Adamczewski v Leahy
[2013] ACTSC 276
•16 December 2013
ACT SUPREME COURT
Case Title: | Adamczewski v Leahy | ||
Medium Neutral Citation: | [2013] ACTSC 276 | ||
Hearing Date(s): | 16 December 2013 | ||
DecisionDate: | 16 December 2013 | ||
Before: | Murrell CJ | ||
Decision: | Appeal allowed. Offender re-sentenced to three months’ periodic detention. | ||
Catchwords: | CRIMINAL LAW – Appeal and new trial – Appeal against sentence – suspended sentence activated upon breach of good behaviour order – whether sentence manifestly excessive – whether failure to consider re-sentencing option – offender re-sentenced | ||
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) s 12 | ||
Cases Cited: | Saga v Reid [2010] ACTSC 59 | ||
Category: | PRINCIPAL JUDGMENT | ||
Decision Under Appeal: | On Appeal from the Magistrates Court of the Australian Capital Territory | ||
Parties: | Mark Marin Adamzcewski (Appellant) Peter Anthony Leahy (Respondent) | ||
Representation: | Counsel Mr J Lawton (Appellant) Mr M Fernandez (Respondent) | ||
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |||
File Number(s): | SCA 73/2013 | ||
JUDGMENT
The appellant appeals against the sentence imposed by the Magistrates Court following cancellation of a good behaviour order associated with a suspended sentence order. The grounds of the appeal are two-fold. First, that the sentence imposed was manifestly excessive and, second, that the learned Magistrate failed to consider the re‑sentencing option available under s 110(2)(b) of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), when exercising jurisdiction under that provision.
The brief history of the matter is that, on 21 October 2009, the appellant committed the offence of driving with the special range prescribed concentration of alcohol. It was a serious offence. He had an alcohol reading of 0.202 as against the applicable limit of 0.020 grams of alcohol per 100 millilitres of blood.
On 29 January 2010, the appellant was sentenced to a five-month sentence of imprisonment, which was suspended under s 12 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) upon him entering into a 24-month good behaviour order with community service work. The appellant failed to undertake community service work. On 1 September 2010, he was re-sentenced to a five-month s 12 suspended sentence and placed on a good behaviour order for 24 months from that date.
Towards the end of the good behaviour period on 23 July 2012, he committed further offences that constituted a breach of the good behaviour order, being the offences of driving while disqualified and driving with a prescribed drug in his system. He was sentenced on 30 August 2013 in respect of those matters and received a fine of $1,500 in relation to the drive while disqualified matter, and a fine of $400 in relation to the prescribed drug matter. Each of the fines was a significant fine in the context of the maximum available fine. However, in relation to the drive while disqualified matter, a sentence of imprisonment was available and no sentence was imposed. The Court also found that the good behaviour order imposed on 1 September 2010 had been breached. The Court cancelled the good behaviour order and imposed the suspended sentence of five months, directing that it be served by way of full‑time imprisonment.
Initially, the argument was that her Honour took an incorrect approach to s 110(2) of the Sentence Administration Act, in that she should have fully investigated the re‑sentencing options rather than simply imposing a suspended sentence. However, when one looks at page 10 of the transcript, it appears that her Honour was well aware of the re‑sentencing options, and she determined to take the approach which was approved by Refshauge J in Saga v Reid [2010] ACTSC 59 at [99]–[101]. In other words, although there is no default requirement under s 110 of the Sentence Administration Act to activate a suspended sentence, there are important policy reasons for doing so. I agree with the observations of Refshauge J in that regard and the approach taken by the Magistrate.
The error that was alleged ultimately was that the Court, having determined to impose the suspended sentence, failed to consider the manner in which that sentence should be served and, in particular, failed to consider whether it was appropriate that the appellant serve the sentence by way of periodic detention.
The Magistrate should have considered the manner in which the sentence of imprisonment should be served. A factor that was relevant to the assessment of whether periodic detention was the appropriate sentencing option includes that the breaches occurred right at the end of the two-year good behaviour order, which had been extended by virtue of the earlier breach and re‑sentencing. Another matter was the severity of the breaches.
No doubt, her Honour was less than impressed by the nature of the offences that constituted the breach. However, in respect of those matters, she imposed fines. She did not impose a sentence of imprisonment in relation to the drive while disqualified matter. It seems to me to be inappropriate to impose fines for breaches which are the immediate matters and then to impose a significant sentence of imprisonment for the background matter.
In my view, the appropriate sentence was a five-month sentence, but to be served by way of periodic detention. However, given that the appellant served two months by way of full-time imprisonment before being released to parole, in the unusual circumstances of this case, I should take into account the two months served. In lieu of the original sentence, I will impose a three-month periodic detention order.
I am satisfied that the offender has breached the good behaviour obligations. I confirm the cancellation of the good behaviour order. I set aside the imposition of the suspended sentence and re‑sentence the offender by imposing three months' imprisonment to be served by periodic detention to start on 20 December and finish on 19 March 2014. I confirm the five-year disqualification period from 29 January 2010 to 29 January 2015.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Chief Justice Murrell.
Associate:
Date: 22 April 2014
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