Hohepa v Kavanagh
[2015] ACTSC 102
•30 April 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hohepa v Kavanagh |
Citation: | [2015] ACTSC 102 |
Hearing Dates: | 16 April 2015 |
DecisionDate: | 30 April 2015 |
Before: | Burns J |
Decision: | See [9]-[10] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – offences against the person – offences against children – assault occasioning actual bodily harm. APPEAL – Appeals From and Control Over Magistrates – whether sentence was manifestly excessive – appeal upheld – resentenced. |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 |
Parties: | Makere Hohepa (Appellant) Narelle Marlene Kavanagh (Respondent) |
Representation: | Counsel Ms M Ellis (Appellant) Ms S McMurray (Respondent) |
| Solicitors Daryl Perkins Solicitors (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 98 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 16 October 2014 Case Title: Kavanagh v Hohepa Court File Number: CC14/3097 |
Burns J:
Background
This is an appeal against a sentence which was imposed by a Magistrate in the ACT Magistrates Court with respect to one offence of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT). That offence carries a maximum penalty of five years imprisonment. The matter proceeded as a contested hearing before the Magistrate and on 16 October last year the Magistrate convicted the appellant and sentenced her to four months’ imprisonment, fully suspended upon her entering into a Good Behaviour Order.
The appeal against that sentence was based upon the proposition that the sentence was manifestly excessive. The matter came before me on 16 April this year, at which time, after hearing counsel for the appellant and for the respondent, I indicated my view that the sentence imposed by the learned Magistrate was manifestly excessive and that I proposed to re-sentence the appellant. The appellant was not personally present on 16 April, although she was represented by counsel at that time. The matter was adjourned until today to enable the appellant to be present.
Consideration
A sentence of imprisonment is a sentence of last resort. Before a suspended sentence of imprisonment can be imposed, a sentence of imprisonment must be determined to be appropriate by the sentencing Judge or Magistrate. As such, before a suspended sentence of imprisonment may be imposed, the sentencing Judge or Magistrate must come to the conclusion that no other sentence other than a term of imprisonment is just and appropriate with respect to that offence and that offender.
The offence of which the appellant was found guilty was by no means a trivial offence involving, as it did, an assault upon her daughter using a leather belt which had some form of metal studding on it. Counsel for the respondent has correctly pointed to the fact that this offence involved a significant breach of trust in the relationship between parent and child, and, as such, that was an aggravating circumstance which the Magistrate was entitled to take into account in sentencing the appellant. However, even taking that into account I cannot accept the proposition that a sentence of imprisonment was the only just and appropriate sentence with respect to this offence.
The offence of assault occasioning actual bodily harm may cover a wide variety of conduct and outcomes. Actual bodily harm may extend from mere bruising to fractured limbs or other significant injury falling short of grievous bodily harm. The injuries occasioned by the appellant in the assault which was found proven by the Magistrate consisted of bruising to the complainant. As such, this assault cannot be said to fall within the more serious types of this offending that may be seen by these courts.
In addition to which, there is evidence that the offence occurred in circumstances where the appellant was angry because of the conduct of the child complainant, and indeed angry in circumstances where it was understandable that she would have been angry with the child complainant. That does not provide some excuse for her behaviour, but it does allow for a better understanding of the circumstances in which the offence occurred.
The appellant had no previous convictions and was 43 years of age at the time of the commission of the offence. That was a very significant factor requiring leniency to be demonstrated to the appellant.
Conclusion
I have formed the view, bearing in mind the evidence concerning the background of the appellant, her lack of antecedents and also the objective nature of the offence, that it could not be said that a term of imprisonment was the only just and appropriate sentence with respect to this offence. I am therefore satisfied that the sentence imposed by the Magistrate was manifestly excessive.
Orders
The sentence imposed by the Magistrate will be set aside and the appellant will be re-sentenced.
I confirm the conviction that was imposed by the Magistrate and there will be a Good Behaviour Order for a period of 18 months from today with 12 months’ supervision by Corrective Services or such lesser period as deemed appropriate by the Director-General with a condition that she is required to attend such courses, programs or counselling as directed by the Director‑General or that person’s delegate with respect to parenting skills and anger management.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Burns. Associate: Date: 5 May 2015 |
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