Kelleher v Driessen, Suddards and Witchard
[2012] ACTSC 95
•April 30, 2012
WILLIAM KELLEHER v DAVID JOHN DRIESSEN & ORS
[2012] ACTSC 95 (30 April 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 44 of 2009
Judge: Higgins CJ
Supreme Court of the ACT
Date: 30 April 2012
IN THE SUPREME COURT OF THE )
) No. SCA 44 of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:WILLIAM KELLEHER
Appellant
AND:DAVID JOHN DRIESSEN
ROBERT STEPHEN SUDDARDS
MICHAEL LESLIE WITCHARD
Respondents
ORDER
Judge: Higgins CJ
Date: 30 April 2012
Place: Canberra
THE COURT ORDERS THAT:
The periods of imprisonment imposed with respect to CC/084170 and CC08/4871 be served concurrently, but accumulated upon CC08/3165 to the extent of three months.
The appellant serve a total of six months imprisonment, by way of periodic detention, of which five periods have already been served.
The first period of periodic detention is to commence 4 May 2012.
This is an appeal by Mr William Kelleher against a sentence imposed in respect of two charges of contravening a protection order for which he was convicted and sentenced to four months imprisonment to be served by way of periodic detention. In each case, the offences themselves seem to warrant that sentence, particularly in the light of a previous conviction of using a carriage service to harass, for which he was sentenced to three months imprisonment. Just by way of comment, if his record had been worse, the circumstances would have been less favourable to him, and he might well have got more than three months for that offence. However, I note that the parties have since reconciled, and he has adjusted his behaviour and habits. That will go a long way, I would have thought, towards ensuring that such offences do not occur in the future.
It seems to me that, in the circumstances of his rehabilitation, and without in any way diminishing the seriousness of his behaviour, it would be appropriate to vary the sentences imposed to the extent that the sentence imposed with respect to the first contravention of the protection order should be cumulative upon the sentence imposed for using a carriage service to harass to the extent of three months rather than four months. The sentence imposed for the second contravention, which occurred within the same course of conduct, should be concurrent with that previous sentence.
Otherwise, the sentences are confirmed. That includes the sentence for assault, which is three months suspended with a good behaviour order for two years. I note that it is concurrent with a similar sentence for causing damage to a motor vehicle. There is no appeal against the terms of that good behaviour order, so that is confirmed also. I note that Mr Kelleher has served five periods of detention, so I therefore allow credit for that against the six months of periodic detention that I have imposed. That leaves just under five months to serve.
That first period of periodic detention will commence this Friday, 4 May 2012, and will continue thereafter each Friday until served. Mr Kelleher, you are directed to attend upon Corrective Services to arrange for ongoing supervision and to attend or be assessed suitable for any courses or matters that are currently considered relevant. It may be nothing, it may be a cognitive change program, or it may be a domestic violence program.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 14 June 2012
Counsel for the Appellant: Ms T Warwick
Solicitor for the Appellant: Darryl Perkins Solicitor
Counsel for the Respondents: Mr C Wanigaratne
Solicitor for the Respondents: Director of Public Prosecutions for the ACT
Date of hearing: 30 April 2012
Date of judgment: 30 April 2012
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