Carpenter v Purcell

[2008] ACTSC 34

KYLIE ANN CARPENTER v CARLY PURCELL [2008] ACTSC 34 (28 April 2008)

CRIMINAL LAW – appeal from decision of Magistrates Court of the ACT – principles for determining appeals – severity of sentence – manifestly excessive sentence – error of law by Magistrate – Magistrates Court Act 1930 (ACT).
CRIMINAL LAW – sentencing principles – terms of imprisonment – availability of alternative sentencing options – discount for plea of guilty – Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW – offences – unlawfully taking a child – unlawfully harbouring a child – assault – Crimes Act 1900 – Children and Young People Act 1999 (ACT).
CRIMINAL LAW – variation of sentence – stay of sentence pending appeal – status of remand prisoners – Magistrates Court Act 1930 (ACT).

Crimes Act 1900 (ACT), par 40(a), s 22
Children and Young People Act 1999 (ACT), s 390
Magistrates Court Act 1930 (ACT), ss 214, 216, 218
Crimes (Sentencing) Act 2005 (ACT), s 35

WNB v Regina [2006] NSWCCA 269
Lowndes v The Queen (1999) 195 CLR 665
Baxter v R [2007] NSWCCA 237
House v The King (1936) 55 CLR 499

Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357

Hadba v The Queen [2004] ACTSC 62

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 104 of 2007

Judge:              Penfold J
Supreme Court of the ACT

Date:               28 April 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 104 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:KYLIE ANN CARPENTER

Appellant

AND:CARLY PURCELL

Respondent

ORDER

Judge:  Penfold J
Date:  28 April 2008
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed, except to the extent necessary to vary the sentences appealed from as follows:

(a)For the earlier offence in respect of which the appellant had breached her good behaviour order—the sentence of 3 months imprisonment is backdated to 6 October 2007 to take account of time served.

(b)For the two offences of unlawfully taking a child—the sentences of 12 months imprisonment for each offence, to be served concurrently, but cumulative on the 3 months imprisonment in respect of the earlier offence, are backdated to 6 January 2008. 

(c)The total period of imprisonment that is not suspended remains 15 months.  The non-parole period of 8 months set in respect of the sentence is also backdated to 6 October 2007.

Introduction

1. This is an appeal from sentences imposed in the Magistrates Court in respect of four offences, as follows:

(a)   two offences of unlawfully taking a child, under par 40(a) of the Crimes Act 1900 (ACT) (maximum penalty imprisonment for 10 years);

(b) one offence of assault with intent to commit an indictable offence, under s 22 of the Crimes Act 1900 (maximum penalty imprisonment for 5 years); and

(c) a prior offence of harbouring a child, under s 390 of the Children and Young People Act 1999 (ACT) (maximum penalty 50 penalty units, imprisonment for 6 months, or…