McManus v Bakes - [2014] ACTSC 297

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	McManus v Bakes
Citation:	[2014] ACTSC 297
Hearing Date(s):	22 September 2014
DecisionDate:	22 September 2014
Before:	Murrell CJ
Decision:	Appeal dismissed.
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Appeal and new trial – appeal against sentence – whether failure to consider submissions regarding time spent in custody – whether erroneous consideration that appellant need demonstrate outstanding or extenuating circumstances before imposing non-conviction order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 17 Crimes Act 1914 (Cth) s 19B
Cases Cited:	Balthazaar v The Queen [2012] ACTCA 26 House v The King (1936) 55 CLR 499 Proud v Sladic [2014] ACTCA 26 Stark v Plant [2010] WASCA 74
Parties:	Ryan Michael McManus (Appellant) Nathan Bakes (Respondent)
Representation:	Counsel Mr J Lawton (Appellant) Ms A Begley (Respondent)
Solicitors Baker Deane & Nutt Lawyers (Appellant) Director of Public Prosecutions (ACT) (Respondent)
File Number(s):	SCA 29 of 2014
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 26 March 2014 Case Title: R v McManus Court File Number(s): CC No 1555; 1556 of 2013

MURRELL CJ:

The appellant appeals against orders imposed by the Chief Magistrate for offences committed on 17 November 2013 of damaging property and using a carriage service to menace or harass. Her Honour imposed convictions and fined the appellant $650 and $2,500 respectively.

The appellant prosecutes two grounds of appeal:

(a)First, that the Chief Magistrate failed to consider submissions concerning the time that he had spent in custody; and
(b)Second, by leave, that the Chief Magistrate erred in deciding that the appellant had to demonstrate outstanding or particularly extenuating circumstances before she could exercise the discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) or s 19B of the Crimes Act 1914 (Cth) (CommonwealthCrimes Act) and decline to impose a conviction.

There is an application to put further evidence before the Court in the event that resentencing is required.

It has been accepted that the appeal is in the nature of a House v The King appeal (House v The King (1936) 55 CLR 499). To succeed on such an appeal, the appellant must identify an express error, such as an error of fact or an error of law, or an inferred error (i.e. it is a necessary conclusion that the sentence imposed is either manifestly excessive or manifestly inadequate).

The appellant asserts that there has been express error.

The facts

Prior to the commission of the offences, the appellant and the complainant had been in a relationship. That relationship was over. On the day in question the complainant was at home with a friend. From about 3.50pm the appellant repeatedly called the complainant’s mobile telephone. Over a period of two hours he rang her about 45 times. She did not answer the calls.

He then sent four Facebook messages. He called her a “filthy lying slut”. He sent text messages calling the…

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 McManus v Bakes

Details

AGLC: McManus v Bakes [2014] ACTSC 297
Case: [2014] ACTSC 297
Decision Date: 22 September 2014

CaseChat Overview and Summary

The case of McManus v Bakes involved an appeal against the sentence imposed on the appellant by the trial court. The appellant argued that the trial judge had failed to consider his submissions regarding the time he had already spent in custody, and that the judge had incorrectly required him to demonstrate outstanding or extenuating circumstances before considering a non-conviction order. The appeal was heard in the appellate court, which was tasked with determining whether the trial court had erred in its handling of the sentencing matter.

The primary legal issues before the appellate court were whether the trial judge had failed to properly consider the appellant's submissions about his time spent in custody, and whether the judge had erred in requiring the appellant to demonstrate outstanding or extenuating circumstances before considering a non-conviction order. The court was required to examine the sentencing remarks of the trial judge to determine whether they contained any errors of law or fact that warranted the granting of an appeal and the ordering of a new trial.

The appellate court found that the trial judge had indeed considered the appellant's submissions regarding his time spent in custody, and that there was no error in the judge's handling of this aspect of the sentencing matter. The court also found that the trial judge had not required the appellant to demonstrate outstanding or extenuating circumstances before considering a non-conviction order, but had instead considered the appellant's overall circumstances and the seriousness of the offence. The appellate court concluded that there were no errors of law or fact in the sentencing remarks of the trial judge, and that the appeal should be dismissed.

In light of the above findings, the appellate court dismissed the appeal and made no orders for a new trial. The appellant was therefore bound by the sentence imposed by the trial court.

Orders

Orders of the court

Appeal dismissed.

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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