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Eaglen v Hayward

Eaglen v Hayward

Case [2023] ACTSC 304 13 October 2023

Appeal

Jurisdiction

Sentencing

Intensive Corrections Order

Maximum Penalty

Criminal Law

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Eaglen v Hayward
Citation:	[2023] ACTSC 304
Hearing Date:	13 October 2023
Decision Date:	13 October 2023
Reasons Date:	30 October 2023
Before:	McWilliam J
Decision:	(1) The appeal is dismissed. (2) The judgment of Magistrate Temby delivered on 1 September 2023 is confirmed.
Catchwords:	APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal against sentence – whether s 374 of the Crimes Act 1900 (ACT) alters the maximum penalty of an offence or is confined to imposing a jurisdictional limit – whether an Intensive Corrections Order should have been considered.
Legislation Cited:	Crimes Act 1900 (ACT) ss 24, 48C, 334(2), 374 Crimes (Sentencing) Act 2005 (ACT) ss 10, 11, 12, 46C, 77, 78 Criminal Procedure Act 1986 (NSW) ss 3, 5, 6 Crimes (Sentencing Procedure) Act 1999 (NSW) s 66(2) Legislation Act 2001 (ACT) ss 7, 139, 140, 190 Magistrates Court Act 1930 (ACT) ss 207, 208
Cases Cited:	AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Beniamini v Craig [2017] ACTSC 30 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Day v R [2023] ACTCA 39 Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Edwards v Craggs [2020] ACTMC 22 Field v Unas [2019] ACTSC 13 Gillard v The Queen [2016] ACTCA 50 House v The King (1936) 55 CLR 499 Keen v Tither [2010] ACTSC 130 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Park v The Queen [2021] HCA 37; 273 CLR 303 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 Preston v Carnall [2015] ACTSC 325; 300 FLR 302 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v DK [2016] ACTCA 7 R v LRS [2001] NSWCCA 338 R v UG [2020] ACTCA 8 Samani v The Queen [2017] ACTCA 23 Smith-Roberts v Alexander [2014] ACTSC 239 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Wany v Director of Public Prosecutions (NSW) [2020] NSWCA 318; 103 NSWLR 620
Parties:	Andrew Graham Eaglen ( Appellant) Callum Hayward ( Respondent/Informant)
Representation:	Counsel P Edmonds ( Appellant) E Roff ( Respondent)
Solicitors Canberra Criminal Lawyers ( Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 47 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 1 September 2023 Case Title:…

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 Eaglen v Hayward

Details

AGLC: Eaglen v Hayward [2023] ACTSC 304
Case: [2023] ACTSC 304
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory heard an expedited appeal from a sentence imposed by the ACT Magistrates Court. The appellant, Andrew Graham Eaglen, was sentenced for aggravated assault occasioning actual bodily harm committed on 12 April 2023 against his former intimate partner of seven years. The sentence imposed by the magistrate was five months’ imprisonment, suspended after three months, upon the appellant entering into a 12-month good behaviour order, with core conditions. The appellant appealed the sentence on two grounds: first, that the sentencing magistrate erred in having regard to the wrong maximum penalty for the offence, and second, that the sentencing magistrate failed to consider whether any of the offender’s term of imprisonment needed to be served in immediate full-time custody, or if the purposes of sentencing could be achieved instead by an intensive corrections order or “ICO”. The appeal was dismissed and the sentence imposed by the court below confirmed. The court found that the magistrate did not err in having regard to the maximum penalty for the offence, as the provision in question imposed a jurisdictional cap and no more. The court also found that there was no error in the magistrate’s failure to consider an ICO, as the statutory conditions for such an order were not met, and it was not properly raised in the circumstances of the case.

Orders