(1) The application for leave to adduce further evidence filed on 10 May 2023 is dismissed.
(2) The appeal is dismissed.
Catchwords:
APPEAL – CRIMINAL LAW – Appeal against sentence – combination of Commonwealth and State offences – offences committed while detained in custody – appellant on remand but housed with convicted prisoners – whether primary judge erred in determining objective seriousness – importance of general deterrence – offending between detainees – whether the appellant’s human rights were breached – whether appellant’s custody was unlawful – consideration of “lawful custody” – s 19 of the Human Rights Act 2004 (ACT) – prima facie breach of s 19 – sentence not manifestly excessive – s 16E of the Crimes Act 1914 (Cth) – time spent in custody “in relation to” the offence – meaning of “in relation to” – whether sentence should be backdated to take into account time in custody for an unrelated offence for which the appellant had been later acquitted – Renzella discretion.
[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
McIver v The King [2023] ACTCA 48
Case
[2023] ACTCA 48
Decision Date
CaseChat Overview and Summary
The appeal concerned the sentence imposed on the appellant, McIver, by the primary judge for a combination of Commonwealth and State offences. The offences were committed while the appellant was detained in custody, specifically on remand but housed with convicted prisoners. The appeal raised questions about the objective seriousness of the offending, the importance of general deterrence, and whether the appellant's human rights were breached, particularly in relation to his custody arrangements.
The central legal issues before the Court of Appeal were whether the primary judge erred in determining the objective seriousness of the offences, and whether the appellant's custody was unlawful, constituting a breach of his human rights under section 19 of the *Human Rights Act 2004* (ACT). Further, the Court had to consider the meaning of "in relation to" in section 16E of the *Crimes Act 1914* (Cth) concerning time spent in custody, and whether the sentence should be backdated to account for time spent in custody for an unrelated offence for which the appellant was later acquitted, invoking the *Renzella* discretion.
The Court found that the primary judge did not err in determining the objective seriousness of the offences, noting that offending between detainees is a serious matter warranting general deterrence. Regarding the human rights issue, the Court acknowledged a *prima facie* breach of section 19 of the *Human Rights Act 2004* (ACT) due to the appellant's custody arrangements, but concluded that this did not render the custody unlawful in a manner that would invalidate the sentence. The Court also interpreted section 16E of the *Crimes Act 1914* (Cth) broadly, finding that time spent in custody could be "in relation to" an offence even if the appellant was later acquitted of a different, unrelated offence for which that time was initially served. The Court ultimately determined that the sentence was not manifestly excessive and declined to exercise the *Renzella* discretion to backdate the sentence.
Consequently, the Court dismissed the application for leave to adduce further evidence and dismissed the appeal.
Orders
Orders of the court
(1) The application for leave to adduce further evidence filed on 10 May 2023 is dismissed.