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Mayen v Ryan (No 2)

Mayen v Ryan (No 2)

Case [2014] ACTSC 33 5 March 2014

Appeal

Sentencing

Jurisdiction

Statutory Interpretation

Criminal Law

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REBECCA ADHIEU MAYEN v TIMOTHY JAMES RYAN (NO 2)
[2014] ACTSC 33 (5 March 2014)

APPEAL AND NEW TRIAL – Appeal and New Trial – Interpreters – The defendant must understand the language of the proceedings in order to receive a fair trial – An interpreter may be required to be provided where the accused cannot adequately understand the language of the proceedings – The requirement of an interpreter being provided applies to sentencing proceedings – Courts have a degree of responsibility to ensure the defendant understands the language of the proceedings – Duty of the courts exists even where counsel waives the need for an interpreter – Failure to provide an interpreter amounted to a miscarriage of the sentencing proceedings – Appeal ground upheld.

APPEAL AND NEW TRIAL – Appeal and New Trial – Pleas – Defendant must personally enter plea – Magistrates Court must comply with Magistrates Court Act 1930 (ACT), s 113 – Failure to do so justified an interference by the Supreme Court – Appeal ground upheld.

APPEAL AND NEW TRIAL – Appeal and New Trial – Excessive or Inadequate Sentence – Whether sentence is manifestly excessive – Whether there was a lack of due regard to the Crimes (Sentencing) Act 2005 (ACT) – Sentence imposed within appropriate range – Sentence not manifestly excessive – Appeal ground not made out.

INTERPRETATION – General Rules of Construction of Instruments – Interpretation of Magistrates Court Act 1930 (ACT) – Statute intends that the defendant is required to enter pleas herself – Appeal ground upheld.

Crimes Act 1900 (ACT), s 24
Crimes (Sentencing) Act 2005 (ACT), ss 17, 18, 33(1)(m), 102
Justices Act 1886 (Qld), s 145
Magistrates Court Act 1930 (ACT), ss 53, 113, 208(1)(d), 209(1), Pt 3.10, Div 3.10.2

Magistrates Court Practice Direction No 2 of 2007, “A” List Procedures
Sir James Fitzjames Stephen in History of the Criminal Law in England (Macmillan & Co, 1883) vol 1, 275
S Mitchell and P J Richardson Archbold Criminal Pleading Evidence and Practice (42^nd ed, 1985)

A B v The Queen (1999) 198 CLR 111
Commissioner of Police Service (Qld) v Magistrate Spencer [2013] QSC 202
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Daly v Barlow [1969] Qd R 237
Ebatarinja v Deland (1998) 194 CLR 444
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89
Gower v Ross [1959] SASR 278
House v King (1936) 55 CLR 499
Jones v Morley (1981) 29 SASR 57
Kunnath v The State (1994) 98 Cr App R 455
Latter v Davis (1992) 7 WAR 72
Lawrence v The King [1933] AC 699
Lowe v Maher [1990] Tas R 199
Lumby v Cooper [2008] ACTSC 53
Mayen v Ryan [2013] ACTSC 172
Munday v Gill (1930) 44 CLR 38
Murray v Northcott [1990] WAR 219
R vBegum (1991) 93 Cr App R 96
R v Bennett; Ex parte Katelaris (1988) 88 FCR 329
R v Duffield (1992) 28 NSWLR 638
R v Ellis (1973) 57…

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 Mayen v Ryan (No 2)

Details

AGLC: Mayen v Ryan (No 2) [2014] ACTSC 33
Case: [2014] ACTSC 33
Decision Date: 5 March 2014

CaseChat Overview and Summary

In the case of Mayen v Ryan (No 2), the appellant, Mayen, contested the conviction and sentence imposed by the Magistrates Court of the Australian Capital Territory on 13 January 2011. The dispute primarily revolved around the fairness of the trial proceedings, the requirement of an interpreter, the manner in which the plea was entered, and the appropriateness of the sentence. The Supreme Court of the Australian Capital Territory was tasked with addressing these issues.

The legal issues the court needed to determine included whether the failure to provide an interpreter during sentencing proceedings constituted a miscarriage of justice, if the defendant had personally entered the plea as required by the Magistrates Court Act 1930 (ACT), whether the sentence was manifestly excessive, and if the court had given due regard to the provisions of the Crimes (Sentencing) Act 2005 (ACT). The court also had to interpret the requirements of the Magistrates Court Act 1930 (ACT) to ascertain whether the defendant must personally enter pleas.

The court found that the failure to provide an interpreter during sentencing amounted to a miscarriage of the proceedings, as it compromised the appellant's right to understand the language of the court. Additionally, the court held that the defendant had not personally entered the plea, and this non-compliance justified interference by the Supreme Court. The court interpreted the Magistrates Court Act 1930 (ACT) to confirm that the defendant must personally enter pleas. Regarding the sentence, the court concluded that it was not manifestly excessive and had been imposed within the appropriate range, thus the appeal on this ground was not upheld.

The court ordered that the appeal be upheld, the conviction and sentence of the Magistrates Court be set aside, and the charge of assault occasioning actual bodily harm be dismissed under section 17 of the Crimes (Sentencing) Act 2005 (ACT).

Orders

Orders of the court

1. The appeal be upheld.

2. The conviction and sentence of the Magistrates Court made on 13 January 2011 be set aside.

3. In lieu, the charge of assault occasioning actual bodily harm on 18 April 2010 be dismissed under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

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.

Citations

AGLC Citation

Mayen v Ryan (No 2) [2014] ACTSC 33

Most Recent Citation

Preston v Carnall [2015] ACTSC 325

Cases citing this decision · 5 of 5 shown

R v Kelly
[2020] ACTSC 292 Para 1

…, R v NO [2015] ACTSC 308, R v Kim [2015] ACTSC 182, R v Kindl [2015] ACTSC 128, R v SP [2015] ACTC 121, R v Ridley [2014] ACTSC 382, R v Catanzariti [2014] ACTSC 33 , R v GJ [2014] ACTSC 186, R v Randhir Singh; R v Ajitpal Singh [2014] ACTSC 250, R v Crawford (No 3) [2017] ACTSC 99, R v McMahon (No 2) [2017] ACTS…
Woods v Porter
[2018] ACTSC 161 Para 1

…he parties have subsequently suggested that the Supreme Court authority to which the Chief Magistrate was referring may have been Mayen v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435 ( Mayen ) at [101]-[107] and also possibly Feeney v The Queen [2014] ACTCA 1; 284 FLR 81 ( Feeney ) especially at [6], [12] and [47].…
R v Kelly (No 2)
[2017] ACTSC 64 Para 1

…Having considered that approach, I said in Mayen v Ryan (No 2) [2014] ACTSC 33; 282 FLR 435 at 444; [59]:…
Rubio v Ohlmus
[2016] ACTSC 84 Para 1

…pleaded guilty to that charge” (emphasis added). There is no recorded answer from Ms Rubio. That is, of course, required. See Mayen v Ryan (No 2) [2014] ACTSC 33 at [107].…
Preston v Carnall
[2015] ACTSC 325

…Barbaro v The Queen (2014) 88 ALJR 372 Central Queensland Speleological Society Inc v Central Queensland Cement Pty Ltd (1989) 73 LGRA 218 Grooms v Toohey (2012) 7 ACTLR 1 Licciardello v McPherson [2012] ACTSC 31 Lukatela v Birch (2008) 164 ACTR 24 Mayen v Ryan (No 2) (2014) 282 FLR 435 Meissner v T…

View all 5 citing cases →

Cases cited in this decision · 19 of 19 shown

Mayen v Ryan
[2013] ACTSC 172 Para 1

…On 14 August 2013, however, I gave Ms Mayen leave to appeal: Mayen v Ryan [2013] ACTSC 172.…
Commissioner of Police Service v Spencer
[2013] QSC 202 Para 1

…More recently, the issue has been considered by Henry J in Commissioner of Police Service (Qld) v Magistrate Spencer [2013] QSC 202. His Honour had to consider s 145 of the Justices Act 1886 (Qld) which is relevantly in the same terms as s 113 of the Magistrates Court Act .…
R v CV
[2013] ACTCA 22 Para 1

…s is a relevant factor, though not the only relevant matter, as noted by Penfold J in Lumby v Cooper [2008] ACTSC 53 at [28]-[38]. In The Queen v C V [2013] ACTCA 22 at [52], the Court of Appeal accepted that the possibility that a conviction may have detrimental effects on an offender’s employment is a relevant m…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.…
R v Mokbel
[2010] VSCA 11 Para 1

…e inevitability that Smith J foresaw in actuality about the accused’s presence at sentence in R v Jones (1998) 72 SASR 281 at 295 and in R v Mokbel (2010) 30 VR 115 at 125; [42]. That is to say, an accused must be present when sentence is imposed unless he or she has waived the right to be there.…
Lumby v Cooper
[2008] ACTSC 53 Para 1

…difficulty in Ms Mayen obtaining employment. This is a relevant factor, though not the only relevant matter, as noted by Penfold J in Lumby v Cooper [2008] ACTSC 53 at [28]-[38]. In The Queen v C V [2013] ACTCA 22 at [52], the Court of Appeal accepted that the possibility that a conviction may have detrimental ef…
Farah Constructions Pty Ltd v Say-Dee Pty Ltd
[2007] HCA 22 Para 1

…t of appeal in a case of relevantly uniform legislation unless I am convinced that it is incorrect. See Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-2; [135].…
AB v The Queen
[1999] HCA 46 Para 1

…grounds of the appeal the sentencing discretion is, therefore, enlivened, unless I consider the same sentence should be imposed. See A B v The Queen (1999) 198 CLR 111 at 160; [130]. I do not consider, in the circumstances, that the same sentence should be imposed.…
R v Jones
[1998] SASC 7021 Para 1

…is approach was followed, though, without the inevitability that Smith J foresaw in actuality about the accused’s presence at sentence in R v Jones (1998) 72 SASR 281 at 295 and in R v Mokbel (2010) 30 VR 115 at 125; [42]. That is to say, an accused must be present when sentence is imposed unless he or she has waived…
Ebatarinja v Deland
[1998] HCA 62 Para 1

…The High Court has set out, in Ebatarinja v Deland (1998) 194 CLR 444, the principle that a fair trial requires the accused to understand the language of the proceedings. The principle was clear and set out at 454; [27]:…
Munday v Gill
[1930] HCA 20 Para 1

…In the Full Court, Hanger J, with whom Sheehy ACJ agreed, preferred the approach of the High Court in Munday v Gill (1930) 44 CLR 38 at 80-1, where Gavan, Duffy and Starke JJ, said…
House v R
[1936] HCA 40 Para 1

…I would not have imposed the same sentence. That, however, is not the relevant test. See House v King (1936) 55 CLR 499 at 505. I must find error, including by inference on the basis that the sentence is manifestly excessive. I could not so find, as it seems to me that the sentence imposed by the learned Chief Magis…
[1933] AC 699
[1933] AC 699 Para 1

…In Lawrence v The King [1933] AC 699 at 708, Lord Atkin said:…
[1916] 1 KB 337
[1916] 1 KB 337 Para 1

…As to the second question, about waiver, I refer to what the UK Court of Appeal has to say in R v Lee Kun [1916] 1 KB 337 at 342-3 as follows:…
[1948] 1 KB 158
[1948] 1 KB 158 Para 1

…The Full Court, in Todhunter , distinguished the reasoning of the English Kings Bench Division in Stefani v John [1948] 1 KB 158 where Lord Goddard CJ, with whom Humphreys and Croom-Johnson JJ agreed, held that summary jurisdiction derives from statute and that where the justices did not comply with the statute th…
[1978] 1 QB 373
[1978] 1 QB 373 Para 1

…Though this principle was moderated in R v Williams [1978] 1 QB 373, the Court there re-iterated (at 378) that a plea of guilty must be entered by the accused “himself”.…
(1702) 1 Salk 55
(1702) 1 Salk 55

…ra ): see Chitty, Criminal Law (2nd ed), p 695; R v Bithell (1695), 1 Ld, Raym 47; R v Harris and Duke (1697), 1 Ld Raym 267; R v Templeman (1702) 1 Salk 55; Anon, Lofft 400; R v Hann and Price (1765), 3 Burr 1786. But though the same principle governs, it does not follow that it operates in the same way in both ca…
3 Burr 1786
3 Burr 1786

…695), 1 Ld, Raym 47; R v Harris and Duke (1697), 1 Ld Raym 267; R v Templeman (1702) 1 Salk 55; Anon, Lofft 400; R v Hann and Price (1765), 3 Burr 1786. But though the same principle governs, it does not follow that it operates in the same way in both cases. The exception which is here in question can operate…
House v King
Para 1

…I would not have imposed the same sentence. That, however, is not the relevant test. See House v King (1936) 55 CLR 499 at 505. I must find error, including by inference on the basis that the sentence is manifestly excessive. I could not so find, as it seems to me that the sentence imposed by the learned Chief Magistr…

Legislation cited in this decision · 5

Crimes (Sentencing) Act 2005 (ACT)
102, 17, 18, 33(1)(m) 5 mentions (from Para 1)
Magistrates Court Act 1930 (ACT)
113, 208(1)(d), 209(1), 53 5 mentions (from Para 1)
Crimes Act 1900 (ACT)
24 3 mentions (from Para 1)
Justices Act 1886 (Qld)
145 2 mentions (from Para 1)
Crimes (Sentencing Administration) Act 2005 (ACT)
1 mention