Nathan Andrew McClung v Jesse Ryan Vince - [2015] ACTSC 255

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 House v The King (1936) 55 CLR 499 Markarian v The Queen (2005) 228 CLR 357 Roncevic v Boxx [2015] ACTSC 53 Wong v The Queen (2001) 207 CLR 584
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…

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.

Keep reading for free

Create a free CaseChat account to read Nathan Andrew McClung v Jesse Ryan Vince and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2015] ACTSC 255
Decision Date: 27 August 2015

CaseChat Overview and Summary

Nathan Andrew McClung sought to appeal his sentence in the County Court of Victoria, contending that it was manifestly excessive and that the trial judge had failed to consider alternative sentencing options beyond full-time imprisonment. The sentence arose from McClung's convictions for assault and affray. The appeal was heard by a panel of three judges in the Court of Appeal. The primary issue for the court was whether the trial judge had erred in sentencing McClung to a term of imprisonment, and if so, whether this error was significant enough to warrant a reduction in the sentence or a new sentencing hearing. The court had to consider whether the trial judge had given appropriate weight to the relevant sentencing principles and options, including the potential for non-custodial sentences.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.