HUMAN RIGHTS ACT
TM v BASIL KARAPANOS AND NATHAN BAKES
[2011] ACTSC 74 (12 May 2011)
APPEAL AND NEW TRIAL – appeal – appeal from Children’s Court – principle upon which appeal to be decided.
CRIMINAL LAW – sentencing – sentencing of juveniles – principle of individualised justice – how it is to be considered.
CRIMINAL LAW – sentencing – sentencing of Aboriginal offenders – principles in R v Fernando (1992) 76 A Crim R 58 – development of those principles in Director of Public Prosecutions (Vic) v Terrick (2008) 24 VR 457.
CRIMINAL LAW – sentencing – sentencing of persons with mental disabilities – principles to be applied.
Evidence Act 1995 (Cth), s 4(2)
Magistrates Court Act 1930 (ACT), Div 3.10.2, ss 209, 216
Court Procedures Rules 2000 (ACT), Div 2.12.1, rr 4000, 5137, 5138, 5193
Crimes (Sentencing) Act 2005 (ACT), ss 37, 63, 71, 72, 133H, 133C, 133D, 133G
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes Act 1900 (ACT), s 26
Human Rights Act 2004 (ACT), s 20(3)
Criminal Code 2002 (ACT), s 361(1)
Report of the Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC: Sydney, 2006), Report No 103
Thomas, DA Principles of Sentencing (Heinemann: London, 1970)
Fox R and Frieberg A, Sentencing State and Federal Law in Victoria (Oxford University Press: Melbourne, 1999) 2nd ed
Lovegrove, A, in Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Australian Institute of Criminology: Canberra, 2004), Research and Public Policy Series No 59
Cooper v Corvisy (No 2) [2010] ACTSC 166
Perovic v CW (Magistrates Court, Somes M, CH 05/1046, 1 June 2006, unreported)
R v Davis (NSWCCA, 4 February 1994, unreported)
R v Fernando (1992) 76 A Crim R 58
R v Eisenach [2011] ACTCA 2
Saga v Reid and Anor [2010] ACTSC 59
Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 2
R v PM [2009] ACTSC 24
J by his litigation Guardian Vardanega v Australian Capital Territory (2009) 172 ACTR 1
R v Verdins (2007) 16 VR 269
R v Mills [1998] 4 VR 235
Thorn v Laidlaw [2005] ACTCA 49
R v AEM Snr; KEM; MM [2002] NSWCCA 58
R v Smith [1964] Crim L. R. 70
Postiglione v The Queen (1997) 189 CLR 295
Waters v The Queen [2007] NSWCCA 219
Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457
R v Yougie (1987) 33 A Crim R 301
R v King (2008) 179 A Crim R 600
ON APPEAL FROM THE CHILDRENS COURT
No. SCA 11 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 May 2011
IN THE SUPREME COURT OF THE )
) No. SCA 11 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE CHILDRENS COURT
TM
Appellant
v
BASIL KARAPANOS AND NATHAN BAKES
Respondents
ORDER
Judge: Refshauge J
Date: 12 May 2011
Place: Canberra
THE COURT ORDERS THAT:
The sentence imposed by the Children’s Court on…
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- AGLC
- TM v Karapanos [2011] ACTSC 74
- Case
- [2011] ACTSC 74
- Decision Date
CaseChat Overview and Summary
The court had to address several legal issues, including the application of the principle of individualised justice in juvenile sentencing, the specific considerations required when sentencing Aboriginal offenders, and the principles to be applied when sentencing individuals with mental disabilities. The court needed to determine whether the Children’s Court had appropriately considered these factors and whether the sentences imposed were commensurate with the principles established in relevant case law.
In reviewing the sentences, the court found that the Children’s Court had not sufficiently considered the principles of individualised justice, particularly in relation to the appellant's Aboriginal heritage and her mental health status. The Supreme Court held that the Children’s Court had erred in not giving adequate weight to these factors, leading to sentences that did not appropriately reflect the individual circumstances of the appellant. Consequently, the Supreme Court set aside the original sentences and imposed new sentences that better aligned with the principles of individualised justice.
The final orders of the court included setting aside the original sentences and substituting them with new sentences that reflected a more nuanced consideration of the appellant’s individual circumstances, including her Aboriginal heritage and mental health status. The court imposed a reduced imprisonment term and additional conditions aimed at rehabilitation and compliance with good behaviour obligations.
Orders
Orders of the court
1. The sentence imposed by the Children’s Court on 16 December 2010 is set aside.
2. In lieu of it, TM is sentenced to imprisonment for six weeks to commence on 25 March 2011 and end on 11 May 2011, noting that if she had not pleaded guilty, she would have been sentenced to ten weeks imprisonment.
3. The sentences imposed by the Children’s Court on 17 January 2011 are set aside.
4. In lieu of the sentence for the offence of obstructing a Territory official, TM is sentenced to a good behaviour order for three months and she is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) from 12 May 2011 to 11 August 2011 and a probation condition is included that for those three months she be on probation subject to the supervision of the Chief Executive or a person delegated by him to supervise her and to obey all reasonable directions of the person supervising her.
5. In lieu of the sentence for assault, TM is sentenced to six weeks imprisonment to commence on 5 April 2011 and end on 16 May 2011, noting that had she not pleaded guilty, she would have been sentenced to three months imprisonment.
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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