Mailau v Cahill - [2022] ACTSC 212

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mailau v Cahill
Citation:	[2022] ACTSC 212
Hearing Date:	23 August 2022
DecisionDate:	23 August 2022
Before:	Elkaim J
Decision:	(a) The appeal is allowed. (b) The sentences imposed in the Magistrates Court on 11 May 2022 are set aside. (c) The appellant is re-sentenced as follows: (i) For the assault occasioning actual bodily harm (CC2021/4660), to 12 months imprisonment commencing on 4 May 2022 and ending on 3 May 2023. (ii) For common assault (CC2021/3328), to 6 months imprisonment, to commence on 4 February 2023 and end on 3 August 2023. (iii) For damage to property (CC2021/3330), to 2 months imprisonment, to commence on 4 February 2023 and end on 3 April 2023. (iv) The total term of imprisonment is 15 months. (v) I set a non-parole period of 6 months to expire on 3 November 2022.
Catchwords:	APPEAL – SUPREME COURT OF APPEAL – Appeal from Magistrates Court – whether the magistrate erred by failing to apply the principle of totality – whether the sentence was manifestly excessive
Cases Cited:	O’Brien v The Queen [2015] ACTCA 47 R v Palmer [2020] ACTSC 13
Parties:	David Tavake Mailau ( Appellant) Elizabeth Cahill (First Respondent) Ross McLennan (Second Respondent)
Representation:	Counsel K Lee ( Appellant) R Christensen SC ( Respondents)
Solicitors Tim Sharman Solicitors ( Appellant) ACT Director of Public Prosecutions ( Respondents)
File Number:	SCA 14 of 2022
Decision under appeal:	Court/Tribunal: Magistrates Court Before: Magistrate Lawton Date of Decision: 11 May 2022 Court File Number(s): CC2021/3328; CC2021/3330; CC2021/4660

Elkaim J:

On 19 March 2021 the appellant went to the home of his former partner. When he arrived he found a vehicle belonging to a friend of the partner in the driveway, with the friend seated within the vehicle.

The appellant attacked the friend, who was a stranger to him, through an open car window, causing actual bodily harm, in particular a fractured nose. This led to a charge of assault causing actual bodily harm (CC2021/4660).

The former partner intervened. She was also in the car and tried to defend her friend. The appellant took hold of her arm and scratched her. He was charged with assault (CC2021/3328).

The appellant, when assaulting his former partner, also took hold of her mobile phone and threw it to the ground. Not surprisingly it was damaged. A charge of damage to property ensued (CC2021/3330).

On 7 December 2021 the appellant pleaded guilty to the above three charges. He was sentenced to a term of full-time imprisonment on 11 May 2022 but commencing on 4 May 2022.

Each of the three charges attracted a term of imprisonment. There was 12 months for the assault occasioning actual bodily harm, six months for the common assault and two months for the damage to property. Each of these periods was ordered to be served consecutively. The appellant had received a 5 per cent discount on each sentence because of his (late) plea of guilty. There is…

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 Mailau v Cahill

Details

AGLC: Mailau v Cahill [2022] ACTSC 212
Case: [2022] ACTSC 212
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory was asked to consider an appeal against the sentence imposed by the Magistrates Court in relation to a violent incident that occurred on 19 March 2021. David Tavake Mailau had gone to the home of his former partner, where he found a vehicle belonging to a friend of the partner in the driveway. The appellant attacked the friend through an open car window, causing actual bodily harm. The former partner intervened and the appellant scratched her, leading to separate charges of assault occasioning actual bodily harm, common assault and damage to property. The appellant pleaded guilty and was sentenced to terms of imprisonment for each offence, to be served consecutively. The appellant appealed the sentence on the basis that the sentences should not have been consecutive and that full-time imprisonment was manifestly excessive.

The court considered whether the magistrate had erred by failing to apply the principle of totality, which requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is "just and appropriate" for all the offences. The court found that the three charges essentially arose from the same incident, and that the principle of totality required the sentences to be concurrent or at least partly concurrent. The court noted that the magistrate had imposed entirely cumulative sentences, which did not give appropriate weight to this consideration and amounted to an error in the sentencing process.

The court also considered whether full-time imprisonment was manifestly excessive and whether an Intensive Corrections Order should have been imposed. The court rejected the submission that the assault on the friend should be regarded with less seriousness than that assessed by the magistrate. The court noted that domestic violence is completely unacceptable and that the appellant's criminal conduct demanded a term of full-time imprisonment. The court rejected the submission that an ICO should have been imposed, noting that the magistrate had imposed a non-parole period of 40 per cent of the total sentence, which was well under the usual range of 50 per cent to 70 per cent.

The court allowed the appeal and set aside the sentences imposed by the Magistrates Court. The court re-sentenced the appellant to a total term of imprisonment of 15 months, with a non-parole period of 6 months. The court also made orders for the sentences to commence on 4 May 2022 and to incorporate the same five per cent discount as applied by the magistrate.

Orders