Norman v Jones

Case [2024] ACTSC 11


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Norman v Jones

Citation: 

[2024] ACTSC 11

Hearing Date: 

18 July 2023

Decision Date: 

1 February 2024

Before:

Loukas-Karlsson J

Decision: 

(1)   The appeal is allowed.

(2)   The sentence imposed by the ACT Magistrates Court on 26 August 2022 is set aside and the appellant is re-sentenced as follows:

(a) In respect of the charge of common assault (CAN10940/2022), I make a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).

Catchwords: 

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal from sentence – offence of common assault –– whether error in consideration of s 17 of the Crimes (Sentencing) Act 2005 (ACT) – whether extenuating circumstances exist – appeal allowed – offender re-sentenced – non-conviction order imposed

Legislation Cited: 

Crimes Act 1900 (ACT) s 26
Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 17, 33, 53
Magistrates Court Act 1930 (ACT) ss 207, 208, 218

Cases Cited: 

Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495
Chatfield v Rhynehart
[2008] ACTSC 47
Cooper v Corvisy (No 2)
[2010] ACTSC 166; 5 ACTLR 151
Dang v Li
[2021] ACTSC 179; 16 ACTLR 143
DPP v DJK
[2003] VSCA 109
DPP v Mitchell (No 2)
[2023] ACTSC 118
House v The King
[1936] HCA 40; 55 CLR 499
Keen v Tither
[2010] ACTSC 130
Lukatela v Birch
[2008] ACTSC 99; 164 ACTR 24
Mammoliti v Callaghan
[2022] ACTSC 259

Markarian v The Queen [2005] HCA 25; 228 CLR 357
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6; 185 CLR 259

Munda v Western Australia [2013] HCA 38; 249 CLR 600
Proud v Sladic
[2014] ACTCA 26; 67 MVR 485
RLG v Donnelly
[2012] WASC 230

Wong v the Queen [2001] HCA 64; 207 CLR 584

ZL v Corey [2020] ACTSC 143

Parties: 

M Norman ( Appellant)

Director of Public Prosecutions ( Respondent)

Representation: 

Counsel

K Lee ( Appellant)

C Mutharajah ( Respondent)

Solicitors

Tim Sharman Solicitors ( Appellant)

ACT Director of Public Prosecutions ( Respondent)

File Number:

SCA 50 of 2022

Decision Under Appeal: 

Court/Tribunal:           ACT Magistrates Court

Before:   Magistrate Theakston

Date of Decision:       29 November 2022

Case Title:                 Jones v Norman

Court File Number:     CC2022/10940

LOUKAS-KARLSSON J:     

Introduction

1․This is a sentence appeal from a decision of Magistrate Theakston (the Magistrate). The appellant, Ms Norman, pleaded guilty to an offence of common assault contrary to s 26(1) of the Crimes Act 1900 (ACT). The appellant was sentenced with the imposition of a conviction and released upon entering into a Good Behaviour Order (GBO) for a period of nine months.

2․As the appeal hearing proceeded before me on 18 July 2023, it was clear that the fundamental issue before this Court, on appeal, was the issue of “extenuating circumstances”.

3․I note at the outset that, for the reasons set out below, I have come to the conclusion that the Magistrate was in…

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Norman v Jones [2024] ACTSC 11
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[2024] ACTSC 11
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CaseChat Overview and Summary

The appeal in Norman v Jones arose from a decision by the Magistrates Court of the Australian Capital Territory, where the appellant was found guilty of common assault. The respondent, Jones, sought an appeal from the sentence imposed, arguing that the court had erred in its consideration of section 17 of the Crimes (Sentencing) Act 2005 (ACT), which pertains to the imposition of a non-conviction order. Jones contended that extenuating circumstances warranted a departure from the standard sentencing approach.

The legal issues central to the appeal involved the appropriate application of section 17 of the Crimes (Sentencing) Act 2005 (ACT). Specifically, the court had to determine whether the Magistrates Court correctly identified and weighed the extenuating circumstances that might justify the imposition of a non-conviction order, as opposed to a conviction and penalty. The appeal hinged on whether the trial judge had overlooked relevant factors or had misapplied the statutory criteria.

Upon review, the court found that the Magistrates Court had indeed erred in its application of section 17. The reasoning given was that the trial judge had not adequately considered the mitigating factors presented by the appellant, which were significant enough to warrant a non-conviction order. Consequently, the appeal was allowed, and the appellant was re-sentenced with a non-conviction order imposed under section 17 of the Crimes (Sentencing) Act 2005 (ACT). The sentence imposed by the Magistrates Court was set aside, reflecting the court's conclusion that a non-conviction order was more appropriate given the circumstances of the case.

Orders

Orders of the court

(1) The appeal is allowed.

(2) The sentence imposed by the ACT Magistrates Court on 26 August 2022 is set aside and the appellant is re-sentenced as follows:

(a) In respect of the charge of common assault (CAN10940/2022), I make a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT).

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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