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:

1. 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.

1. 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).

1. 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 was the case here, to cancel the Good Behaviour Order.

1. I did so and, as entitled under the legislation, re-sentenced Mr Beniamini, requiring him then to serve four months and two weeks of imprisonment as periodic detention to end on 13 June 2014. See R v Beniamini [2014] ACTSC 40 (R v Beniamini (2014)) at [35]-[37].

1. In doing so, I also re-sentenced Mr Beniamini for the offences the subject of the appeal, the sentences for which I had set aside. For those offences, I made the following orders:

·On the charge of damage property, Adam Beniamini is sentenced to three months imprisonment to commence on 1 August 2012.

·On the charge of common assault, Adam Beniamini is sentenced to 12 months imprisonment to commence on 1 September 2012.

·The sentence is suspended on 1 February 2014 for two years.

·Adam Beniamini is required to sign an undertaking to comply with the offender’s Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years.

1. As was pointed out when considering another matter involving Mr Beniamini, namely Beniamini v Craig [2017] ACTSC 30, that sentence was clearly a sentence contrary to law since it is not possible to suspend a sentence which has expired. It was clear enough, and confirmed by the orders the subject of the appeal set out in Beniamini v Storman at [11], that the first two dates should have been 1 August 2013 and 1 September 2013.

1. In the Magistrates Court, the sentences had been specified to commence on 1 August 2013 and 1 September 2013 respectively. There was no basis for commencing those sentences earlier and it is clear that it was my intention that they should commence then. 

1. When the matter came before me to deal with the subsequent appeal in Beniamini v Craig, and also the breach of the Good Behaviour Order made in those orders that the offences the subject of the appeal constituted, the prosecutor representing the respondent, sought to have the sentence varied because they were contrary to law.  Counsel for Mr Beniamini did not oppose the amendment. 

1. I am satisfied that the sentences are contrary to law. As a consequence, they can be re-opened and Mr Beniamini re-sentenced by making a sentence related order that is in accordance with law. See s 61 of the Crimes (Sentencing) Act.

1. It is clear that the sentence itself has to be contrary to law, not merely that there is an error of law or fact: Achurch v The Queen [2014] HCA 10; 253 CLR 141 at 163; [36]. Simply to make a lawful order by mistaking the law is not within the section.

1. A sentence which includes a Good Behaviour Order made when a sentence of imprisonment is suspended but which order begins before the term of imprisonment is suspended is a sentence (or, as termed in the Crimes (Sentencing) Act a sentence related order) that is contrary to law and can be corrected under this provision: R v Pumpa [2015] ACTSC 177 at [32], [38]. Similarly, where the start of a non parole period pre-dates the start of the sentence, the sentence is contrary to law and can be corrected under this provision: R v TW (No 2) [2014] ACTCA 37 at [8], [18]. To make a non parole period for a sentence of imprisonment for a young offender is a

   
   

   sentence-related order that is contrary to law: R v JJ [2014] ACTCA 23; 242 A Crim R 363 at 373; [42].

1. In Achurch v The Queen, the Court set out at 161; [32] examples of sentences that were contrary to law as follows:

·      A penalty which exceeds the maximum penalty prescribed for the offence.

·      A penalty which it is beyond the power of the court to impose because some precondition for its imposition is not satisfied – eg the existence of an aggravating factor or the existence of prior convictions for the same kind of offence.

1. Although in this case, the error was caused by the clerical slip of inserting “2012” instead of “2013”, I consider that the result is a sentence that is contrary to law and can be re-opened to correct it.

1. The reference to 2012 in the orders was a clerical error. In appropriate cases, the Court can amend such sentences under r 6906 of the Court Procedures Rules 2006 (ACT) and, particularly with the consent of Mr Beniamini. See R v Gorman [2009] ACTSC 7. I consider that this is such a case and, if I am wrong about the sentences being contrary to law, I can amend them under this provision. In any event, I therefore consider that the sentences can be appropriately amended or remade.

1. Accordingly, I will vary the sentences imposed on 22 January 2014 so that, on the charge of damage property, the sentence of three months imprisonment commenced on 1 August 2013 and, on the charge of common assault, the sentence of 12 months imprisonment commences on 1 September 2013.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date:  23 February 2017