Russell v Mills - [2014] ACTSC 343

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Russell v Mills
Citation:	[2014] ACTSC 343
Hearing Date:	23 October 2014
DecisionDates:	14 November 2014; 4 December 2014
Before:	Penfold J
Decision:	14 November 2014: 1. The appeal is dismissed and the sentence is confirmed. 2. Order 1 is stayed until 4 December 2014. 4 December 2014: 1. Order 1 made on 14 November 2014 is stayed until 10 December 2014.
Category:	Principal Judgment
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Admission of Fresh Evidence – appeal against order that five months of ten month sentence of imprisonment be served as periodic detention – application to admit new mental health assessment and further information about appellant’s massage business – new mental health assessment unlikely to provide new relevant information having regard to material available to sentencing Magistrate – information establishing that appellant’s massage business was busiest on Friday nights and Saturdays might cast new light on circumstances at time of Magistrates Court sentencing – evidence might justify replacement of periodic detention order with community service order – appellant given time to provide relevant business records – no business records provided – appellant indicated unwillingness to continue appeal – appeal dismissed.
Legislation Cited:	Court Procedures Rules 2006 (ACT), rr 5137, 5191(2)(b), 5193 Magistrates Court Act 1930 (ACT), ss 214, 214(4)
Cases Cited:	Grooms v Toohey [2012] ACTSC 28 R v Eliason (1991) 53 A Crim R 391 R v WEF [1998] 2 VR 385
Parties:	Michelle Victoria Russell (Appellant) Emma Mills (Respondent)
Representation:	Counsel Self-represented (Appellant) Ms P Burgoyne-Scutts (Respondent)

Solicitors

Self-represented (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 92 of 2013

Decision under appeal:

Court: ACT Magistrates Court

Before: Magistrate Morrison

Date of Decision: 8 November 2013

Case Title: Emma Mills and Michelle Russell

Court File Numbers: CC12/7105; CC12/7108; CC12/7110; CC12/3684

Introduction

On 8 November 2013, Michelle Russell was convicted, on pleas of guilty, on one count of theft and three counts of obtaining property by deception. She was sentenced in the Magistrates Court to a total of 10 months imprisonment, five months of which was to be served by periodic detention and the remaining five months of which was to be suspended subject to a good behaviour order.

Ms Russell appealed against the sentences. On 4 December 2014 her appeal was dismissed. These are my reasons for dismissing the appeal, and for various orders made before and after dismissing the appeal.

Background

The prosecution arose out of Ms Russell’s dealings with money the property of Wanniassa Preschool Parents Association while she was the treasurer of that body during 2011. First, in August 2011, Ms Russell collected an amount of $2,250 raised through a fundraising barbecue conducted by volunteer members of the Association, but instead of banking that money in the Association’s account she stole it, by keeping it and using it for her own purposes. Secondly, in September 2011, Ms Russell persuaded another signatory to the Association’s bank account to sign…

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 Russell v Mills

Details

AGLC: Russell v Mills [2014] ACTSC 343
Case: [2014] ACTSC 343
Decision Date: 4 December 2014

CaseChat Overview and Summary

The appeal in Russell v Mills was brought by the appellant against an order made by the Magistrates Court of Victoria, which had imposed a sentence of imprisonment for a period of ten months. The appellant sought to appeal the order that five months of this sentence be served as periodic detention. The appellant also applied to adduce fresh evidence in the form of a new mental health assessment and further information about their massage business. The Court of Appeal for the Supreme Court of Victoria was required to determine whether the fresh evidence could be admitted and whether the sentence should be altered.

The court considered that the new mental health assessment was unlikely to provide new relevant information, given the material that was already available to the sentencing Magistrate. However, the information about the appellant’s massage business, which suggested that it was busiest on Friday nights and Saturdays, might cast new light on the circumstances at the time of the Magistrates Court sentencing. The court noted that this evidence might justify the replacement of the periodic detention order with a community service order. The appellant was given an opportunity to provide the relevant business records, but they did not do so. Additionally, the appellant indicated an unwillingness to continue with the appeal. As a result, the appeal was dismissed, and the sentence was confirmed.

The court issued an order on 14 November 2014 dismissing the appeal and confirming the sentence. The court stayed the order until 4 December 2014. On 4 December 2014, the court stayed the order made on 14 November 2014 until 10 December 2014. The appeal was ultimately dismissed, and the sentence was confirmed.

Orders

Orders of the court

14 November 2014:

1. The appeal is dismissed and the sentence is confirmed.

2. Order 1 is stayed until 4 December 2014.

4 December 2014:

1. Order 1 made on 14 November 2014 is stayed until 10 December 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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