(The Honourable President Kelly, the Honourable Justice Lovell and the Honourable Justice Livesey)
13 May 2021
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - SENTENCE
The appellant forcefully pushed the victim once to the chest outside a nightclub on Hindley Street, causing the victim to fall backwards and sustain severe head injuries including a fractured skull. The appellant pleaded guilty to one charge of recklessly causing harm. A judge of the District Court imposed a term of imprisonment of 2 years and 2 months with a non-parole period of 14 months.
The appellant appealed on the basis that the sentence was manifestly excessive (Ground 1) and that the Sentencing Judge erred in refusing to suspend the sentence (Ground 2). Permission to appeal on Ground 1 was referred to this Court; permission to appeal on Ground 2 was conceded by the respondent.
Held, by the Court, granting permission to appeal on Ground 1 and dismissing the appeal:
1. No error has been demonstrated in the Sentencing Judge's approach;
2. The sentence imposed is within the permissible range;
3. The decision not to suspend the sentence is within the Sentencing Judge's discretion.
Court of Appeal – Criminal: Kelly P, Lovell and Livesey JJA
THE COURT:
Overview
Around 4.00am on 5 March 2017, outside a strip club in Hindley Street, Mr Hackett (the appellant) forcefully pushed Mr Nixon (the victim) in the chest causing him to fall heavily to the ground. The victim’s skull fractured when his head struck the pavement. The appellant pleaded guilty in the District Court to recklessly causing harm to the victim. The Sentencing Judge imposed a term of imprisonment of 2 years and 2 months with a non-parole period fixed at 14 months. The appellant appeals on the grounds that the sentence is manifestly excessive and that the sentencing judge erred in refusing to suspend the sentence.
Background
The appellant and the victim were patrons at a nightclub on Hindley Street. Both were intoxicated, the victim significantly so. Due to the victim’s intoxication, he was escorted from the nightclub premises. The appellant coincidentally was in the stairwell when the victim was being removed. CCTV footage shows 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.
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Details
AGLC
Hackett v The Queen [2021] SASCA 32
Case
[2021] SASCA 32
Decision Date
CaseChat Overview and Summary
In *Hackett v The Queen*, the appellant, Mr Hackett, appealed to the Court against a sentence imposed by the District Court. Mr Hackett had pleaded guilty to recklessly causing harm after he forcefully pushed the victim, Mr Nixon, causing him to fall and fracture his skull. The District Court sentenced Mr Hackett to 2 years and 2 months imprisonment, with a non-parole period of 14 months.
The appeal raised two grounds: first, that the sentence imposed was manifestly excessive, and second, that the sentencing judge erred in refusing to suspend the sentence. The Court was therefore required to determine whether the sentencing judge had made an error in their approach to sentencing, whether the sentence fell within the permissible range for the offence, and whether the decision not to suspend the sentence was a proper exercise of the sentencing judge's discretion.
The Court found no error in the sentencing judge's approach. It reasoned that the sentence imposed was within the permissible range for the offence of recklessly causing harm, considering the severity of the victim's injuries and the appellant's actions. Furthermore, the Court held that the decision not to suspend the sentence was a matter within the sentencing judge's discretion, and that discretion had been properly exercised.
Accordingly, the Court granted permission to appeal on the first ground but dismissed the appeal, upholding the sentence imposed by the District Court.
Orders
Orders of the court
Held, by the Court, granting permission to appeal on Ground 1 and dismissing the appeal:
1. No error has been demonstrated in the Sentencing Judge's approach;
2. The sentence imposed is within the permissible range;
3. The decision not to suspend the sentence is within the Sentencing Judge's discretion.
Background
Background to the litigation
Around 4.00am on 5 March 2017, outside a strip club in Hindley Street, Mr Hackett (the appellant) forcefully pushed Mr Nixon (the victim) in the chest causing him to fall heavily to the ground. The victim’s skull fractured when his head struck the pavement. The appellant pleaded guilty in the District Court to recklessly causing harm to the victim. The Sentencing Judge imposed a term of imprisonment of 2 years and 2 months with a non-parole period fixed at 14 months. The appellant appeals on the grounds that the sentence is manifestly excessive and that the sentencing judge erred in refusing to suspend the sentence. Background The appellant and the victim were patrons at a nightclub on Hindley Street. Both were intoxicated, the victim significantly so. Due to the victim’s intoxication, he was escorted from the nightclub premises. The appellant coincidentally was in the stairwell when the victim was being removed. CCTV footage shows the appellant and victim interacting in the stairwell of the nightclub in a seemingly friendly manner. The appellant and victim were not otherwise known to one another. Once outside the nightclub, the victim commented to security guards to the effect that it was unfair that he be expelled and the appellant be allowed to remain inside. The appellant exited the nightclub on his own accord shortly after. Outside the nightclub, the appellant chatted with acquaintances. Witnesses suggest that the victim pestered the appellant and his acquaintances. The appellant initially ignored the victim but became increasingly agitated by the victim’s behaviour. The appellant turned, took several steps towards the victim, exchanged words with him before pushing him forcefully in the chest. The victim fell backwards, striking his head on the concrete pavement and immediately losing consciousness. The victim was hospitalised for 10 days following the incident. He suffered a fractured skull and intercranial bleeding. The victim continues to suffer ongoing issues including headaches, cognitive fatigue, mood swings, and anxiety. Some of these problems are likely to persist. The appellant left the scene on foot and caught a taxi home from nearby on King William Street. He was arrested on 25 August 2017 upon attending the Adelaide Police Station at the request of the police. The appellant denied knowledge of any incident involving the victim.The sentence The appellant was initially charged with the offence of recklessly causing serious harm, contrary to s 23(3) of the Criminal Law Consolidation Act 1935 (SA) (“CLCA”). On the morning the trial was to commence, the respondent accepted the appellant’s guilty plea to the lesser charge of recklessly causing harm, contrary to s 24(2)(a) of the CLCA. The maximum penalty for this offence is five years imprisonment. The appellant was sentenced to two years and six months imprisonment. That sentence was reduced by 10% for the appellant’s early guilty plea to 27 months imprisonment. A further one month was deducted for time spent in custody and home detention bail resulting in a final sentence of 26 months imprisonment. A non-parole period of 14 months was imposed.