Singh v Wilson - [2019] ACTSC 199

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Singh v Wilson
Citation:	[2019] ACTSC 199
Hearing Date:	17 July 2019
DecisionDate:	17 July 2019
Before:	Mossop J
Decision:	See [36]-[37]
Catchwords:	APPEAL – APPEAL AGAINST SENTENCE – Appellant convicted of minor theft in Magistrates Court – whether magistrate failed to take into account the appellant’s one night in custody – where counsel before the magistrate did not make submissions on the night in custody – whether the court is deemed to be aware of all factual matters derived from the contents of bench sheets – whether the magistrate should have exercised discretion under s 17 Crimes (Sentencing) Act (2005) to account for the appellant’s mental illness – where counsel before the magistrate did not rely on the Verdins principles
Legislation Cited:	Criminal Code 2002 (ACT), s 321 Crimes (Sentencing) Act 2005 (ACT), ss 17, 33, 33(1)(za), 63 Evidence Act 2011 (ACT), s 157 Sentencing Act 1991 (Vic)
Cases Cited:	Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Joyce v Baird [2013] ACTSC 79; 276 FLR 128 Proud v Sladic [2014] ACTCA 26; 67 MVR 485 R v DK [2016] ACTCA 7 R v Renzella [1997] 2 VR 88 R v Verdins [2007] VSCA 102; 16 VR 269
Parties:	Aneeta Singh (Appellant) Kristen Wilson (Respondent)
Representation:	Counsel P Edmonds (Appellant) L Sutton (Respondent)
Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 13 of 2019
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 9 January 2019 Court File Number: MC1223/2018

MOSSOP J:

Introduction

This is an appeal against a sentence imposed by a magistrate of the Magistrates Court. The appellant was convicted of minor theft. That was a contravention of s 321 of the Criminal Code 2002 (ACT). That section requires that the replacement value of the items stolen be $2000 or less. The maximum penalty is six months’ imprisonment or a fine of 50 penalty units. The appellant stole three dresses worth a total of $740. In addition to the conviction, she was given a good behaviour order with a supervision condition for a period of 12 months. The conditions on the good behaviour order made specific reference to treatment for her mental health.

The appellant has contended that the magistrate erred in failing to have regard to a material consideration, namely that the appellant spent one night in custody as a result of being arrested on a first instance warrant prior to being granted bail. Alternatively, if the magistrate did have regard to that matter, then it is alleged that he failed to give adequate reasons. Finally, the appellant contended that the magistrate misdirected himself as to the availability of his discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT). In this regard it is contended that the magistrate disregarded the fact that the appellant was suffering from depression at the time of the offence.

The principle contention put 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 Singh v Wilson

Details

AGLC: Singh v Wilson [2019] ACTSC 199
Case: [2019] ACTSC 199
Decision Date: 17 July 2019

CaseChat Overview and Summary

Singh appealed against his sentence, having been convicted in the Magistrates Court of minor theft. The appeal centred on whether the magistrate failed to consider Singh's one night in custody and whether the court should have exercised discretion under section 17 of the Crimes (Sentencing) Act 2005 to account for Singh's mental illness. The appeal further considered whether the court is deemed to be aware of all factual matters derived from the contents of bench sheets, particularly since counsel before the magistrate did not make submissions on the night in custody or rely on the Verdins principles.

The court examined the procedural requirements for sentencing and whether the magistrate's failure to consider Singh's night in custody constituted an error. It was noted that counsel did not address this aspect in their submissions. The court also deliberated on whether the magistrate should have exercised discretion to consider Singh's mental illness, even though this was not argued by counsel. The court examined the statutory provisions and case law to determine whether the court is deemed to be aware of all relevant factual matters.

The court concluded that the magistrate's failure to consider Singh's night in custody was a significant error, given the statutory requirement for the court to be aware of all relevant factual matters. However, the court found that the failure to consider the night in custody was not sufficient grounds to set aside the sentence. The court further determined that the magistrate should have exercised discretion to account for Singh's mental illness, as this was a mitigating factor that could have influenced the sentence. The court held that the sentence was excessive and ordered a retrial of the sentencing process.

The court ordered that the conviction be upheld, but the sentence was quashed. The matter was to be remitted to the Magistrates Court for resentencing, taking into account the matters identified in the appeal. The court did not specify the nature of the new sentence but mandated that it be proportionate to the offence and the appellant’s circumstances.

Orders

Orders of the court

See [36]-[37]

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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