SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Smorhun v Devine |
Citation: | [2014] ACTSC 208 |
Hearing Dates: | 10 October 2013 |
DecisionDate: | 29 August 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is upheld. 2. The sentences imposed in the Magistrates Court are set aside and the appellant will be re-sentenced. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – respondent sentenced after consideration in Galambany Court (circle sentencing) – Magistrate imposed sentences recommended by panel of members of Aboriginal and Torres Strait Islander community – appeal on basis that Magistrate failed to give adequate reasons – Magistrate expressed no reasons for sentence – whether Magistrate required to give reasons for sentence – Magistrate did not exercise sentencing discretion – appeal allowed – respondent to be re-sentenced. CRIMINAL LAW – JURISDICITION, PRACTICE AND PROCEDURE – Judgment and Punishment – respondent sentenced after consideration in Galambany Court (circle sentencing) – whether sentencing principles different in circle sentencing – whether sentencing considerations to be weighted differently in circle sentencing – appeal allowed – respondent to be re-sentenced. |
Legislation Cited: | Crimes (Sentencing) Act (ACT), ss 32, 33 Criminal Law (Sentencing) Act 1988 (SA), s 9C Magistrates Court Act 1930 (ACT), div 3.10.3, ss 219B(1)(f), 219D(a), 219D(e), 219F(1)(a), 219F(2)(c), 219F(2)(d), 219F(2), ch 4C, ss 291L, 291M, 291N, 291N(2) Explanatory Statement, Courts Legislation Amendment Bill 2010 (ACT) Magistrates Court Practice Direction 1 of 2012 |
Cases Cited: | AB v The Queen (1999) 198 CLR 111 Application by the Attorney General under s 37 of the Crimes (Sentencing Procedure) Act 61 for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305) Bugmy v The Queen (2013) 249 CLR 571 The Queen v TW (2011) 6 ACTLR 18 |
Texts cited: | The Circle Court in the ACT – an overview and its future (1 September 2007) Australasian Institute of Judicial Administration, 16 |
Parties: | Luke Daniel Smorhun (Appellant) Emily Catherine Devine (Respondent) |
Representation: | Counsel: Ms M Jones (Appellant) Ms K Bills (Respondent) |
| Solicitors: ACT Director of Public Prosecutions (Appellant) Aboriginal Legal Service (NSW/ACT) Ltd (Respondent) | |
File Number: | SCA 41 of 2013 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 12 June 2013 Case Title: Luke Daniel Smorhun v Emily Catherine Devine Court File Numbers: Folder No. 159972 (CC12/9643; CC12/9644; CC12/9645) |
Introduction
This is a Crown appeal against sentences imposed in the Magistrates Court in respect of three offences, being an offence of driving…
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- AGLC
- Smorhun v Devine [2014] ACTSC 208
- Case
- [2014] ACTSC 208
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the Magistrate was required to give reasons for the sentence, and whether the Magistrate exercised their sentencing discretion. The court found that the Magistrate did not exercise their sentencing discretion, and therefore, the appeal was allowed. The court also found that the sentencing principles were not different in circle sentencing, and the sentencing considerations did not need to be weighted differently. The appeal was allowed, and the respondent was to be re-sentenced.
The court held that the Magistrate did not exercise their sentencing discretion, and therefore, the appeal was allowed. The court found that the Magistrate was not required to give reasons for the sentence, but it was better practice to do so. The court also held that the sentencing principles were not different in circle sentencing, and the sentencing considerations did not need to be weighted differently. The appeal was allowed, and the respondent was to be re-sentenced.
The court set aside the sentences imposed in the Magistrates Court and allowed the appeal. The respondent was to be re-sentenced. The court held that the Magistrate did not exercise their sentencing discretion, and therefore, the appeal was allowed. The court found that the sentencing principles were not different in circle sentencing, and the sentencing considerations did not need to be weighted differently. The court held that it was better practice for the Magistrate to give reasons for the sentence, but it was not a requirement.
Orders
Orders of the court
1. The appeal is upheld.
2. The sentences imposed in the Magistrates Court are set aside and the appellant will be re-sentenced.
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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