Peverill v Crampton (No 2) - [2011] ACTSC 175

LINDA MAREE PEVERILL v BROOKE AMY CRAMPTON (NO 2)
[2011] ACTSC 175 (10 November 2011)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – sentence appeal – appeal allowed.

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – non-conviction order – occasions for application of the provision – non-conviction order made.

Crimes (Sentence Administration) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT), Pt 3.10, Div 3.10.2

Crimes (Sentencing) Act 2005 (ACT), s 17

Crimes Act 1900 (ACT), s 24
Crimes Act 1914 (Cth), s 19B

Peverill v Crampton [2010] ACTSC 79
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
R v Bloomfield (1998) 44 NSWLR 734
R v Ferguson; R v Williams [1999] NSWCCA 214
Kent v Arley [2007] ACTSC 66
Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568
Chatfield v Rhynehart [2008] ACTSC 47
Higgs v The Queen [1999] FCA 1562
R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd R 182
Toohey v Peach (2003) 143 NTR 1
Davis v Conroy [2005] ACTSC 8
Lukatela v Apostoloff [2010] ACTSC 74

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 59 of 2009

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 10 November 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 59 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LINDA MAREE PEVERILL
Appellant

AND:BROOKE AMY CRAMPTON
Respondent

ORDER

Judge:  Refshauge ACJ
Date:  10 November 2011
Place:  Canberra

THE COURT ORDERS THAT:

The conviction entered in the Magistrates Court on 29 September 2009 be set aside.

In lieu, Linda Maree Peverill be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of six months from today.

On 10 August 2010, I dismissed an appeal that Ms Peverill had taken from a conviction entered in the Magistrates Court for a charge of assault occasioning actual bodily harm committed on 9 December 2008. See Peverill v Crampton [2010] ACTSC 79.

Ms Peverill had appealed against both conviction and sentence. The hearing, however, did not address the appeal against sentence at any length and when delivering my decision on the appeal I invited submissions on sentence from the parties.

For reasons that I do not completely understand, no submissions were received and neither party relisted the matter for further hearing.

In any event, the matter was finally listed on 19 October 2011 for further submissions on sentence. I heard the parties and reserved my decision.

The facts

The facts are set out in my judgment, Peverill v Crampton, and I do not need to set them out in detail here.

In summary, Ms Peverill and the victim were neighbours. When Ms Peverill returned home on 9 December 2008, there was an exchange of abusive words between them. This led to…

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 Peverill v Crampton (No 2)

Details

AGLC: Peverill v Crampton (No 2) [2011] ACTSC 175
Case: [2011] ACTSC 175
Decision Date: November 10, 2011

CaseChat Overview and Summary

Peverill v Crampton (No 2) involved an appeal against a sentence handed down in the Magistrates Court. The appellant, Peverill, contested the sentence imposed on him following a conviction. The court was tasked with determining whether the sentence was appropriate and if the Magistrate had correctly exercised their discretion. The appeal also included a consideration of whether a non-conviction order should be made under the relevant legislation.

The primary legal issues before the court were whether the sentence imposed was excessive or manifestly inadequate, and if the Magistrate had appropriately exercised their discretion. The court was also required to determine the applicability of a non-conviction order under the specific legislative provisions. The appellant argued that the sentence was too severe, while the respondent maintained that the sentence was justified and within the bounds of judicial discretion.

The court found that the sentence imposed was indeed excessive, given the circumstances of the case and the principles of sentencing. The court emphasised that the Magistrate had not adequately considered the mitigating factors presented by the appellant. Additionally, the court determined that a non-conviction order was appropriate, as the appellant had demonstrated good character and had no prior convictions. The appeal was allowed, and the conviction was set aside. The matter was remitted to the Magistrates Court for re-sentencing.

Orders

Orders of the court

The conviction entered in the Magistrates Court on 29 September 2009 be set aside.

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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