Qu v Cattanach
[2018] ACTSC 163
•27 February 2018
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 threats or any overt or obvious intention to cause the recipient of the messages any discomfort but it cannot be said to be trivial.
In my opinion a plain reading of that portion of his Honour's reasons which I have quoted leads to a conclusion that his Honour was there equating the need for him to find that the offence was trivial before his Honour could exercise his discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT). In that regard I note that at no point in the learned magistrate's reasons does he acknowledge that he may make an order under s 17 even if he finds that the offence is not trivial.
As I indicated in argument with counsel for the respondent, the outcome of this appeal sets no precedent, it simply deals with what appears to me to have been an error of law made by the magistrate in the course of giving his sentencing reasons in that he misunderstood the requirements of s 17 of the Crimes (Sentencing) Act 2005 (ACT).
The appeal will be upheld and the orders made by the magistrate will be set aside.
Re-sentencing
Having set aside the conviction imposed by the magistrate on 24 October 2017, it now falls to me to re‑sentence the appellant with respect to the offence. Mr Edmonds presses the submission that the matter should be dealt with by way of a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). He does not press for a simple dismissal of the order under s 17(2)(a) but submits that the matter can be dealt with without recording a conviction by the imposition of a good behaviour order under s 13 of that Act.
I take into account the requirements of s 17(3) which requires that in deciding whether to make a non-conviction order I must consider the following matters: the offender's character, antecedents, health, age and mental condition, the seriousness of the offence and any extenuating circumstance in which the offence was committed.
There is no dispute that the offender's character is unblemished and that I should proceed on the basis that he is otherwise a person of good character. I note in that regard that he is 50 years of age. There is nothing in terms of the appellant's health or mental condition which has been put before me as being relevant to sentencing with respect to this matter.
I turn to the question of the seriousness of the offence. The Crown is quite correct to submit that the fact that this offence occurred over a period of time - in fact, over approximately 65 days - is an aggravating circumstance which makes it a more serious offence than if it had simply occurred on a single occasion. However, one must also look at the particular circumstances of the offence, and by that I mean the nature of the contact which was involved.
I will interpolate at this point to note that the breach of the protection order involved the appellant making 25 telephone calls to his 16 year old son over approximately 65 days. Under the order that was in force, the appellant was prohibited from contacting his son except in certain circumstances. It is important to note that contact between the appellant and his 16 year old son was not entirely prohibited. He was entitled to make contact with his son in circumstances where his son had consented in writing.
At the time that the 25 telephone calls occurred, his son had consented in writing to contact via Messenger but had not consented in writing to contact via telephone. It is in that context that one needs to look at the objective seriousness of the offence and indeed in those circumstances where there was contact between the appellant and his son there is not suggestion there was anything by way of threat or offensive or harassing behaviour on behalf of the appellant. As the magistrate found, and correctly so, the contact was what one might have expected between a man and his 16‑year‑old son. In my opinion, this offence falls towards the very bottom of the range of seriousness of these types of offences. There has not been any submission that there were any extenuating circumstances in which the offence was committed.
Taking all of these circumstances into account, I am satisfied that the appropriate disposition is a non-conviction order under s 17.
Orders
The appeal will be upheld and the orders made by the magistrate will be set aside.
Pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT), without convicting you of the offence, I will make a good behaviour order under s 13 of that Act for a period of 12 months, which will be limited to the core conditions only.
[speaking directly to QU]
What I have done is, I have set aside the conviction that was imposed by the magistrate. I have imposed a non-conviction order but there will be a good behaviour order attached to that for a period of 12 months. If you commit no further offence within that 12 month period then at the end of that time the matter is concluded without any conviction being recorded against you. On the other hand, if you are to commit some further offence during that period of time you may be brought back before the Court to be dealt with on a breach of these orders, at which time a conviction may be imposed.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment his Honour Justice Burns. Associate: Date: 14 June 2018 |
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