The lawyer for a man sentenced to jail for offending against public housing officers while being evicted from a Canberra block has argued the punishment did not consider other factors affecting his client, including the "sins of his father" and stolen generations' trauma.
Luke Arthur Marsh fronted the ACT Supreme Court on Monday for an appeal hearing after the magistrates court in mid-March sentenced him to a six-month jail term, backdated to January, and suspended after three.
The appeal was also based on the argument that a court must not sentence a defendant to jail if the court heard and decided the case without their presence.
Marsh, who denied the charges, was convicted of the charges when he did not appear for the hearing in September 2020 after calling the court to say he was ill.
On Monday, Aboriginal Legal Services' Johnathon Cooper for the appellant said Marsh witnessing his father's alcohol abuse and violence and the stolen generations trauma received from his mother and grandmother "need to be reflected in his sentence".
"This evidence is really powerful. The case is about dispossession, it's about eviction," Mr Cooper said.
"The authority evicting him was not providing for his cultural needs."
Mr Cooper said these two sets of evidence reduced his client's moral culpability or increased the need for his protection.
In relation to the absence in the September hearing, Mr Cooper said the court did not test whether Marsh positively waivered to his appearance.
Mr Cooper cited other cases involving defendants "absconding" from their trials and said Marsh notified the court he was ill and could not attend.
Katie McCann for the respondent, the ACT DPP, said sentencing magistrate Peter Morrison did give some reduced moral culpability from the evidence.
Ms McCann said, however, the defence solicitor at the time did not raise the personal trauma impacting Marsh.
She said numerous other factors were as important as a defendant's presence. These included the administration of justice, continuous adjournments of proceedings and the effects on witnesses and legal parties.
Ms McCann said Mr Cooper's argument about the waiver was incorrect and that the sentencing magistrate and the court exhausted numerous avenues to reach Marsh on the day of the hearing.
"The history of proceedings has been a tortured process since 2018," Ms McCann said.
"The appellant had been on notice since March 2020 that that the hearing would proceed on September 18.
"Looking at all those factors, his honour's discretion was entirely justified."
The appeal was before Justice John Burns, who has reserved his decision.
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