TW v Simpson - [2016] ACTSC 207

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	TW v Simpson
Citation:	[2016] ACTSC 207
Hearing Date:	7 July 2016
DecisionDate:	5 August 2016
Before:	Penfold J
Decision:	The appeal is dismissed.
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with discretion of Court below – appeal from sentence imposed in Childrens Court for offence of common assault – conviction recorded – whether sentence manifestly excessive – whether Magistrate misapplied s 17 of Crimes (Sentencing) Act – whether Magistrate failed to take into account considerations relevant to the sentencing of young offenders – significance of offender’s in-court behaviour – appeal dismissed.
Legislation Cited:	Crimes (Sentencing) Act 2005, ss 17, 34(1)(e), 133C, 133D
Cases Cited:	Mearns v Neill [2016] ACTSC 36 OH v Driessen (No 2) [2015] ACTSC 354 R v Ang [2014] ACTCA 17 R v Vincent Keiren Kiss (1993) 69 A Crim R 436 R v Mazaydeh [2014] ACTSC 325 Sigantov The Queen (1998) 194 CLR 656
Parties:	TW (Appellant) Daniel Alan Simpson (Respondent)
Representation:	Counsel Mr H Jorgensen (Appellant) Ms E Beljic (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 17 of 2016
Decision under appeal:	Court: ACT Childrens Court Before: Special Magistrate Doogan Date of Decision: 26 February 2016 Case Title: Daniel Alan Simpson v TW Court File Number: CH2015/717

Introduction

TW appealed against a conviction recorded in the Childrens [sic] Court on 26 February 2016 on a plea of guilty to a charge of common assault committed on 2 October 2015. As well as recording the conviction, the Magistrate made an 18-month good behaviour order with a supervision condition.

At the end of the hearing, I indicated that I intended to dismiss the appeal, but would provide reasons later. That was not at the time recorded as a final order. Accordingly, these are my reasons for the order that was indicated at the end of the hearing but will be made now.

The offence

At the time of the offence, TW was 17 years old. He was intoxicated and also affected by cannabis. He became verbally abusive in the family home. His mother and 9-year-old sister felt obliged to leave their home, and police were called. The police Statement of Facts recorded his mother’s report that “his behaviour was escalating”.

When police arrived, TW’s mother told them that TW was not welcome at the house. Police took TW away and spent about an hour and a half trying to find him emergency accommodation for the evening, but were unsuccessful. Eventually they took him home and his mother reluctantly agreed to take him in, provided he went straight to his room and stayed there overnight.

Instead, TW again became verbally aggressive to his mother, and despite encouragement from police to go to his bedroom as agreed, he walked through the doorway and shouldered his mother in the chest, causing her to stumble backwards. TW was then taken away again by police and charged…

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 TW v Simpson

Details

AGLC: TW v Simpson [2016] ACTSC 207
Case: [2016] ACTSC 207
Decision Date: 5 August 2016

CaseChat Overview and Summary

In the case of TW v Simpson, the appellant, TW, sought to appeal against a sentence imposed by the Children's Court for an offence of common assault. The matter was heard and determined by the Supreme Court of Victoria. TW argued that the sentence was manifestly excessive and that the Magistrate misapplied section 17 of the Crimes (Sentencing) Act and failed to consider relevant factors pertinent to sentencing young offenders. The primary focus of the appeal was on whether the Magistrate's decision was influenced by inappropriate considerations and whether the sentence was disproportionately harsh.

The court was required to determine whether the Magistrate had improperly exercised their discretion in sentencing. This involved examining the legal principles governing the sentencing of young offenders, the proper application of section 17 of the Crimes (Sentencing) Act, and whether the sentence was excessive. Additionally, the court had to consider the significance of TW's behaviour during the court proceedings and its impact on the sentencing decision. The appeal hinged on whether the Magistrate had misapplied the law or failed to adequately consider relevant sentencing factors.

The Supreme Court found that the Magistrate had correctly applied the relevant legal principles and had not misapplied section 17 of the Crimes (Sentencing) Act. The court held that the sentence imposed was neither manifestly excessive nor the result of an inappropriate application of the law. The Magistrate had appropriately considered TW's in-court behaviour and other relevant factors. Consequently, the appeal was dismissed, and the original sentence was upheld.

No further orders were made by the court. The appeal was dismissed, and the sentence imposed by the Children's Court remained in effect.

Orders

Orders of the court

The appeal is dismissed.

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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