Thompson v Young - [2008] ACTSC 11

MATTHEW LUKE THOMPSON v MICHAEL IAN YOUNG
[2008] ACTSC 11 (30 January 2008)

SENTENCING – requirement for proper evaluation of all sentencing options when re-sentencing, s 108(4) Crimes (Sentencing Administration) Act 2005 (ACT) – sentence to be proportionate to offence charged – Crimes (Sentencing) Act 2005 (ACT) applies to re-sentencing in the same way that it applies to the sentencing of an offender on the conviction of the relevant offence.

EX TEMPORE JUDGMENT

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 101 of 2007

Judge: Gray J
Supreme Court of the ACT

Date: 30 January 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 101 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MATTHEW LUKE THOMPSON
Appellant

AND:MICHAEL IAN YOUNG
Respondent

ORDER

Judge:  Gray J
Date:  30 January 2008
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

The appellant be re-sentenced for the assault that took place on 11 April 2006, in respect of which he was convicted on 17 May 2006, by entering a good behaviour order for a period of 12 months in his own recognisance in the sum of $500.00 and during the period of 12 months, he be subjected to supervision on probation by the Director of ACT Corrective Services or the Director’s delegate and obey all reasonable directions of each of those persons, including undertaking counselling for alcohol abuse and violence issues.

In relation to the second assault, that took place on 29 April 2007 being the assault which caused the re-sentencing of the first assault, in respect of which Mr Thompson was convicted on 23 October 2007, the appellant enter good behaviour order also for a period of 12 months in his own recognisance of $500.00 and in relation to that order, enter the same conditions as were imposed in respect of the assault of 11 April 2006.

Matthew Luke Thompson (the appellant) appeals against a total sentence of 10 months imprisonment imposed by a magistrate on 23 October 2007. A suspended sentence order was made suspending that sentence after the appellant had served seven months imprisonment and a good behaviour order was made for a period of two years on the appellant’s own security in the sum of $2,000.00 on condition that he be under the supervision of Adult Corrective Services and obey all reasonable directions and attend courses and programs, drug and alcohol counselling programs relating to learning to relate without violence.

The appellant had pleaded guilty before the magistrate to a number of charges, two of which are the subject of this appeal. Firstly, an assault on 29 April 2007, that assault being committed on his partner. Secondly, a breach of a good behaviour order by reason of the commission of the assault on 29 April 2007. The good behaviour order was made on 17 May 2006 and related to a conviction for an assault that had taken place on 11 April 2006.…

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 Thompson v Young

Details

AGLC: Thompson v Young [2008] ACTSC 11
Case: [2008] ACTSC 11
Decision Date: 30 January 2008

CaseChat Overview and Summary

In the case of Thompson v Young, the appellant, Thompson, sought to appeal his sentencing on the grounds that the sentencing judge failed to properly evaluate all sentencing options available to him. The matter was heard in the Supreme Court of the Australian Capital Territory. The appeal centred on two separate assault convictions, the first occurring on 11 April 2006, and the second on 29 April 2007. The appellant was originally sentenced for the first assault and his sentence was re-evaluated following the second assault conviction.

The legal issues at the core of the appeal were whether the sentencing judge was required to properly evaluate all sentencing options available under section 108(4) of the Crimes (Sentencing Administration) Act 2005 (ACT), and whether the sentence imposed was proportionate to the offence charged. The appellant contended that the sentencing judge did not consider all available sentencing options and that the sentence imposed was excessive and disproportionate.

The court found that the sentencing judge did not properly evaluate all sentencing options available and that the sentence imposed was disproportionate to the offence charged. The court held that the Crimes (Sentencing) Act 2005 (ACT) applies to re-sentencing in the same way that it applies to the sentencing of an offender on the conviction of the relevant offence. The court found that the appellant should have been given the opportunity to undertake counselling for alcohol abuse and violence issues, which would have been a more appropriate sentence in the circumstances.

The appeal was allowed and the appellant was re-sentenced for both assaults. He was ordered to enter a good behaviour order for a period of 12 months in his own recognisance in the sum of $500.00, and during that period, he was to be subjected to supervision on probation by the Director of ACT Corrective Services or the Director’s delegate and obey all reasonable directions of each of those persons, including undertaking counselling for alcohol abuse and violence issues. The same conditions were imposed in respect of the second assault.

Orders

Orders of the court

1. The appeal be allowed.

2. The appellant be re-sentenced for the assault that took place on 11 April 2006, in respect of which he was convicted on 17 May 2006, by entering a good behaviour order for a period of 12 months in his own recognisance in the sum of $500.00 and during the period of 12 months, he be subjected to supervision on probation by the Director of ACT Corrective Services or the Director?s delegate and obey all reasonable directions of each of those persons, including undertaking counselling for alcohol abuse and violence issues.

3. In relation to the second assault, that took place on 29 April 2007 being the assault which caused the re-sentencing of the first assault, in respect of which Mr Thompson was convicted on 23 October 2007, the appellant enter good behaviour order also for a period of 12 months in his own recognisance of $500.00 and in relation to that order, enter the same conditions as were imposed in respect of the assault of 11 April 2006.

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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