David Whyms v Daniel Victor Debnam
[2012] ACTSC 200
•26 October 2012
DAVID WHYMS v DANIEL VICTOR DEBNAM
[2012] ACTSC 200 (26 October 2012)
APPEAL – appeal from Magistrates Court – appeal against sentence – driving while disqualified and cancellation of parole order – new non-parole period and head sentence – whether manifestly excessive – no error on the part of the Magistrate – appeal dismissed
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 60 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 26 October 2012
IN THE SUPREME COURT OF THE )
) No. SCA 60 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID WHYMS
Appellant
AND:DANIEL VICTOR DEBNAM
Respondent
ORDER
Judge: Burns J
Date: 26 October 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The sentences imposed by the learned Magistrate are confirmed:
a.a sentence of 5 months’ imprisonment with respect to the charge of driving whilst disqualified, which was matter number 3749 of 2012, is to be served consecutively with the sentence that the appellant is currently serving by virtue of the cancellation of his parole order.
b.a non-parole period of 2 years commencing on 4 April 2010 and expiring on 22 July 2012.*
* These amended dates reflect the orders made by Burns J on 19 December 2012.
Now I must say I have a degree of confusion in my own mind as to precisely what the learned Magistrate did in terms of the non-parole period. I understand that her Honour sentenced Mr Whyms to 5 months’ imprisonment with respect to the charge of driving whilst disqualified and made that cumulative upon the head sentence of 30 months that he was currently serving, making of course a total head sentence of 35 months, but I have some difficulty in precisely following what she did with the non-parole period.
It appears that Her Honour makes one order in terms of the non-parole period being reset at 24 months from the date at which the original sentence was set, being I believe 4 April.
Then her Honour goes on to say:
What that means in practical terms, Mr Whyms, is that the 24 months runs from 15 October 2010 taking out the period of time that you were at liberty.
I think what her Honour intended to do was to impose a total or an aggregate head sentence of 35 months with a non-parole period for that aggregate head sentence of 24 months.
The appellant was sentenced on 15 October 2010 in the Magistrates Court to a total sentence of 30 months’ imprisonment with 18 months’ non-parole. The appellant was then released on parole with respect to that sentence. The parole order was then cancelled and the appellant was returned to custody to serve the remainder of his sentence.
In the proceedings the subject of the appeal, her Honour then imposed a further 5 months for the offence of driving whilst disqualified. When you go back and look at the two head sentences including the amount the appellant had already served, the original sentence of 30 months plus the extra 5 months, that makes a total sentence of 35 months.
Her Honour imposed a term of 24 months non-parole with respect to that entire aggregated head sentence. In other words, her Honour increased the non-parole period by a period of 6 months. The appellant had to return to custody once his parole was cancelled and serve the remainder of his sentence, although at that stage he was eligible for parole at any time.
I will re-impose the sentences that were imposed by her Honour:
a.The appeal will be dismissed. The sentences imposed by the learned Magistrate are confirmed and I note that those sentences, firstly a sentence of 5 months’ imprisonment with respect to the charge of driving whilst disqualified, which was matter number 3749 of 2012, is to be served consecutively with the sentence that the appellant is currently serving by virtue of the cancellation of his parole order.
b.I confirm the non-parole period of 2 years commencing on 4 April 2010 and, taking into account the period that the appellant was at liberty on parole, expiring on 22 July 2012.*
* These amended dates reflect the orders made by Burns J on 19 December 2012.
I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate: James Middleton
Date: 18 January 2013
Counsel for the appellant: The Appellant appeared in person
Counsel for the respondent: Mr Alison
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 26 October 2012
Date of judgment: 26 October 2012 (orders varied 19 December 2012)
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