Emir Ajetovic v Dylan Robert Johnston; Aldin Kahric v Dylan Robert Johnston

[2011] ACTSC 201

EMIR AJETOVIC v DYLAN ROBERT JOHNSTON
ALDIN KAHRIC v DYLAN ROBERT JOHNSTON                 
[2011] ACTSC 201 (7 December 2011)

APPEAL – GENERAL PRINCIPLES – appeal from the ACT Magistrates Court – whether the learned Magistrate was in error in not considering a sentence less than an immediate term of imprisonment – appeal upheld

Crimes (Sentencing) Act 2005 (ACT), ss 10, 78

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 104 of 2011
No. SCA 110 of 2011

Judge:              Burns J
Supreme Court of the ACT

Date:               7 December 2011

IN THE SUPREME COURT OF THE       )
  )          No. SCA 104 of 2011
AUSTRALIAN CAPITAL TERRITORY    )          No. SCA 110 of 2011

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:EMIR AJETOVIC

Appellant SCA 104 of 2011

ALDIN KAHRIC
  Appellant SCA 110 of 2011

AND:DYLAN ROBERT JOHNSTON

Respondent SCA 104 and 110 of 2011

ORDER

Judge:  Burns J
Date:  7 December 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. In each case the appeal will be allowed and the conviction and penalty will be confirmed.

1. The sentence of six months imprisonment in each case is to be served by way of full-time imprisonment for a period commencing 8 November 2011 and expiring on 7 December 2011, with the balance suspended.

1. In each case there will be a good behaviour order for two years, commencing today.

1. On 10 November 2011, each of the appellants was convicted in the ACT Magistrates Court of offences of assault occasioning actual bodily harm.  Each was sentenced to six months imprisonment commencing on 8 November 2011.  Each has now appealed the sentence imposed by the learned Magistrate.

1. The grounds upon which each appellant appeals are firstly, that the sentence imposed by the learned Magistrate was manifestly excessive and secondly, that the learned Magistrate was in error in not considering a sentence less than an immediate term of imprisonment with respect to the offences.

1. I must say I have had some difficulty in dealing with the present matter. I heard argument yesterday and I adjourned the matter until today in order to give my reasons and to hand down my decision.  In part, the difficulty that I have with respect to the matter, I am sure, is because it is not a sentence which I would have imposed on the appellants.  Certainly I accept that a term of imprisonment was an appropriate sentence with respect to each of the offences.  However, in my view, the requirements of the Crimes (Sentencing) Act 2005 (ACT) (the Act) could have been satisfied by something less than an immediate term of imprisonment.

1. I have endeavoured to put that out of my mind in dealing with the grounds of appeal that have been raised by each of the appellants.  I may only interfere with the sentencing discretion of the learned Magistrate if I am satisfied either that the learned Magistrate made some error of fact or law in the sentence proceedings or, alternatively, imposed a sentence which is manifestly excessive.

1. I must say that I cannot say that a sentence of six months imprisonment was manifestly excessive with respect to the offences committed by each of the appellants.  That leaves the second ground of appeal, whether the learned Magistrate was in error in not considering a sentence less than an immediate term of imprisonment.

1. I note that s 10 of the Act provides that a court may, by order, sentence an offender to imprisonment if the court is satisfied, having regard or having considered possible alternatives, that no other penalty is appropriate. That constitutes a legislative requirement that a court considering a term of imprisonment, and in particular a term of full-time imprisonment, must consider whether there is some sentencing option which is less than full-time imprisonment, but which would be appropriate to satisfy the requirements of sentencing as set out in the Act.

1. A pre-sentence report was prepared with respect to each of the appellants. Those pre-sentence reports were prepared by officers of Corrective Services and in each case the appellants were found to be suitable for periodic detention. Section 78 of the Act, and in particular subsection (6), provides that:

(6) The court must record reasons for its decision to set, or decline to set, a periodic detention period for an offender if:

(a)  the pre-sentence report recommends that the offender is suitable but the court decides not to set a periodic detention period for the offender; or

(b) the pre-sentence report recommends that the offender is not suitable but the court decides to set a periodic detention period for the offender.

1. Subsection (7) provides that failure to comply with subsection (6) does not invalidate the periodic detention order. Where subsection (7) provides that failure to comply with subsection (6) does not invalidate the periodic detention order, that can only be a reference to subsection (6) (b), which applies where a pre-sentence report recommends that the offender is not suitable for periodic detention, but the court decides to set a periodic detention period for the offender nevertheless. Subsection (7) cannot apply to subsection (6) (a), because in those circumstances, there is no periodic detention order. In my opinion, that is a clear legislative indicator that failing to comply with the provisions of section 78 (6) (a) would constitute an error of law in the sentencing process.

1. I have on a number of occasions now read the sentencing remarks of the learned Magistrate. At no point during the sentencing proceedings does his Honour refer to anything less than an immediate term of full-time imprisonment. He certainly never gives any reason for determining not to set a periodic detention period for either of the appellants as required by section 78 (6) (a) of the Act.

1. I am satisfied that the learned Magistrate made an error of law in that he did not turn his mind to the imposition of a sentence less than an immediate term of imprisonment with respect to these offences, nor did he comply with the requirements of s 78 (6) (a) of the Act by recording his reasons for not setting a periodic detention period for each of the offenders.

1. Having determined that the learned Magistrate made an error of law in the course of the sentencing proceedings, it now falls to me to re-sentence with respect to the offences that were before the learned Magistrate. 

1. Before I do so, I will make one further comment about the failure to give reasons for declining to impose a periodic detention order with respect to each of the appellants.  I note that the prosecutor who appeared before the learned Magistrate on sentencing submitted to the learned Magistrate in each case that full-time imprisonment was not necessary to reflect the requirements of sentencing with respect to the two offenders who are now the appellants before this Court.  Of course, his Honour was not bound to act in the way suggested by the prosecutor, but equally, courts cannot simply ignore submissions as to an appropriate sentence put before the court by a prosecutor.  After all, prosecutors represent the community in criminal proceedings.  Where, as here, a prosecutor makes a considered submission that something less than full-time imprisonment would be adequate to address the requirements of the Act with respect to a particular crime, it is incumbent on a judge or magistrate to explain why they do not accept that submission.  A failure to provide such an explanation suggests that a sentence less than full-time imprisonment was not considered by the court.

1. I note with respect to the two appellants that each pleaded guilty at a very early opportunity.  I note that whilst each of the appellants was involved in delivering a number of punches to the victim with respect to this matter, it is not alleged that they were the people who actually inflicted the more serious injuries upon the victim.  In that regard, a co-accused, who is currently awaiting trial with respect to offences arising out of this incident, is alleged to have kicked the victim a number of times to the head, causing the most significant injuries.

1. Without in any way wishing to minimise the injuries suffered by the victim or to denigrate his pain and suffering, I note that the injuries were not amongst the most serious injuries which are seen in these courts arising out of these types of incidents.  He suffered a laceration to his right cheek and to the left side of his nose.  He also suffered bruising and a very swollen right eye.  No evidence was put before the learned Magistrate of any continuing incapacity with respect to the victim.

1. Doubtless the victim will continue to have anxieties and ongoing concerns in relation to what happened to him in this offence, but as I have already said, most of the injuries are alleged to have been inflicted by the co-accused, who is currently awaiting trial with respect to that charge.  Whilst I accept that the doctrine of common purpose applies such that each of the offenders with respect to this offence are not to be separately sentenced merely for the injury which they personally inflicted, it is also equally clear that in determining sentence, a court must have regard to the role each of the individual offenders played in the offence.

1. I note that each of the offenders has now spent a period of nearly one month in full time imprisonment.  Neither has previously served a term of imprisonment.  Indeed, the appellant Emir Ajetovic has, for practical purposes, no prior convictions recorded against him and is only 21 years of age.  The appellant Aldin Kahric is somewhat older, at 25 years of age, and has a number of traffic convictions recorded against him, but as I have already noted, he has nothing recorded against him for offences of violence.  It may I think be said that the conduct which gives rise to the charge now before the court was out of character for each of the appellants.

1. The learned Magistrate was faced with a difficult situation in which he needed to balance the requirements of general deterrence for an offence involving unprovoked violence, against other sentencing requirements, including the need to impose the minimum sentence which would satisfy the requirements of the Act on sentencing.

1. As I have already indicated, I do not consider that the term of six months imprisonment was manifestly excessive.  However, I think that the appropriate sentence is to impose a term of full-time imprisonment form 8 November 2011 until today, 7 December 2011, and then to suspend the balance and impose a good behaviour order.

1. The order that was made by the learned Magistrate provided for no supervision of these young men after they leave prison.  In my view, it would be much better in the community’s interest to have them subject to a significant period of supervision in order to try to minimise the prospects of these events occurring again whilst they are under the influence of alcohol.

1. In each case the appeal will be allowed and the conviction and penalty will be confirmed.  I order that the sentence of six months imprisonment in each case is to be served by way of full-time imprisonment for a period commencing 8 November 2011 and expiring on 7 December 2011, with the balance suspended.

1. In each case there will be a good behaviour order for two years, commencing today, self in the sum of $1,000, with the following conditions:

1.   you are to accept the supervision of ACT Corrective Services and obey all reasonable directions of the Executive Director of that Service for a period of two years or such lesser period as deemed appropriate by ACT Corrective Services. 

2.   you are to participate in such counselling, programs and treatment for alcohol abuse as directed by ACT Corrective Services.

I certify that the preceding twenty one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date:    12 December 2011

Counsel for the appellant Mr Ajetovic:             Mr J Sabharwal
Solicitor for the appellant Mr Ajetovic:             AP Jones and Co Lawyers
Counsel for the appellant Mr Kahric:                Mr P Edmonds
Solicitor for the appellant Mr Kahric:                Paul Edmonds and Associates
Counsel for the respondent:  Mr T Jackson
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  6 December 2011
Date of judgment:  7 December 2011