Kelleher v Avery - [2017] TASSC 14

[2017] TASSC 14

COURT: SUPREME COURT OF TASMANIA

CITATION: Kelleher v Avery [2017] TASSC 14

PARTIES:  KELLEHER, Michael John
  v
  AVERY, Elizabeth

FILE NO:  3097/2016
DELIVERED ON:  1 March 2017
DELIVERED AT:  Hobart
HEARING DATE:  22 February 2017
JUDGMENT OF:  Wood J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Three offences of breach of family violence order by sending text messages – Significant number of prior convictions for breaches of family violence order – Sentence of two months' imprisonment manifestly excessive.

Family Violence Act 2004 (Tas), s 35(1).
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  G Barns
             Respondent:  E Bill
Solicitors:
             Applicant:  Simmons Wolfhagen
             Respondent:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 14
Number of paragraphs: 28

Serial No 14/2017
File No 3097/2016

MICHAEL JOHN KELLEHER v ELIZABETH AVERY

REASONS FOR JUDGMENT WOOD J

1 March 2017

This motion to review relates to a sentence of two months' imprisonment imposed on the applicant, Michael John Kelleher, by Magistrate Mollard on 25 October 2016. The applicant had pleaded guilty in the Magistrates Court to three offences of breach of interim family violence order contrary to s 35(1) of the Family Violence Act 2004, and three offences of breach of bail contrary to s 9 of the Bail Act 1994. The applicant seeks to review the sentence on the ground that it is manifestly excessive.

The offending

The applicant and the complainant, Leanne Higgs, had been in a relationship from October 2010 to October 2012. They have one daughter together, Ellie, aged five years. An interim family violence order was made on 20 October 2015 which included a condition that the applicant:
"…. not approach Leanne Higgs directly or indirectly including by telephone, email, facsimile, letter, SMS text message, Facebook or any other form of electronic communication, except:
(a)for the purpose of attending meetings by consent between Leanne Higgs and [the applicant] in the presence of a third party to discuss matters arising out of their relationship or relating to Ellie … (affected child/ren) including counselling, family court conferences and legal aid conferences, and by letter to negotiate such matters;
(b)for the purpose of contact with the children named above as agreed or as ordered by a court of competent jurisdiction;
(c)during an appearance in court proceedings involving the parties, or discussions in the court precincts for the purpose of those proceedings and consented to by both parties …".
The applicant was charged with three breaches of the order by sending text messages to the complainant on two occasions in December 2015 as follows:
· on 8 December he sent a text message stating, "Hi how is Ellie doing hope she is well…when can I see Ellie please";
· on 10 December he sent a text message stating, "Regardless of our ongoing personal issues …YOU have a responsibility as a parent to Ellie, Ellie has 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.

Continue reading Kelleher v Avery

Details

AGLC: Kelleher v Avery [2017] TASSC 14
Case: [2017] TASSC 14
Decision Date: 1 March 2017

CaseChat Overview and Summary

The case of Kelleher v Avery involved an appeal against a sentence imposed by a Magistrates Court in Tasmania. The appellant, Kelleher, was convicted of three offences of breaching a family violence order by sending text messages. Kelleher, who had a substantial history of prior convictions for similar breaches, was sentenced to two months' imprisonment. Dissatisfied with the severity of the sentence, Kelleher moved to review the sentence on the grounds that it was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive or inadequate. The court had to consider the nature of the offences, the appellant's history of similar offences, and whether the sentence reflected the appropriate balance between punishment and deterrence. The court also needed to determine whether the sentence was disproportionate to the gravity of the offences and the appellant's criminal history.

The court found that the sentence of two months' imprisonment was manifestly excessive. The court emphasised that the appellant's prior convictions for breaches of family violence orders indicated a pattern of behaviour that required intervention, but did not necessarily justify such a severe penalty. The court concluded that the sentence did not reflect the appropriate balance and was disproportionate to the gravity of the offences and the appellant's criminal history. The appeal was allowed, and the sentence was quashed.

The court did not specify a new sentence, leaving it to the Magistrates Court to impose a more appropriate sentence upon reconsideration of the matter.

Orders