Reid v Smith - [2014] ACTSC 349

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Reid v Smith & Anor
Citation:	[2014] ACTSC 349
Hearing Dates:	17 October 2014; 21 October 2014
DecisionDate:	21 October 2014
Before:	Penfold ACJ
Decision:	1. The appeal is dismissed. 2. The Magistrates Court sentences are confirmed, subject to correction to specify that the 12-month non-parole period set by the Magistrate applies to the total sentence imposed on 2 May 2014.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against sentences imposed in Magistrates Court – Magistrate’s failure to give specific credit for time spent in pre-sentence rehabilitation program – Magistrate’s alleged failure to give adequate weight to principles in relating to sentencing Aboriginal offenders – failure to give adequate weight to sentencing consideration does not invoke either category of appellable error as described in House v The King – whether sentence was manifestly excessive – appeal grounds not made out – appellable error relating to setting of non-parole period conceded by respondent in submissions – no other sentence appropriate – appeal dismissed – Magistrates Court sentences confirmed except as required to set non-parole period correctly.
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 7(1)(d), 33(2)(t), 33(2)(x), 65, 65(4) Court Procedures Rules 2006 (ACT), rr 5140(1), 5140(1)(c)
Cases Cited:	Bugmy v The Queen [2013] HCA 37 Dutton v The Queen [2013] ACTCA 48 House v The King (1936) 55 CLR 499 Mazeika v David [2014] ACTSC 95 Rv Ang [2014] ACTCA 17
Parties:	Nathan Kerry Reid (Appellant) Jeffrey Smith and Susan Corey (Respondents)
Representation:	Counsel Ms K Bolas (Appellant) Mr M Reardon (Respondents)
Solicitors Kim Bolas Criminal and Family Lawyers (Appellant) ACT Director of Public Prosecutions (Respondents)
File Number:	SCA 38 of 2014
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 2 May 2014 Case Title: Jeffrey John Smith v Nathan Kerry Reid Susan Corey v Nathan Kerry Reid Court File Numbers: MC 159 763; 160 814

Introduction

Nathan Reid has appealed against sentences imposed in the Magistrates Court on 2 May 2014. On that date, he was sentenced for assault (CC12/9846), damage property (CC12/9845), breach of a domestic violence order (CC12/9847) and being a prisoner at large (CC13/1257).

An amended notice of appeal filed on 27 May 2014 identified the appeal as relating to all the sentences. The grounds of appeal are as follows:

(a)that the sentence is manifestly excessive.
(b)that the Honourable Magistrate failed to take into account time spent at Oolong House Rehabilitation Centre; and
(c)that the Honourable Magistrate failed to give adequate weight to the decision in Bugmy v The Queen [2013] HCA 37 (Bugmy).

Mr Reid did not turn up for his appeal hearing and accordingly breached his bail (a warrant had already been issued in the Magistrates Court relating to his failure to appear in the Magistrates Court several days previously in breach of Magistrates Court bail). However, he was represented at…

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 Reid v Smith

Details

AGLC: Reid v Smith [2014] ACTSC 349
Case: [2014] ACTSC 349
Decision Date: 21 October 2014

CaseChat Overview and Summary

The case of Reid v Smith involved the appellant, Reid, who appealed against sentences imposed by the Magistrates Court of Victoria. Reid contested the sentences on the basis that the Magistrate had failed to provide adequate credit for time spent in a pre-sentence rehabilitation program and had not sufficiently weighed the principles pertinent to sentencing Aboriginal offenders. The appeal was heard in the Court of Appeal of the Supreme Court of Victoria.

The primary legal issues revolved around whether the Magistrate's failure to give specific credit for the rehabilitation program and the inadequate weight given to the sentencing considerations for Aboriginal offenders constituted errors warranting appeal. Additionally, the court examined whether the sentence was manifestly excessive, which would also constitute grounds for appeal. The court also considered the concession by the respondent regarding the setting of the non-parole period.

In dismissing the appeal, the Court of Appeal held that the failure to give specific credit for the rehabilitation program and the alleged inadequate weight given to sentencing principles for Aboriginal offenders did not amount to the type of appellable error described in House v The King. The court found that the sentence was not manifestly excessive, thus not constituting an error warranting appeal. The respondent conceded that an error was made in setting the non-parole period, but the court determined that no other sentence was appropriate. Consequently, the appeal was dismissed, and the Magistrates Court sentences were confirmed, with the exception of correcting the non-parole period to accurately reflect the 12-month period set by the Magistrate.

Orders

Orders of the court

1. The appeal is dismissed.

2. The Magistrates Court sentences are confirmed, subject to correction to specify that the 12-month non-parole period set by the Magistrate applies to the total sentence imposed on 2 May 2014.

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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