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MT v The Queen

MT v The Queen

Case [2021] ACTCA 26 17 September 2021

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	MT v The Queen
Citation:	[2021] ACTCA 26
Hearing Date:	9 August 2021
DecisionDate:	17 September 2021
Before:	Murrell CJ, Mossop and Thawley JJ
Decision:	Appeal allowed, re-sentence imposed. See [116]–[120].
Catchwords:	CRIMINAL LAW – APPEAL – Appeal against sentence – where offender is a young offender – whether sentencing judge erred by failing to apply the principles applicable to the sentencing of young offenders – whether sentencing judge erred by setting unsuspended period of sentence as though it was a nonparole period – re-sentence
Legislation Cited:	Children and Young People Act 1999 (ACT) s 127 Children and Young People Act 2008 (ACT) Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 12, 13, 29, 33, 35, 64, 65, 133A, 133B, 133C, 133D, 133DD, 133E, 133G, 133U, 133W, 133ZD, pt8A.2 Crimes (Sentencing Administration) Act 2005 (ACT) ss 6, 7, 110, 149 Human Rights Act 2004 (ACT) s 22
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 DPP v Arvanitidis [2008] VSCA 189; 202 A Crim R 300 IM v McDevitt (No 1) [2015] ACTSC 178 IM v McDevitt (No 2) [2015] ACTSC 179 Kentwell v The Queen [2014] HCA 37; 252 CLR 601. KT v The Queen [2008] NSWCCA 51; 182 A Crim R 571 Power v The Queen (1974) 131 CLR 623 R v CA [2014] ACTSC 332 R v Fang (No 4) [2017] NSWSC 323 R v KN [2020] ACTSC 218 R v Martin [2007] VSCA 291; 20 VR 14 R v Mills [1998] 4 VR 235 R v MT [2020] ACTSC 339 R v Pahl (No 2) [2017] ACTSC 155 R v PM [2009] ACTSC 24 R v TL [2017] ACTCA 18 Taylor v The Queen [2014] ACTCA 9 Thorn v Laidlaw [2005] ACTCA 49
Texts Cited:	Explanatory Statement, Children and Young People Bill 2008 (ACT) United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, UN Doc A/RES/40/33 (29 November 1985)
Parties:	MT (Appellant) The Queen (Respondent)
Representation:	Counsel J White SC (Appellant) K McCann (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	AC 1 of 2021
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Elkaim J Date of Decision: 16 December 2020 Case Title: R v MT Citation: [2020] ACTSC 339

THE COURT:

The appeal

The appellant appealed against sentences for murder and other serious offences that he had committed on 15 March 2019.

At the time of the offences, the appellant was 17 years and 2 months old. He was a Year 11 secondary school student. When sentenced on 16 December 2020, he was 18 years old.

The sentencing judge imposed a total sentence of 15 years’ imprisonment (from 16 March 2019 to 15 March 2034) and suspended the sentences on 15 September 2027, after the appellant had served eight years and six months’ imprisonment or 57 per cent of the total…

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 MT v The Queen

Details

AGLC: MT v The Queen [2021] ACTCA 26
Case: [2021] ACTCA 26
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by Murrell CJ, Mossop and Thawley JJ, heard an appeal by the appellant, MT, against sentences imposed by the ACT Supreme Court for murder and other serious offences committed on 15 March 2019. At the time of the offences, the appellant was 17 years and 2 months old. The sentencing judge had imposed a total sentence of 15 years’ imprisonment, with a portion suspended, and the appellant contended that the sentencing judge had erred by failing to apply the principles applicable to the sentencing of young offenders and by setting the unsuspended period of imprisonment as though it were a non-parole period.

The legal issues before the Court of Appeal included whether the sentencing judge had erred by failing to apply the principles for sentencing young offenders as set out in Chapter 8A of the *Crimes (Sentencing) Act 2005* (ACT), particularly section 133D, and whether the judge had incorrectly treated the unsuspended period of the sentence as a non-parole period. The appellant also argued that the sentences were manifestly excessive, due to a failure to properly recognise the young offender sentencing regime, inadequate regard to subjective features, insufficient acknowledgement of the drug-induced psychosis at the time of the offences, being diverted by sentencing ranges from other jurisdictions, and applying insufficient sentencing discounts for his guilty pleas.

The Court of Appeal found that the sentencing judge had erred by setting the unsuspended term of the total sentences of imprisonment as though it were a non-parole period. This error necessitated a re-sentencing of the appellant. The Court noted that the appellant had consumed LSD and cannabis prior to the offences, and that the events involved a violent attack on multiple individuals, including the deceased. The Court concluded that due to the error in treating the unsuspended term as a non-parole period, it was necessary to re-sentence the appellant, and it was not required to address the other grounds of appeal or recalculate the sentencing discount. The appeal was allowed, and a re-sentence was imposed.

Orders