Auld v The Queen

[2013] ACTCA 21

MATTHEW AULD v THE QUEEN
[2013] ACTCA 21 (10 May 2013)

APPEAL AND NEW TRIAL ­­– appeal against sentence – whether sentence manifestly excessive – sentence within range of sentencing discretion – appeal dismissed
APPEAL AND NEW TRIAL ­­– appeal against apportionment of a sentence into a non-parole period and a parole period – shorter non-parole period not warranted or justified – appeal dismissed

Criminal Code 2002 (ACT)
Crimes (Sentencing) Act 2005 (ACT)
Crimes Act 1900 (ACT)

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No.  ACTCA 51 – 2012
No.  SCC 84 of 2012

Judge:             Burns and Gilmour JJ and Nield AJ
Court of Appeal of the Australian Capital Territory

Date:              10 May 2013

IN THE SUPREME COURT OF THE     )
  )          No.  ACTCA 51 – 2012
AUSTRALIAN CAPITAL TERRITORY           )          No.  SCC 84 of 2012
  )
COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MATTHEW AULD

Appellant

AND:THE QUEEN

Respondent

ORDER

Judge:  Burns and Gilmour JJ and Nield AJ
Date:  10 May 2013
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed. 

1. The appellant is Mr Matthew Kenneth James Auld. He has appealed from a sentence of imprisonment imposed upon him on 12 October 2012 by Penfold J for the offence of aggravated robbery, contrary to s 310(b) of the Criminal Code 2002 (ACT), committed by him on 26 March 2012 against the complainant, Ms KG. The prescribed penalty for the offence of aggravated robbery is imprisonment for a maximum of 25 years, or a fine of a maximum of 2500 penalty units, or both.

1. In determining an appropriate sentence to impose upon him for the offence of aggravated robbery, her Honour was asked by the appellant to take into account, pursuant to s 57 of the Crimes (Sentencing) Act 2005 (ACT), three offences of common assault, contrary to s 26 of the Crimes Act 1900 (ACT), committed by him on 26 March 2012 against Mr PP, Mr AD and Ms LO’R. The prescribed penalty for the offence of common assault is imprisonment for a maximum of two years. We note that her Honour’s taking these additional offences into account in determining an appropriate sentence for the offence of aggravated robbery will result in the sentence for the offence of aggravated robbery being more severe than it would have been had it been the only offence.

1. As the appellant’s commission of the offence of aggravated robbery amounted to a breach of an undertaking, pursuant to s 13(2) of the Crimes (Sentencing) Act 2005 (ACT), into which he had entered on 27 May 2011 to be of good behaviour for 18 months, that is, to 26 November 2012, following his conviction for an offence of burglary committed on 23 April 2011, her Honour decided to cancel the Good Behaviour Order made on 27 May 2011 and to re-sentence the appellant for the burglary offence.

1. The circumstances which brought…