SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v EN |
Citation: | [2020] ACTSC 302 |
Hearing Date: | 27 June 2019 |
DecisionDate: | 12 November 2020 |
Before: | Loukas-Karlsson J |
Decision: | See [80] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – contravene family violence order – attempt to pervert the course of justice – stalking – deferred sentence – rehabilitation – mental health – post traumatic stress disorder |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 13(2A), 33 Crimes Act 1900 (ACT) ss 27 and 35, Ch 8 Family Violence Act 2016 (ACT) s 43 |
Cases Cited: | DPP (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 |
Parties: | The Queen (Crown) EN (Offender) |
Representation: | Counsel M Dyason (Crown) A Doig (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Darryl Perkins Solicitors (Offender) | |
File Numbers: | SCC 65 of 2018, SCC 294 of 2018 and SCC 74 of 2019 |
LOUKAS-KARLSSON J:
Introduction
On 19 November 2018, EN (the offender) pleaded guilty to one offence of contravening a family violence order contrary to s 43(2) of the Family Violence Act 2016 (ACT) (Family Violence Act) (CC18/7682) (Count 1). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.
On 25 October 2018, the offender pleaded guilty to one offence of attempting to pervert the course of justice contrary to s 713(1) of the Criminal Code 2002 (ACT), by way of s 44 (CC18/3534) (Count 2). The maximum penalty for this offence is 700 penalty units, 7 years imprisonment, or both.
On 2 April 2019, the offender pleaded guilty to the following further offences:
(a)One offence of stalking, contrary to s 35 of the Crimes Act 1900 (ACT) (Crimes Act) (CC19/2638) (Count 3). The maximum penalty for this offence is imprisonment for five years if the offence involved a contravention of an order made by a court, or two years if no such contravention was involved.
(b)One further offence of contravening a family violence order, contrary to s 43(2) of the Family Violence Act (CC19/2639) (Count 4). The maximum penalty for this offence is 500 penalty units, imprisonment for 5 years, or both.
Counts 1,3 and 4 are rolled up charges representing a…
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CaseChat Overview and Summary
The primary legal issues before the court involved the appropriate sentencing approach for the appellant, taking into account his mental health and the likelihood of rehabilitation. The court had to weigh the severity of the crimes committed against the potential for rehabilitation, particularly in light of the appellant's PTSD diagnosis. Additionally, the court examined whether the original sentencing was appropriate given the nature of the offences and the existence of a family violence order. The appeal also considered whether the sentence imposed was commensurate with the offences, especially in light of the appellant's mental health and the possibility of rehabilitation.
The Court of Appeal examined the circumstances of the offences and the appellant's mental health, particularly his PTSD diagnosis. The court highlighted that the appellant had a history of offending behaviour, particularly in relation to family violence. Despite acknowledging the appellant's mental health issues, the court found that the original sentence did not adequately reflect the seriousness of the offences, nor did it sufficiently address the need to protect the community. The court concluded that the sentence was not severe enough to adequately address the risk posed by the appellant. The appeal was ultimately dismissed, and the original sentence was affirmed, with the court emphasising the need for appropriate sentencing that balances the appellant's mental health with the need to protect the community.
The court affirmed the original sentence, rejecting the appeal. The court's decision emphasised the importance of considering both the appellant's mental health and the need to protect the community when determining an appropriate sentence. The court found that the original sentence was insufficient in addressing the severity of the offences and the risk posed by the appellant, thus affirming the original sentence imposed by the County Court.
Orders
Orders of the court
See [80]
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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