Wayne Jackson v Kasey Amanda Giltrap

[2009] ACTSC 36

WAYNE JACKSON v KASEY AMANDA GILTRAP
[2009] ACTSC 36 (7 April 2009)

APPEAL – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – sentencing error by Magistrate – Magistrate erred in imposing a sentence of imprisonment to be served in custody cumulative upon a sentence of imprisonment that was to be partially suspended – Magistrates Court Act 1930 (ACT).
CRIMINAL LAW – sentencing principles – terms of imprisonment – how multiple sentences are to be served.

CRIMINAL LAW – sentencing principles – terms of imprisonment – accumulation of sentences – requirement to set non-parole period where sentence suspended after 12 months or longer – interaction between partially suspended sentence and non-parole period – issues raised by setting non-parole period to expire before sentence is to be suspended – issues raised by setting non-parole period to expire at date sentence is to be suspended – Crimes (Sentencing) Act 2005 (ACT).

Crimes Act 1900 (ACT), s 24
Crimes (Sentencing) Act 2005 (ACT), s 65
Criminal Appeal Act 1912 (NSW), subs 6(3)
Magistrates Court Act 1930 (ACT), s 216

Baxter v R [2007] NSWCCA 237 (10 August 2007)
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Markarian v The Queen (2006) 228 CLR 357

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 31 of 2008

Judge:             Penfold J
Supreme Court of the ACT

Date:              7 April 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCA 31 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:WAYNE JACKSON

Appellant

AND:KASEY AMANDA GILTRAP

Respondent

ORDER

Judge:  Penfold J
Date:  7 April 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.

1. The appellant is to be re-sentenced.

Introduction

1. On 19 March 2008 Wayne Jackson was sentenced in the Magistrates Court in respect of:

(a)one offence of assault occasioning actual bodily harm under s 24 of the Crimes Act 1900 of the ACT (the serious assault); and

(b)an earlier offence of common assault for which the appellant had previously been sentenced to 6 months imprisonment, suspended subject to a good behaviour order; the good behaviour order was breached by the serious assault. 

1. He has appealed against aspects of the sentencing decision (see [12] below).

Background

Circumstances of the offences

The serious assault

1. On the evening of 5 January 2008, the complainant, the appellant’s former partner, had been drinking at a club in Dickson.  She was approached by the appellant, who seemed heavily intoxicated, and decided to leave the club.  The appellant followed her, yelling obscenities at her. 

1. The complainant decided to return to her home in Hackett, and began walking in that direction.  The appellant chased her, tackling her to the ground in the grassland behind the Dickson Swimming Pool.  He straddled her as she lay on the ground, banged her head on the ground using both his hands, and hit her…