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Thorn v Laidlaw

Thorn v Laidlaw

Case [2005] ACTCA 49 16 December 2005

Statutory Construction

Criminal Law

Statutory Interpretation

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CALLI-ANN THORN v ASHLEY DEAN LAIDLAW

[2005] ACTCA 49 (16 December 2005)

APPEAL – appeal - general principles – right of appeal
CRIMINAL LAW – particular offences – property offences – theft

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentence – juvenile offenders – relevant principles

CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – sentence – factors to be taken into account – purpose of sentence – rehabilitation

Crimes Act 1900 (ACT), s 345(1), s 354
Crimes Act 1914 (Cth)
Criminal Code 2002 (ACT), s 321
Magistrates Court Act 1930 (ACT), s 218
Supreme Court Act 1933 (ACT), s 37E(2)(a)(ii), s 37O

Crampton v The Queen (2000) 206 CLR 161, cited
Dinsdale v The Queen (2000) 202 CLR 321, followed
Hoare v The Queen (1989) 167 CLR 348, cited
House v The King (1936) 55 CLR 499, followed
Pham & Ly (1991) 55 A Crim R 128 at 135, cited
R v Blaskovic [1999] FCA 1306, referred to
R v AEM Snr; KEM; MM [2002] NSWCCA 58, followed
R v Tait and Bartley (1979) 24 ALR 473; 46 FLR 386, referred to
Veen v The Queen (No 2) (1988) 164 CLR 465, cited
Wong v The Queen (2001) 207 CLR 584, referred to

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 23-2005
No. SCA 18 of 2005

Judges: Higgins CJ, Gray and Madgwick JJ
Court of Appeal of the Australian Capital Territory
Date: 16 December 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 23-2005
  )          No. SCA 18 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CALLI-ANN THORN
Appellant

AND:ASHLEY DEAN LAIDLAW
Respondent

ORDER

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  16 December 2005
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be allowed.

IN THE SUPREME COURT OF THE       )          No. ACTCA 23-2005
  )          No. SCA 18 of 2005
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CALLI-ANN THORN
Appellant

AND:ASHLEY DEAN LAIDLAW
Respondent

Judges:  Higgins CJ, Gray and Madgwick JJ
Date:  16 December 2005
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

This was an appeal against the severity of sentences in relation to two offences of minor theft. We announced our orders at the conclusion of the hearing and now publish our reasons.

The offences

The appellant is a twenty year old woman who engaged in two incidents of shoplifting in late 2004. On 27 August 2004 she stole two exercise books, seventeen packets of skin art glitter stickers, three packets of hair bands and a hair brush from a Woolworths store. The total value of the items was $79.61. On being apprehended, the appellant was asked about some…

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 Thorn v Laidlaw

Details

AGLC: Thorn v Laidlaw [2005] ACTCA 49
Case: [2005] ACTCA 49
Decision Date

CaseChat Overview and Summary

This case concerned an appeal by Calli-Ann Thorn against the severity of sentences imposed by the Magistrates Court and upheld by a single judge of the Supreme Court of the Australian Capital Territory. Thorn, a 20-year-old woman, had pleaded guilty to two counts of minor theft in late 2004, involving items valued at $79.61 and $25.00 respectively. The Magistrates Court had sentenced her to one month's imprisonment for the first offence and two months' imprisonment for the second, to be served consecutively.

The legal issues before the Court of Appeal were whether the sentences imposed were manifestly excessive, whether the Magistrate had erred in giving insufficient discount for the guilty pleas, and whether the Magistrate had failed to apply the principle that imprisonment should be a last resort, particularly for a young offender. The appellant also contended that the Magistrate had been unduly influenced by her previous record and the fact that the second offence occurred shortly after she had been released on a recognizance.

The Court of Appeal found that while the Magistrate was entitled to consider the appellant's prior record and the breach of her recognizance, an error of principle had occurred in sentencing. The Court applied the principle of parsimony or minimality, which dictates that a sentence of imprisonment should not exceed the minimum necessary to achieve sentencing objectives. The Court held that this principle, particularly relevant for young offenders where rehabilitation is a key consideration, had not been properly applied. The Court also found that the primary judge had erred in not correcting this error. Consequently, the appeal was allowed, and the Court re-sentenced the appellant. The original sentences were varied to one month's imprisonment for each offence, to be served cumulatively, with time served counting. The sentences were suspended after 15 days, conditional upon the appellant entering into a recognizance and complying with specific supervision and rehabilitation requirements.

Orders