Weston v Arley

Case [2012] ACTSC 138


STEVEN ADAM WESTON v NICHOLAS MEHMET ARLEY
[2012] ACTSC 138 (20 August 2012)

APPEAL AND NEW TRIAL – In general and right of appeal – Appeal from Magistrates Court – Appeal against sentence – Appeal upheld in part.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Whether sentence manifestly excessive – Not manifestly excessive.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Specific error – Failure to consider whether discount should be given for plea of guilty – Re-sentencing.

CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Specific error – Failure to consider whether to set non-parole period –
Re-sentencing.


CRIMINAL LAW – Jurisdiction, practice and procedure – Non-publication order – Where offender on sex offenders register – Open justice principle – Matter not within recognised category requiring departure from ordinary course – No evidence of special prejudice.

Crimes (Child Sex Offenders) Act 2005 (ACT), ss 6(1)(a), 11, 24, 33, 37, 45, 46, 49, 54, 59, 60(a), 118
Crimes (Sentencing) Act 2005 (ACT), ss 12, 13, 17, 33, 35, 65
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111
Magistrates Court Act 1930 (ACT), s 216, pt 3.10, div 3.10.2

Crimes (Child Sex Offenders) Regulation 2005 (ACT), s 16A(1)(a)

Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 10, 11, 12, 14, 14A, 15(1)(a)

Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 7 April 2005, 1503–4 (Jon Stanhope, Attorney General)

AB v The Queen (1999) 198 CLR 111
Arthur v Batterham [2011] ACTSC 158
Attorney-General v Leveller Magazine Ltd [1979] AC 440
Baxter v The Queen (2007) 173 A Crim R 284
Carpenter v Purcell [2008] ACTSC 34
Carusi v Police [2002] SASC 240
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cranssen v The King (1936) 55 CLR 509
Dinsdale v The Queen (2000) 202 CLR 321
Haruma v McCarthy (2008) NTLR 133
Henwood v Balchin [2011] NTSC 84
Hogan v Hinch (2011) 243 CLR 506
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
Markarian v The Queen (2005) 228 CLR 357
Millhouse v Police [2008] SASC 353
Moore v The Queen [1999] FCA 448
Nevermann (1989) 43 A Crim R 347
Okwechime v Sindel (2009) 235 FLR 299
PolicevPapadopoulos [2008] SASC 325
R v Becker (2005) 91 SASR 498
R v Campbell [2010] ACTCA 20
R v Chief Registrar of Friendly Societies;  Ex parte New Cross Building Society [1984] QB 227
R v Coukoulis (2003) 7 VR 45
R v Lomax [1998] 1 VR 551
R v Nantahkhum [2012] ACTSC 55
R v Tait (1979) 46 FLR 386
R v Thomson (2000) 49 NSWLR 383
Rysz v Police [2011] SASC 167
S v Australian Crime Commission (2005) 144 FCR 431

Thomson v The Queen [2012] ACTCA 35
Walker v Rinehart (No 6) [2012] NSWSC 160
Wessling v Police (2004) 88 SASR 57

No. SCA 117 of 2011

Judge:             Refshauge ACJ
Supreme…

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AGLC
Weston v Arley [2012] ACTSC 138
Case
[2012] ACTSC 138
Decision Date

CaseChat Overview and Summary

The appellant, Weston, appealed against his sentence imposed by the Magistrates Court following his conviction for various criminal offences. The respondent, Arley, was the victim in the case. The primary issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive, and whether there were specific errors in the sentencing process, including the failure to consider a discount for the appellant's plea of guilty and the failure to set a non-parole period. The court had to determine if these errors warranted a re-sentencing or if the sentence was appropriate.

The court examined the principles of sentencing, including the need to consider any discount for a plea of guilty and the appropriateness of setting a non-parole period. It found that while the sentence was not manifestly excessive, the Magistrates Court had erred by not considering a discount for the appellant's plea of guilty. Additionally, the court determined that the Magistrates Court had not properly exercised its discretion in setting the non-parole period. These errors necessitated a re-sentencing by the court.

The court, after reviewing the case, upheld the appeal in part. It found that the sentence was not manifestly excessive, but that the Magistrates Court had failed to consider the discount for the plea of guilty and had not properly set the non-parole period. The court re-sentenced the appellant, taking into account the appropriate discount for the plea of guilty and setting a suitable non-parole period. The final orders of the court included the partial upholding of the appeal and the re-sentencing of the appellant.

Orders

Orders of the court

1.

The appeal be upheld in part.

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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