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Goundar v Goddard

Goundar v Goddard

Case [2010] ACTSC 56 29 June 2010

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KRISHNA GOUNDAR v GAVIN GODDARD
[2010] ACTSC 56 (29 JUNE 2010)

CRIMINAL LAW - Appeal from Magistrates Court of the ACT – section 208(1)(e)(ii) Magistrates Court Act 1930 (ACT) - Ground of appeal, imposition of probation supervision condition unnecessary and excessive.
CRIMINAL LAW – Family violence offences – offender charged with assault.
CRIMINAL LAW – Factors to consider when sentencing – good character of offender – no prior offences – offence at lower end of seriousness.
CRIMINAL LAW – Sentencing – imposition of probation supervision condition not required.

Crimes (Sentencing) Act 2005 (ACT), Pt 3.3, ss 17, 95
Magistrates Court Act 1930 (ACT), Pt 3.10, ss 208(1)(e)(ii), 216
Crimes (Sentence Administration) Act 2005 (ACT), Explanatory Statement, ss 112, 113, 113(3), 113(4), 113(5)

Court Procedures Rules 2006 (ACT), r 6

Mackenzie G and Stubbs N Principles of Sentencing (Federation Press: Sydney, 2010)
Harding C and Koffman L Sentencing and the Penal System (Sweet & Maxwell: London, 1988)
Tasmanian Law Reform Institute in its Final Report No 11, Sentencing (Hobart, 2008) at para 3.8.1

R v Bell [2005] ACTSC 123
R v Hamid [2006] NSWCCA 302
R v Devine (Tasmanian Supreme Court, Underwood J, 5 July 1993, unreported)
R v Brown (1992) 73 CCC (3d) 242
Hawkins v Hawkins (2009) 3 ACTLR 210
R v Thorn [2010] ACTCA 10
Morris v East (1988) 91 FLR 23
R v Bloomfield (1998) 44 NSWLR 734
Talukder v Dunbar [2009] ACTSC 42
R v Mandica (1980) 24 SASR 394
Vallett (1950) 34 Cr App R 251
Giles v Barnes [1967] SASR 174
R v Marquis [1974] 2 All ER 1216

REASONS FOR JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 71 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 29 June 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 71 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:KRISHNA GOUNDAR
Appellant

AND:GAVIN GODDARD
Respondent

ORDER

Judge:  Refshauge J
Date:  11 June 2010
Place:  Canberra

THE COURT ORDERS THAT:

The probation conditions imposed by Magistrate Lalor in the offender’s good behaviour order dated 6 November 2009 are set aside.

The following new conditions are to be applied to offender’s Good Behaviour Order dated 6 November 2009:

(a) offender attend at counselling through Relationships Australia and deliver a letter to the registrar of the ACT Supreme Court from that agency within one month from today confirming that he has commenced such counselling;

(b) offender deliver a letter from that agency within three months to the registrar of the ACT Supreme Court that details the number of times he has attended and whether his attendance has been regarded as satisfactory; and

(c) offender continues to seek assistance from New South Wales Hindu Society for as long as he considers it helpful.

On 11 June 2010, I made orders allowing this appeal and said I would delivery my reasons later. These are my reasons. Quarters

The facts

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 Goundar v Goddard

Details

AGLC: Goundar v Goddard [2010] ACTSC 56
Case: [2010] ACTSC 56
Decision Date

CaseChat Overview and Summary

The appellant, Krishna Goundar, appealed against a condition of a good behaviour order imposed on him by the Magistrates Court of the Australian Capital Territory (ACT). The appeal was brought under section 208(1)(e)(ii) of the Magistrates Court Act 1930 (ACT). The sole issue in the appeal was whether the imposition of probation supervision for a period of 18 months was unnecessary and excessive. The appellant submitted that the condition was not necessary or appropriate for the offence and his background. The respondent argued that family violence was a serious matter and that the sentence was not manifestly excessive.

Refshauge J considered the matter and concluded that the offence was at the lower end of seriousness and the appellant had good character and no prior criminal record. The court found that supervision was not ordinarily seen as part of the deterrent component of sentencing and was regarded as rehabilitation. The court found that no particular justification was offered for the 18-month period of supervision. The court set aside the condition of the good behaviour order and replaced it with a requirement to attend certain counselling and report to the registrar of the Supreme Court. The court was confident that this was sufficient in the circumstances.

Orders