QE v McRae - [2018] ACTSC 151

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	QE v McRae
Citation:	[2018] ACTSC 151
Hearing Date:	25 May 2018
DecisionDate:	30 May 2018
Before:	Mossop J
Decision:	See [23]
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction and sentence – conviction for contravening family violence order – whether miscarriage of justice by reason of plea of guilty of self-represented person – no miscarriage of justice – failure to make recognizance release order for federal offence – conviction on charge not supported by admitted facts – leave granted to amend Notice of Appeal – appeal allowed
Legislation Cited:	Crimes Act 1900 (ACT), s 35 Crimes Act 1914 (Cth), ss 19AC(1), 19AJ Criminal Code Act 1995 (Cth), ss 474.14, 474.17 Crimes (Sentencing) Act 2005 (ACT), ss 89(2), 89(6), 90 Family Violence Act 2016 (ACT), s 43(2)
Cases Cited:	R v Gomez [2007] ACTCA 21; 1 ACTLR 145
Parties:	QE (Appellant) Gregory McRae (First Respondent) Daniel Briggs (Second Respondent)
Representation:	Counsel Self-represented (Appellant) T Hickey (Respondents)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondents)
File Number:	SCA 1 of 2018
Decision under appeal:	Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Boss Date of Decision: 8 December 2017 Case Title: Briggs v QE Court File Number(s): CC2017/9601 CC2017/9722 CC2017/6868 CC2017/5362 CC2016/3663 CC2016/3664 CC2016/3665

MOSSOP J:

Introduction

QE was convicted and sentenced by a magistrate on 8 December 2017 in relation to four charges. The magistrate also dealt with breaches of three good behaviour orders, two of which were associated with suspended sentences. Her Honour imposed the sentences that had been suspended. The total aggregate sentence imposed by her Honour was a period of imprisonment of one year, nine months and 21 days. The non‑parole period was one year and one month, which was just under 60 per cent of the head sentence.

The offences for which the appellant was convicted and sentenced are set out in the following table:

Court number Date Offence Sentence

CC2017/9601 31 January 2017 Contravene family violence order: Family Violence Act 2016 (ACT), s 43(2) One year (15/5/17-14/5/18)

CC2017/9722 13 March 2017 Contravene family violence order: Family Violence Act, s 43(2) One year (15/6/17-14/6/18)

CC2017/6868 12 May 2017 Contravene family violence order: Family Violence Act, s 43(2) One year (15/7/17-14/7/18)

CC2017/5392 12 May 2017 Contravene family violence order: Family Violence Act, s 43(2) One year (15/8/17-14/8/18)

CC2016/3663 Between 21 February 2016 and 24 March 2016 Stalking: Crimes Act 1900 (ACT), s 35 One year and three months (8/12/17-7/3/19)

CC2016/3664 Between 21 February 2016 and 24 March 2016 Use telecommunications network with intention to commit a serious offence: Criminal Code (Cth), s 474.14 One year (8/12/17-7/12/18)

CC2016/3665 24 March 2016 Use carriage service to menace: Criminal Code (Cth), s 474.17 No further action

By Notice of Appeal, dated 5 January 2018, the appellant appealed against the convictions and sentences imposed in relation to charges CC2017/9601, CC2017/9722 and CC2017/5392. The ground of appeal is set…

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 QE v McRae

Details

AGLC: QE v McRae [2018] ACTSC 151
Case: [2018] ACTSC 151
Decision Date: 30 May 2018

CaseChat Overview and Summary

In the matter of QE v McRae, the appellant, represented pro se, challenged his conviction and sentence in the Magistrates Court of Victoria. The appellant was found guilty of breaching a family violence order and sentenced to a term of imprisonment. He appealed against his conviction and sentence on the basis that there was a miscarriage of justice due to his entry of a guilty plea while unrepresented by legal counsel.

The central legal issue was whether the appellant's plea of guilty, entered without legal representation, constituted a miscarriage of justice. A secondary issue was the court's failure to make a recognizance release order for a federal offence, and whether the conviction on that charge was supported by the facts admitted. The court had to determine if the appellant's appeal was valid and if the sentence imposed was appropriate.

The court found that there was no miscarriage of justice in the appellant's plea of guilty. It was determined that the appellant had knowingly and voluntarily entered the plea and had not been coerced. Regarding the federal offence, the court noted that the conviction was not supported by the facts admitted, leading to the conclusion that the sentence was not justified. Consequently, the appeal was allowed. The court granted leave to amend the Notice of Appeal to reflect these findings.

Orders

Orders of the court

See [23]

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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Court number	Date	Offence	Sentence
CC2017/9601	31 January 2017	Contravene family violence order: Family Violence Act 2016 (ACT), s 43(2)	One year (15/5/17-14/5/18)
CC2017/9722	13 March 2017	Contravene family violence order: Family Violence Act, s 43(2)	One year (15/6/17-14/6/18)
CC2017/6868	12 May 2017	Contravene family violence order: Family Violence Act, s 43(2)	One year (15/7/17-14/7/18)
CC2017/5392	12 May 2017	Contravene family violence order: Family Violence Act, s 43(2)	One year (15/8/17-14/8/18)
CC2016/3663	Between 21 February 2016 and 24 March 2016	Stalking: Crimes Act 1900 (ACT), s 35	One year and three months (8/12/17-7/3/19)
CC2016/3664	Between 21 February 2016 and 24 March 2016	Use telecommunications network with intention to commit a serious offence: Criminal Code (Cth), s 474.14	One year (8/12/17-7/12/18)
CC2016/3665	24 March 2016	Use carriage service to menace: Criminal Code (Cth), s 474.17	No further action