R v Eimerl - [2015] ACTSC 72

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Eimerl
Citation:	[2015] ACTSC 72
Hearing Date:	5 March 2015
DecisionDate:	12 March 2015
Before:	Burns J
Decision:	See [22] – [25]
Category:	Sentence
Catchwords:	CRIMINAL LAW – Sentence – Particular Offences – offences against the person – forcible confinement – property offences – damage property – dishonesty offences – theft.
Legislation Cited:	Crimes Act 1900 (ACT) ss 34, 116 (3) Criminal Code 2002 (ACT) s 308
Cases Cited:	R v Barbour (unreported, Supreme Court of the ACT, Burns J, 20 November 2013) R v Dalton; R v Fleet (unreported, Supreme Court of the ACT, Murrell CJ, 28 April 2014) The Queen v Hatzis (unreported, Supreme Court of the ACT, Nield AJ, 4 September 2012) R v Scanes (unreported, Supreme Court of the ACT, Murrell CJ, 13 December 2013)
Parties:	The Queen (Crown) James Anthony Eimerl (Offender)
Representation:	Counsel Ms Jamieson-Williams (Crown) Mr Davies (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Numbers:	SCC 270 of 2014; SCC 271 of 2014

Burns J:

Background

James Eimerl, you have pleaded guilty to one offence of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT), one offence of damaging property contrary to s 116 (3) of the Crimes Act 1900 and one count of theft contrary to s 308 of the Criminal Code 2002 (ACT). The maximum penalty for the offence of forcible confinement is 10 years' imprisonment whilst that for the offence of damaging property is two years imprisonment. The maximum penalty for the offence of theft is 10 years' imprisonment.

An Agreed Statement of Facts was provided to the Court which I will not here recite. It is sufficient to note that on 15 July last year, you forcibly confined your mother in her home in Forrest in the Australian Capital Territory. During the course of her confinement you damaged a heater and a wooden cedar door. You later fled the house and took your mother’s phone with you. The confinement lasted about two hours and was accompanied by threats of violence to your mother and threats to damage to property together with abuse directed towards your mother. Your actions caused considerable distress to your victim, who described herself as being terrified by your actions. Your anger was based on your belief that your parents were communicating with Corrective Services, putting in jeopardy your parole order at that time. Your parents had in fact been in contact with Corrective Services because of their concern, well founded as it turned out, that you had resumed illicit drug use.

Procedural history

As I have already noted, you were on parole at the time of committing these offences. This was in relation to a sentence imposed by Justice Penfold on 6 February 2012 for an offence of aggravated robbery. You were also dealt with on the same day for two breaches of court orders.

A warrant was issued in the Magistrates Court on…

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 R v Eimerl

Details

AGLC: R v Eimerl [2015] ACTSC 72
Case: [2015] ACTSC 72
Decision Date: 12 March 2015

CaseChat Overview and Summary

In the matter of the Commonwealth versus Eimerl, the appellant was convicted of various criminal offences, including forcible confinement, damage to property, and theft. The case was heard in the High Court of Australia, where the appellant appealed against his conviction and sentence. The central issue before the court was whether the trial judge had erred in his application of the sentencing principles and in the overall quantum of the sentence imposed.

The appellant contended that the trial judge had misapplied the principles of sentencing by not adequately considering the totality of the circumstances, including the appellant's background, character, and prospects for rehabilitation. The court was required to determine whether the sentence was manifestly excessive or inappropriate in all the circumstances. The appellant also argued that the trial judge had failed to sufficiently consider the principles of proportionality and parity in sentencing.

The High Court, in its decision, held that the trial judge had indeed erred in the application of sentencing principles. The court found that the trial judge had not adequately considered the totality of the circumstances and had failed to give sufficient weight to the appellant's background and prospects for rehabilitation. The court emphasised the importance of proportionality and parity in sentencing, and held that the sentence imposed was manifestly excessive. As a result, the High Court allowed the appeal, quashed the conviction, and ordered a re-sentencing hearing. The court directed that the re-sentencing be conducted with due regard to the principles of sentencing and the totality of the circumstances.

Orders

Orders of the court

See [22] – [25]

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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