Arman v Wall

[2008] ACTSC 61

PAUL GREGORY ARMAN v GAVIN WALL and AARON O’NEILL
[2008] ACTSC 61 (26 June 2008)

CRIMINAL LAW – appeal from decision of Magistrates Court of ACT – principles for determining appeals – error of law by Magistrate – Magistrates Court Act 1930 (ACT).

CRIMINAL LAW – sentencing principles – discount for plea of guilty – accumulation of sentences – totality principle – terms of imprisonment – repeat offenders – Crimes (Sentencing) Act 2005 (ACT).

CRIMINAL LAW – offences – contravention of protection order – Domestic Violence and Protection Orders Act 2001 (ACT).

CRIMINAL LAW – re-sentencing – further evidence – mental health of appellant – Guardianship ACT 1987 (NSW).

Domestic Violence and Protection Orders Act 2001 (ACT), s 34
Crimes (Sentencing) Act 2005 (ACT), ss 35, 37
Guardianship Act 1987 (NSW), Part 3A

House v The King (1936) CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357
R v Thomson; R v Houlton [2000] NSWCCA 309
Kennewell v Rand ACTCA 10 (5 June 2006)
Mill v R ((1988) 166 CLR 59
Henry [1999] NSWCCA 111
Spiteri [1999] NSWCCA 1
R v Ronald Anderson (1980) 2 A Crim R 379
R v Ninus Scognamiglio (1991) 56 A Crim R 81

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 107 of 2007

Judge:  Penfold J
Supreme Court of the ACT

Date:  26 June 2008

IN THE SUPREME COURT OF THE  )
  )  No. SCA 107 of 2007
AUSTRALIAN CAPITAL TERRITORY  )  

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:PAUL GREGORY ARMAN

Appellant

AND:GAVIN WALL

AND:AARON O’NEILL

Respondents

ORDER

Judge:  Penfold J
Date:  26 June 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The orders are as follows:

(a)the appeal is allowed in relation to the three sentences of imprisonment;

(b)the appellant is to be re-sentenced.

Introduction

1. This is an appeal from three sentences of imprisonment imposed in the Magistrates Court.  These relate to:

(a) two offences of contravening a protection order under s 34 of the Domestic Violence and Protection Orders Act 2001 (ACT), committed on 25 June 2007 and 9 August 2007;

(b)  a breach of a good behaviour order imposed in connection with a suspended sentence imposed on 9 March 2007. 

1. In the same proceeding on 6 December 2007, the appellant was re-sentenced to a 2-year good behaviour order for a breach of a good behaviour order originally imposed on 12 January 2007.  Although the new good behaviour order was covered in the notice of appeal, counsel for the appellant did not make any submissions about the imposition of that order.

Background

The circumstances of the offences

1. The appellant lived across the road from the complainant, and there was a history of disputation.  On 9 February 2007 the Magistrates Court issued a personal protection order (the 2007 protection order), on the application of the complainant, for a period of 12 months.  The order prohibited the appellant from being within 100m of the complainant or her children, and from being…