Jonathon Brendan Khan v Sean William Evans - [2013] ACTSC 211

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…

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

Case: [2013] ACTSC 211
Decision Date: 4 October 2013

CaseChat Overview and Summary

In the matter of Jonathon Brendan Khan, the appellant, and Sean William Evans, the respondent, the Court of Appeal was presented with an appeal against sentence. The appellant, Khan, was appealing the sentence handed down by the Magistrates Court, arguing that it was manifestly excessive and that his pre-sentence custody had not been adequately taken into account. The court was required to determine whether the sentence imposed was excessive, whether the pre-sentence custody was properly considered, and whether other legal principles applied to the case.

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

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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