Vivian Byron v Corey Le Mesurier - [2012] ACTSC 172

VIVIAN BYRON v COREY LE MESURIER
[2012] ACTSC 172 (5 November 2012)
Crimes Act 1900 (ACT), s 60(1).
Crimes (Sentencing) Act 2005 (ACT), s 17.
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 25 of 2012
Judge:             Burns J
Supreme Court of the ACT
Date:              5 November 2012
IN THE SUPREME COURT OF THE     )
  )          No. SCA 25 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:VIVIAN BYRON
Appellant

AND: COREY LE MESURIER
Respondent

ORDERS
Judge:  Burns J
Date:  5 November 2012
Place:  Canberra
THE COURT ORDERS THAT:
1.          The appeal will be dismissed. The orders of the magistrate are confirmed, except that the good behaviour order imposed by his Honour will commence 5 November 2012 and will expire on 15 October 2014.

2. There is a prohibition on the publication of the name of the complainant.

1. The respondent in the current appeal was charged with an offence in the Magistrate’s Court under section 60(1) of the Crimes Act 1900 (ACT), alleging that on 19 January this year, he committed an act of indecency on the complainant without the consent of that person and being reckless as to whether the complainant had consented thereto.

2. The proceedings were commenced by way of charge and the respondent was bailed to appear on 31 January 2012. On that date, he was represented by a solicitor and he entered a plea of guilty. The matter was then remanded to 16 March for sentence.

3. On 16 March, the matter came before the sentencing magistrate, who after hearing submissions in the matter and receiving appropriate evidence, proceeded pursuant to section 17 of the Crimes (Sentencing) Act 2005 (ACT), and without recording a conviction imposed a good behaviour order.

4. By a notice of appeal dated 4 April this year, the appellant, who was the informant with respect to the proceedings in the Magistrates Court, appealed from the orders made by the sentencing magistrate. The grounds of appeal as set out in the notice of appeal are:

5. Firstly, that the sentence imposed was manifestly inadequate;

6. Secondly, that his Honour erred in failing to record a conviction, and;

7. Thirdly, that his Honour erred in failing to properly consider the factors in section 17 of the Crimes (Sentencing) Act 2005.

8. Insofar as the appellant submits that his Honour erred in exercising his discretion under section 17 by failing to properly consider the factors in that section, I am unpersuaded by that argument. It appears that that argument is based upon the proposition that his Honour did not refer to any extenuating circumstances as referred to in section 17(3) of the Crimes (Sentencing) Act. That section provides that in deciding whether to make a non conviction order, the court must consider certain listed matters. One of those matters is any extenuating circumstances in which the offence was committed.

9. In my opinion,…

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.

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Details

Case: [2012] ACTSC 172
Decision Date: 5 November 2012

CaseChat Overview and Summary

In the case of Vivian Byron v Corey Le Mesurier, the appellant, who was the informant in the proceedings in the Magistrates Court, appealed against the orders made by the sentencing magistrate. The respondent, Corey Le Mesurier, was charged with an offence under section 60(1) of the Crimes Act 1900 (ACT) for committing an act of indecency on the complainant without consent and being reckless as to whether the complainant had consented thereto. The respondent pleaded guilty and a good behaviour order was imposed by the sentencing magistrate. The appellant argued that the sentence imposed was manifestly inadequate, that the magistrate erred in not recording a conviction, and that the magistrate failed to properly consider the factors in section 17 of the Crimes (Sentencing) Act 2005.

The court considered the arguments and found that the magistrate did not err in not recording a conviction or in not considering extenuating circumstances as required by section 17 of the Crimes (Sentencing) Act 2005. The court found that the magistrate did consider the factors relevant to the particular sentencing process before him, and that the sentence imposed was not manifestly inadequate. The court noted that the magistrate gave considerable weight to the youth of the respondent and the desirability of rehabilitation, and did not overlook general deterrence.

The appeal was dismissed and the orders of the magistrate were confirmed, except that the good behaviour order imposed by the magistrate would commence on 5 November 2012 and would expire on 15 October 2014. There is a prohibition on the publication of the name of the complainant.

Orders