Cajina v Narsey

[2016] ACTSC 10

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Cajina v Narsey

Citation:

[2016] ACTSC 10

Hearing Date(s):

3 February 2016

DecisionDate:

3 February 2016

Before:

Murrell CJ

Decision:

Appeal dismissed.

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against sentence –manifestly excessive – principle of totality – accumulation – discount for plea of guilty

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT) s 35

Crimes Act 1900 (ACT) s 382(1)

Criminal Code 2002 (ACT) s 326

Cases Cited:

House v The King (1936) 55 CLR 499

Parties:

Jairo Saul Cajina (Appellant)

Mehul Narsey (First Respondent)

Matthew Brooke (Second Respondent)

Paul Ronald Yates (Third Respondent)

Representation:

Counsel

Mr H Jorgensen (Appellant)

Ms K Mackenzie (Respondents)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondents)

File Number(s):

SCA 81 of 2015

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Hunter

Date of Decision:         28 August 2015

Case Title:  Matthew Brooke v Jairo Saul Cajina

Court File Number(s):   CC 2760 of 2015

Background

1. The appellant appeals against orders made by the Magistrates Court on 28 August 2015 in relation to a series of offences.  The Magistrates Court sentenced the appellant for seven offences that occurred on four occasions. 

4 March 2015

1. On 4 March 2015, the appellant committed two offences of possessing a knife, and one of obtaining property by deception.  In respect of these matters, the Magistrates Court imposed a sentence of one month’s imprisonment for one of the possess knife offences, two months' imprisonment for the second possess knife offence, and three months' imprisonment for the obtain property by deception offence.  The one-month sentence was made cumulative on the two-month sentence, and the three-month sentence was partially accumulated, resulting in an effective sentence of five months. 

13 March 2015

1. On 13 March 2015, the appellant committed a further offence of possessing a knife.  The Magistrate sentenced the offender to two months' imprisonment, made entirely cumulative on the five months’ sentence imposed for the first set of matters. 

27 March 2015

1. On 27 March 2015, the appellant failed to appear at court.  For that offence he received a 12 month good behaviour order, which is not the subject of an appeal, but is relevant to note in order to understand his offending history, placement on bail (on 6 April 2015 he was placed on bail for the outstanding matters), and the total import of the sentences imposed on 28 August 2015. 

21 June 2015

1. On 21 June 2015, while on bail, the offender committed an offence of possessing a knife without reasonable excuse.  The Magistrates Court imposed a three-month sentence, which was made entirely cumulative on the earlier sentences. 

1. The overall result was that the offender was to serve 10 months’ full-time imprisonment.  Upon his release, he was to be subject to a 12-month good behaviour order. 

1. By the time that he was sentenced, the offender had already spent about two months in custody, and that period was taken into…