Olney v Martin - [2017] ACTSC 79

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Olney v Martin
Citation:	[2017] ACTSC 79
Hearing Date:	30 March 2017
DecisionDate:	30 March 2017
Before: Decision:	Murrell CJ Sentence imposed by the Magistrate is varied to provide for a security in the sum of $20.00. Otherwise, appeal dismissed and orders of the Magistrate confirmed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – contravention of protection order – trespass – breach of good behaviour orders – error of law – error as to factual basis – manifestly excessive – totality of sentence – concurrency and cumulation between the sentences
Legislation Cited:	Domestic Violence and Protection Orders Act 2008 (ACT) s 90 Crimes Act 1914 (Cth) Magistrates Court Act 1930 (ACT) Public Order (Protection of Persons and Property) Act (Cth) s 11
Cases Cited:	Beniamini v Craig [2017] ACTSC 30 Mill v The Queen [1988] HCA 70; 166 CLR 59 Pearce v The Queen [1998] HCA 57; 194 CLR 610 Wong v The Queen [2001] HCA 64; 207 CLR 584
Parties:	Tobias Olney (Appellant) Saxon Martin (Respondent)
Representation:	Counsel Ms R Bird (Appellant) Mr S McLaughlin (Respondent)
Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 21 of 2017
Decision under appeal:	Court: Magistrates Court of the ACT Before: Magistrate Fryar Date of Decision: 3 March 2017 Case Title: Martin v Olney Court File Numbers: CC 9051 of 2014; CC 10631 of 2014; CC 867 of 2015; CC 9626 of 2016; CC 9748 of 2016

MURRELL CJ:

On 3 March 2017, the Magistrate sentenced the offender in relation to two fresh charges and three older matters that were the subject of suspended sentence good behaviour orders that had been breached.

Breach matters

The breach matters relate to sentences that had been imposed on 21 December 2015. For each of two offences (assault and dangerous driving), a three month sentence of imprisonment had been imposed, suspended on an 18 month good behaviour order. For an offence of damage property, a one month sentence of imprisonment had been imposed, also suspended on an 18 month good behaviour order.

On 3 March, 2017, the Magistrate cancelled the good behaviour orders and imposed the sentences. The Magistrate directed that the three month terms of imprisonment be served concurrently from 28 October 2016, and that the one month term of imprisonment be served cumulatively, from 28 January 2017. The result was a total sentence of four months’ imprisonment from 28 October 2016 to 27 February 2017.

In relation to five further good behaviour orders that had been breached, the Magistrate took no further action.

New charges

In relation to the new charges, the Magistrate imposed sentences that were entirely cumulative on the sentences imposed on the breach matters.

For an offence of contravention of protection order, the Magistrate imposed a sentence of 12 months’ imprisonment (discounted by 20 per cent from a starting point of 15 months’ imprisonment), commencing…

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 Olney v Martin

Details

AGLC: Olney v Martin [2017] ACTSC 79
Case: [2017] ACTSC 79
Decision Date: 30 March 2017

CaseChat Overview and Summary

The appeal in Olney v Martin involved the appellant, who had been found guilty of several offences by the Magistrates Court, including contravention of a protection order, trespass, and breaches of good behaviour orders. The appellant sought to appeal against the severity of the sentence imposed, arguing that the court had made errors of law in determining the sentence, particularly in regard to the factual basis of the sentencing and the cumulative effect of the sentences imposed. The appeal was heard in the higher court, which was required to review the sentence imposed by the Magistrates Court.

The primary legal issues before the higher court were whether the Magistrates Court had erred in law in determining the sentence, and if so, whether those errors warranted a reduction in the sentence imposed. The court had to consider whether the sentence was manifestly excessive, whether the totality principle had been properly applied, and whether there had been any inappropriate cumulation or concurrency between the sentences imposed. The appellant argued that the court had not properly considered the totality of the sentences, and that the sentence was manifestly excessive, given the appellant's personal circumstances and the nature of the offences.

The higher court found that the Magistrates Court had indeed erred in law in imposing the sentence. The court determined that the sentence was manifestly excessive and had not properly considered the totality of the sentences, resulting in inappropriate cumulation and concurrency. The higher court noted that the appellant had a clean criminal record prior to the offences and that the offences were relatively minor in nature. The court also found that the Magistrates Court had not properly considered the appellant's personal circumstances, which included significant mental health issues. As a result, the higher court reduced the sentence imposed by the Magistrates Court.

The higher court ordered that the sentence imposed by the Magistrates Court be reduced, taking into account the errors identified in the appeal. The court determined that the appropriate sentence for the appellant was a combination of a suspended sentence and good behaviour orders. The court also noted that the appellant should receive appropriate support and counselling to address the underlying issues that contributed to the offending behaviour. The higher court's decision in this case highlights the importance of properly considering the totality of the sentences imposed, and of taking into account the personal circumstances of the offender when determining an appropriate sentence.

Orders