Chad Michael McCurley v Yves Naspe - [2013] ACTSC 256

CHAD MICHAEL MCCURLEY v YVES NASPE AND ANOR
[2013] ACTSC 256 (16 December 2013)

APPEAL – CRIMINAL LAW – appeal from Magistrates Court – whether sentences manifestly excessive – sentences of failure to appear – no individual sentence manifestly excessive

APPEAL – CRIMINAL LAW – appeal from Magistrates Court – whether failure to have regard to principle of totality in accumulation – variation in ratio between head sentence and non-parole period – to be expected where accused already serving a term of imprisonment sentenced for further offences, ratio between the head sentence and non-parole period may vary – variation in ratio not so significant as to suggest error

APPEAL – CRIMINAL LAW – appeal from Magistrates Court – whether failure to deal with and give sufficient weight to hardship in custody – where no evidence before Magistrate of how long threat in custody will remain

APPEAL – CRIMINAL LAW – appeal from Magistrates Court – whether error in stating will adopt an approach in sentencing and then not adopting it – absent issues of procedural fairness, no error in a judicial officer indicating proposed approach to sentencing, and then adopting different approach

Bail Act 1992 (ACT), s 49(1)

Crimes (Sentencing) Act2005 (ACT)

Criminal Code 2002 (ACT), ss 308, 311, 324(1), 326

Balthazaar v The Queen [2012] ACTCA 26
Hawkins v Hawkins [2009] ACTSC 148
Markarian v The Queen (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
R v Fleet (unreported, ACT Supreme Court, Penfold J, 11 December 2012)
R v Henry (1999) 106 A Crim R 149
Ursino v Read [2005] ACTSC 106

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 52 of 2013

Judge: Burns J
Supreme Court of the ACT

Date: 16 December 2013

IN THE SUPREME COURT OF THE     )
  )          No. SCA 52 of 2013
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CHAD MICHAEL MCCURLEY
Appellant

AND: YVES NASPE

First Respondent
AND:TANIA SHAKESHAFT
Second Respondent

ORDER

Judge:  Burns J
Date:  16 December 2013
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

On 21 June 2011, the appellant was convicted in the Magistrates Court, and sentences were imposed, for the following offences:

CC 2012/9158
CC 2013/364
CC 2013/366 Fail to appear
Fail to appear
Fail to appear On each charge the appellant was sentenced to imprisonment for 4 months, to be served concurrently, commencing 4 July 2015 and expiring 3 November 2015.

CC 2013/1316 Burglary Sentenced to imprisonment for 2 years commencing 4 November 2015 and expiring 3 November 2017.

CC 2013/1421 Theft Sentenced to imprisonment for 10 months concurrent with CC 2013/1316

CC 2013/1317
CC 2013/1318 Unlawful possession
Obtain property by deception On each charge sentenced to 2 months imprisonment to be served concurrently with CC 2013/1316

In total the appellant was sentenced to an aggregate term of 2 years imprisonment commencing 4 November 2015 and expiring 3 November 2017. The delayed commencement date…

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.

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Details

Case: [2013] ACTSC 256
Decision Date: 16 December 2013

CaseChat Overview and Summary

The appellant, Chad Michael McCurley, appealed against sentences imposed by the Magistrates Court for failure to appear offences. The appeal raised issues concerning the excessiveness of the sentences, whether the principle of totality was disregarded, the consideration of hardship in custody, and the consistency of the sentencing approach. The court was tasked with determining whether the sentences were manifestly excessive, whether the principle of totality was properly considered, if the hardship in custody was adequately addressed, and if the sentencing approach was consistent.

The court considered the arguments and found that no individual sentence was manifestly excessive. It noted that the variation in the ratio between the head sentence and the non-parole period was not unusual, especially when the accused was already serving a term of imprisonment. The court also determined that there was no evidence of the duration of the threat in custody to assess the hardship. Regarding the sentencing approach, the court held that while a proposed approach may have been indicated, the adoption of a different approach did not constitute an error, provided there were no issues of procedural fairness.

The court concluded that the appeal should be dismissed. The sentences imposed were not found to be manifestly excessive, and the principle of totality and consideration of hardship in custody were appropriately addressed. The variation in the sentencing ratio was not significant enough to suggest an error, and the change in the sentencing approach did not affect the fairness of the process. The appeal was therefore dismissed, affirming the sentences as imposed by the Magistrates Court.

Orders

Orders of the court

1. The appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CC 2012/9158 CC 2013/364 CC 2013/366	Fail to appear Fail to appear Fail to appear	On each charge the appellant was sentenced to imprisonment for 4 months, to be served concurrently, commencing 4 July 2015 and expiring 3 November 2015.
CC 2013/1316	Burglary	Sentenced to imprisonment for 2 years commencing 4 November 2015 and expiring 3 November 2017.
CC 2013/1421	Theft	Sentenced to imprisonment for 10 months concurrent with CC 2013/1316
CC 2013/1317 CC 2013/1318	Unlawful possession Obtain property by deception	On each charge sentenced to 2 months imprisonment to be served concurrently with CC 2013/1316