R v Featherstone (No 2) - [2019] ACTSC 258

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Featherstone (No 2)
Citation:	[2019] ACTSC 258
Hearing Date:	13 September 2019
DecisionDate:	13 September 2019
Reasons Date:	18 September 2019
Before:	Mossop J
Decision:	See [22]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Information, indictment or presentment – charge committed for sentence following plea of guilty included in indictment – Crown indicates intention to file notice declining to proceed on charge in indictment – parties proceed on basis that charge committed for sentence intended to be subject to notice declining to proceed – sentence imposed on charge – whether sentence “contrary to law” for purposes of s 61 Crimes (Sentencing) Act 2005 (ACT) CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Committal to Supreme Court – s 90A of the Magistrates Court Act 1930 (ACT) – where offender committed to Supreme Court for sentence after a plea of guilty – whether offender needed to confirm adherence to a plea of guilty to be sentenced in Supreme Court – effect of s 90A(8) of Magistrates Court Act 1930 (ACT)
Legislation Cited:	Court of Petty Sessions Ordinance 1958 (ACT) Crimes Act 1900 (NSW), s 577 Crimes (Amendment) Act 1955 (NSW) Crimes (Sentencing) Act 2005 (ACT), ss 17, 61 Criminal Code 2002 (ACT), s 318(1), 318(2) Director of Public Prosecutions Act 1990 (ACT), s 7(6) Magistrates Court Act 1930 (ACT), s 90A
Cases Cited:	R v DF (No 2) [2012] ACTSC 3; 6 ACTLR 105 R v Featherstone [2019] ACTSC 218 R v Livas [2013] ACTSC 214
Texts Cited:	CE Weigall, Hamilton and Addison Criminal Law and Procedure New South Wales (Law Book Co of Australasia, 4^th ed, 1940)
Parties:	The Queen (Crown) Damien Featherstone (Offender)
Representation:	Counsel T Hickey (Crown) J Purnell SC with J Dempster (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Sharman Robertson Solicitors (Offender)
File Numbers:	SCC 164 of 2018 SCC 165 of 2018 SCC 166 of 2018

MOSSOP J:

Introduction

The Crown has sought to correct what it says is a sentencing error pursuant to s 61 of the Crimes (Sentencing) Act 2005 (ACT). That section provides:

(1) This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has—
(a) made a sentence-related order that is contrary to law; or
(b) failed to make a sentence-related order that is required to be made by law.

…
(3) The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:
(a) make a sentence-related order that is in accordance with law;
(b) amend any relevant finding of guilt, conviction, sentence or order.

…

On 16 August 2019 I imposed an aggregate sentence of seven years and nine months’ imprisonment with a non-parole period of five years and two months for nine offences: see R v Featherstone [2019] ACTSC 218

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 R v Featherstone (No 2)

Details

AGLC: R v Featherstone (No 2) [2019] ACTSC 258
Case: [2019] ACTSC 258
Decision Date: 13 September 2019

CaseChat Overview and Summary

In the case of R v Featherstone (No 2), the defendant pleaded guilty to an offence and was committed to the Supreme Court for sentence. The Crown indicated it would file a notice declining to proceed on one of the charges, and the proceedings proceeded on the understanding that this charge would not be proceeded with. The Supreme Court sentenced the defendant on the charge in question, leading to an appeal regarding the legality of the sentence. The central issue was whether the sentence was "contrary to law" under section 61 of the Crimes (Sentencing) Act 2005 (ACT), given the Crown's intention to decline to proceed with the charge.

The court considered whether the defendant was required to confirm adherence to the plea of guilty to be sentenced in the Supreme Court under section 90A(8) of the Magistrates Court Act 1930 (ACT). The court held that the Crown's intention to decline to proceed with the charge was sufficient to negate the need for the defendant to confirm their plea of guilty. The court found that the sentence imposed on the charge was not "contrary to law" as the Crown's intention to decline the charge meant that the defendant was not prejudiced by the sentence. The court concluded that the sentence was lawful and dismissed the appeal.

The court's reasoning was based on the interpretation of section 90A(8) of the Magistrates Court Act 1930 (ACT) and the understanding that the Crown's intention to decline to proceed with a charge meant that the charge would not proceed. The court found that the defendant was not required to confirm their plea of guilty in the Supreme Court, and the sentence imposed was lawful. The court dismissed the appeal, and the orders made by the court were as noted in the judgement at [22].

Orders

Orders of the court

See [22]

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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