Bo v Erin Newlyn; R v Bo
[2013] ACTSC 105
•1 MAY 2013
BO v ERIN NEWLYN; R v BO
[2013] ACTSC 105 (1 MAY 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 91 of 2012
No. SCC 20 of 2010
Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 May 2013
IN THE SUPREME COURT OF THE )
) No. SCA 91 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:BO
Appellant
AND:ERIN NEWLYN
Respondent
No. SCC 20 of 2010
R
v
BO
ORDER
Judge: Higgins CJ
Date: 1 May 2013
Place: Canberra
THE COURT ORDERS THAT:
In relation to SCA 91 of 2012, the appeal be upheld to the following extent:
a) the sentence for the offence of common assault be reduced to 6 months’ imprisonment
b) the sentences for the two offences of contravene protection order be confirmed, concurrent as to the first and cumulative thereon as to the second being a total head sentence of 10 months imprisonment.
In relation to SCC 20 of 2010, the offender be found in breach of the Good Behaviour Order imposed on 23 April 2010 and therefore serve the remaining 13months’ imprisonment, concurrent with the sentence at Order 1.
The total head sentence for both matters be 18months’ imprisonment and a non-parole period of 9 months, both to commence on 24 October 2012.
I will assume that the facts of the matter are well known to all parties. It is not necessary, therefore, for me to repeat them. I will simply state the conclusions in short form. In brief form, the sentence imposed for the common assault on the circumstances and I include that all the relevant circumstances that are noticed by her Honour, a sentence of 14 months does strike me as being excessive and I would substitute for that a sentence of six months of imprisonment.
The sentences imposed for the two breaches, granted that the second one is no longer to be challenged, are appropriate, that is, that the four months imposed for the first breach should be concurrent with the six months I have just mentioned. The second breach should be concurrent as to two months making a total imposed for a revised sentence there of 10 months of imprisonment.
That places Mr BO in breach of the order on SCC 20 of 2010 which I imposed, of which there is 13 months of imprisonment to be served. It is appropriate to make part of that sentence concurrent with the sentence that I have revised on the appeal. The sentence of 13 months should be imposed as from 24 October 2012 and the net effect of her Honour’s order, as I have revised it, will be a total sentence of 10 months of which five months should be concurrent making a total term of imprisonment of 18 months as from 24 October 2012 and I direct that there be a non-parole order starting on 24 October 2012 and expiring 9 months thereafter.
I just make the point, Mr BO, that making parole is a matter you would have to work towards. You seem to have made some progress which is why I do make the non-parole period less as a proportion of sentence than her Honour did but you do have to work towards it. Assuming that, you may well make parole and, if you do, it will no doubt be because you are showing good prospects for rehabilitation and one can only say that you know that if you do drink to excess you seem to manage to get yourself into trouble every time. So, I will leave it at that.
The two sentences which I have partially accumulated amount to 18 months.
That is the head sentence. The period of nine months is the period for which Mr BO must have served before being eligible for parole. They date from 24 October 2012.
The appeal is upheld, in other words, to that extent and the sentence I have imposed on the breach has been dealt with also.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 11 June 2013
Counsel for the Appellant: Mr A Doig
Solicitor for the Appellant: John O’Keefe
Counsel for the Respondent: Mr A Webb
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 1 May 2013
Date of judgment: 1 May 2013
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