Dynan v Walters
[2016] ACTSC 103
•16 May 2016
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 or concurrency of the sentences.
Nonparole period
The Magistrate set the nonparole period at 26 months, which is 81.25 per cent of the sentence of 32 months.
That is a very high nonparole period when one looks at sentencing patterns in the ACT. Ordinarily, a nonparole period is in the range of 50 per cent (perhaps for a young or first time offender), to 70 per cent (perhaps for an older, more entrenched offender). But there is no mathematical requirement in relation to the fixing of a nonparole period. It is discretionary.
In this case, the Magistrate made rather confusing statements on pages 12 and 13 of his Honour's reasons for decision. I quote commencing at page 12 line 40:
I want to make sure - and I'll tell you what my intention is in relation to that. If I look at the 4th of December 15 - that goes 16, 17 is two years and then there is the eight months down to August 2018. By taking that into account I should be sitting roughly at about 75–80 per cent is where I should be sitting, on a percentage basis, for the non-parole period.
Now, ordinarily you would set the parole period around about three‑fifths, or around about 70 per cent/75 per cent but, of course, here there is the second breach while on parole — and that's what I've taken into account in elevating the parole period to a longer period of time than what would normally fairly be set at about 70 per cent. So it's slightly higher — not much but slightly higher, taking it into account.
If you find out, certainly on those calculations, that I've got the percentage slightly wrong, by all means you are able to come back. You hear what my intention is clearly. If that doesn't work out on your calculations — I think I'm right in relation to it. Then you come back and I can make the adjustment — but I think I'm right percentage-wise.
And then at line 27:
Yes. So that's around about right. 75 to 80 per cent is where I thought. 70 per cent seems to be what courts have applied but I think he sort of — I've got the benefit, in coming out to that figure, I was satisfied because of the rehab — is the driver for that. The fact that you've been showing a negative urinalysis result. So all I can do is encourage you to keep continuing in that regard.
It is difficult to follow his Honour’s reasoning, but ultimately I am reasonably confident that I have understood his Honour's intention. His Honour started from a nonparole period of 70 per cent (taking into account the appellant’s very lengthy criminal history for matters of a similar nature and the appellant’s demonstrated capacity to rehabilitate, at least in relation to drugs; the appellant had returned clean urinalysis results for a period of some months during 2015). Starting from a 70 per cent nonparole period, his Honour then took into account the appellant’s repeated breaches of parole. Repeated breaches of parole may legitimately affect a nonparole period because such conduct may indicate incapacity to rehabilitate from crime and inform sentencing purposes such as specific deterrence, accountability and denunciation.
Was the nonparole period manifestly excessive?
The issue on the appeal is whether the nonparole period is manifestly excessive in the sense that it is unreasonable, plainly unjust, or outside the available range having regard to the relevant objective and subjective considerations.
I agree with the observation of Burns J in Massey v Naspe [2012] ACTSC 161 that a nonparole period of more than 80 per cent of the head sentence is higher than that commonly seen as appropriate, and it requires explanation.
In this case, the explanation that was given is difficult to follow, but it is there and it is reasonable.
I am not satisfied that the nonparole period is manifestly excessive. His Honour's stated intention was to impose a nonparole period of between 75–80 per cent. Seventy per cent of a total sentence of 32 months is 22.4 months. Seventy-five per cent is 24 months. Eighty per cent is 25.6 months. If one takes 25.6 months, and corrects it to the nearest month, the result is a nonparole period of 26 months, which is the nonparole period that his Honour imposed.
The appeal is dismissed.
| I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 22 June 2016 |
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