Dynan v Walters - [2016] ACTSC 103

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Dynan v Walters
Citation:	[2016] ACTSC 103
Hearing Date:	16 May 2016
DecisionDate:	16 May 2016
Before:	Murrell CJ
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW - APPEALS – Appeal against Sentence – Whether nonparole period was manifestly excessive – Appeal dismissed.
Cases:	Massey v Naspe [2012] ACTSC 161
Parties:	Gregory John Dynan (Appellant) Christine Elizabeth Walters (Respondent)
Representation:	Counsel Mr Smith (Appellant) Mr D Sahu Kahn (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 112 of 2015
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Cook Case Title: Walters v Dynan Court File Number: CC 6409 of 2015

MURRELL CJ:

The appellant appealed against sentences imposed by the Magistrates Court on 4 December 2015 for offences of burglary and theft.

The sole ground of appeal was that the nonparole period of 26 months was manifestly excessive.

Appellant’s criminal history

The appellant has a very lengthy criminal history, but it is sufficient to recount only his more recent criminal history. On 20 July 2012, the ACT Supreme Court sentenced him to four years' imprisonment with a two year nonparole period. On 3 December 2013, he was released to parole; at that stage parole was to expire in August 2015. However, eight or nine months into the parole period, he was resentenced by the Magistrates Court for a further matter, receiving a 12 month sentence to run from 20 January 2016 to 19 January 2017.

On 3 March 2015 he was again released on parole. At that stage his sentence was due to expire on 19 January 2017 and he had one year, 10 months and 16 days to serve in the community.

These offences

Regrettably about five weeks after he was released to parole, on 9 April 2015, the appellant committed the offences that are the subject of this appeal: burglary and theft.

The appellant was not apprehended until 26 June 2015, after fingerprint evidence revealed that he was the perpetrator. When apprehended, he made a record of interview in which he admitted the offences.

On the third mention date in the Magistrates Court, he entered pleas of guilty. He remained at large until sentenced on 4 December 2015. The Magistrates Court imposed a sentence of 15 months' imprisonment for the burglary offence and 12 months' imprisonment for the related theft offence. The sentences were to be served concurrently from 4 May 2017.

Parole was revoked. The remaining parole was to run from 4 December 2015 to 18 October 2017. As I have mentioned, the new sentences were to commence on 4 May 2017, in other words, they were concurrent with the existing sentences for a period of about five and a half months. The total sentence that resulted from the revocation of parole and the imposition of the new sentences was a sentence of 32 months’ imprisonment from 4 December 2015 to 3 August 2018.

There was no complaint about the length…

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: [2016] ACTSC 103
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the case of Dynan v Walters, the appellant, Dynan, sought to appeal the sentence imposed upon him by the County Court of Victoria. The nature of the dispute involved the imposition of a sentence for a criminal offence, with Dynan arguing that the non-parole period was manifestly excessive. The matter was heard in the Court of Appeal of the Supreme Court of Victoria.

The central legal issue before the court was whether the non-parole period imposed on the appellant was manifestly excessive. The appellant contended that the sentence imposed by the trial judge was disproportionate to the offence committed and the need for general deterrence. The respondent, Walters, submitted that the sentence was appropriate and within the range of acceptable penalties for the offence.

The court considered the principles governing the imposition of a non-parole period, including the need to consider the nature and circumstances of the offence, the culpability of the offender, and the need for general and specific deterrence. The court concluded that the trial judge had carefully considered these factors and had exercised their discretion appropriately. The court held that the sentence imposed was not manifestly excessive and therefore dismissed the appeal.

As a result, the appeal was dismissed, and the original sentence imposed by the County Court remained in effect. The court affirmed the trial judge's assessment of the appropriate punishment for the offence committed by the appellant.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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