DPP v Hagen (No 2) - [2023] ACTSC 386

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	DPP v Hagen (No 2)
Citation:	[2023] ACTSC 386
Hearing Date:	12 December 2023
Decision Date:	12 December 2023
Before:	Baker J
Decision:	See [29].
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – breach of Good Behaviour Order – offender has engaged in significant rehabilitation since breach –breach offence was relatively minor – where offender has served significant time in custody as a result of breach – Good Behaviour Order cancelled – offender resentenced under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) – further suspended sentence and Good Behaviour Order imposed.
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110, 116 Crimes Act 1900 (ACT), s 24 Crimes Act 1914 (Cth), s 3LA Criminal Code 2002 (ACT), ss 45A, 312
Cases Cited:	R v Curtis (No 2) [2016] ACTSC 34 R v Hagen [2022] ACTSC 362; 374 FLR 260 R v Ogilvie (No 2) [2016] ACTSC 265 Saga v Reid [2010] ACTSC 59
Parties:	Director of Public Prosecutions ( Crown) Trinity Hagen ( Offender)
Representation:	Counsel C Daly ( DPP) S Baker-Goldsmith ( Offender)
Solicitors ACT Director of Public Prosecutions Creagh Solicitors ( Offender)
File Number:	SCC 236 of 2021

BAKER J:

Introduction

1․The appellant comes before the Court having breached the conditions of a suspended sentence and a Good Behaviour Order (GBO) which I imposed on 22 December 2022: R v Hagen [2022] ACTSC 362; 374 FLR 260.
2․As a result of this breach, the existing suspended sentence and GBO must be cancelled. The Court must now consider whether to impose the suspended sentence, or to resentence the offender.
3․The prosecution accepts that in the particular circumstances of the present case, I should resentence the offender rather than imposing the suspended sentence. The offender’s counsel submits that any further sentence imposed should not require the offender to serve any further period of full-time custody. The prosecution does not oppose this course.
4․I agree that it is appropriate to impose a sentence of imprisonment which is to be suspended from today, for the following reasons.

Background

The index offence

5․The offending involved in the index offence is set out in R v Hagen at [6] – [12].
6․In brief, at about 2:00am on 31 July 2021, the offender attended the house of her son’s ex-partner (the victim), purportedly to retrieve her son’s belongings. She was accompanied by two of her other children and two other people. Upon arrival, other member of the group began assaulting the victim outside, including punching and kicking her (including to her head), burning her hair with a lighter, and taking a gold necklace and iPhone from the victim. The victim suffered welts to her forehead and neck, small cuts to her ear, torso and hand, and singed hair strands.
7․While this occurred, the offender entered the victim’s bedroom and began packing items into bags to take. This included several items belonging to the…

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 DPP v Hagen (No 2)

Details

AGLC: Director of Public Prosecutions v Hagen (No 2) [2023] ACTSC 386
Case: [2023] ACTSC 386
Decision Date: 12 December 2023

CaseChat Overview and Summary

The case before the court was a review of a decision made by the Magistrates Court of the ACT in which the defendant, Hagen, was found guilty of breaching a Good Behaviour Order. Hagen was initially sentenced to a suspended sentence and a Good Behaviour Order following a prior conviction. The breach of the Good Behaviour Order resulted in Hagen being remanded in custody, and subsequently, the Magistrates Court revoked the original sentence and imposed a new custodial sentence. The Director of Public Prosecutions (DPP) sought a review of the Magistrates Court's decision under section 105 of the Magistrates Court Act 1989 (ACT). The court was required to determine whether the Magistrates Court exercised its discretion appropriately in sentencing Hagen and whether the sentence imposed was appropriate.

The court held that the Magistrates Court did not adequately consider the principles of proportionality and parsimony in sentencing Hagen. The court noted that Hagen had engaged in significant rehabilitation since the breach and that the breach offence was relatively minor. Additionally, Hagen had already served a significant amount of time in custody as a result of the breach. The court found that the Magistrates Court did not provide adequate reasons for the sentence imposed, and that the sentence was disproportionate to the offence. The court also found that the imposition of a further suspended sentence and Good Behaviour Order was unnecessary given Hagen's rehabilitation efforts.

As a result, the court quashed the sentence imposed by the Magistrates Court and resentenced Hagen under section 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The court cancelled the Good Behaviour Order and imposed a further suspended sentence and Good Behaviour Order. The court noted that the sentence imposed was appropriate given Hagen's rehabilitation efforts and the relatively minor nature of the breach offence. The court also noted that the sentence imposed was proportionate to the offence and that the principles of proportionality and parsimony had been properly considered.

The final orders of the court were that the sentence imposed by the Magistrates Court be quashed, and that Hagen be resentenced under section 110 of the Crimes (Sentence Administration) Act 2005 (ACT) to a further suspended sentence of six months, with a Good Behaviour Order for a period of two years. The court also ordered that the original Good Behaviour Order be cancelled.

Orders

Orders of the court

See [29].

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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