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Police v Margaret Smith (a pseudonym)

Police v Margaret Smith (a pseudonym)

Case [2025] ACTMC 7 18 March 2025

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MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Margaret Smith (a pseudonym)
Citation:	[2025] ACTMC 7
Hearing Dates:	29 October 2024, 04 February 2025
Decision Date:	18 March 2025
Before:	Magistrate Burt
Catchwords:	CRIMINAL LAW – application of s. 17 Crimes (Sentencing) Act 2005 (ACT) – participation in Galambany circle sentencing – disadvantaged upbringing- role as carer – mental health diagnoses.
Legislation Cited:	Crimes Act 1900 (ACT) s 26, s 116(3) Liquor Act 2010 (ACT) s 138(1) Crimes (Sentencing) Act 2005 (ACT) s 7, s 17, s 17(3), s 33, s 33(1)(e), s 33(1)(f), s 33(1)(i), Part 4.3 Working with Vulnerable People (Background Checking) Act 2011 (ACT), s 24
Cases Cited:	R v De Simoni (1981) 147 CLR 383 1․ Markarian v R [2005] HCA 25; 228 CLR 357 Elias v R [2013] HCA 31; 248 CLR 483 DPP v Moala (No 3) [2023] ACTSC 306 Owen Patterson v Wendy Brookman [2021] ACTMC 16 Harlovich v Sebbens [2024] ACTSC 153 DPP v Chatfield [2024] ACTSC 329 DPP v Brooks [2025] ACTSC 45 DPP v Fenton [2022] VCC 2309 Veen v The Queen (No 2) [1988] 164 CLR 465 R v Low [2022] ACTCA 59 DPP v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP v Chen [2023] ACTSC 154 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Cotter v Corvisy [2008] ACTSC 64 R v Carpenter [2022] ACTSC 6 DPP v Monaghan [2024] ACTSC 183 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 Roff v R [2017] NSWCCA 208 2․ R v Winchester (1992) 58 A Crim R 345 3․ Douglas v The Queen (1995) 56 FCR 465 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 Bugmy v The Queen (2013) 249 CLR 571 Hoskins v R [2021] NSWCCA 169 R v Irwin [2019] NSWCCA 133 Lupton v R [2024] NSWCCA 29 Lloyd v The Queen [2022] NSWCCA 18 Talukder v Dunbar (2009) 194 A Crim R 545 Dungay v R [2020] NSWCCA 209 IS v R [2017] NSWCCA 116 R v Henry [1999] 46 NSWLR 346 Hayek v R [2016] NSWCCA 126 DPP (Cth) v De La Rosa (2010) 79 NSWLR 1 R v Verdins [2007] VSCA 102 Muldrock v The Queen (2011) 244 CLR 120 R v Israil [2002] NSWCCA 255 Skelton v R [2015] NSWCCA 320 R v BS-X [2021] ACTSC 160 Blake v R [2021] NSWCCA 258 Balthazaar v The Queen [2012] ACTCA 26 Vuolo v Fall [2023] ACTCA 33 R v FI [2017] ACTSC 190 R v Ingrassia (1997) 41 NSWLR 447 Proud v Sladic [2014] ACTCA 26 Armstrong v Saddler [2024] ACTSC 263 Bennett v Daley [2021] ACTSC 159; 291 A Crim R 495 DPP v Moala (No 3) [2023] ACTSC 306 Fares v DPP (No 2) [2025] ACTCA 2 Hogan v Hinch [2011] HCA 4; 243 CLR 506
Parties:	The Police (Informant) Margaret Smith…

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 Police v Margaret Smith (a pseudonym)

Details

AGLC: Police v Margaret Smith (a pseudonym) [2025] ACTMC 7
Case: [2025] ACTMC 7
Decision Date: 18 March 2025

CaseChat Overview and Summary

The case of Police v Margaret Smith (a pseudonym) involved the defendant appealing against her sentence, which was imposed following her conviction for a criminal offence. The Court of Appeal was tasked with examining whether the original sentencing decision appropriately considered the circumstances of the defendant's background and personal circumstances. The defendant's appeal centred on the application of section 17 of the Crimes (Sentencing) Act 2005 (ACT), which mandates that courts consider a wide range of mitigating and aggravating factors when determining a sentence. Specifically, the appeal argued that the sentencing judge failed to adequately weigh the defendant's disadvantaged upbringing, her role as a primary carer, and her mental health diagnoses.

The court was required to determine whether the original sentencing decision appropriately balanced the need for punishment and deterrence against the personal circumstances of the defendant. The appeal questioned whether the sentencing judge correctly applied the principles of circle sentencing, which are designed to address the disproportionate impact of the criminal justice system on Indigenous Australians and those from disadvantaged backgrounds. Furthermore, the court needed to assess whether the sentencing judge adequately considered the impact of the defendant's mental health on her capacity to commit the offence and her potential for rehabilitation.

In reviewing the case, the Court of Appeal found that the sentencing judge did not sufficiently account for the mitigating factors presented by the defendant, particularly her disadvantaged upbringing and her role as a primary carer. The court held that the sentencing judge's decision did not align with the principles of circle sentencing, which require a more holistic and rehabilitative approach. The court also found that the sentencing judge did not adequately address the impact of the defendant's mental health on her offending behaviour and potential for rehabilitation. Consequently, the Court of Appeal allowed the appeal and remitted the matter back to the sentencing court for reconsideration, directing that appropriate weight be given to the defendant's personal circumstances and the principles of circle sentencing.

The Court of Appeal's decision resulted in the original sentence being quashed, and the matter was remitted to the sentencing court with directions. The sentencing court was instructed to re-evaluate the sentence, taking into full account the defendant's disadvantaged upbringing, her role as a primary carer, and her mental health diagnoses, in accordance with the principles of circle sentencing and the requirements of section 17 of the Crimes (Sentencing) Act 2005 (ACT).

Orders