Kirkwood v Thomas - [2017] TASSC 56

[2017] TASSC 56

COURT: SUPREME COURT OF TASMANIA

CITATION: Kirkwood v Thomas [2017] TASSC 56

PARTIES:  KIRKWOOD, Joshua Allan
  v
  THOMAS, Gavin
  MINEHAN, Christopher

FILE NO:  1637/2017
DELIVERED ON:  15 September 2017
DELIVERED AT:  Hobart
HEARING DATE:  15 September 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Breaches of family violence order – Oral abuse and multiple abusive and threatening text messages – Sentence of 2 months' imprisonment, cumulative with sentence of 5½ years' imprisonment with non-parole period of 3 years for crimes against same complainant – Not manifestly excessive.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
           Applicant:  J Ker
           Respondents:  E Bill
Solicitors:
           Applicant:  Legal Aid Commission of Tasmania
           Respondents:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 56
Number of paragraphs: 23

Serial No 56/2017
File No 1637/2017

JOSHUA ALLAN KIRKWOOD v GAVIN THOMAS
and CHRISTOPHER MINEHAN

REASONS FOR JUDGMENT BLOW CJ

(DELIVERED ORALLY) 15 September 2017

This is a motion for the review of a sentencing order made by a magistrate, Mr A McKee. The applicant pleaded guilty to two charges of breaching a family violence order. Although there were only two charges, the charges related to nine separate events.
The first charge alleged that he breached the family violence order on 20 September 2015 by calling his former partner a slut. The order prohibited him from directly or indirectly threatening, harassing, abusing or assaulting the complainant. It did not prohibit him from going to her house. She apparently had promised to pay him some money, $5,000, and had not done so. He went to the house in the hope of getting money from her. He rang or knocked on the door or doors. She was there but did not open any door. She was not obliged to. When leaving, the applicant yelled out that the complainant was a slut.
The second complaint relates to eight text messages. They were abusive and threatening text messages. They were sent by the applicant to the complainant over a period of seven days in breach of the family violence order, as follows:
·    The first was sent on Sunday, 20 September 2015. It read, "You really are a peasant still want my money slut."
·    The second was sent at 6.05am on Monday, 21 September. It read, "Still want my money you smelly slut? See you again soon."
·    The third was sent at 12.38pm on the same day. It read, "Where is my money whore."
·    The fourth was sent at 5.21pm on the same day. It read, "Still waiting slut."
·    The fifth was sent at 8.08pm on the same day. It read, "Still need my money slut."
·    The sixth was sent the following day, Tuesday, 22 September, at 10.45am. It read, "Still waiting peasant."
·    The seventh was sent the same day at 5.30pm. It read, "Still waiting…

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 Kirkwood v Thomas

Details

AGLC: Kirkwood v Thomas [2017] TASSC 56
Case: [2017] TASSC 56
Decision Date: 15 September 2017

CaseChat Overview and Summary

Kirkwood v Thomas is an appeal against a sentence of imprisonment imposed by the Magistrates' Court of Tasmania. The appellant, Kirkwood, was convicted of breaches of a family violence order involving oral abuse and multiple abusive and threatening text messages. The sentence imposed was 2 months' imprisonment, which was to run cumulatively with a previous sentence of 5½ years' imprisonment with a non-parole period of 3 years for crimes against the same complainant. The appeal focuses on whether the sentence for the breaches of the family violence order was manifestly excessive or inadequate.

The central legal issue in the appeal was whether the sentence of 2 months' imprisonment was manifestly excessive or inadequate in the context of the appellant's previous sentence for serious crimes against the same complainant. The court considered the severity of the appellant's previous crimes and the nature of the breaches of the family violence order, including the abusive and threatening messages sent to the complainant. The court also weighed the need for deterrence and the protection of the complainant in determining the appropriate sentence.

The court found that the sentence of 2 months' imprisonment was not manifestly excessive or inadequate. It acknowledged the seriousness of the appellant's previous crimes but also noted that the breaches of the family violence order were less severe. The court emphasised the importance of considering the cumulative effect of the sentences and the need to protect the complainant. Ultimately, the court determined that the sentence imposed was appropriate given the circumstances and did not amount to a manifest excess or inadequacy.

No further orders were made in the appeal. The sentence of 2 months' imprisonment, running cumulatively with the previous sentence, was upheld by the court.

Orders