Chambers v Smorhun; R v Chambers
[2019] ACTSC 118
•8 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Chambers v Smorhun; R v Chambers |
Citation: | [2019] ACTSC 118 |
Hearing Date: | 8 May 2019 |
DecisionDate: | 8 May 2019 |
Before: | Elkaim J |
Decision: | See [31] |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Appeal against sentence of Magistrates Court – manifest harsh and excessive – non-parole period 92 per cent of head sentence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – assault occasioning actual bodily harm – plea of guilty |
Legislation Cited: | Crimes Act 1900 (ACT) s 24 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33, 65, 66 |
Cases Cited: | Cole v The Queen [2019] ACTCA 3 |
Parties: | Lowrey Chambers (Appellant / Offender ) Nathan Robert Smorhun (Respondent / Crown) |
Representation: | Counsel Ms B Morrisroe (Appellant / Offender) Mr A Williamson (Respondent / Crown) |
| Solicitors Aboriginal Legal Service (Appellant / Offender) ACT Director of Public Prosecutions (Respondent / Crown) | |
File Number: | SCA 55 of 2018; SCC 101 of 2018 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 24 October 2018 Case Title: Smorhun v Chambers Court File Numbers: CC 13230 of 2017; CC 13438 of 2017 |
ELKAIM J:
There are two matters before me today. Both matters are completely unrelated from one another and involve two separate incidents of criminal conduct relating to the same perpetrator, Mr Chambers.
The first is an appeal matter whereby Mr Chambers, as the appellant, is appealing the sentence imposed on him in the ACT Magistrates Court after he was convicted for the offences of common assault and assault occasioning actual bodily harm. The second is a sentence matter whereby Mr Chambers, as the offender, has pleaded guilty to a single charge of assault occasioning actual bodily harm.
Appeal Matter
On 24 October 2018, Magistrate Boss sentenced the appellant for two offences: assault occasioning actual bodily harm and common assault. The appellant was sentenced before the ACT Magistrates Court sitting as the Galambany Circle Sentencing Court.
The appellant was sentenced to 21 months’ imprisonment for the assault occasioning actual bodily harm, commencing on 1 December 2017 ending on 31 August 2019, and 18 months’ imprisonment for the common assault charge, commencing on 1 June 2019 ending on 30 November 2020.
The total sentence imposed was 36 month’s imprisonment, with a non-parole period of 33 month’s imprisonment, commencing on 1 December 2017 and ending on 31 August 2020. The non-parole period is 92% per cent of the head sentence.
The appellant appealed the whole of the sentence on the basis that the sentence was manifestly harsh and excessive. However, today the appeal was limited to the non-parole period.
In its written submissions the Crown states that there has been no error shown in the head sentence imposed however, does accept that a non-parole period of 92% is inexplicably high and outside what might be considered the usual range in the ACT. The Crown’s concession is correct and accords with the recent ACT Court of Appeal decision in Cole v The Queen [2019] ACTCA 3.
Presumably as a result of the Crown’s concession, the appellant has restricted his appeal to the length of the non-parole period. Accordingly the appeal will be allowed.
However the next step is not one of simply setting a new non-parole period. This is because of the intervention of the sentencing matter which I deal with below. Pursuant to ss 65 and 66 of the Crimes (Sentencing) Act 2005 (ACT) it is necessary for me to set a fresh non-parole period which will apply to the sentence imposed for the separate matter. I will return to this below.
Sentence Matter
On 4 December 2019, the offender was arraigned and entered a plea of guilty in full satisfaction of the indictment dated 21 May 2018 to the charge of assault occasioning actual bodily harm (CC 2017/13805), contrary to s 24 of the Crimes Act 1900
(ACT). The maximum penalty for this offence is 5 years’ imprisonment.
The facts of the assault are outlined in some detail in the Statement of Facts (Exhibit A). In summary the offender assaulted the complainant inside a cabin at a caravan park. He struck her face and body causing her to fall onto a bed. The assault continued after the fall so that there were a total of six to eight blows.
The complainant suffered swelling to her face and bruising around her left eye. She was examined by members of the ambulance service who decided that she did not require hospitalisation.
Any assault is serious, but it is made more serious when it occurs in a domestic environment. The prevalence of men beating up their wives and partners is an appalling feature of society. It must be condemned and punished. This factor alone serves to make the objective seriousness of the offence at about the medium level.
The offender was born in 1978 in Sydney, in particular in the Ngunnawal area. He is of Aboriginal heritage. I note from the appeal matter that when he was sentenced by the magistrate this occurred within the Galambany Circle Sentencing Court. He is one of five siblings and he has had limited contact with them and his father. His parents separated when he was 13 years of age. The Pre-Sentence Report suggests that he suffered abuse from his father.
The offender has three children, now all teenagers. They live with their mother but he maintains regular contact with them. He was in a relationship with the complainant which lasted about 12 months.
The offender has had very little by way of formal education although I note that having left school in Year 9, he went on to complete Year 10 through a correspondence course. When he was arrested he was working as a handyman for a property maintenance company.
The offender has been drinking too much and taking too many drugs for a long time. He was taking about 1 gram of cannabis per week when he was arrested. He used heroin for some time but hopefully this is no longer the case. He had an overdose in September 2017 which left him in a coma for about a week. Unfortunately he has been using methamphetamines since he was 20 years of age and was still doing so when he was arrested.
His drug taking has affected his mental health and he has suffered drug induced psychosis in the form of hallucinations. He takes medication for depression.
The offender has completed an anger management course while in custody. He has an extensive criminal record which has probably been largely dictated by his failure to control his anger and by his use of drugs and alcohol.
The Crimes (Sentencing) Act 2005 (ACT) dictates the approach to be taken in sentencing a person. This is done through ss 6 and 7 and also s 33. Section 10 says a person should not be sent to prison except as a last resort.
The offender has not spent any time in prison specifically referable to this offence. His plea of guilty entitles him to a discount on his sentence which I assess at about 20%.
I think the appropriate sentence for the offence is 18 months’ imprisonment. This is reduced to 14 months’ to reflect the above discount.
The next question is the starting point for the 14 months. Learned counsel for the offender stressed that there should be a significant degree of concurrency. She said that had the matter been dealt together with the offences which are the subject of the appeal, principles of totality would have applied to influence the commencement date of the offence.
The Crown did not submit there should be no concurrency but that there should be a “significant” accumulation. The Crown said that this offence was “discrete and independent” and therefore the sentence for it should reflect the community’s expectation that it will be punished appropriately.
In relation to the non-parole period the Crown submitted that there was not much chance of rehabilitation and in particular pointed to the criminal record “reflecting the fact that he is a violent, recidivist offender”.
Based only on his record the Crown’s assessment is fair. However it is necessary to look at Exhibit 1 which in a series of documents reflects a hopefully changed attitude towards rehabilitation. These documents reveal the offender is in the course of a domestic abuse program which is due to end later this month. Further he is engaged in an education program where he has apparently excelled in “showing his leadership skills with new students”. The assessment continues “(The offender) is diligent, conscientious and hard-working”.
The letter from the social worker at the prison states that the offender is “commended for your honest(y) throughout sessions regarding your recovery from drug use”.
Perhaps most significantly, the letter from the alcohol and drug service states that the offender “is motivated to address these destructive patterns, including those associated with the use of illicit drugs”. As I have already said the offender has also completed an anger management course.
I think that the Crown submissions on accumulation have force and that there should be no more than a three month period of concurrency. However I do think there are prospects of rehabilitation and that these should be recognised through the non-parole period.
Adding in the sentence I am imposing today, the effective head sentence will commence on 1 December 2017 and expire on 29 October 2021. I will set a non-parole period equivalent to 55% of the head sentence which is 26 months’, commencing on 1 December 2017 and ending on 31 January 2020.
Orders
I make the following orders:
(a)The appeal is allowed.
(b)The sentences imposed by the magistrate on 24 October 2018 are re-imposed except that the non-parole period is set aside.
(c)For the offence of assault occasioning actual bodily harm (CC 2017/13805) the offender is sentenced to 14 months’ imprisonment to commence on 30 August 2020 and end on 29 October 2021.
(d)The head sentence, taking into account the sentences imposed by the magistrate and the sentence imposed by me today, is 3 years 10 months and 29 days, commencing on 1 December 2017 and ending on 29 October 2021.
(e)I set a non-parole period of 26 months, commencing on 1 December 2017 and expiring on 31 January 2020.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 8 May 2019 |
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