Turner v Raiser - [2021] ACTSC 21

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Turner v Raiser
Citation:	[2021] ACTSC 21
Hearing Date:	1 February 2021
DecisionDate:	18 February 2021
Before:	Burns J
Decision:	See [33]–[34]
Catchwords:	APPEAL – Magistrates Court Appeal – appeal against sentence – whether Magistrate erred in imposing non-association orders – consideration of s 23 of the Crimes (Sentencing) Act 2005 (ACT) – consideration of Robb v Uren [2019] ACTSC 312
Legislation Cited:	Crimes Act 1900 (ACT) s 35A Criminal Code 2002 (ACT) Dictionary Crimes (Sentencing) Act 2005 (ACT) ss 21, 22, 23, 24 Human Rights Act 2004 (ACT) ss 15, 28, 30
Cases Cited:	Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 R v Pishdari [2018] SASCFC 94; 274 A Crim R 91 Robb v Uren [2019] ACTSC 312
Parties:	Jaymie Leam Turner (Appellant) Daniel Raiser (Respondent)
Representation:	Counsel Bevan & Co Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent)
Solicitors P Bevan (Appellant) N Deakes (Respondent)
File Number:	SCA 49 of 2020
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 16 September 2020 Case Title: The Police v Jaymie Leam Turner Court File Numbers: CC 8666 of 2020; CC 8668 of 2020

BURNS J:

This is an appeal from a decision of a Magistrate to impose non-association orders when sentencing the appellant for offences of affray and making a threat to kill. The offences were committed on 19 July 2020 and the appellant was sentenced on

16 September 2020 after entering pleas of guilty. The appellant had been convicted of an earlier offence of affray in the ACT Magistrates Court on 24 February 2020, the offence having occurred on 18 January 2019. He was placed on a Good Behaviour Order for a period of 18 months for that earlier offence.

An Agreed Statement of Facts tendered in the ACT Magistrates Court stated the basis for the charges:

About 12:05am on Sunday 19 July 2020, a fight occurred at Kokomo’s, located at 1 Genge Street, Canberra City, in the Australian Capital Territory (ACT). The fight involved numerous Outlaw Motorcycle Gang (OMCG) members from the Comanchero Motorcycle Club.
Police arrived a short time later and observed multiple persons with serious injuries requiring medical attention. Police organised medical assistance from ACT Ambulance Service (ACTAS).
Whilst Police were waiting for ACTAS to arrive a cordon was setup around the injured OMCG members and Police attempted to control the other OMCG members that were highly agitated at the location.
One of the members was identified as the defendant.
The defendant was extremely agitated and aggressive towards Police and all other members of the public present.
The defendant attempted to walk past the Police cordon but was stopped by Police. The defendant repeatedly pointed his finger and hand into the face of Police and screamed; “I’ll fucking break your nose cunt!”, at a close distance.
Police attempted to deescalate the defendant by talking with him calmly and asking him to stay back so that…

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 Turner v Raiser

Details

AGLC: Turner v Raiser [2021] ACTSC 21
Case: [2021] ACTSC 21
Decision Date

CaseChat Overview and Summary

Jaymie Leam Turner appeals against a decision of the ACT Magistrates Court to impose non-association orders when sentencing him for offences of affray and making a threat to kill. The appeal was heard in the Supreme Court of the Australian Capital Territory before Burns J, who was required to decide whether the Magistrate erred in imposing the non-association orders. The appellant's grounds of appeal were that there was not a demonstrable and substantial connection between the threat to kill offence and the making of the non-association order, that it was not reasonable or necessary to make the non-association orders, and that his Honour erred in making a non-association order for the affray offence as it was not a "relevant offence". The court found that the appellant's submission that the offence of affray was not a relevant offence for the purpose of s 23 of the Sentencing Act because it was not a personal violence offence was misguided. The court also found that the Magistrate was entitled to find on the evidence before his Honour that the appellant had attended the scene of the affray offence because he was directed or requested to do so by a member of the Comancheros, and that the order was necessary and reasonable to prevent the appellant from committing further offences and to assist him in managing his relationship with the Comancheros. However, with regard to the offence of making a threat to kill, the court found that the evidence before the Magistrate did not justify the making of the non-association order as there was no sufficient connection between the offence and the order as to make it necessary and reasonable to make the order. The appeal should be allowed with regard to the non-association order imposed for the offence of making a threat to kill. The appeal is dismissed on the charge of affray, and allowed on the charge of making a threat to kill, with the order of the Magistrate imposing a non-association order for that offence being set aside.

Orders