D'Elboux v Ramsay
[2022] ACTSC 258
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | D’Elboux v Ramsay |
Citation: | [2022] ACTSC 258 |
Hearing Date: | 23 September 2022 |
DecisionDate: | 23 September 2022 |
Before: | Elkaim J |
Decision: | (i) The appeal is dismissed. (ii) The convictions and sentences imposed by the Chief Magistrate on 15 June 2022 are confirmed. (iii) The stay generated by the appeal is removed, confirming that the release date for the appellant remains 8 December 2022. |
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – where the appellant submits that the sentence imposed by the magistrate was manifestly excessive – previous time served in custody – concurrency – objective seriousness – appeal dismissed |
Cases Cited: | Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Gillard v The Queen [2016] ACTCA 50 |
Parties: | Shane D’Elboux ( Appellant) Daniel Ramsay (First Respondent) Madeline Kluber (Second Respondent) |
Representation: | Counsel E Chen ( Appellant) K McCann ( Respondents) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions ( Respondents) | |
File Number(s): | SCA 21 of 2022 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Chief Magistrate Walker Date of Decision: 15 June 2022 Case Title: Police v D’Elboux Court File Number(s): CAN 9567 of 2021; CAN 1714 of 2021 |
Elkaim J
On 15 June 2022 the Chief Magistrate sentenced the appellant as follows:
(a)in respect of CC2021/9567 the existing good behaviour order is cancelled, and the offender is sentenced to 3 months’ imprisonment.
(b)In respect of CC2022/1714 the offender is sentenced to 6 months’ imprisonment.
The two sentences were entirely cumulative, the first beginning on 9 March 2022 and the second ending on 8 December 2022. Both terms of imprisonment had been reduced by 25 percent to reflect their respective pleas of guilty.
The notice of appeal was filed on 12 July 2022. There is only one ground of appeal: “The sentence was manifestly excessive”.
A sentence is manifestly excessive if it is “unreasonable or plainly unjust” (Dinsdale v The Queen [2000] HCA 54; 202 CLR 321).
The appellant says the sentences are manifestly unjust for one or more of the following reasons:
(i)The terms of imprisonment were out of proportion to the circumstances of the offending.
(ii)There should have been a degree of concurrency between the two sentences.
(iii)Time previously served in custody was not appropriately taken into account.
(iv)Previous breaches of bail had been erroneously taken into account in assessing the objective seriousness of the offending.
(v)The appellant’s mental health condition should have precluded, or at least reduced, the consideration of general deterrence.
The Chief Magistrate summarised the two offences in this way:
Turning to the factual circumstances the offences under consideration arise from breaches of a family violence order taken out by family members to protect themselves from what appears to have been your drug-fuelled abuse and violence toward them.
And the first breach on 14 September 2021 came about when you remained in your family home without written consent of your mother to be there. Your behaviour on that occasion caused your mother to fear for her safety. She called the police and your response was that they would have to Taser you to remove you. There was an early plea of guilty, and as I say you were placed on a good behaviour order on 30 November 2021.
On 18 February 2022, whilst that good behaviour order was still in existence, you again were in breach of the condition not to be at the family home without your mother’s written consent. You attended at the home and your mother returned to the home to find you yelling and screaming and apparently drug-affected. You left. She had called the police and they attended, and they left. You then came back to the premises after they had left and took a bath. The police reattended and arrested you.
The common theme for both of these matters – obviously the offending in itself for breaching the family violence order. But the fear that you placed your family members in when you were in attendance at the home in circumstances in which your behaviour, which appears to be related to your drug use, causes them to fear for their safety.
In sentencing her Honour clearly appreciated the appellant’s addiction to drugs, in particular methamphetamines and she noted that the addiction “is likely to be masking an underlying mental health issue”.
Her Honour observed:
On my assessment of the information before me you have limited insight into the effect of your offending, despite expressing remorse to your family. You have been imprisoned in the past for the same type of offending following a breach of a suspended sentence of imprisonment.
Her Honour continued:
Today I will be dealing for the first time with what will be your sixth conviction for breach of a family violence order in each instance, as I understand, in respect to the same family members. Concerningly, you also have convictions for violence in your past including and assault occasioning actual bodily harm. It seems to me that there may be a neuropsychological issue that has not yet been fully explored. But I have insufficient evidence to determine that.
The just quoted passage encompasses a number of important elements:
(a)The offending was part of a long line of similar offences.
(b)The same members of the family had been the subject of the continuing offences.
(c)The appellant’s criminal history included an act of violence.
The appellant’s criminal history also includes being resentenced for breach of a suspended sentence, breaching bail conditions and then, having been released on strict conditions, breaching his bail again.
In addition, her Honour noted that the appellant had been assessed as “a medium to high risk of further offending”.
As to rehabilitation, her Honour made this specific finding:
I have also got to recognise the harm to the community and in this case particularly to your family by the continuing offending. And protection of the public at large. The question of rehabilitation now gives way in the light of your non-compliance with the deferred sentence order to those other factors.
Thus her Honour was recognising that it was necessary to consider rehabilitation but that the history of the matter reduced its significance. It was overtaken by the harm that was being inflicted upon the appellant’s family.
Further, in oral submissions the appellant’s legal representative conceded that prospects of rehabilitation were low.
Looking at the points made by the appellant making up the manifest excess, as set out above, they are all valid points which could affect a sentence. However, the important exercise to be performed in this case, is to look at the ultimate sentence and see whether, having regard to all of the circumstances, it is manifestly excessive. As stated in Gillard v The Queen [2016] ACTCA 50 at [43]:
A finding of specific error by a sentencing judge does not require an appellant to be re-sentenced unless the appellate court is also satisfied that a different sentence should be imposed (see, for instance, AB v The Queen [1999] HCA 46; 198 CLR 111 (Hayne J at 160); Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35] and [42]).
In my view nine months’ imprisonment seen against the background of continuing offences (at least six in number), the appellant’s criminal history and his breach of earlier sentences that had allowed him to live in the community, all combine to render the ultimate sentence far from plainly unjust.
One might even conclude that the overall sentence was lenient against the history of this appellant.
The appellant submitted that there was a lack of proportionality between the facts of the offending and the sentences. He pointed out that while the offender may have been in breach of the orders, his breach, as constituted by simply going home and having a bath, did not justify the sentence imposed. He submitted that the absence of violence was an important factor which had not been taken into account.
It is clear however, from the description of the offending given by the Chief Magistrate, that the breach was constituted by more than a simple home visit. As pointed out by her Honour the actions of the appellant engendered a fear of safety on the part of his mother. A threat of violence or an anticipation of violence can be as harmful as an act of violence.
In relation to the 78 days submitted to have not been taken into account, two points emerge:
(a)The 78 days had been taken into account by Special Magistrate Hunter when she sentenced the appellant on 30 November 2021 in respect of CC2021/3607. This was conceded on behalf of the appellant.
(b)A submission that the 78 days should be taken into account again was not made to the Chief Magistrate.
The appellant submitted that an omission, as obvious as the 78 days not being taken into account, could be overlooked where the point was of appropriate significance. The difficulty with this submission is firstly, that the 78 days having already been taken into account, its significance is somewhat diminished, and secondly, the recognition that it had already been taken into account could well explain the matter not being raised before the Chief Magistrate.
I also do not think, if there was indeed a genuine omission, that any error on the part of the Chief Magistrate was significant. The 78 days had already been taken into account. To have done so again would have been a purely discretionary decision, the basis for which is not apparent on the evidence. It can certainly not be said that the omission bespeaks error.
I cannot see any error in the assessment of objective seriousness. Whether or not certain matters were erroneously taken into account, such as breaches of bail, is beside the point in this matter where, as I have said, the offending and its background could possibly have justified an even longer sentence. I think this point also covers the mental health argument. Even if the appellant’s mental health was not appropriately taken into account (and I do not accept that was the case) the sentences were nevertheless commensurate with the facts which include his mental health.
In relation to concurrency, or its absence, it is correct that offences will often be dealt with totally or partially concurrently. But that is not an absolute rule and it is certainly not mandatory where the offences occurred at entirely different times.
The result of the above is that the appeal must be dismissed. I make the following orders:
(i)The appeal is dismissed.
(ii)The convictions and sentences imposed by the Chief Magistrate on 15 June 2022 are confirmed.
(iii)The stay generated by the appeal is removed, confirming that the release date for the appellant remains 8 December 2022.
| I certify that the preceding twenty-six [26] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: |
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