EG v The Queen
[2012] ACTCA 17
•February 6, 2012
EG v THE QUEEN
[2012] ACTCA 17 (6 February 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 49 - 2010
No. SCC 206 of 2010
Judges: Higgins CJ, Refshauge and North JJ
Court of Appeal of the Australian Capital Territory
Date: 6 February 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 49 - 2010
) No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:EG
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Refshauge and North JJ
Date: 6 February 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The sentences imposed by Nield AJ be varied as follows:
(i)with respect to count one on the indictment, being the offence of burglary, the period of imprisonment be reduced from one year and seven months to one year;
(ii)with respect to count two on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months, which shall be served concurrently upon count one;
(iii)with respect to count three on the indictment, being the offence of aggravated burglary, the period of imprisonment be reduced from two years and four months to 18 months, which shall be cumulative upon count one as to one year;
(iv)with respect to count four on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months, which shall be served concurrently upon count three;
(v)with respect to count five on the indictment, being the offence of burglary, the period of imprisonment be reduced from one year and seven months to one year;
(vi)with respect to count six on the indictment, being the offence of theft, the period of imprisonment be reduced from one year and seven months to six months;
(vii)with respect to count seven on the indictment, being the offence of taking a motor vehicle without consent , the period of imprisonment be reduced from one year and seven months to six months;
(viii)counts five, six and seven on the indictment shall be served concurrently with each other and shall be cumulative upon the previous sentence to the extent of six months.
Pursuant to those variations, the total term of imprisonment shall be two years and six months dating from 3 November 2010.
The sentence be suspended as of 6 February 2012.
The non-parole period be set aside as of 6 February 2012.
The appellant enter a good behaviour order of two years as of 6 February 2012.
IN THE SUPREME COURT OF THE ) No. ACTCA 49 - 2010
) No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:EG
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and North JJ
Date: 9 February 2012
Place: Canberra
REASONS FOR JUDGMENT
HIGGINS CJ:
We have come to a view that disposes of the appeal. If I may commence by saying that there are certain matters that were taken into account by his Honour, and certain matters not taken into account by his Honour, which I think constitute error in this particular case.
First, there was evidence of, but no regard paid to, the fact that on the two failed attempts at rehabilitation, the offender, as he then was, had surrendered himself rather than waiting to be caught. That is a significant factor because it indicates that his desire for rehabilitation was indeed genuine rather than assumed for the purpose of being freed from custody.
Secondly, his drug taking, which on the evidence led to this particular bout of offending, was induced by circumstances that could not be said to be within his control. That evidence was unchallenged but not adverted to by his Honour.
For those reasons, I think there was error. I agree that it was not assisted by the lack of information from counsel in the lower court. Nevertheless, there was evidence given by the offender that was certainly not challenged by Mr Lawton who then appeared for the Crown.
Having regard to the age and antecedents of the offender, I note that the sentences imposed also seem to be excessive. He had no relevant adult prior offences. At 20 years of age, he was still youthful at the time of the offences. His rehabilitation prospects, for the reasons that I have mentioned, might really be regarded as good, and he had indeed taken some steps towards that rehabilitation.
I further note that at about the time of sentencing there had occurred what I would regard as a life changing event, namely the birth of another child. The offender’s relationship with his partner had apparently settled, and I think that would add further weight, if further weight was needed, to the likelihood that rehabilitation would have been successful. Having regard to the offender’s record and prospects, it does seem to me that the sentences which his Honour imposed can be regarded as manifestly excessive.
I would propose that on the first count of burglary, the offender be sentenced to 12 months’ imprisonment. I would impose a sentence of six months for the associated theft, to be served concurrently. I would impose 18 months for the aggravated burglary, having regard to the minimal weight which I would give to the circumstance of aggravation. I again impose six months for the associated theft to be served concurrently. I would make that second sentence cumulative on the first sentence to the extent of 12 months.
For the third group of three offences, I would impose 12 months for the burglary, six months for the theft, and six months for the taking and using of the motor vehicle. All of those sentences are to be served concurrently and are to be cumulative as to six months on the previous sentence.
That, on my calculation, would give rise to a sentence of two years and six months of imprisonment. I would then, however, having regard to all the circumstances, suspend that sentence from today and set aside the non-parole period. In lieu thereof, I would require the appellant to sign an undertaking to comply with good behaviour obligations for a period of two years with the following conditions: that he has probation for two years under supervision of the Director-General; that he obey all reasonable directions, especially as to residence, employment, treatment and counselling for drug and alcohol abuse; that he accept monitoring by CADAS and attend forthwith the alcohol and drug service to arrange that monitoring; and that he remain on the methadone program until his supervisor, in consultation with CADAS, agrees that he may terminate his participation in that program. Having regard to the time spent in custody following the appeal being instituted, the sentences will commence from 3 November 2010. It makes no difference, of course, to the order made. EG will be released as from today. I also note that no action should be taken with respect to breach of the good behaviour order, although it was not raised on the appeal. I would also associate myself with the remarks of Refshauge J.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 4 April 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 49 - 2010
) No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:EG
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and North JJ
Date: 9 February 2012
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
I agree with the proposed disposition of the appeal and the reasons expressed by the learned Chief Justice. I wish only to make a couple of comments in addition. It seems to me that while the appellant has a long and undistinguished record in the Childrens Court as a juvenile, there is a significant difference between offences committed as a juvenile and those committed as an adult.
Simply because the appellant has committed offences as a juvenile does not, in my opinion, necessarily mean that he is beyond rehabilitation. It is important that the particular circumstances be looked at. In my view, his Honour failed to look at the particular circumstances in this case and failed to have regard to them when making the decisions that he did. His Honour thereby fell into error, causing the sentences to be manifestly excessive.
I certify that the preceding two paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 4 April 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 49 - 2010
) No. SCC 206 of 2010
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:EG
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and North JJ
Date: 9 February 2012
Place: Canberra
REASONS FOR JUDGMENT
NORTH J:
I agree with the conclusion and the reasons of the Chief Justice and I would also associate myself with the additional comments made by Refshauge J.
I certify that the preceding paragraph is a true copy of the Reasons for Judgment herein of his Honour, Justice North.
Associate:
Date: 4 April 2012
Counsel for the Appellant: Mr A Hopkins
Solicitor for the Appellant: Darryl Perkins Solicitor
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 6 February 2012
Date of judgment: 6 February 2012
8
0
0