Fallon v Baker - [2018] ACTSC 319

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Fallon v Baker
Citation:	[2018] ACTSC 319
Hearing Date:	9 November 2018
DecisionDate:	9 November 2018
Before:	Mossop J
Decision:	Appeal dismissed and sentence imposed by the magistrate on 22 May 2018 confirmed.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against conviction – conviction for common assault – domestic violence context – good behaviour order imposed – whether sentence imposed manifestly excessive – whether magistrate failed to take into account or give proper weight to the subjective circumstances of the appellant – application to adduce further evidence relating to events post-conviction – appeal grounds not made out – application to adduce further evidence refused – appeal dismissed – conviction confirmed
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), s 17 Magistrates Court Act 1930 (ACT), s 214(3)
Cases Cited:	R v Bell [2005] ACTSC 123 R v Eliasen (1991) 53 A Crim R 391 R v Hamid [2006] NSWCCA 302; 164 A Crim R 179 R v Smith (1987) 44 SASR 587; 11 ACLR 463 Majid v R [2010] NSWCCA 121 TAP v Tasmania [2014] TASCCA 5
Parties:	Niall Gerald Fallon (Appellant) Lee Baker (Respondent)
Representation:	Counsel J Sabharwal (Appellant) S McFarland (Respondent)
Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 31 of 2018
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Cush Date of Decision: 22 May 2018 Case Title: Baker v Fallon Court File Number: CC 13788/2017

MOSSOP J:

Introduction

The appellant has appealed from a sentence imposed by a magistrate on a charge of common assault. The appellant was convicted and made subject to a good behaviour order for a period of 12 months. The grounds of appeal are:

a. that the sentence imposed is manifestly excessive; and

b. that the magistrate failed to take into account or give proper weight to the subjective circumstances of the appellant.

The appellant also seeks to have further evidence admitted and have the sentencing proceedings reopened.

The offending conduct

The circumstances of the offending conduct were outlined in a Statement of Facts which was tendered before the magistrate by consent. The appellant had been drinking alcohol since midday on Saturday, 16 December 2017. At about 8pm that day, at a time when he was significantly intoxicated, he punched his wife on at least four occasions in the back while she was pretending to be asleep in their bed. She was in bed trying to avoid him while he was drunk. A short time later the appellant threatened to strangle their youngest child because he was crying. That prompted his wife to call the police.

Evidence on sentencing

In addition to the Statement of Facts, the other evidence put before the magistrate included a Court Alcohol and Drug Assessment Service (CADAS) report. That indicated that the appellant was then 42 years old and moved to Australia from Ireland 15 years ago. It indicated that he admitted that…

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 Fallon v Baker

Details

AGLC: Fallon v Baker [2018] ACTSC 319
Case: [2018] ACTSC 319
Decision Date: 9 November 2018

CaseChat Overview and Summary

Fallon appealed against a conviction for common assault in the Magistrates' Court of Victoria, in which he was found guilty and sentenced to a good behaviour order. The assault occurred in a domestic violence context and the sentence imposed was challenged on the grounds that it was manifestly excessive and that the magistrate failed to consider or appropriately weigh the subjective circumstances of the appellant. Fallon also sought to adduce further evidence relating to events post-conviction.

The legal issues before the court included whether the appeal grounds were made out and whether the application to adduce further evidence should be granted. The appeal hinged on the contention that the sentence was excessive and that the magistrate did not adequately consider the appellant's personal circumstances. The court had to determine if the appeal grounds were sufficient to warrant a different outcome and whether new evidence could be introduced that might affect the appeal.

The court found that the appeal grounds were not made out. It held that the sentence was not manifestly excessive and that the magistrate had appropriately considered the appellant's circumstances. The court also ruled that the application to adduce further evidence was not justified as it did not relate to the grounds of appeal or impact the outcome of the appeal. Consequently, the appeal was dismissed, and the conviction and sentence imposed by the magistrate were confirmed.

Orders

Orders of the court

Appeal dismissed and sentence imposed by the magistrate on 22 May 2018 confirmed.

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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