Thor Kristiansen v Robert Campbell Young - [2010] ACTSC 61

THOR KRISTIANSEN v ROBERT CAMPBELL YOUNG [2010] ACTSC 61
(10 June 2010)

EX TEMPORE JUDGMENT

Magistrates Court Act 1930 (ACT), s 216
Crimes (Sentencing) Act2005 (ACT), s 41

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 51 of 2009

Judge: Penfold J
Supreme Court of the ACT

Date: 10 June 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 51 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THOR KRISTIANSEN
Appellant
v
ROBERT CAMPBELL YOUNG
Respondent

ORDER

Judge:  Penfold J
Date:  10 June 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed except to the extent required to re-sentence the appellant.

2. The Court will hear submissions on re-sentencing.

Introduction

On 13 October 2009, Magistrate Lalor sentenced Thor Kristiansen to 9 months imprisonment for a fairly unpleasant assault, arising out of an incident in which he and a co-offender threatened a neighbour with a machete carried by Mr Kristiansen, and what seems to have been a metal baseball bat. Mr Kristiansen was also sentenced to a concurrent term of 2 months imprisonment on a charge of possessing an offensive weapon with intent.

On 19 October 2009, Mr Kristiansen lodged an appeal (dated 15 October) against his sentence, indicating that the grounds of appeal were that the sentence was manifestly excessive, that the Magistrate did not take into account relevant mitigating factors before sentencing him, and that the Magistrate had not obtained a pre-sentence report before sentencing him.

Mr Kristiansen’s sentence was, under s 216 of the Magistrates Court Act 1930 (ACT), stayed by the lodging of the appeal, and it seems that on 23 October 2009, he was granted bail. On 17 December 2009 he was sentenced by Magistrate Cush on separate charges to a total of 13 months imprisonment backdated to 11 November, with a non-parole period of 8 months, which would have expired two days before the original expiry of the sentence now appealed against.

Appeal hearing

Mr Kristiansen was refused legal aid for his appeal, and represented himself when the appeal came before me on 27 May 2010.

He began by providing a rather different version of the circumstances of the assault from that found in the police statement of facts, which had effectively been agreed to as part of his plea of guilty. He claimed that he had difficulty reading, and had not read the statement of facts properly before pleading guilty. However, Mr Kristiansen was represented in the Magistrates Court, and the statement of facts was read out in that court, so I am not satisfied that Mr Kristiansen was deprived of the opportunity to put forward the version of the facts he offered at the appeal.

At the appeal hearing, and without objection from the prosecutor, Mr Kristiansen made submissions that addressed his stated appeal grounds and also, in effect, raised several grounds of appeal not mentioned in the notice of appeal.

The Magistrate’s…

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.

Keep reading for free

Create a free CaseChat account to read Thor Kristiansen v Robert Campbell Young and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] ACTSC 61
Decision Date

CaseChat Overview and Summary

Thor Kristiansen has appealed against the sentence imposed on him by Magistrate Lalor for assault and possession of an offensive weapon with intent, contending that it was manifestly excessive, that the Magistrate did not take into account relevant mitigating factors, and that the Magistrate did not obtain a pre-sentence report before sentencing him. The appeal was heard by Penfold J in the Supreme Court of the Australian Capital Territory. The legal issues before the court were whether the sentence imposed by the Magistrate was manifestly excessive, whether the Magistrate failed to take into account relevant mitigating factors, and whether the Magistrate erred by not obtaining a pre-sentence report before sentencing the appellant. The court found that the appellant had not demonstrated any error on the part of the sentencing Magistrate, and that the substantive aspects of his appeal must be dismissed. However, the court will hear further submissions on the re-sentencing required. The court dismissed the appeal except to the extent required to re-sentence the appellant. The court will hear submissions on re-sentencing.

Orders