McKellar v Woolcock - [2013] ACTSC 225

ANDREW MCKELLAR v CAMERON WOOLCOCK
[2013] ACTSC 225 (30 October 2013)

CRIMINAL LAW – appeal from Magistrates Court – non-conviction order: s 17 Crimes (Sentencing) Act 2005 (ACT) – whether sentence manifestly inadequate – where no evidence of assertions made by respondent from bar table – where respondent repeat offender

CRIMINAL LAW – appeal from Magistrates Court – non-conviction order: s 17 Crimes (Sentencing) Act 2005 (ACT) – whether error by Magistrate in failing to state basis upon which order made – incumbent upon Court applying s 17 to make clear what matters taken into account

Crimes (Sentencing) Act 2005 (ACT), s 17
Magistrates Court Act 1930 (ACT), ss 219B, 219F(8)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 38 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 30 October 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 38 of 2013
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ANDREW MCKELLAR
Appellant
v
CAMERON WOOLCOCK
Respondent

ORDER

Judge:  Burns J
Date:  30 October 2013
Place:  Canberra

THE COURT ORDERS THAT:

The orders made by the Magistrate on 28 May this year are set aside.
The matter is remitted to the ACT Magistrates Court for the respondent to be resentenced according to law.
The appellant is to pay the respondent’s costs of and incidental to the appeal.

This is an appeal brought by the informant in proceedings in the Magistrates Court with respect to the disposition of those proceedings by a Magistrate.
On 28 May this year, the Magistrate made an order, pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), effectively making a non-conviction order with respect to the proceedings that were then before the Magistrate and placing the respondent on a good behaviour order for a period of two years.
I will digress for a moment to give a short description of the proceedings that were then before the Magistrates Court. On 19 April 2013, it is alleged that the respondent as a repeat offender drove whilst disqualified. On that date, he was apparently observed by police to be driving a motor vehicle, the vehicle was stopped and inquiries were made by the police as to his identity and the respondent is alleged to have produced an ACT driver’s licence. The police were satisfied that the person depicted on the licence was the respondent.
A check of police indices subsequently revealed that the respondent was a disqualified driver. There appears to be no dispute that on 4 September 2012 the respondent appeared before the same Magistrate in the Magistrates Court on a charge of driving whilst his licence was suspended.
On that occasion, the Magistrate convicted him and fined him $100 and disqualified him from holding or obtaining a licence for a period of 12 months. That period of 12 months apparently commenced on 4 September 2012 and therefore would have expired on 3 September this…

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 McKellar v Woolcock

Details

AGLC: McKellar v Woolcock [2013] ACTSC 225
Case: [2013] ACTSC 225
Decision Date: 30 October 2013

CaseChat Overview and Summary

The appellant, McKellar, appealed against the sentencing decision of the respondent, Woolcock, who was the Magistrate in the ACT Magistrates Court. The dispute arose from the Magistrate’s decision to impose a non-conviction order under section 17 of the Crimes (Sentencing) Act 2005 (ACT). The appeal was focused on whether the sentence imposed by the Magistrate was manifestly inadequate, given the respondent's status as a repeat offender, and whether the Magistrate erred by not stating the basis upon which the order was made.

The legal issues before the court were whether the Magistrate’s decision to impose a non-conviction order was manifestly inadequate, considering the respondent’s prior criminal history and the lack of evidence that the respondent made any assertions from the bar table. Furthermore, the court needed to determine whether there was an error by the Magistrate in not clearly stating the basis for the order. It was established that when applying section 17, it is incumbent upon the court to make clear the matters taken into account.

The court found that there was no evidence that the respondent made any assertions from the bar table, and thus the Magistrate’s decision to impose a non-conviction order was manifestly inadequate. Additionally, the court held that the Magistrate erred in not stating the basis for the order, which is essential under section 17 of the Act. Consequently, the orders made by the Magistrate were set aside, and the matter was remitted to the ACT Magistrates Court for the respondent to be resentenced according to law. The appellant was ordered to pay the respondent’s costs of and incidental to the appeal.

Orders

Orders of the court

1. The orders made by the Magistrate on 28 May this year are set aside.

2. The matter is remitted to the ACT Magistrates Court for the respondent to be resentenced according to law.

3. The appellant is to pay the respondent’s costs of and incidental to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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