JASON HAWKINS v JOHN OLIVER HAWKINS
[2009] ACTSC 148 (6 November 2009)
CRIMINAL LAW – appeal – whether sentence manifestly excessive – principles – need to contrast against maximum penalties, “collective wisdom” of general pattern of sentencing – need to identify relevant circumstances of the case.
CRIMINAL LAW – appeal – failure to take into account pre-sentence custody – position at common law and under the Crimes (Sentencing) Act 2005 (ACT), ss 62, 63 – relevance of pre-sentence periodic detention – relevance of pre-sentence custody for offences other than those for which sentencing is to be imposed – meaning of “in relation to”, Crimes (Sentencing) Act 2005 (ACT), ss 63(2) – relevance of pre-sentence custody upon activation of suspended sentence – possible discretion not to take such time into account, likely to be rarely exercised – appeal allowed in part.
Magistrates Court Act 1930 (ACT), ss 207, 208
Crimes (Sentencing) Act 2005 (ACT), Pt 3.2, ss 35, 62, 63
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 24(a), 25(2)
Crimes (Sentence Administration) Act 2005 (ACT), ss 110, 149, 151
Crimes (Amendment) Act 1955 (NSW), s 4
Crimes Act 1900 (NSW), s 441A
Criminal Law (Sentencing) Act 1988 (SA), s 30(2)(b)
Sentencing Act 1991 (Vic), s 18
Penalties and Sentences Act 1992 (Qld), s 161(1)
Crimes (Sentencing) Bill 2005 (ACT)
Fox R & Frieberg A, Sentencing: State and Federal Law in Victoria (2nd ed, Oxford University Press, 1999)
Daunton-Fear M, Sentencing in South Australia (Law Book Company Ltd and Australian Institute of Criminology, 1980)
Australian Law Reform Commission, Same Crime, Same Time, Report 103 (ALRC, 2006)
Cotter v Corvisy (2008) 1 ACTLR 299
Kennewell v Rand [2006] ACTCA 10
R v Clarke [1996] 2 VR 520
Lowndes v The Queen (1999) 195 CLR 665
R v Hawkins (unreported, ACTSC, Higgins J, 5 October 2009, SCC 110 & 114 of 2001)
Marsden v The Queen [2002] FCAFC 229
R v Hawkins (unreported, ACTSC, Crispin J, 26 June 2006, SCC 245 of 2005)
R v Geddes (1936) 36 SR (NSW) 554
Dinsdale v The Queen (2000) 202 CLR 321
Ellis (1993) 68 A Crim R 449
Oliver v State of Tasmania [2006] TASSC 95
Griffiths v The Queen (1977) 137 CLR 293
R v Holder [1983] 3 NSWLR 245
Oliver (1980) 7 A Crim R 174
R v Morse (1979) 23 SASR 98
Kelly v The Queen (1992) 33 FCR 536
Barker v The Queen (No 2) (1996) 70 FCR 1
R v Baltensperger (2006) 96 SASR 34
R v Ireland (1987) 49 NTR 10
R v Williscroft & Ors [1975] VR 292
Green v The Queen [1986] 2 Qd R 406
R v Raggett & Ors (1990) 101 FLR 323
R vTaylor (1985) 18 A Crim R 14
R v Bloomfield (1998) 44 NSWLR 734
R v Di Simoni (1981) 147 CLR 383
R v Kruger [1973] Crim LR 133
Carpenter v Purcell [2008] ACTSC 34
Cameron v The Queen (2002) 209…
Keep reading for free
Create a free CaseChat account to read Hawkins v Hawkins and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2009] ACTSC 148
- Decision Date
CaseChat Overview and Summary
The legal issues before the court involved whether the sentence was manifestly excessive and whether the magistrate had erred in failing to consider the appellant's pre-sentence custody. The court had to consider the principles for assessing the proportionality of a sentence, including the need to contrast the sentence against the maximum penalties and the "collective wisdom" of the general pattern of sentencing. The court also had to determine the relevance of the appellant's pre-sentence custody under the Crimes (Sentencing) Act 2005 (ACT), including whether this custody should have been considered for offences other than those for which sentencing was being imposed, and the meaning of "in relation to" in ss 63(2) of the Act.
The court found that while the sentence was not manifestly excessive, the magistrate had failed to consider the appellant's pre-sentence custody, which was a relevant factor under the Act. The court noted that the magistrate had not been required to consider pre-sentence custody for offences other than those for which sentencing was being imposed. However, the court held that the magistrate should have considered the pre-sentence custody, and this oversight was a ground for allowing the appeal in part. The court also noted that although there might be a discretion not to take pre-sentence custody into account, this was likely to be rarely exercised.
The court made several orders, including setting aside the commencement date of the sentence to align it with the appellant's pre-sentence custody and declaring the appellant eligible for parole on a specific date. The appeal was otherwise dismissed, and the sentences of the Learned Special Magistrate were confirmed.
Orders
Orders of the court
1. The commencement date of the sentence imposed by the Learned Special Magistrate be set aside and the sentence commence on 10 November 2007.
2. It be declared that Jason Hawkins be eligible for parole on 9 September 2010.
3. Otherwise the appeal is dismissed and the sentences of the Learned Special Magistrate confirmed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.