Glenn William Bowman v Gavin Alan Campbell - [2011] ACTSC 104

GLENN WILLIAM BOWMAN v GAVIN ALAN CAMPBELL [2011] ACTSC 104
(24 June 2011)

CRIMINAL LAW – appeal from Magistrates Court – appeal against sentence – whether Magistrate sentenced as if for the worst case – whether Magistrate sentenced as if for a more serious offence – significance of availability of fine in assessing severity of sentence of imprisonment – significance of immediate custodial period in assessing severity of sentence of imprisonment.

EVIDENCE – admissibility of fresh evidence on appeal – evidence of events since sentence not admitted on appeal.

Crimes (Sentence Administration) Act 2005 (ACT), s 110

Crimes (Sentencing) Act 2005 (ACT), ss 10, 12, 37
Crimes Act 1900 (ACT), ss 26, 27(3)(c)
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1)
Crimes Act 1958 (Vic), s 17

Sentencing Act 1995 (WA), ss 6(4), 76(2)

Cotter v Corvisy [2008] ACTSC 64
Dinsdale v The Queen (2000) 202 CLR 321
DPP v Coleman (2001) 120 A Crim R 415
Kennewell v Rand [2006] ACTCA 10
Myers v Swan [2001] ACTSC 60
R v Bright [1916] 2 KB 441
R v Szeto [1999] NSWCCA 296
The Queen v De Simoni (1981) 147 CLR 383

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 57 of 2007

Judge: Penfold J
Supreme Court of the ACT

Date: 24 June 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 57 of 2007
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:GLENN WILLIAM BOWMAN
Applicant

AND:GAVIN ALAN CAMPBELL
Respondent

ORDER

Judge:  Penfold J
Date:  24 June 2011
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is upheld and the appellant will be re-sentenced.

The parties will be heard about the re-sentencing.

Introduction

Glenn William Bowman has appealed from sentences imposed in the Magistrates Court for an offence of dangerous driving under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (the Road Transport Act) and one of common assault under s 26 of the Crimes Act 1900 (ACT). The offences were committed on 16 August 2006.

Mr Bowman initially sought also to appeal against his convictions (which would have involved him seeking to withdraw his pleas of guilty) but that aspect of the appeal was withdrawn when the hearing began on 29 June 2009.

Background

The circumstances of the offence

On the evening of 16 August 2006, Mr Bowman and his partner Ms Heffernan were at a pool hall in Weston, ACT. They were having an argument, in the course of which Mr Bowman picked up Ms Heffernan and carried her out of the pool hall. He was observed by several other people who had followed him out of the pool hall, including Bill Pesi, who demanded that he let Ms Heffernan go; eventually Mr Bowman put Ms Heffernan down and walked away. Some of the observers gathered on the footpath near Ms Heffernan.

Shortly afterwards, Mr Bowman, driving a silver Toyota van, approached…

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: [2011] ACTSC 104
Decision Date: 24 June 2011

CaseChat Overview and Summary

The case of Glenn William Bowman v Gavin Alan Campbell involved an appeal by the appellant against the sentence imposed on him by the Magistrates Court. The appellant had been convicted of a criminal offence and subsequently sentenced to imprisonment, a matter he contested on appeal. The appeal focused on the severity of the sentence, questioning whether the Magistrate had sentenced him as if he were in the worst case scenario or as if he had committed a more serious offence than he actually did. The appellant also raised concerns about the significance of the availability of a fine in assessing the severity of his imprisonment sentence, as well as the immediate custodial period. Additionally, the appellant sought to introduce fresh evidence regarding events that occurred after the original sentence was handed down, which the court declined to admit.

The primary legal issues the court had to address were whether the Magistrate had erred in assessing the severity of the sentence by considering the worst case scenario or a more serious offence, and whether the availability of a fine and the immediate custodial period were properly considered in determining the sentence. Furthermore, the court needed to decide whether the fresh evidence presented by the appellant should be admitted and considered during the appeal.

The court, in its decision, found that the Magistrate had indeed sentenced the appellant as if for the worst case, which was an error in principle. The court also considered the significance of the availability of a fine and the immediate custodial period, concluding that these factors were not appropriately balanced in the original sentencing. The court held that the fresh evidence presented by the appellant, which related to events post-sentencing, was not admissible as it did not assist in determining the appropriate sentence. Consequently, the appeal was upheld, and the appellant was to be re-sentenced. The court ordered that the parties be heard on the matter of re-sentencing to ensure a fair and just outcome.

Orders

Orders of the court

(a) the appeal is upheld and the appellant will be re-sentenced;

(b) the parties will be heard about the re-sentencing.

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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