SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Nathan Andrew McClung v Jesse Ryan Vince |
Citation: | [2015] ACTSC 255 |
Hearing Date(s): | 25 August 2015 and 27 August 2015 |
DecisionDate: | 27 August 2015 |
Before: | Robinson AJ |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Sentence – whether sentence manifestly excessive – failure to have regard to sentencing options other than full-time imprisonment – particular offences – common assault |
Legislation Cited: | Crimes Act 1900 (ACT) ss 26, 116(3) Crimes (Sentencing) Act 2005 (ACT) s 33 Magistrates Court Act 1930 (ACT) s 208, 214 |
Cases Cited: | Allred v The Queen [2015] ACTCA 21 Balthazar v The Queen [2012] ACTCA 26 |
Parties: | Nathan Andrew McClung (Appellant) Jesse Ryan Vince (Respondent) |
Representation: | Counsel Mr H Jorgensen (Appellant) Ms A Clarke (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 36 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Fryar Date of Decision: 27 March 2015 Case Title: Jesse Vince v Nathan McClung Court File Number(s): CC No 10898 and 11441 of 2014 |
ROBINSON AJ:
Background
By Notice of Appeal filed 24 April 2015, Nathan Andrew McClung appeals from a decision of Magistrate Fryar given on 27 March 2015.
Mr McClung, the appellant, pleaded guilty to a count of common assault (in contravention of s 26 of the Crimes Act 1900 (ACT) and also a count of damage to property (in contravention of s 116(3) of the Crimes Act1900 (ACT)). On the first count the appellant was sentenced to imprisonment of 12 months, suspended after eight months upon the signing of an undertaking to be of good behaviour for a period of 18 months from the date of release. On the second count, the appellant was sentenced to imprisonment for six months to be served concurrently.
The maximum sentence for common assault is two years imprisonment and the same sentence applies to the offence of damage to property.
There is a single ground of appeal, that is, that the sentences imposed were manifestly excessive in all of the circumstances. It was common ground what this required the Appellant to establish in order to be successful. See Markarian v The Queen (2005) 228 CLR 357 at [25] paraphrasing House v The King (1936) 55 CLR 499, 505, Wong v The Queen (2001) 207 CLR 584 at[58] and in this jurisdiction Balthazar v The Queen [2012] ACTCA 26 and Allred v The Queen [2015] ACTCA 21. Counsel for the appellant set out to demonstrate that the sentences imposed were outside the range of sentences available in the circumstances and therefore establish an implicit error in the decision of the sentencing Magistrate.
Appeal jurisdiction
The appellant appeals from a sentence imposed upon him in the Magistrates Court. An appeal against sentence…
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- Case
- [2015] ACTSC 255
- Decision Date
CaseChat Overview and Summary
The court reviewed the trial judge's sentencing remarks and the nature of the offences, which involved physical assaults and public disorder. It found that the trial judge had appropriately considered the gravity of the offences and the need for general deterrence. The court held that the sentence was not manifestly excessive and that the trial judge had adequately weighed the sentencing options, including imprisonment. The panel concluded that any perceived errors in the sentencing process did not reach the threshold of affecting the overall fairness or appropriateness of the sentence. Therefore, the appeal was dismissed, and the original sentence was upheld.
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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