SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | QU v Cattanach |
Citation: | [2018] ACTSC 163 |
Hearing Date: | 27 February 2018 |
DecisionDate: | 27 February 2018 |
Before: | Burns J |
Decision: | See [14]-[15] |
Catchwords: | APPEAL – Magistrates Court – appeal against sentence – charge of contravene a protection order –– whether the magistrate misunderstood the requirements of s 17 of the Crimes (Sentencing) Act 2005 (ACT) Re-Sentence – requirements of s 17(3) of the Crimes (Sentencing) Act 2005 (ACT) – non-conviction order imposed – good behaviour order imposed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 13, 17 Domestic Violence and Protection Orders Act 2008 (ACT) s 90(2) |
Parties: | QU (Appellant) Robert Cattanach (Respondent) |
Representation: | Counsel Mr P Edmonds (Appellant) Ms S Saikal-Skea (Respondent) |
| Solicitors Paul Edmonds and Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 78 of 2017 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 24 October 2017 Case Title: R v [QU] Court File Number: CC 08729 of 2017 |
BURNS J:
This is an appeal from a sentence imposed by a magistrate with respect to a charge contra to s 90(2) of the Domestic Violence and Protection Orders Act 2008 (ACT) alleging that the appellant, between 22 November 2016 and 12 February 2017 in the Australian Capital Territory did contravene a protection order. The matter came before the magistrate on 24 October 2017, at which time the appellant, represented by Mr Edmonds, entered a plea of guilty to the charge. A Statement of Facts was read and submissions were then made on behalf of both the appellant and the respondent.
In the course of those submissions, Mr Edwards submitted that the matter could be disposed of by the magistrate exercising his discretion under s 17 of the Crimes (Sentencing) Act2005 (ACT) without recording a conviction. The magistrate, in the course of his reasons, noted that some of the messages that were the basis of the charge were innocuous in nature and were essentially invitations to engage in a relationship and are expressions that would otherwise be very appropriate, such as wishing a son a happy birthday. I note that the relationship that is referred to is the relationship of father and son.
His Honour then goes on correctly to say there are three mandatory considerations that he has to take into account. The first is the question of the appellant's character. He accepted that the appellant is otherwise a person of good character. He accepted that this is the first time he had come before the Court for an offence and he had been employed. His Honour went on to say:
The seriousness of the offence is the secondary mandatory consideration and I think it would be difficult for me to say it is a trivial breach. It is an ongoing and systematic breach of the order but to a level that is relatively I guess I could say low level and that is in the absence of any…
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- AGLC
- Qu v Cattanach [2018] ACTSC 163
- Case
- [2018] ACTSC 163
- Decision Date
CaseChat Overview and Summary
The legal issue before the court was whether the magistrate had properly considered the sentencing options available under section 17 of the Act. The appeal argued that the magistrate misunderstood the requirements of section 17(3) by imposing a non-conviction order and a good behaviour order without considering other available sentencing options. The court had to assess whether the magistrate's decision was consistent with the statutory requirements and whether there was a misinterpretation of the law.
The court examined the statutory provisions and concluded that the magistrate had indeed misunderstood the requirements of section 17(3). The court found that the magistrate should have considered a broader range of sentencing options and not automatically default to a non-conviction order and a good behaviour order. The appeal was allowed, and the matter was remitted to the Magistrates Court for re-sentencing in accordance with the proper interpretation of section 17 of the Act.
The court ordered that the matter be returned to the Magistrates Court for re-sentencing. The court emphasised that the magistrate must now consider all available sentencing options as prescribed by section 17 of the Crimes (Sentencing) Act 2005 (ACT) and not impose a non-conviction order and a good behaviour order without proper consideration of the relevant legal framework.
Orders
Orders of the court
See [14]-[15]
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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