YG v Abela - [2015] VSC 783

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT

Not Restricted

S CI 2015 5524

IN THE MATTER of an appeal on a question of law pursuant to
s 430P of the Children, Youth and Families Act 2005

YG (a pseudonym)[1]	Appellant
v
MARK ABELA & ORS (see attached Schedule of Parties)	Respondents

[1]To ensure there is no possibility of identification of the appellant this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.

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JUDGE:	DIGBY J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2015
DATE OF JUDGMENT:	2 November 2015
CASE MAY BE CITED AS:	YG v Abela & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 783	First Revision: 25 February 2016

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ADMINISTRATIVE LAW – Judicial review – Breach of probation orders – Breach of youth supervision order – Sentenced for multiple offences to be served concurrently – Whether sentencing Magistrate erred in declaring separate periods of time of pre-sentence detention (PSD) – Whether sentencing Magistrate erred in failing to declare a total period of time as PSD – Timing of declaration of PSD – Children, Youth and Families Act2005, ss 413 and 430P – Sentencing Act 1991, ss 18, 35.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Imrie	Gorman & Hannan
For the Respondents	Mr B Sonnett	Solicitor for Public Prosecutions

HIS HONOUR:

This is an appeal brought by amended Notice of Appeal dated 30 October 2015 pursuant to s 430P of the Children, Youth and Families Act2005.

The appeal sets out, in a schedule form, the relevant orders which were made by the learned Magistrate on 29 September 2015:

Charge/Proceeding Sentence/Order

Informant Abela:

·                  Theft (x3)

·                  Handle/receive/retain stolen goods

·                  Possess drug of dependence

·                  Possess controlled weapon

·                  Going equipped to steal/cheat

·                  Deal property suspected proceeds of crime

·                  Unlicensed driving

Convicted and ordered to be detained in a Youth Justice Centre for a period of 4 months.

Time held in custody of 14 days reckoned as already served.

Breach of Probation Order, initially imposed on 11 May 2015.
Informants Legg, Dobson, Smith:

·                  Theft (x2)

·                  Theft of motor vehicle (x2)

·                  Going equipped to steal/cheat

·                  Deal property suspected proceeds of crime

·                  Commit indictable offence whilst on bail (x8)

·                  Fail to answer bail

·                  Shopsteal (x4)

·                  Obtain property by deception (x6)

·                  Handle/receive/retain stolen goods

·                  Contravene condition of bail (x2)

·                  Unlicensed driving

·                  Use unregistered motor vehicle

Breach proven. Probation revoked.

Convicted and ordered to be detained in a Youth Justice Centre for a period of 4 months.

Time held in custody of 11 days reckoned as already served.

Breach of Youth Supervision Order initially imposed on 26 August 2015.
Informants Ivanov, White, Pappas, Brady, Harkin, Keen:

·                  Unlicensed driving (x3)

·                  Fraudulently use registration label

·                  Use unregistered vehicle

·                  Theft of motor vehicle

·                  Fail to answer bail

·                  Without authority/excuse enter private…

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 YG v Abela

Details

AGLC: YG v Abela [2015] VSC 783
Case: [2015] VSC 783
Decision Date: 2 November 2015

CaseChat Overview and Summary

The case of YG v Abela involved a dispute over the interpretation and application of probation and supervision orders under the Children, Youth and Families Act 2005 and the Sentencing Act 1991. YG, the appellant, challenged the sentencing Magistrate's decision to treat periods of pre-sentence detention as separate rather than cumulative, and to declare these periods at a time that allegedly breached the legal requirements. The Supreme Court of Victoria was tasked with reviewing the Magistrate's decisions.

The court had to determine whether the sentencing Magistrate erred in declaring separate periods of time of pre-sentence detention, rather than declaring a total period of time as pre-sentence detention. Additionally, the court had to consider whether the timing of the declaration of pre-sentence detention complied with the legislative requirements. The central issue revolved around the interpretation of sections 413 and 430P of the Children, Youth and Families Act 2005, and sections 18 and 35 of the Sentencing Act 1991. The court needed to assess if the Magistrate's approach to calculating and declaring pre-sentence detention was legally sound.

The Supreme Court of Victoria found that the sentencing Magistrate did not err in declaring separate periods of pre-sentence detention, as this was consistent with the statutory provisions and case law. The court held that the Magistrate's decision to treat the periods separately was not an error of law. Furthermore, the court determined that the timing of the declaration did not breach the legislative requirements. The court concluded that the Magistrate's approach to pre-sentence detention was legally correct and did not result in an unjust outcome for the appellant.

The final orders of the court were to dismiss the appeal, affirming the sentencing Magistrate's decisions regarding the declaration of pre-sentence detention periods and timing. The court's decision clarified the legal framework for handling pre-sentence detention under the relevant statutes and reinforced the proper application of the law in such cases.

Orders