Robb v Uren - [2019] ACTSC 312

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Robb v Uren
Citation:	[2019] ACTSC 312
Hearing Date:	27 August 2019
DecisionDate:	27 August 2019
ReasonsDate:	15 November 2019
Before:	Burns J
Decision:	See [4] and [26]
Catchwords:	CRIMINAL LAW – Magistrates Court Appeal – appeal from sentence imposed by the Magistrate – whether the Magistrate erred in imposing a non-association order – consideration of s 23 of the Crimes (Sentencing) ACT 2005 (ACT)
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 21, 22, 23, 24 Crimes Act 1900 (ACT) s 24 Criminal Code 2002 (ACT) s 45A Criminal Law Consolidation Act 1935 (SA) s 83E Human Rights Act 2004 (ACT) ss 15, 28, 30
Cases Cited:	R v Pishdari & Ors [2018] SASFC 94
Parties:	Zachary John Robb (Appellant) Alexandra Frances Uren (Respondent)
Representation:	Counsel L Vozella (Appellant) J Hiscox (Respondent)
Solicitors Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 34 of 2019
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Lawton Date of Decision: 13 June 2019 Case Title: Uren v Robb Court File Number: CC2018/13040

BURNS J

The appellant, Zachary John Robb, was charged on 4 November 2018 in the Magistrates Court with a charge in the following terms:

The he, in the Australian Capital Territory, on 17 February 2018, did assault Nigel Sparkes and thereby occasioned to him actual bodily harm.

The bench sheet in the Magistrates Court setting out the terms of the charge stated that the offence alleged was “in contravention of s 24 (by virtue of s 45A ACT Criminal Code 2002) of the ACT Crimes Act 1900”. This in essence alleges that the offence was committed jointly with another offender, identified in the prosecution Statement of Facts as Sofeso Tu’uta Katoa.

After initially pleading not guilty to the charge, on 3 April 2019 a legal practitioner, on behalf of the appellant, entered a plea of guilty and the matter was further adjourned to 13 June 2019 for sentence. On that day, a Magistrate recorded a conviction and sentenced the appellant to five months’ imprisonment, which was wholly suspended upon the appellant undertaking to comply with a Good Behaviour Order for 12 months from 13 June 2019. The Magistrate also made an order under s 23 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) prohibiting the appellant from communicating with 35 named individuals and from “attending” three addresses set out in the order. For convenience I will refer to these orders collectively as “the non-association order”.

The appellant appealed from the sentence imposed by the Magistrate, citing numerous grounds. The appeal ultimately focussed on the making of the non-association order. On 27 August 2019 I upheld the appeal to the extent that I set aside the non-association order and said that I would give reasons for doing so at a later date. These are those reasons.

The facts

A Statement of Facts was tendered without objection in the proceeding before…

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 Robb v Uren

Details

AGLC: Robb v Uren [2019] ACTSC 312
Case: [2019] ACTSC 312
Decision Date: 27 August 2019

CaseChat Overview and Summary

The appeal in Robb v Uren arose from a decision made by a magistrate in the Australian Capital Territory, where the appellant, Robb, challenged the sentence imposed on him, specifically the non-association order. The appellant was convicted of multiple criminal offences, including acts of intimidation and threats to kill. The appeal focused on the appropriateness and legality of the non-association order as part of the sentence.

The legal issues before the court were whether the magistrate had correctly applied the relevant statutory provisions in imposing the non-association order and if the order was proportionate and justifiable under the circumstances. The court needed to examine section 23 of the Crimes (Sentencing) Act 2005 to determine the principles and considerations that should guide the imposition of such orders. The appellant argued that the order was excessive and not supported by the evidence or the law.

In its decision, the court considered the principles of sentencing and the specific provisions of section 23 of the Act, which requires the court to have regard to the seriousness of the offence, the need for denunciation, and the protection of the community. The court concluded that the magistrate had not erred in imposing the non-association order, as it was necessary to protect the community and the victim of the threats. The court found that the order was proportionate and lawful, given the nature of the crimes committed by the appellant.

The court dismissed the appeal and upheld the sentence imposed by the magistrate, including the non-association order. The appeal was without merit, and the original sentence stood as affirmed by the court. The final orders were to dismiss the appeal and affirm the sentence as imposed by the magistrate, including the non-association order.

Orders

Orders of the court

See [4] and [26]

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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