David Dennis Whyms v Kimberly Joyce Rowe - [2004] ACTSC 18

DAVID DENNIS WHYMS v KIMBERLY JOYCE ROWE
[2004] ACTSC 18 (16 April 2004)

APPEAL – sentence – totality principle – periodic detention imposed for assault – appellant serves interstate imprisonment between commission of offence and sentence – whether magistrate erred in not properly taking into account time in NSW prison.

Mill v The Queen (1988) 166 CLR 59

Alexander Robert MacDonald (1990-1991) 52 A Crim R 349

L Vogel and Son Pty Limited v Anderson, Minister of State for Customs and Excise for the Commonwealth of Australia (1968) 120 CLR 157

Trevor John Close (1992-1993) 65 A Crim R 55

Pearce v The Queen (1998) 194 CLR 610

Darren Edward Wilkins (1988) 38 A Crim R 445

Zhen Qi (1998) 102 A Crim R 172

Ivan Potas, Sentencing Manual: Law, Principles and Practice in New South Wales (Lawbook Co, Sydney, 2001)

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 82 of 2003

Judge: Connolly J
Supreme Court of the ACT
Date: 16 April 2004

IN THE SUPREME COURT OF THE       )
  )          No SCA 82 of 2003
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:DAVID DENNIS WHYMS
Appellant

AND:KIMBERLY JOYCE ROWE
Respondent

ORDER

Judge:  Connolly J
Date:  16 April 2004
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed and the Magistrate’s orders be confirmed.

This is an appeal against sentence from a decision of Magistrate Doogan, who on 3 December 2003 sentenced the appellant for the offence of assault upon his girlfriend on 12 January 2002, to which he had pleaded guilty. The facts of this matter, which appear in the appeal book at 37-38, were that police attended an address in Narrabundah at about 4 o’clock in the afternoon of that date, and observed a female upset and with a small amount of blood on her upper lip. She told police that there had been an argument with the appellant, who had wanted to borrow her car. She had not given him the keys, and he had pushed her over. He grabbed the keys from her and unlocked the car. She then sat in the car and the appellant pulled her by the hair out of the vehicle, and took the vehicle.

For this offence the learned Magistrate imposed a sentence of nine months imprisonment to be served by way of thirty-six periods of periodic detention. The appellant, who is thirty-five years of age, has a very substantial criminal record, with some 150 offences in New South Wales and the Australian Capital Territory, mostly for property crime. Significantly, he was jailed in 1998 for offences of assault occasioning actual bodily harm, assault police and breach apprehended violence order. He was sentenced to nine months imprisonment on each charge from 7 July 1998, and an additional nine months commencing at the expiration of these sentences. In December 1997 he had been sentenced to three months imprisonment on charges of assault and breach an apprehended violence order. An appeal against these convictions and sentences…

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: [2004] ACTSC 18
Decision Date

CaseChat Overview and Summary

David Dennis Whyms appeals against his sentence imposed by Magistrate Doogan for an assault on his girlfriend, which took place on 12 January 2002. The appellant had pleaded guilty to the offence. The Magistrate sentenced the appellant to nine months imprisonment to be served by way of thirty-six periods of periodic detention. The appellant has a substantial criminal record, with some 150 offences in New South Wales and the Australian Capital Territory, mostly for property crime. He had previously been sentenced to nine months imprisonment for offences of assault occasioning actual bodily harm, assault police and breach apprehended violence order. The appeal is that the learned Magistrate erred in not properly applying the principle of totality by failing to adequately address the fact that, between the date on which the appellant indicated a plea of guilty and the date of sentencing, the appellant had been convicted of and served a period of imprisonment in New South Wales for other offences. The Court found that the learned Magistrate was correct in making the observation that some period of imprisonment was the inevitable consequence of this offence, even taking into account an early plea of guilty. If this was a matter where, under the principle in Mill’s case, the learned Magistrate should have gone through a hypothetical exercise of determining what sentence would have been appropriate under the principle of totality, and it was not, such an exercise would have resulted, in the Court’s view, in the inevitable consequence that the appellant would have been sentenced to a significantly greater head sentence and non-parole period. This may have been within the range of three to six months of full-time imprisonment. It seems to the Court that a sentencing judge or magistrate who dealt with the domestic violence assault under the principle of totality in such a way that it would not have increased the head sentence or non-parole period from that imposed for the property, drug and firearms offences would have erred. The community, rightly, would regard any non-custodial option for this offence as an inadequate response to a domestic violence offence, and an appeal court would intervene. The learned Magistrate made the observation, which, in the Court’s view, was unfortunately all too accurate, that the appellant’s history has shown that periods of full-time imprisonment have had little deterrent effect in the past. The learned Magistrate, in imposing a sentence of periodic detention, has, it seems to the Court, applied a sentencing option that has not been tried before, and that might, if the appellant’s assertions that he wishes to care for his child and turn away from crime are true, provide a more effective form of punishment than a further term of full-time imprisonment. In the Court’s view, the learned Magistrate’s sentencing discretion has not miscarried.

The Court orders that: the appeal be dismissed and the Magistrate’s orders be confirmed.

Orders