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Rickards v Sundram

Rickards v Sundram

Case [2018] TASSC 29 28 June 2018

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[2018] TASSC 29

COURT: SUPREME COURT OF TASMANIA

CITATION: Rickards v Sundram [2018] TASSC 29

PARTIES:  RICKARDS, Damien John
  v
  SUNDRAM, Lakshmi

FILE NO:  LCA 200/2018
DELIVERED ON:  28 June 2018
DELIVERED AT:  Hobart
HEARING DATE:  25 June 2018
JUDGMENT OF:  Pearce J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Sentence manifestly excessive or inadequate – Common assault and two breaches of family violence order – Sentence of imprisonment for 21 days wholly suspended not manifestly excessive.

Family Violence Act 2004 (Tas), s 35(1).
Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  P Monk
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Legal Aid Commission of Tasmania
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 29
Number of paragraphs: 14

Serial No 29/2018
File No LCA 200/2018

DAMIEN JOHN RICKARDS v LAKSHMI SUNDRAM

REASONS FOR JUDGMENT PEARCE J

28 June 2018

The applicant moves to review a sentence imposed on him by a magistrate, Mr C Webster, on 15 January 2018 for common assault and two counts of breaching a family violence order. The magistrate sentenced the applicant to imprisonment for 21 days wholly suspended for 18 months. The sole ground of the motion is that the sentence is manifestly excessive.
At the time of sentence the applicant was 42. He had been in a relationship with the complainant for nine years until they separated in December 2016. They had two children, both girls. Following the separation relations were not amicable. Conflict arose concerning the applicant's ability to have contact with the children. On 12 May 2017 he pleaded guilty to common assault and trespass committed against the complainant on 21 April 2017 and was fined $750. A police family violence order to protect the complainant was made and served on the applicant on 22 April 2017. The order included a condition that the applicant not threaten, harass, abuse or assault the complainant. There was a further condition that he not contact or go within 10 metres of her. The non-contact condition was subject to specified exceptions allowing discussions about contact with the children. At the sentencing hearing in January 2018 the learned magistrate was not told about the circumstances of the offences committed by the applicant on 21 April 2017, other than that they were family violence offences, the victim was the complainant and that the applicant had "scruffed" her.
The offences relevant to this motion occurred on Saturday, 13 January 2018. Mediation between the applicant and the complainant had been unsuccessful and the applicant remained frustrated with the complainant's attitude. The sentencing magistrate was told that the applicant had seen the children only three times in the previous two months. Through the applicant's mother, arrangements were made for him to have his daughters spend time with him during the weekend of 13 and 14 January. At about 11.30am on that Saturday the complainant drove the girls to the entrance of the applicant's…

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 Rickards v Sundram

Details

AGLC: Rickards v Sundram [2018] TASSC 29
Case: [2018] TASSC 29
Decision Date: 28 June 2018

CaseChat Overview and Summary

The court was asked to consider an appeal by the respondent in a criminal case where the appellant was found guilty of common assault and two breaches of a family violence order. The matter was heard in the Magistrates Court of Tasmania and the appeal was brought before the Supreme Court of Tasmania. The respondent argued that the sentence of imprisonment for 21 days wholly suspended was manifestly excessive.

The primary legal issue before the court was whether the sentence imposed by the Magistrates Court was manifestly excessive or inadequate. The respondent contended that the sentence was manifestly excessive due to the length of the imprisonment term, despite it being wholly suspended. The court needed to determine whether the sentence was clearly outside the range of sentences that could be considered reasonable in the circumstances.

The court examined the nature of the offences and the circumstances in which they were committed, as well as the principles of sentencing for common assault and breaches of a family violence order. The court noted that while the sentence was relatively lengthy, the fact that it was wholly suspended meant that the appellant would not actually serve any time in prison. The court held that the sentence was not manifestly excessive and dismissed the appeal. The court emphasised the importance of considering the totality of the circumstances, including the seriousness of the offences, the appellant’s criminal history, and the need for deterrence and rehabilitation.

The court made no further orders in relation to the appeal. The sentence imposed by the Magistrates Court stood as the final decision.

Orders