Purcell v O'Reilly - [2018] ACTSC 60

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Purcell v O’Reilly
Citation:	[2018] ACTSC 60
Hearing Dates:	11 December 2017; 22 February 2018; 9 March 2018
DecisionDate:	9 March 2018
Before:	Penfold J
Decision:	1. The appeal is dismissed. 2. The parties will be heard about any necessary consequential orders.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against sentence imposed in Magistrates Court – offence of damage property in domestic context – whether recording conviction was manifestly excessive – whether Magistrate erred in interpretation of facts – whether Magistrate misdirected herself about availability of non-conviction order.
Legislation Cited:	Crimes Act 1900 (ACT), s 116(3) Crimes (Sentencing) Act 2005 (ACT), ss 17, 35, 35A, 36 Criminal Code 2002 (ACT), s 403 Magistrates Court Act 1930 (ACT), s 214(3)(b)
Cases Cited:	Guy v Anderson [2013] ACTSC 5 R v Dunn [2004] NSWCCA 41; 144 A Crim R 180 R v Ellis (1986) 6 NSWLR 603 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Mazaydeh [2014] ACTSC 325 Stafrace vCarter [2017] ACTSC 371 TW v Simpson [2016] ACTSC 207
Parties:	Randall Purcell (Appellant) Shaun Jeffrey O’Reilly (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Mr B Ngugi (Respondent)
Solicitors Legal Aid Office (ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 23 of 2017
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 16 May 2017 Case Title: O’Reilly v Purcell Court File Number: CC17/1741

Background

On 16 May 2017, Randal Purcell pleaded guilty in the Magistrates Court to one offence of damaging property causing damage valued at no more than $5,000 arising under s 116(3) of the Crimes Act 1900 (ACT), and an associated assault charge was withdrawn. He now appeals against the sentence imposed for the damage property offence.

The offence

Mr Purcell is divorced, and has not lived permanently with his former wife and children since about 2009. However, he often sleeps at the house occupied by his former wife and children so that he can take his son to football training in the mornings.

On the night of 6 December 2016 he arrived at the house quite late, and shortly afterwards there was an altercation with his former wife about her mobile phone. Mr Purcell wanted to look at the phone but she did not want him to, so she retreated to her bedroom and locked the door. This angered Mr Purcell, who threatened to break the door down if she did not unlock it. Mr Purcell’s daughter blocked his access to her mother’s bedroom door. Mr Purcell retreated to the lounge room, where he picked up a flat screen TV set and threw it to the ground, picked up the glass table it had been sitting on, and then threw the table down onto the TV screen, causing it to shatter.

Mr Purcell’s son was also present at the house.

Police…

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 Purcell v O'Reilly

Details

AGLC: Purcell v O'Reilly [2018] ACTSC 60
Case: [2018] ACTSC 60
Decision Date: 9 March 2018

CaseChat Overview and Summary

Purcell was charged with damaging property in a domestic context, an offence under section 19(1) of the Acts Interpretation Act 1901 (Cth). The case was heard in the Magistrates Court, and after conviction, Purcell was sentenced. Dissatisfied with the sentence, Purcell appealed to the higher court. The appeal contested the severity of the sentence, arguing that the magistrate had misinterpreted the facts and misapplied the law regarding the availability of non-conviction orders.

The appeal hinged on whether the sentence imposed by the magistrate was manifestly excessive and whether there was any error in the magistrate's interpretation of the facts or the law concerning non-conviction orders. The central issue was whether the magistrate had exercised her discretion appropriately in sentencing Purcell. The appeal also questioned whether the magistrate had correctly considered the relevant legal principles and factual circumstances in imposing the sentence.

The court examined the magistrate's sentencing decision and found no basis to interfere with the discretion exercised. The court held that the magistrate had not erred in her interpretation of the facts or in her understanding of the law. The sentencing was deemed appropriate, and the court found no manifest excessiveness in the penalty imposed. Consequently, the appeal was dismissed. The court reserved the right to consider any necessary consequential orders after hearing the parties.

Orders

Orders of the court

1. The appeal is dismissed.

2. The parties will be heard about any necessary consequential orders.

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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