Leeuwen v Hawke - [2012] ACTSC 8

NATHAN VAN LEEUWEN v LOUISE HAWKE
[2012] ACTSC 8 (31 January 2012)

APPEAL – appeal from the ACT Magistrates – appeal against sentence on the ground that two sentences were imposed for the one charge – combination sentences in the form imposed are authorised by the legislation – appeal dismissed

Crimes (Sentence Administration) Act 2005 (ACT), ch 5, ss 68, 75, 79, pt 6.5
Crimes (Sentencing) Act 2005 (ACT), ss 10, 11, 13, 28, 29, 31

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 29 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 31 January 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 29 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:NATHAN VAN LEEUWEN
Appellant

AND: LOUISE HAWKE
Respondent

ORDER

Judge:  Burns J
Date:  31 January 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal is dismissed.

The conviction and sentence imposed by the learned Magistrate are confirmed.

On 19 May 2010 the appellant, Nathan John Van Leeuwen, was convicted in the ACT Magistrates Court of one offence of assault occasioning actual bodily harm (CC 10706 of 2009) and one offence of assault (CC 10803 of 2009). As I understand it, the appellant previously entered pleas of guilty to these charges, and sentencing was adjourned to 19 May 2010 to allow for the preparation of a pre-sentence report.

With respect to the charge of assault occasioning actual bodily harm, the appellant was sentenced to 10 months imprisonment to be served by way of periodic detention, and was subjected to a good behaviour order for a period of two years with certain conditions attached to the order.

On 1 April 2011 the appellant was granted leave by Master Harper to appeal out of time against the sentence imposed by the learned Magistrate. A subsequent Notice of Appeal specifies a single ground of appeal from the sentence imposed:

1. Her Honour erred in imposing two sentences in relation to charge CC2009/10706 (assault occasioning actual bodily harm).

The Sentence Imposed

I have not been provided with a sealed copy of the orders of the Magistrates Court, but I do not think one is necessary to determine this appeal. I have a copy of the transcript of the learned Magistrate’s sentencing remarks:

So, on the charge of assault occasioning actual bodily harm, 10706, he’ll be convicted. He’s sentenced to 10 months’ imprisonment. Had it not been for the plea of guilty, albeit late, he would have been sentenced to 12 months. Ten months, as I’ve said, the maximum sentence of imprisonment for that offence is five years. It’s not at the highest end, but to punch somebody in the head five times with a clenched fist, cause bruising to his ear and damage to his nose and blood on his nose, that carries, in my view – that is well and truly worth a sentence of 10 months’ imprisonment, and a lot…

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 Leeuwen v Hawke

Details

AGLC: Leeuwen v Hawke [2012] ACTSC 8
Case: [2012] ACTSC 8
Decision Date: January 31, 2012

CaseChat Overview and Summary

The appellant was convicted by the Magistrates Court of the ACT of assaulting a police officer. The appellant was sentenced to a six-month suspended sentence, a 12-month good behaviour bond, and a 12-month community corrections order. The appellant appealed against the sentence on the ground that two sentences were imposed for the one charge. The appeal was from the ACT Magistrates Court to the Supreme Court of the ACT. The appeal was dismissed.

The appeal raised two issues. The first issue was whether the sentence imposed was lawful. The second issue was whether the sentence was excessive or inappropriate. The court held that the appeal was without merit. The court found that the sentence imposed was lawful as the combination of sentences was authorised by the legislation. The court also found that the sentence was not excessive or inappropriate as the court had considered all relevant matters in imposing the sentence.

The court held that the appeal was dismissed. The court held that the sentence imposed was lawful as the combination of sentences was authorised by the legislation. The court also held that the sentence was not excessive or inappropriate as the court had considered all relevant matters in imposing the sentence. The court found that the appeal was without merit and dismissed it.

Orders

Orders of the court

The appeal is dismissed.

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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