Beniamini v Storman (No 2) - [2017] ACTSC 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Beniamini v Storman (No 2)
Citation:	[2017] ACTSC 31
Hearing Date:	9 March 2016
DecisionDate:	23 February 2017
Before:	Refshauge J
Decision:	The sentences imposed on 22 January 2014 be varied, so that: a) For the charge of damage property, the sentence of three months imprisonment commenced on 1 August 2013; and b) For the charge of common assault, the sentence of 12 months imprisonment commenced on 1 September 2013.
Catchwords:	PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Sentences imposed contrary to law – not possible to suspend a sentence which has expired – reopening of proceedings to correct penalty errors – clerical error – slip rule – sentences amended and remade – s 61 of the Crimes (Sentencing) Act 2005 (ACT) – r 6906 of the Court Procedures Rules 2006 (ACT)
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT), ss 12, 61 Crimes (Sentence Administration) Act 2005 (ACT), s 110 Court Procedures Rules 2006 (ACT), r 6906
Cases Cited:	Achurch v The Queen [2014] HCA 10; 253 CLR 141 Beniamini v Craig [2017] ACTSC 30 Beniamini v Storman [2014] ACTSC 2 R v Beniamini (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 9 December 2010) R v Beniamini [2014] ACTSC 40 R v Gorman [2009] ACTSC 7 R v JJ [2014] ACTCA 23; 242 A Crim R 363 R v Pumpa [2015] ACTSC 177 R v TW (No 2) [2014] ACTCA 37
Parties:	Adam Beniamini (Appellant) Felicity Storman (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Mr R Reardon (Respondent)
Solicitors Legal Aid (ACT) (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 65 of 2013
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 28 August 2013 Case Title: Chapman v Beniamini Court File Number: CC 10873 of 2011

REFSHAUGE J:

On 22 January 2014, I upheld an appeal from the ACT Magistrates Court instituted by Adam Beniamini who had been convicted of offences of intentionally causing damage to property and assault. See Beniamini v Storman [2014] ACTSC 2.

The upholding of the appeal required me to re-sentence Mr Beniamini. At the same time, I had to sentence him for the breach of a Good Behaviour Order. I had made the Good Behaviour Order when I had sentenced Mr Beniamini for committing an assault occasioning actual bodily harm. I had sentenced him to nine months imprisonment but suspended that sentence and, as required by s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good Behaviour Order for two years: R v Beniamini (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 9 December 2010).

The convictions for the offences the subject of the appeal constituted a breach of the Good Behaviour Order. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I was required, once satisfied that Mr Beniamini had breached a Good Behaviour Order made when a sentence of imprisonment is suspended, as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Beniamini v Storman (No 2)

Details

AGLC: Beniamini v Storman (No 2) [2017] ACTSC 31
Case: [2017] ACTSC 31
Decision Date: 23 February 2017

CaseChat Overview and Summary

The case of Beniamini v Storman (No 2) involved the defendant appealing against the sentences imposed by the Magistrates Court of the Australian Capital Territory. The defendant was sentenced to three months imprisonment for damaging property and 12 months imprisonment for common assault, with the sentences to run concurrently. The sentences were backdated to commence on dates prior to their imposition, which was argued to be unlawful. The appeal was based on the contention that the sentences were incorrectly backdated, making it impossible to suspend a sentence that had already expired. The court was required to determine whether the sentences could be corrected through reopening of the proceedings under the slip rule and whether the sentences could be remade under the statutory provisions of the Crimes (Sentencing) Act 2005 (ACT) and the Court Procedures Rules 2006 (ACT).

The legal issues that arose involved the interpretation and application of the slip rule and the relevant statutory provisions. The court needed to consider whether the sentences imposed were contrary to law and whether the errors could be corrected by reopening the proceedings and remaking the sentences. The court also had to determine if the slip rule could be applied to correct clerical errors in the sentencing process. The court's reasoning focused on the nature of the errors and the applicability of the statutory provisions and rules to the specific circumstances of this case.

The court concluded that the sentences were indeed imposed contrary to law due to the clerical errors in backdating. It held that the sentences could be corrected by reopening the proceedings and remaking them under the statutory provisions and the relevant rules. The court found that the slip rule could be applied to correct the clerical errors. The sentences were varied to ensure that they complied with the law and reflected the intended commencement dates. The court issued orders varying the sentences so that the imprisonment terms for the charges of damaging property and common assault would commence on the correct dates, 1 August 2013 and 1 September 2013, respectively. These orders rectified the errors in the original sentencing and ensured that the sentences were lawful and correctly imposed.

Orders

Orders of the court

The sentences imposed on 22 January 2014 be varied, so that:

a) For the charge of damage property, the sentence of three months imprisonment commenced on 1 August 2013; and

b) For the charge of common assault, the sentence of 12 months imprisonment commenced on 1 September 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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