Blanch v Harms
[2014] ACTSC 295
•23 September 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Blanch v Harms & Anor |
Citation: | [2014] ACTSC 295 |
Hearing Date(s): | 23 September 2014 |
DecisionDate: | 23 September 2014 |
Before: | Murrell CJ |
Decision: | On minor theft resentenced to imprisonment from 25 August 2014 to 8 November 2014. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal against sentence – whether offence in worst case category – whether Magistrate erred by failing to give reasons – whether sentence manifestly excessive |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 35 Criminal Code 2002 (ACT) s 321 |
Cases Cited: | House v The King (1936) 55 CLR 499 |
Parties: | Rebecca Margaret Blanch (Appellant) Garreth Harms and Angus Fergusson (Respondents) |
Representation: | Counsel Ms V Conliffe (Appellant) Ms E Beljic (Respondents) |
| Solicitors Paul Edmonds & Associates (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number(s): | SCA 35 of 2014 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Morrison Date of Decision: 23 April 2014 Court File Number(s): CC 8108; 9743 of 2013 |
MURRELL CJ:
The Appeal
The appellant appeals against the penalty imposed by the Magistrates Court in relation to one matter for which the appellant was sentenced on 23 April 2014.
The Magistrate sentenced the appellant for four offences.
(1)For an offence of minor theft on 6 August 2013 contrary to s 321 of the Criminal Code 2002 (ACT), the Magistrate imposed a four month sentence to be suspended after three months upon the appellant entering into a good behaviour order for a period of 18 months. The maximum available penalty was six months’ imprisonment.
(2)For an offence of drive while disqualified on 14 October 2013, the Magistrate sentenced the appellant to two months’ imprisonment cumulative on the first sentence and suspended the whole of that sentence for a period of 18 months. The maximum available penalty was six months’ imprisonment.
(3)For an offence of drive while disqualified that occurred on 26 October 2012, the Magistrate imposed a 21-month good behaviour order and a fine of $1,000.
(4)Finally, for an offence of entering an intersection displaying a red light on 26 October 2012 (at the same time as the earlier offence of drive while disqualified), the Magistrate imposed a fine of $100.
There is no appeal against the sentences imposed for offences 3 and 4, the offences that occurred on 26 October 2012. Initially there was an appeal against the sentence imposed for the offence drive while disqualified on 14 October 2013. However, the appeal was not pressed. The appeal was confined to the sentence imposed for the offence of minor theft committed on 6 August 2013.
Grounds of appeal
There are three grounds of appeal. The first two grounds allege specific error and the third ground alleges inferred error. The grounds are:
(a)The Magistrate treated the subject offence as in the worst category of cases;
(b)The Magistrate failed to give reasons for considering the offence to be in the worst category of cases; and
(c)The sentence imposed for the offence was manifestly excessive.
Nature of appeal
It has been accepted that an appeal to this Court is an appeal of the type discussed in House v The King (1936) 55 CLR 499. In order to succeed, an appellant must show a specific error, or alternatively, that an error arises by necessary inference because the sentence is manifestly excessive or manifestly inadequate (it falls outside the available range).
Consideration
The circumstances in which the minor theft occurred place the offence in the mid-range of objective seriousness. That is the finding that the Magistrate made. Both parties agreed that this approach was correct. The value of the property in question was about $1,200 (as against the maximum value for the offence of $2,000). The property was stolen from a store. There were no particular mitigating features. The appellant was abusive to the security guard by whom she was apprehended.
The appellant has a poor criminal history, particularly in relation to matters of dishonesty. There are eight matters of minor theft or of a similar nature recorded against her. Six of those matters occurred in the period 2002 to 2008, and there was a further offence in 2012. There are eight other dishonesty matters recorded against her. She has additional matters on her criminal history, including matters of driving when her licence was suspended or driving while disqualified.
The appellant’s personal circumstances arouse some sympathy. The death of her daughter in 2011 caused significant emotional problems for the appellant. She has endeavoured to come to terms with those problems. She has some insight into her difficulties. She has had a substance abuse problem. She has a degree of commitment to rehabilitation but, to date, she has not succeeded in rehabilitating herself. In the pre-sentence report she is described as at medium risk of reoffending.
In summary, the offence is of mid range objective seriousness, the appellant has a very poor criminal history, but there are some significant subjective considerations. In those circumstances, the matter cannot reasonably be placed in the worst category of cases. But that is what the Magistrate did. He allowed a one third discount under s 35 for the plea of guilty. Inferentially, the starting point for the sentence was the maximum penalty of six months’ imprisonment.
The Magistrate said that there was a strong need for specific deterrence, and that specific deterrence was an important, if not the paramount, sentencing purpose. That view was certainly open. The Magistrate noted that a two‑month sentence of imprisonment imposed in 2008 in relation to a similar matter was inadequate to deter the appellant, and suspended sentences had not had the desired effect. However, the prominence of that purpose could not elevate the offence itself into the worst category of cases.
Having identified this specific error in the Magistrate’s approach, the question arises as to whether this Court ought to resentence or should exercise its discretion and decline to intervene. The Court may decline to intervene for a number of reasons, but in this case, the Crown has submitted that the Court ought to decline to intervene because any intervention would involve tinkering with the sentence.
Intervention is more than tinkering. Even a small reduction in the term of the sentence will amount to a relatively substantial reduction. Further, as the sentence is currently structured, the appellant is subject to a good behaviour order for 18 months. Of itself, that is a not insignificant penalty.
The offence was, objectively speaking, in the mid range. The appellant’s subjective circumstances include a very poor record for matters of this type, albeit there was a hiatus in offending from mid 2008 to January 2012, and then a further period without offending between January 2012 and the commission of the subject offence. There are significant subjective circumstances, which are set out in the pre-sentence report. In particular, the appellant has been affected by the death of her daughter in 2011. She displays insight and is at least motivated to come to terms with her difficulties.
Conclusion
I set aside the sentence. In lieu, the appellant is sentenced to imprisonment from 25 August 2014 to 8 November 2014. That is a period of two months and two weeks. I derive that figure from a starting point of about 14 weeks’ imprisonment (about three and a half months), and deducting 25% under s 35 for the utilitarian value of the plea of guilty and allowing a small amount for remorse.
The Magistrate approached the matter correctly when he said that there was a strong need for specific deterrence. In this case, that is an important sentencing purpose. Indeed, all the s 7 sentencing purposes are of some relevance to this matter. The sentence that I have imposed also needs to be seen in the context of the sentences for the other three matters. The overall picture is that the appellant will spend two months and two weeks in custody by way of a punitive element and one that addresses specific deterrence. Thereafter, she will be subject to a suspended sentence and an additional good behaviour order that will make her subject to the supervision of the Court for a period of up to 21 months.
I confirm the other sentences imposed by the Magistrates Court. The two-month sentence imposed for the drive while disqualified offence will be suspended for a period of 18 months upon the appellant entering into a good behaviour order. I confirm the 21-month good behaviour order and fines imposed in respect of the other matters and the disqualification period.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 4 December 2014 |
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