Australian Capital Territory

Court of Appeal / Full Court

  • O’Brien v R [2015] ACTCA 47 (15 May 2015) – Supreme Court of the Australian Capital Territory (Court of Appeal)
    Assault occasioning bodily harm’ – ‘Double jeopardy- sentencing’ – ‘Exposing a child’ – ‘Perverting the course of justice’ – ‘Physical violence and harm’ – ‘Risk factor- strangulation’ – ‘Sentence cumulation’ – ‘Sentencing’ – ‘Systems abuse’ – ‘Trafficking in cocaine

    Charge/s: Trafficking in cocaine, assault occasioning actual bodily harm (two counts), forcible confinement, perverting the course of justice. Grievous bodily harm.

    Appeal Type: Appeal against sentence.

    Facts: The sentence imposed at first instance related to three distinct instances of criminality: the drug offence, the domestic violence offences and the perverting the course of justice offence. The domestic violence offences involved the appellant severely beating his then domestic partner which caused horrific injuries. He also choked her in the presence of his young son, restrained her from leaving their premises and forced her to take prescription sedatives so as to prevent her from seeking medical treatment which would reveal the assaults. He detained her for 24 years. The perverting the course of justice offence involved the appellant encouraging his (by then former) partner not to attend court in relation to the domestic violence charges and encouraging her to produce false evidence about her psychological frame of mind. The aggregate sentence imposed was 12 years an 11 months’ imprisonment with a non-parole period of 8 years and 4 months.

    Issue/s: Whether the aggregate sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed. The appellant submitted that the domestic violence sentences should not have been made cumulative on the sentences for the drug offences. He also submitted that the sentencing judge did not apply the totality principle. The Court held that while the aggregate sentence could be considered by some to be somewhat harsh, it was not unreasonable and was appropriate having regard to all the circumstances. There was no overlap in the three instances of criminality, nor could it be said that the three incidents arose from a single episode or course of conduct, ‘such that the criminality involved in one of the incidents was subsumed or comprehended in the others’ (see at [29]). The sentencing judge did take accumulation, concurrency and totality into account and did impose a degree of concurrency.

  • Kien v R [2012] ACTCA 25 (24 May 2012) – Supreme Court of the Australian Capital Territory (Court of Appeal)
    Choking so as to render unconscious’ – ‘Exposing a child’ – ‘Intentionally inflicting actual bodily harm’ – ‘Physical violence and harm’ – ‘Provocation’ – ‘Risk factor- strangulation’ – ‘Sentencing

    Charge/s: Intentionally inflicting actual bodily harm, choking so as to render unconscious.

    Appeal Type: Appeal against sentence.

    Facts: The appellant’s marriage with his wife ended and she obtained a domestic violence protection order against him (though this was not in place at the time of the offence). The appellant went to the family home and an argument ensued, which developed into a physical fight. The appellant then took a chair from his wife (which she was threatening to throw at him) and struck her with it so forcefully that it broke into pieces. He then choked her until she became unconscious. He then wrapped a towel around her neck and used both hands to pull the material down toward the floor. A domestic violence protection order was previously in place in favour of the victim. He was subject to a good behaviour order at the time of the offences imposed for a prior breach of the protection order. He was sentenced to a total of four years and seven months’ imprisonment with a non-parole period of three years and one month.

    Issue/s:

    1. Whether the sentencing judge erred in finding that the offences were unprovoked.
    2. Whether the sentence was manifestly excessive.

    Decision and Reasoning: The appeal was dismissed.

    1. The appellant submitted that the fact the offences were not unprovoked should have mitigated the severity of the sentence. This argument was rejected — the actions of the victim were all in response to the appellant coming to the matrimonial home where he was not welcome. He was asked to leave but did not do so. His response to his wife’s actions were so disproportionate that they could not have been seen as provocative.
    2. Counsel for the appellant submitted that two comparable cases showed the sentence was manifestly excessive. This argument was rejected, with the Court holding that the offences were serious and resulted in severe facial injuries committed in a context where the appellant was not welcome in the house. While they were heavy sentences, they were proportionate to the criminality involved.