Shero v Hinton

[2010] ACTSC 73

Shero v Hinton [2010] ACTSC 73 (23 July 2010)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 82 of 2009

Judge:             Mansfield J
Supreme Court of the ACT

Date:              23 July 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 82 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SORAN SHERO

Plaintiff

AND:HAYLEY DAWN HINTON

Defendant

ORDER

Judge:  Mansfield J
Date:  23 July 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appellant be given leave to amend the notice of appeal to add as ground 3 that the Magistrate failed to give adequate reasons for his decision in that he failed to indicate precisely what matters he took into account and what weight or significance he attached to each of those matters.

1. The appellant be refused leave to amend the notice of appeal to add ground 4 that the Magistrate failed to state the penalty that would otherwise have been imposed but for the plea of guilty, as required by s 37 of the Crimes (Sentencing) Act 2005 (ACT).

1. The appeal be allowed and the sentence imposed on the appellant for the offence of making a false statement in a statutory declaration on 18 August 2009, contrary to s 11(1) of the Statutory Declarations Act 1959 (Cth), be set aside.

1. The appellant be sentenced to a term of imprisonment of two months on the offence, such sentence of imprisonment to be suspended forthwith on the appellant entering into a bond to be of good behaviour for a period of 12 months secured by a recognisance in his own name in the sum of $1000.

INTRODUCTION

1. This is an appeal against sentence.

1. On 7 December 2009, the appellant was convicted, on his own admission, of intentionally making a false statement in a statutory declaration in the Australian Capital Territory on 18 August 2009, contrary to s 11(1) of the Statutory Declarations Act 1959 (Cth). He was sentenced to four months imprisonment, to be served by way of periodic detention. The sentencing option of periodic detention provided by s 11 of the Crimes (Sentencing) Act 2005 (ACT) was available by reason of s 20AB of the Crimes Act 1914 (Cth). The maximum penalty prescribed for the offence is four years imprisonment.

1. The appellant appealed on two grounds, namely that the Magistrate took into account irrelevant considerations and that the sentence was manifestly excessive.  On the appeal, the appellant also sought leave to add two further grounds of appeal, namely that:

(1)   the Magistrate failed to give adequate reasons for his decision, in that he failed to indicate precisely what matters he took into account and what weight or significance he attached to each of those matters, and

(2) the Magistrate failed to state the penalty that would otherwise have been imposed but for the plea of guilty, as required by s 37 of the Crimes (Sentencing) Act 2005 (ACT).

1. At the invitation of the Court, counsel…