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Day v The King

Day v The King

Case [2023] ACTCA 39 11 October 2023

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Day v R
Citation:	[2023] ACTCA 39
Hearing Date:	17 August 2023
Decision Date:	11 October 2023
Before:	McCallum CJ, Loukas-Karlsson and Abraham JJ
Decision:	The appeal is dismissed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal against sentence – whether sentencing judge failed to consider the subjective circumstances of the offender – whether sentence manifestly excessive – whether sentencing judge failed to consider principle of totality – appeal dismissed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 31(1), 34(1)(c), 35(1)(m) Crimes Act 1900 (ACT) ss 28(2)(a), 30, 116(3), 374, 374(9) Family Violence Act 2016 (ACT) s 43(2)
Cases Cited:	Bugmy v The Queen [2013] HCA 37; 249 CLR 571 Carr v R [2020] NSWCCA 214 Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 Director of Public Prosecutions v Dalgliesh [2017] HCA 41; 262 CLR 428 Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 Imbornone v R [2017] NSWCCA 144 Regina v Baker [2000] NSWCCA 85 R v UG [2020] ACTCA 8; 281 A Crim R 291 R v Potts [2018] ACTSC 299 R v Green [2021] ACTSC 13 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 The Queen v Pham [2015] HCA 39; 256 CLR 550 The Queen v Omari [2022] ACTCA 4 Tracey v The Queen [2020] ACTCA 51
Parties:	Benjamin Paul Day ( Appellant) The King ( Crown)
Representation:	Counsel Mr J White SC ( Appellant) Mr T Hickey (Crown)
Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	ACTCA 1 of 2023
Decision Under Appeal:	Court: Supreme Court of the ACT Before: Kennett J Date of Decision: 16 December 2022 Case Title: R v Day (No 2) Citation: [2022] ACTSC 352 Court File Numbers: SCC 1 of 2022 SCC 2 of 2022

THE COURT:

Introduction

1․On 16 December 2022, the appellant was sentenced as follows (having been found guilty of the first four of these offences by a jury after trial, and having been found guilty of the fifth offence by the sentencing judge at sentencing):
(a)Count 1 (choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act 1900 (ACT) (Crimes Act): imprisonment for one year, three months (commencing 13 March 2022 and expiring 12 June 2023);
(b)Count 2 (choke, suffocate or strangle, contrary to s 28(2)(a) of the Crimes Act): imprisonment of two years, six months (commencing 1 September 2022 and expiring 28 February 2025);
(c)Count 3 (threat to kill, contrary to s 30 of the Crimes Act): three years, six months (commencing 1 February 2023 and expiring 31 July 2026);
(d)Count 4 (contravene family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act): imprisonment for one year (commencing 13 September 2025 and expiring 12 September 2026); and
(e)Transfer offence (damage property, contrary to s 116(3) of the Crimes…

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 Day v The King

Details

AGLC: Day v The King [2023] ACTCA 39
Case: [2023] ACTCA 39
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an appeal by Benjamin Paul Day against a sentence imposed by the Supreme Court. The appeal concerned the sentencing for multiple offences, including choke, suffocate or strangle, threat to kill, contravening a family violence order, and damage to property. The appellant argued that the sentencing judge failed to adequately consider his subjective circumstances, that the cumulative effect of the sentences was excessive, and that the overall sentence and non-parole period were manifestly excessive.

The legal issues before the Court of Appeal were whether the sentencing judge erred in failing to consider the appellant's subjective circumstances, whether the principle of totality had been improperly applied or overlooked, and whether the sentences imposed were manifestly excessive. The appellant contended that the sentencing judge improperly disregarded statements made to a pre-sentence report author, displayed a concerning attitude towards the appellant's insight into his offending, and failed to give sufficient weight to mitigating subjective factors.

The Court of Appeal dismissed the appeal, finding that the sentencing judge had adequately considered the appellant's subjective circumstances. The Court held that an allegation going to the "weight" given to subjective matters by the sentencing judge is generally insufficient for appellate intervention, unless a failure to take those matters into account can be established. The Court noted that the sentencing judge had summarised the appellant's subjective case and that the absence of specific reference to every point did not permit an inference that the matter had not been considered. The Court also found that the appellant had not established that the sentencing judge failed to take into account all relevant subjective matters.

The appeal was dismissed.

Orders