Qu v Cattanach

[2018] ACTSC 163

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:

1. 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.

1. 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.

1. 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…