Barron v Laverty

Case [2019] ACTSC 198


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Barron v Laverty

Citation:

[2019] ACTSC 198

Hearing Dates:

15 July 2019, 30 July 2019

DecisionDate:

30 July 2019

Reasons Date:

31 July 2019

Before:

Murrell CJ

Decision:

Appeal allowed.  The appellant is re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months. 

Catchwords:

APPEAL – APPEAL AGAINST SENTENCE – When the appellant committed multiple family violence offences – When the sentencing magistrate accumulated the sentence for five of the six offences – Whether the total sentence was manifestly excessive by reason of the accumulation – Whether the non-parole period was manifestly excessive – Whether the sentencing magistrate erred in applying an incorrect maximum penalty

SENTENCING – STATUTORY INTERPRETATION – Suspended Sentence – Where the appellant breached the good behaviour order attached to a suspended sentence – Crimes (Sentence Administration) Act 2005 (ACT) s 110(2) – Difference between “impose the suspended sentence” under s 110(2)(a) and “re-sentence” under s 110(2)(b) – Whether the court may re-sentence an offender to a sentence more severe than the original sentence – Right not to be punished more than once – Human Rights Act 2004 (ACT) s 24 – Whether the sentencing court afforded the appellant procedural fairness

Legislation Cited:

Crimes Act 1914 (Cth) s 16A

Crimes (Sentence Administration) Act 2005 (ACT) s 110
Crimes (Sentencing) Act 2005 (ACT) ss 12, 62, 70
Criminal Code 1995 (Cth) s 474.17(1)
Family Violence Act 2016 (ACT) s 43(2)
Human Rights Act 2004 (ACT) ss 24, 25(2), 30
Legislation Act 2001 (ACT) ss 139, 140
Magistrates Court Act 1930 (ACT) ss 208, 218

Sentencing Act 1997 (Tas) s 27(5)

Cases Cited:

Achuthun v Coates (1986) 6 NSWLR 472

Baker v The Queen [2004] HCA 45; 223 CLR 513
Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638
Crump v New South Wales [2012] HCA 20; 247 CLR 1
DL v The Queen [2018] HCA 32; 92 ALJR 764
DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402
Elliott v The Queen [2007] HCA 51; 234 CLR 38
Gillard v The Queen [2016] ACTCA 50
Guy v Anderson [2013] ACTSC 5
Gyory v The Queen [2012] ACTCA 28
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24
O’Brien v The Queen [2015] ACTCA 47
Parker v DPP (1992) 28 NSWLR 282
Peverill v Crampton [2010] ACTSC 79
R v Carmody [2016] ACTSC 382
Stevens v McCallum [2006] ACTCA 13
Taylor v Bowden [2009] ACTSC 13
The Queen v Lee [2016] ACTCA 69
Thorn v Laidlaw [2005] ACTCA 49

Wilkins v Hague [2011] ACTSC 189; 258 FLR 355

Parties:

Michael Barron (Appellant)

Nigel John Laverty (Respondent)

Representation:

Counsel

P Edmonds (Appellant)

S Janackovic (Respondent)

Solicitors

Canberra Criminal Lawyers (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 9 of 2019

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:…

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Barron v Laverty [2019] ACTSC 198
Case
[2019] ACTSC 198
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CaseChat Overview and Summary

In the case of Barron v Laverty, the appellant appealed against a sentence imposed by the Magistrates Court of the Australian Capital Territory for multiple family violence offences. The offences included assault, threatening to kill, and unlawful stalking. The sentencing magistrate accumulated the sentences for five of the six offences, resulting in a total sentence of imprisonment for 2 years and 11 months, with a non-parole period of 18 months. The appellant contended that the total sentence was manifestly excessive due to the accumulation and that the non-parole period was also manifestly excessive. Additionally, the appellant argued that the sentencing magistrate erred in applying an incorrect maximum penalty for one of the offences.

The court examined the statutory interpretation of the Crimes (Sentence Administration) Act 2005 (ACT) section 110(2) in relation to the imposition of a suspended sentence and subsequent breaches. The court considered the distinction between "impose the suspended sentence" under section 110(2)(a) and "re-sentence" under section 110(2)(b). The court also reviewed whether the court may re-sentence an offender to a sentence more severe than the original sentence and if the right not to be punished more than once under the Human Rights Act 2004 (ACT) section 24 was afforded to the appellant. Furthermore, the court assessed whether the sentencing court provided the appellant with procedural fairness.

After considering the arguments and the applicable law, the court found that the total sentence was indeed manifestly excessive due to the accumulation of sentences. The court also concluded that the non-parole period was manifestly excessive. Additionally, the court determined that the sentencing magistrate erred in applying an incorrect maximum penalty for one of the offences. Consequently, the appeal was allowed, and the appellant was re-sentenced to a total sentence of imprisonment for 2 years with a non-parole period of 13 months.

Orders

Orders of the court

Appeal allowed. The appellant is re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months.

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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