SE v Ruhen - [2019] ACTSC 190

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	SE v Ruhen
Citation:	[2019] ACTSC 190
Hearing Date:	16 July 2019
DecisionDate:	16 July 2019
Before:	Murrell CJ
Decision:	Appeal is dismissed. Orders of the Magistrates Court confirmed.
Catchwords:	APPEAL – APPEAL TO SUPREME COURT – Application to adduce further evidence – Nature of appeal APPEAL – APPEALS AGAINST SENTENCE – Common assault – Family violence – Whether recording of conviction is manifestly excessive
Legislation Cited:	Court Procedures Rules 2006 (ACT) r 5193 Crimes Act 1900 (ACT) s 26 Crimes (Sentencing) Act 2005 (ACT) s 17 Magistrates Court Act 1930 (ACT) ss 208, 214
Cases Cited:	Allesch v Maunz [2000] HCA 40; 203 CLR 172 Balthazar v The Queen [2012] ACTCA 26 Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Proud v Sladic [2014] ACTCA 26 The Queen v Ang [2014] ACTCA 17
Parties:	S E (Appellant) Carl Dietrich Fabian Ruhen (Respondent)
Representation:	Counsel R Abbas (Appellant) B Shaw (Respondent)
Solicitors R & J Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 14 of 2019
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 30 January 2019 Case Title: The Police v S E Court File Number: CC 12253 of 2018

Murrell CJ

The Appeal

On the day listed for the defended hearing of three counts of common assault, the appellant pleaded guilty in the Magistrates Court to one count of common assault. The charge was a rolled-up charge encompassing several batteries against the appellant’s daughter that had occurred on 2 October 2018. Prior to the plea, there had been discussions between the prosecution and the defence concerning the appropriate charge, and it was in that context that the plea was entered relatively late in the piece.

An offence against s 26 of the Crimes Act 1900 (ACT) carries a maximum penalty of two years' imprisonment, a relatively low maximum penalty by comparison to many other maximum penalties.

On 30 January 2019, the Chief Magistrate sentenced the appellant. Her Honour declined to make a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). Instead, her Honour recorded a conviction, imposed a good behaviour order for 12 months and referred the appellant to restorative justice.

A person may appeal to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order in the same circumstances as they may appeal against a conviction: s 208(1) of the Magistrates Court Act 1930 (ACT) (MCA).

The appellant appealed against the conviction and sentence on the following grounds.

(a)Her Honour erred in the exercise of her discretion in declining to impose a non-conviction order.
(b)The recording of the conviction was unreasonable, unjust, and wrong.
(c)Her Honour failed to give adequate reasons for her decision to refuse a non-conviction order.
(d)Her Honour gave excessive weight to the seriousness of the offence…

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 SE v Ruhen

Details

AGLC: SE v Ruhen [2019] ACTSC 190
Case: [2019] ACTSC 190
Decision Date: 16 July 2019

CaseChat Overview and Summary

SE, the appellant, sought to appeal against the decision of the Magistrates Court of Victoria, which involved a conviction and sentence for a family violence related common assault. The respondent, Ruhen, defended the decision of the Magistrates Court. The appeal was heard in the Supreme Court of Victoria. The appellant argued that the sentence was manifestly excessive and sought to adduce further evidence. The respondent contended that the appeal should be dismissed and that the orders of the Magistrates Court should be confirmed.

The primary legal issues that the Supreme Court was required to decide included whether the appeal was validly taken, whether the sentence imposed by the Magistrates Court was manifestly excessive, and whether the appellant was entitled to adduce further evidence. The court considered the grounds of appeal, the principles of sentencing in cases of common assault, and the procedures governing appeals in the Magistrates Court. The court also examined the relevant legislation and case law to determine the appropriate standard of review and the criteria for a manifestly excessive sentence.

In its decision, the Supreme Court found that the appeal was properly taken, but the grounds of appeal were not sufficient to establish that the sentence was manifestly excessive. The court considered the nature and circumstances of the offence, the appellant's criminal history, and the principles of proportionality and deterrence in sentencing. The court held that the Magistrates Court had exercised its discretion reasonably and that the sentence was not manifestly excessive. The court also determined that the appellant was not entitled to adduce further evidence as the application did not meet the strict requirements for such an application. Consequently, the appeal was dismissed, and the orders of the Magistrates Court were confirmed.

The final orders of the Supreme Court were that the appeal was dismissed and the orders of the Magistrates Court were confirmed. The appellant was not granted leave to adduce further evidence, and the conviction and sentence imposed by the Magistrates Court remained in place. The court emphasised the importance of the Magistrates Court's discretion in sentencing and the limited scope for appeals against sentence in the Supreme Court.

Orders

Orders of the court

Appeal is dismissed. Orders of the Magistrates Court confirmed.

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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