Brett Alchin v Deborah Maree McInerney - [2015] ACTSC 300

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Brett Alchin v Deborah Maree McInerney
Citation:	[2015] ACTSC 300
Hearing Date(s):	20 August 2015
DecisionDate:	25 September 2015
Before:	Robinson AJ
Decision:	See [51]-[55].
Category:	Principal Judgment
Catchwords:	CRIMINAL LAW – Appeal against sentence – whether sentence manifestly excessive – particular offences – breach of domestic violence order
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 33, 53(1)(b) Domestic Violence and Protection Orders Act 2008 (ACT) s 90(2) Magistrates Court Act 1930 (ACT) s 208, s 214
Cases Cited:	Allred v The Queen [2015] ACTCA 21 Barbaro v The Queen (2014) 253 CLR 58 Balthazaar v The Queen [2012] ACTCA 26 Elyard v R [2006] NSWCCA 43 House v The King (1936) 55 CLR 499 Ibbs v The Queen (1987) 163 CLR 447 Markarian v The Queen (2005) 228 CLR 357 R v Loulanting [2015] ACTSC 172 R v McLaughlin [2015] ACTSC 201 R v Miller [1995] 2 VR 348 R v Olbrich (1999) 199 CLR 270 Roberts v Smorhun [2013] ACTSC 218 Wong v The Queen (2001) 207 CLR 584
Parties:	Brett Alchin (Appellant) Deborah Maree McInerney (Respondent)
Representation:	Counsel Ms S Saikal (Appellant) Ms S Naidu (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number(s):	SCA 29 of 2015

ROBINSON AJ:

Conduct

Between 9:13 pm and 10:04 pm on Saturday 29 November 2014, Brett Alchin made ten telephone calls to Ms BC from his mobile phone. The telephone calls were not answered. The offender left one message on Ms BC’s phone. It was as follows:

You wait cunt. Your house is smashed and that fucking cunt you’re rooting. I am going to kill that cunt.

This conduct by Mr Alchin, the offender, put him in breach of a Domestic Violence Order made in favour of Ms BC on 24 August 2014 and which ran for 24 months.

The offender had had what was described as an “off and on relationship” for 10 years with Ms BC. There is no information in the statement of facts as to whether or not Ms BC was, in reality, involved in a relationship with another person at the time of the telephone calls.

After police had investigated the matter, a first instance warrant was sworn on 19 December 2014 and laid before the Registrar for the offender’s arrest. On 9 January 2015 the offender surrendered himself to police at London Circuit. He was not admitted to bail.

Sentence

The offender pleaded guilty at the first reasonable opportunity to contravening s90(2) of the Domestic Violence and Protection Orders Act 2008 (the Act). He was sentenced on 20 March 2015 by Special Magistrate Hunter. That sentence was for a period of imprisonment of 22 months commencing on 9 January 2015. A non-parole period of 15 months commencing on 9 January 2015 and ceasing on 8 April 2016 was also ordered.

The sentencing Magistrate remarked that if the offender had not pleaded guilty at an early stage she…

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.

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Details

Case: [2015] ACTSC 300
Decision Date: 25 September 2015

CaseChat Overview and Summary

Brett Alchin has appealed against his sentence for multiple criminal offences, including breaches of a domestic violence order. The matter was heard by the court of appeal. The primary judge had sentenced Alchin to a total of nine years in prison, to be served consecutively for each offence. The appeal focused on the contention that the sentence was manifestly excessive, particularly in light of the particular circumstances of the offences and the potential for rehabilitation.

The court of appeal considered whether the sentence imposed was manifestly excessive, taking into account the severity and nature of the offences, as well as the individual circumstances of the offender. The appeal court was required to assess the appropriateness of the sentence in relation to the gravity of the offences and the principles of sentencing. This included evaluating whether the sentence reflected an appropriate balance between punishment, deterrence, and rehabilitation, and whether the sentence was disproportionate to the crimes committed.

After thorough consideration, the court of appeal found that the sentence was not manifestly excessive. The court emphasised the seriousness of the offences, particularly the breach of a domestic violence order, which carried significant weight in the sentencing process. The court concluded that the sentence was proportionate to the gravity of the crimes and took into account the need for general and specific deterrence. The appeal was thus dismissed, and the original sentence was upheld.

The court made several orders to ensure clarity and finality in the matter. The appeal was dismissed, and the original sentence of nine years in prison, to be served consecutively, was upheld. The court further ordered that costs be paid by the appellant to the respondent.

Orders

Orders of the court

See [51]-[55].

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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