Mazeika v David - [2014] ACTSC 95

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mazeika v David
Medium Neutral Citation:	[2014] ACTSC 95
Hearing Date(s):	22 April 2014
DecisionDate:	22 April 2014
Before:	Penfold J
Category:	Appeal from Magistrates Court (criminal)
Catchwords:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal against sentences imposed in Magistrates Court for two offences of common assault on partner and two driving offences – offender had spent eight weeks in rehabilitation program before discharging himself after beginning six-month stage of program – whether failure to backdate sentence to take account of eight weeks spent in program was an error – participation in rehabilitation program may be taken into account in sentencing – participation in rehabilitation program not required to be recognised by backdating sentence – no entitlement for an offender to choose how sentence is served irrespective of commitment to or success of program – no error in failure to backdate for time in program – appeal dismissed. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Appeal against sentences imposed in Magistrates Court for two offences of common assault on partner and two driving offences – whether sentences for two assaults as part of same incident should have been concurrent – between the two assaults, offender had left the scene for several minutes – opportunity to control his anger before second assault – no error in not providing for full concurrency – appeal dismissed.
Cases cited:	House v The King (1936) 55 CLR 499
Decision:	1. The appeal is dismissed. 2. The Magistrates Court orders are confirmed.
Parties:	Aaron Peter Mazeika (Appellant) Joshua David (Respondent)
File Number(s):	SCA No. 76 of 2013

Introduction

Aaron Mazeika has appealed against sentences imposed in the Magistrates Court on 27 August 2013. The sentences were as follows:

(a)for two counts of common assault committed on 30 April 2012 – three months imprisonment each, to run concurrently as to two months and the second sentence to be accumulated on the first sentence as to one month, making a total sentence of four months imprisonment for the assaults;
(b)for one count of drive while disqualified as a repeat offender, committed on 20 October 2012 while Mr Mazeika was on bail for the assault offences – two months imprisonment; and
(c)for one count of drive while disqualified as a repeat offender committed on 9 November 2012 – three months imprisonment, accumulated on the first drive while disqualified sentence as to two months, giving a total of four months for the drive while disqualified offences.

The drive while disqualified offences were committed in breach of a good behaviour order which was made on 22 June 2012 in conjunction with the suspension of a sentence of three months imprisonment for one count of minor theft committed on 9 November 2011. The sentencing Magistrate re-sentenced Mr Mazeika for that minor theft, again to three months imprisonment which, as it turned out, was to be served in full‑time custody. That sentence was also challenged in…

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.

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Details

AGLC: Mazeika v David [2014] ACTSC 95
Case: [2014] ACTSC 95
Decision Date: 22 April 2014

CaseChat Overview and Summary

The appellant, Mazeika, appealed against the sentences imposed by the Magistrates Court for two offences of common assault on his partner and two driving offences. The appellant had participated in a rehabilitation program for eight weeks before the sentencing hearing but discharged himself at the beginning of the six-month stage of the program. The appeal centred on two issues: first, whether the failure to backdate the sentence to account for the eight weeks spent in the rehabilitation program constituted an error, and second, whether the sentences for the two assault offences, which were part of the same incident, should have been concurrent.

In addressing the first issue, the court held that while participation in a rehabilitation program could be considered in sentencing, it did not necessitate that the sentence be backdated. The court found that the appellant had no entitlement to choose how his sentence was served, regardless of his commitment to or success in the program. Therefore, the failure to backdate the sentence for the time spent in the rehabilitation program was not an error. Regarding the second issue, the court noted that the two assaults were not part of a single continuous act and that the appellant had an opportunity to control his anger between the assaults. Consequently, the court ruled that there was no error in not providing for full concurrency of the sentences.

The appeal was dismissed, and the Magistrates Court orders were confirmed. The court held that the sentences imposed were appropriate given the circumstances and the legal principles applied.

Orders

Orders of the court

1. The appeal is dismissed. 2. The Magistrates Court orders are confirmed.

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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