administration) Act 2005 (ACT) from 25 May
2023 to 17 September 2024 with a probation condition to
accept supervision by the Commissioner of ACT
Corrective Services or their delegate for the period of the
undertaking, or such lesser period as the person
supervising him considers appropriate, and obey all
reasonable directions of the person supervising him,
including obeying any reasonable direction to undertake
rehabilitation.

Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – Where self-represented appellant alleged manifest excess – where appeal determined on a different ground – where the sentencing judge made an error in imposing a suspended sentence – whether the error enlivened the Kentwell principles – where the error causes the sentence to miscarry – where the sentencing
discretion must be exercised afresh
CRIMINAL LAW –…

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 M C-N (a pseudonym) v The Queen

Details

AGLC: M C-N (a pseudonym) v The Queen [2023] ACTCA 21
Case: [2023] ACTCA 21
Decision Date: 27 February 2023

CaseChat Overview and Summary

The appeal concerned the sentence imposed on the appellant, M C-N, by a sentencing judge. The appellant, who was self-represented, alleged that the sentence was manifestly excessive. The appeal was ultimately determined on a different ground than that initially raised by the appellant.

The central legal issue before the Court of Appeal was whether an error made by the sentencing judge in imposing a suspended sentence enlivened the principles established in *Kentwell*. Specifically, the Court had to determine if this error caused the sentence to miscarry.

The Court reasoned that the sentencing judge had indeed made an error in the imposition of the suspended sentence. This error was found to be of a nature that caused the sentence to miscarry, thereby enlivening the *Kentwell* principles. The Court applied the principles of sentencing review, considering whether the error was significant enough to warrant intervention.

The Court of Appeal allowed the appeal, quashed the original sentence, and remitted the matter for resentencing.

Orders

Orders of the court

(1)

The orders in (1)-(10) of the sentence imposed on 1 June

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

(2)	The good behaviour order made in CH2019/903 is
cancelled and the appellant is to serve a term of
imprisonment of three months and 22 days to date from
and including 26 August 2021 to 17 December 2021.
(3)	The good behaviour order made in CH2020/494 is
cancelled and the appellant is to serve a term of
imprisonment of two months to date from 26 August 2021
to 25 October 2021.
(4)	In relation to the aggravated armed robbery committed on
22 May 2021 (CC2022/351), the appellant is sentenced to
a term of imprisonment of 18 months to date from 18
December 2021 and ending on 17 June 2023.
(5)	In relation to the drive motor vehicle without consent
(CC2022/352), the appellant is sentenced to a term of
imprisonment of three months to date from 18 March 2023
to 17 June 2023.
(6)	In relation count 1 of the indictment (CH2020/733), the
appellant is sentenced to a term of imprisonment of 15
months to date from 18 June 2023 to 17 September 2024.
(7)	In relation to count 2 of the indictment (CH2020/734), the
appellant is sentenced to a term of imprisonment of 6
months to date from 18 March 2024 to 17 September
2024.
(8)	In relation to count 3 of the indictment (CH2020/735), the
appellant is sentenced to a term of imprisonment of one
month to date from 18 August 2024 to 17 September
2024.
(9)	Subject to order (10), pursuant to s 12 of the Crimes
(Sentencing) Act 2005 (ACT), any term of imprisonment
yet to be served as at 25 May 2023 be suspended from
that date.
(10)	Pursuant to s 13 of the Crimes (Sentencing) Act 2005
(ACT), the appellant sign an undertaking to comply with
the good behaviour obligations under s 85 of the Crimes
(Sentence Administration) Act 2005 (ACT) from 25 May
2023 to 17 September 2024 with a probation condition to
accept supervision by the Commissioner of ACT
Corrective Services or their delegate for the period of the
undertaking, or such lesser period as the person
supervising him considers appropriate, and obey all
reasonable directions of the person supervising him,
including obeying any reasonable direction to undertake
rehabilitation.