Robert Davey v Ashley Childs - [2011] ACTSC 129

ROBERT DAVEY v ASHLEY CHILDS
[2011] ACTSC 129 (20 July 2011)

APPEAL AND NEW TRIAL – appeal – appeal from the Magistrates Court – sentencing of young offenders – principle upon which appeal to be decided.
APPEAL AND NEW TRIAL – appeal – appeal from Magistrates Court – regard to an aggravating circumstance that should have been charged on the indictment – appeal allowed – orders and penalties of the Magistrates Court set aside – new sentence imposed without conviction.
CRIMINAL LAW – sentencing – sentencing principles – young offenders – non conviction order – Crimes (Sentencing) Act 2005 (ACT)

Criminal Code 2002 (ACT), ss 318, 321
Crimes (Sentencing) Act 2005 (ACT), s 17
Magistrates Court Act 1930 (ACT), Div 3.10.2

R v PM [2009] ACTSC 24
R v Smith [1964] Crim LR 70
Cooper v Corvisy(No 2) (2010) 5 ACTLR 151
Moh v Pine [2010] ACTSC 27
The Queen v De Simoni (1981) 147 CLR 383
LumbyvCooper [2008] ACTSC 53
R v P (1991) 53 A Crim R 112
R v Mills [1998] 4 VR 235
R v Mandica (1980) 24 SASR 394
Giles v Barnes [1967] SASR 174
Kent v Arley [2007] ACTSC 66

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 34 of 2011

Judge: Refshauge J
Supreme Court of the ACT

Date: 20 July 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 34 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ROBERY DAVEY

Appellant

v

ASHLEY CHILDS

Respondent

ORDER

Judge:  Refshauge J
Date:  20 July 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The orders and penalties of the Magistrates Court be set aside.

On the charge of ride in motor vehicle without consent, without conviction, Mr Davey sign an undertaking to comply the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of twelve months from today.

On the charge of theft, without conviction, Mr Davey sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of three months from 20 July 2012.

AND THE COURT DIRECTS THAT:

The money paid into the Magistrates Court as compensation be paid out to NRMA Insurance Limited.

The sentencing of young offenders, especially first offenders, can be problematic, for the courts have made it clear that ordinary sentencing principles cannot always be applied without modification. See what I said in R v PM [2009] ACTSC 24. Those principles are not limited to offenders under the age of eighteen years. Indeed, the often cited case of R v Smith [1964] Crim LR 70 involved an eighteen year old.

The appellant before me appeals against the sentences imposed in the Magistrates Court when convictions and fines were imposed for two offences, namely:
i. that he dishonestly without consent rode in a motor vehicle belonging to another;…

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 Robert Davey v Ashley Childs

Details

AGLC: Robert Davey v Ashley Childs [2011] ACTSC 129
Case: [2011] ACTSC 129
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the appellant, Robert Davey, appealed against the sentences imposed by the Magistrates Court for two offences: riding a motor vehicle without consent and stealing two number plates. The court was required to decide whether the sentences imposed by the Magistrates Court were appropriate, and whether a different sentence should be imposed. The appeal hinged on whether the magistrate had erred in considering the more serious criminality involved in the offences rather than the actual charges, and whether the sentence was appropriate given the appellant's young age and good character.

The court found that the magistrate had erred in considering factors that were not properly before the court, as they were not part of the charges. The court held that the magistrate had placed undue emphasis on the more serious criminality involved in the offences, rather than the actual charges. The court noted that the magistrate had also made inappropriate remarks on sentence, which could have influenced the sentence imposed. The court held that there was a real risk that the sentence imposed was more severe than was appropriate in the circumstances. The court also found that the magistrate had erred in considering the appellant's "bank of good character," which was not an appropriate consideration in determining whether to exercise the discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

The court held that the appellant was a young man with no prior criminal record, who had pleaded guilty at an early time and had made full admissions. The court found that the appellant had significant remorse and had paid compensation to the victim. The court held that the appellant had a positive good character, which should be taken into account in determining an appropriate sentence. The court held that a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) was appropriate, given the appellant's young age, good character, and remorse.

The court allowed the appeal and set aside the orders and penalties of the Magistrates Court. On the charge of riding the motor vehicle without consent, without conviction, the court required the appellant to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentencing) Act 2005 (ACT) for a period of twelve months from the date of the judgment. On the charge of theft, without conviction, the court required the appellant to sign an undertaking to comply with the offender's good behaviour obligations for three months from 20 July 2012. The court also directed that the money paid in compensation be paid out to NRMA Insurance Limited.

Orders