NH v Dixon

[2022] ACTSC 218

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

NH v Dixon

Citation:

[2022] ACTSC 218

Hearing Date:

25 August 2022

DecisionDate:

25 August 2022

Before:

Elkaim J

Decision:

(i)        The appeal is dismissed.

(ii)       The cross-appeal is dismissed.

Catchwords:

APPEAL – APPEAL FROM MAGISTRATES COURT DECISION – Where the appellant asserts the magistrate’s sentence was manifestly excessive – cross-appeal – where the respondent asserts the sentence was manifestly inadequate – specific errors – appeal dismissed

Cases Cited:

Bethke v Phelan [2016] ACTSC 328

CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346
R v Nicholas; R v Palmer [2019] ACTCA 36
R v Ralston [2020] ACTCA 47; 285 A Crim R 159

R v UG [2020] ACTCA 8; 281 A Crim 291

Parties:

NH (Appellant)

Elliot Dixon (First Respondent)

Dominique Robinson (Second Respondent)

Brandon Thurgar (Third Respondent)

Representation:

Counsel

L Vozella (Appellant)

A Chatterton (Respondent)

Solicitors

Vozella Lawyers (Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number(s):

SCA 5 of 2022

Decision under appeal: 

Court/Tribunal:             Magistrates Court

Before:  Magistrate Taylor

Date of Decision:          14 February 2022

Case Title:  The Police v NH

Court File Numbers:      CC2021/1248–9; CC2021/2016–22; CC2021/4851–3; CC2021/5944; CC2021–5953; CC2021/7316–21; CC2021/7323–5

Elkaim J

1. Mr NH was sentenced in the Magistrates Court on 14 February 2022. There were 24 separate offences. The total sentence was three years and six months imprisonment, suspended after two years and two months provided he entered a Recognisance Release Order for 14 months.

1. There are two matters before me. There is an appeal from Mr NH saying the sentence was manifestly excessive. There is also a cross-appeal from the respondents relying upon some technical arguments and also, generally, asserting the sentence was manifestly inadequate.

1. For convenience I will refer to Mr NH as the appellant and the appellants on the cross-appeal as the respondent.

1. While the approach to the Crown appeal, compared to an appeal by an offender, is a little different, at the core of both appeals is that it is necessary for me to identify error on the part of the magistrate. In CMB v Attorney General for NSW [2015] HCA 9; 256 CLR 346 (CMB), at [54], Kiefel, Bell and Keane JJ said:

The law reposes a wide discretion in the sentencing judge as to the determination of the appropriate sentence for the offender and the offence. Appeals against sentence, whether by the offender or the prosecution, require demonstration of error in one or more of the respects identified in House v The King. Where error of that kind is established in an appeal by the offender, it is the duty of the Court of Criminal Appeal to exercise the sentencing discretion afresh. Where error of that kind is established in an appeal by the prosecution, the Court of Criminal Appeal may in its discretion dismiss the appeal notwithstanding that the sentence is erroneously lenient. This is sometimes described as "the residual discretion". As French CJ and Gageler J explain,…