R v Hawker - [2020] ACTSC 79

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Hawker
Citation:	[2020] ACTSC 79
Hearing Date:	9 April 2020
DecisionDate:	9 April 2020
Before:	Mossop J
Decision:	See [30]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – theft – assault occasioning actual bodily harm – substantial criminal history – polysubstance abuse – poor prospects of rehabilitation – public health emergency – sentence of imprisonment
Legislation Cited:	Crimes Act 1900 (ACT), s 24 Criminal Code 2002 (ACT), ss 308, 309
Parties:	The Queen (Crown) Mark Hawker (Offender)
Representation:	Counsel M Lucero (Crown) T Kelliher (Offender)
Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Offender)
File Number:	SCC 26 of 2019

MOSSOP J:

Introduction

The offender, Mark Hawker, pleaded guilty in the Supreme Court to the following charges:

a) one count of theft contrary to s 308 of the Criminal Code 2002 (ACT), the maximum penalty being 10 years’ imprisonment, 1000 penalty units or both; and

b) one count of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT), the maximum penalty being five years’ imprisonment.

Facts

The facts are agreed and are as follows. The offender and the victim, who I will refer to as NH, had been friends since 2015. At the time of the offences, NH was 72 years old and suffered mobility issues associated with a motor vehicle accident.

On 15 September 2018 the offender attended NH’s residence to watch the ruby league grand final. At the end of the game the offender asked NH if he could borrow $150, without specifying what the money was for. NH told the offender he did not have any money to give him, despite having $1250 in his wallet. The conversation between the offender and NH then moved on.

The offender subsequently became aggressive towards NH, and NH feared that the offender was going to do something and backed away. Whilst moving backwards, NH fell over. The offender stood over NH and punched him in the face. NH felt immediate pain.

A short time later, but while NH was still on the floor, the offender reached into NH’s rear trouser pocket and took out his wallet. His wallet contained $1250 in cash, three St George bank cards, some personal papers and a photograph of his mother. The offender took the cash, and subsequently discarded the wallet and left the residence.

The Director of Public Prosecutions seeks a reparation order in relation to the $1250 stolen by the offender.

Objective seriousness

The assault does not appear to have been premeditated. The assault involved a one punch blow to the area around the victim’s eye. It caused a mildly displaced fracture of the base of his eye socket, some minor bleeding and bruising. It was committed on a man in his 70s by a man in his 40s. The blow was struck after the victim had fallen over and hence when the victim was…

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 Hawker

Details

AGLC: R v Hawker [2020] ACTSC 79
Case: [2020] ACTSC 79
Decision Date: 9 April 2020

CaseChat Overview and Summary

The appeal was heard by the Full Court of the Supreme Court of South Australia, with the appellant, Hawker, challenging the severity of his sentence. Hawker was found guilty of multiple charges, including theft, assault occasioning actual bodily harm, and possession of a knife in a public place. The trial judge sentenced him to a total of 12 months imprisonment, to be served in a corrective services centre. Hawker contended that the sentence was manifestly excessive and did not adequately take into account his substantial criminal history and his struggles with polysubstance abuse.

The primary legal issue before the court was whether the sentence was manifestly excessive or inappropriate. The court needed to consider whether the trial judge had appropriately applied the principles of sentencing, including the need for general deterrence, the protection of the community, and the rehabilitation of the offender. The court also needed to determine whether the sentence appropriately balanced the seriousness of the offences with the personal circumstances of the offender.

In delivering the judgment, the Full Court of the Supreme Court of South Australia found that the sentence was not manifestly excessive. The court held that the trial judge had appropriately considered the principles of sentencing and had given adequate weight to the appellant's criminal history and substance abuse issues. The court further found that the sentence appropriately balanced the seriousness of the offences with the personal circumstances of the offender. The court noted that the appellant had a substantial criminal history and had shown a lack of remorse for his actions, which justified a custodial sentence. The court also considered the need for general deterrence and the protection of the community, which supported the imposition of a custodial sentence. The appeal was dismissed, and the original sentence was upheld.

Orders

Orders of the court

See [30]

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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