JONATHON BRENDAN KHAN v SEAN WILLIAM EVANS & ORS
[2013] ACTSC 211 (4 October 2013)
APPEAL – Appeals from the Magistrates Court – appeal against sentence – appeal on the ground of manifest excess – appeal on the ground that pre-sentence custody not taken into account – appeal upheld in part
CRIMINAL LAW – Particular offences – domestic violence offences – seriousness of – “pernicious and evil” – necessity of deterrent sentences
CRIMINAL LAW – Sentencing – consideration of entrenched childhood disadvantage – applicability of Bugmy v The Queen [2013] HCA 37
Bail Act 1992 (ACT), s 49(1)
Crimes Act 1900 (ACT), s 26
Crimes (Sentencing) Act 2005 (ACT), s 65(3)
Crimes (Sentence Administration) Act 2005 (ACT), s 110
Domestic Violence and Protection Orders Act 2008 (ACT), s 90(2)
Magistrates Court Act 1930 (ACT), Pt 3.10, Div 3.10.2, s 216
Bugmy v The Queen [2013] HCA 37
Cooper v Corvisy (No 2) (2010) ACTLR 151
Johnson v The Queen (2004) 78 ALJR 616
Khan v The Queen [2011] ACTSC 20
Mill vThe Queen (1988) 166 CLR 59
Pearce v The Queen (1998) 194 CLR 610
R v Bell [2005] ACTSC 123
Rv Hamid (2006) 164 A Crim R 179
R v TW (2011) 6 ACTLR 18
Saga v Reid [2010] ACTSC 59
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 51 of 2013
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 4 October 2013
IN THE SUPREME COURT OF THE )
) No. SCA 51 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JONATHON BRENDAN KHAN
Applicant
AND:SEAN WILLIAM EVANS
First Respondent
AND:WARREN LEE WAKEFIELD
Second Respondent
AND:AARON GOODING
Third Respondent
AND:JONATHON ANDRIJA TURKICH
Fourth Respondent
ORDER
Judge: Refshauge ACJ
Date: 4 October 2013
Place: Canberra
THE COURT ORDERS THAT:
Leave be granted to the appellant to amend the Notice of Appeal within 7 days
The appeal be allowed
The date on which the sentence of imprisonment for the first breach of the interim personal protection order, committed on 3 September 2012, be directed to commence be set aside and, in lieu, the date “23 February 2013” be substituted.
The conviction and sentence for the breach of the good behaviour order made by Magistrate Doogan on 16 December 2010 be set aside, and the breach be dismissed.
The non-parole period set in the Magistrates Court be set aside.
Otherwise, the sentences, and cumulation of each of them with each other, be confirmed.
The good behaviour orders made on the 8 February 2011 by Nield AJ be cancelled and Mr Khan be re-sentenced to 8 months imprisonment to commence on 23 March 2014.
The sentences of imprisonment be suspended on 22 December 2013.
Mr Khan be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years from 22 December 2013 with a…
Keep reading for free
Create a free CaseChat account to read Jonathon Brendan Khan v Sean William Evans 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
- [2013] ACTSC 211
- Decision Date
CaseChat Overview and Summary
The court first examined whether the sentence imposed was manifestly excessive, considering the nature and circumstances of the offence. The court acknowledged the seriousness of the domestic violence offences committed by Khan, describing them as "pernicious and evil." However, the court found that the sentence was indeed manifestly excessive, taking into account the appellant's entrenched childhood disadvantage and the applicability of the principles outlined in Bugmy v The Queen. The court found that the sentence did not sufficiently consider these factors, leading to a finding of manifest excess.
Following the determination of manifest excess, the court went on to consider the appellant's argument that his pre-sentence custody had not been adequately taken into account. The court found that the pre-sentence custody had not been properly considered and, as a result, the appeal was upheld in part. The court then proceeded to set aside certain aspects of the sentence and to re-sentence the appellant, taking into account the appropriate legal principles and factors. The court ordered that Khan be re-sentenced to 8 months imprisonment, with the sentences of imprisonment to be suspended on 22 December 2013, and that Khan be required to comply with certain good behaviour obligations and probation conditions.
In summary, the Court of Appeal allowed the appeal in part, setting aside certain aspects of the sentence and re-sentencing the appellant. The court found the original sentence to be manifestly excessive and that the pre-sentence custody had not been adequately taken into account. The court also confirmed the sentences, and cumulation of each of them with each other, with certain modifications. The court's decision emphasised the importance of considering entrenched childhood disadvantage and the principles outlined in Bugmy v The Queen when sentencing an offender.
Orders
Orders of the court
1. Leave be granted to the appellant to amend the Notice of Appeal within 7 days
2. The appeal be allowed
3. The date on which the sentence of imprisonment for the first breach of the interim personal protection order, committed on 3 September 2012, be directed to commence be set aside and, in lieu, the date “23 February 2013” be substituted.
4. The conviction and sentence for the breach of the good behaviour order made by Magistrate Doogan on 16 December 2010 be set aside, and the breach be dismissed.
5. The non-parole period set in the Magistrates Court be set aside.
6. Otherwise, the sentences, and cumulation of each of them with each other, be confirmed.
7. The good behaviour orders made on the 8 February 2011 by Nield AJ be cancelled and Mr Khan be re-sentenced to 8 months imprisonment to commence on 23 March 2014.
8. The sentences of imprisonment be suspended on 22 December 2013.
9. Mr Khan be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 2 years from 22 December 2013 with a probation condition that:
· he be subject to the supervision of the Director-General or her delegate for such period as the person delegated to supervise him considers appropriate and obey all reasonable directions of the person delegated to supervise him, including as to treatment or counselling for parenting, drug and alcohol abuse, family violence and anger management, as may be appropriate.
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.