Evans v Williams
[2019] ACTSC 84
•29 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Evans v Williams & Ors |
Citation: | [2019] ACTSC 84 |
Hearing Date: | 29 March 2019 |
DecisionDate: | 29 March 2019 |
Before: | Elkaim J |
Decision: | The appeal is allowed |
Catchwords: | APPEAL – GENERAL PRINCIPLES – Appeal from Magistrate – Appeal against sentence – multiple offences – individual sentences and total aggregate sentence manifestly excessive |
Cases Cited: | R v Williams [2017] ACTSC 298 |
Parties: | Aaron Evans (Appellant) Lara Williams and Others (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr M Howe (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 7 of 2019 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Theakston Date of Decision: 20 December 2018 Case Title: Williams & Ors v Evans Court File Numbers: CC18/14433; CC18/14434; CC18/14435; CC18/13289; CC18/13290; CC18/ 13292; CC18/13294; CC18/13574; CC18/13736; CC18/14455; CC17/12749; CC17/12750; CC18/6257; CC18/5229; CC18/12772; CC17/7069; CC17/7071; CC17/9677; CC17/9676; CC18/4496; CC18/2779; CC18/6483; CC18/3981; CC18/12580; CC18/12581; CC18/14542; CC18/13991; CC18/5227; CC18/5228; CC17/12751 |
ELKAIM J:
On 20 December 2018, Magistrate Theakston convicted the appellant of 30 different offences which occurred over the period from April 2017 to October 2018. A summary of the offences and the corresponding sentence, as outlined in the Notice of Appeal filed on 17 January 2019, are as follows:
(a) Failing to stop motor vehicle for police (CC18/14433), 3 months’ imprisonment, commencing on 27 August 2018 ending on 26 November 2018;
(b) Drive while suspended (CC18/14434), sentenced to the rising of the court, licence suspended for one month;
(c) Dangerous driving (CC18/14435), 9 months’ imprisonment, commencing on 27 August 2018 ending on 26 May 2019;
(d) Negligent driving (CC18/13289), fine of $1,000 with no time to pay;
(e) Driving while licence suspended (CC18/13290), sentenced to the rising of the court, disqualified from holding or obtaining a drivers licence for one month;
(f) Failing to stop motor vehicle for police (CC18/13292), 3 months’ imprisonment, commencing on 27 February 2019 ending on 26 May 2019;
(g) Not giving particulars (CC18/13294), fine of $500 with no time to pay;
(h) Driving uninsured (CC18/13574), fine of $500 with no time to pay;
(i) Driving unregistered (CC18/13736), fine of $500 with no time to pay;
(j) Damage property (CC18/14455), sentenced to 6 months’ imprisonment, commencing on 27 February 2019 ending on 26 August 2019;
(k) Minor theft (CC17/12749), 3 month’s imprisonment, commencing on 27 July 2019 ending on 26 October 2019;
(l) Minor theft (CC17/12750), 3 month’s imprisonment, commencing on 27 July 2019 ending on 26 October 2019;
(m) Minor theft (CC18/6257), 3 months’ imprisonment, commencing on 27 December 2019 ending on 26 December 2019;
(n) Fail to appear (CC18/5229), 1 month imprisonment, commencing on 27 December 2019 ending 26 January 2020;
(o) Fail to appear (CC18/12772), 1 month imprisonment, commencing on 27 December 2019 ending 26 January 2020;
(p) Failing to stop (CC17/7069), disqualified from holding or obtaining a drivers licence for a period of 12 months and ordered to pay a fine of $1,000 with no time to pay;
(q) Unregistered vehicle (CC17/7071), fine of $500 with no time to pay;
(r) Uninsured motor vehicle (CC17/9677), fine of $500 with no time to pay;
(s) Drive while suspended (CC17/9676), sentenced to the rising of the court, disqualified from holding or obtaining a licence for twelve months;
(t) Uninsured motor vehicle (CC18/4496), fine of $500 with no time to pay;
(u) Minor theft (CC18/2779), fine of $1,000 with no time to pay;
(v) Minor theft (CC18/6483), sentenced to the rising of the court;
(w) Fail to appear (CC18/3981), fine of $1,000 with not time to pay;
(x) Joint commission minor theft (CC18/12580), sentenced to the rising of the court;
(y) Minor theft (CC18/12581), sentenced to the rising of the court;
(z) Possess drug of dependence (CC18/14542), fine of $500 with no time to pay;
(aa) Trespass (CC18/13991), fine of $400 with no time to pay;
(bb) Minor theft (CC18/5227), sentenced to the rising of the court;
(cc) Possess drug of dependence (CC18/5228), fine of $500 with no time to pay; and
(dd) Possess prohibited substance (CC17/12751), fine of $1,000 with no time to pay.
The total aggregate sentence was 17 months’ imprisonment, commencing on 27 August 2018 ending on 26 January 2020 with a non-parole period of 10 months, starting on 27 August 2018 ending on 26 June 2019.
The appellant has appealed from the whole of the orders on the basis that the individual sentences and total aggregate sentence is manifestly excessive.
Out of the 30 sentences, 14 involved the imposition of a fine with no time to pay, seven were sentences to the rising of the court, and nine involved periods of full-time imprisonment, one of which was essentially disposed of immediately as time already served in custody.
The appellant was self-represented. He efficiently argued his case in this way: he first of all abandoned all of the appeals other than in respect of three terms of imprisonment (for charges CC18/14433; CC18/14435; CC18/13292). He then referred to statistics from the ACT Sentencing Database for dangerous driving sentences and said that this document revealed that in only 29% of cases was the offender given a full-time sentence of imprisonment.
Next, the appellant referred me to the decision of Mossop J in R v Williams [2017] ACTSC 298 (Williams), in which the offender, for a dangerous driving charge, received a sentence of imprisonment of four months, which is of course significantly less than the nine months received by the appellant.
When it was pointed out to the appellant that the term of imprisonment in respect of charge CC18/14433 (failing to stop motor vehicle for police) was now completed he abandoned his appeal in respect of this charge. As far as charge CC18/13292 (failing to stop motor vehicle for police) is concerned the term of imprisonment will end at the same time as for the dangerous driving charge, but more importantly is effectively consumed within the overall term of imprisonment.
Turning then to the only remaining effective ground of appeal, the appellant’s submission was that the sentence of nine months was “not fair” and “too long”. In other words the sentence was manifestly excessive. The appellant pointed out that it was the first time that he was being imprisoned, that he had no previous convictions for dangerous driving and his overall criminal record was not particularly bad.
In order to succeed in an appeal of this nature the appellant must demonstrate error on the part of the sentencing Magistrate. A manifestly excessive sentence can amount to error. For present purposes a sentence is manifestly excessive if it is plainly unjust.
The Crown’s response to the appellant’s submission was that the nine months term of imprisonment must be seen within the context of the whole of the offending. Further the statistics were of little assistance because of their generalisation. In respect of Williams the Crown said that the circumstances were very different and that the four month sentence for dangerous driving was, in essence, a component of much larger criminal conduct so that it could not be viewed alone.
I agree with the Crown about the statistics. I also agree that the offending must be looked at against the background of the overall circumstances. The point where I differ with the Crown is that even if the overall sentence might be regarded as ’fair’, if there is a component of that sentence which is individually excessive then the court is entitled to intervene. This is particularly the case where the sentence at issue has a significant effect on the overall term of imprisonment.
The magistrate here obviously took full account of the principles of totality and applied both periods of concurrency and accumulation in order to avoid an overly long head sentence. Nevertheless the nine months is the longest, by some three months, of all of the sentences of imprisonment and plays a significant part in the ultimate head sentence.
In my view the nine months is plainly unjust and needs to be adjusted. I think the appropriate sentence should be five months imprisonment. A difficulty is that because of the overall scheme of accumulation and concurrency of the other sentences, it will be necessary to re-sentence the appellant on other offences in order to achieve the result of shortening his head sentence. I will do this by changing the starting dates in respect of Charges CC18/13292, CC18/14435, CC17/12749, CC17/12750, CC18/6257, CC18/5229, and CC18/12772 so as to shorten the sentence by four months.
The non-parole period will also need adjustment. My orders will reflect a shortening of the non-parole period so that it expires on 26 April 2019.
Orders
Accordingly, I make the following orders:
(a) The appeal is allowed.
(b) The Orders of Magistrate Theakston on 20 December 2018 are set aside.
(c) The appellant is re-sentenced to the following:
(i) Failing to stop motor vehicle for police (CC18/14433), 3 months’ imprisonment, commencing on 27 August 2018 ending on 26 November 2018;
(ii) Drive while suspended (CC18/14434), sentenced to the rising of the court, licence suspended for one month;
(iii) Dangerous driving (CC18/14435), 5 months’ imprisonment, commencing on 27 August 2018 ending on 26 January 2019;
(iv) Negligent driving (CC18/13289), fine of $1,000 with no time to pay;
(v) Driving while licence suspended (CC18/13290), sentenced to the rising of the court, disqualified from holding or obtaining a drivers licence for one month;
(vi) Failing to stop motor vehicle for police (CC18/13292), 3 months’ imprisonment, commencing on 27 October 2018 ending on 26 January 2019;
(vii) Not giving particulars (CC18/13294), fine of $500 with no time to pay;
(viii) Driving uninsured (CC18/13574), fine of $500 with no time to pay;
(ix) Driving unregistered (CC18/13736), fine of $500 with no time to pay;
(x) Damage property (CC18/14455), sentenced to 6 months’ imprisonment, commencing on 27 February 2019 ending on 26 August 2019;
(xi) Minor theft (CC17/12749), 3 month’s imprisonment, commencing on 27 June 2019 ending on 26 September 2019;
(xii) Minor theft (CC17/12750), 3 month’s imprisonment, commencing on 27 June 2019 ending on 26 September 2019;
(xiii) Minor theft (CC18/6257), 3 months’ imprisonment, commencing on 27 June 2019 ending on 26 September 2019;
(xiv) Fail to appear (CC18/5229), 1 month imprisonment, commencing on 27 August 2019 ending 26 September 2019;
(xv) Fail to appear (CC18/12772), 1 month imprisonment, commencing on 27 August 2019 ending 26 September 2019;
(xvi) Failing to stop (CC17/7069), disqualified from holding or obtaining a drivers licence for a period of 12 months and ordered to pay a fine of $1,000 with no time to pay;
(xvii) Unregistered vehicle (CC17/7071), fine of $500 with no time to pay;
(xviii) Uninsured motor vehicle (CC17/9677), fine of $500 with no time to pay;
(xix) Drive while suspended (CC17/9676), sentenced to the rising of the court, disqualified from holding or obtaining a licence for twelve months;
(xx) Uninsured motor vehicle (CC18/4496), fine of $500 with no time to pay;
(xxi) Minor theft (CC18/2779), fine of $1,000 with no time to pay;
(xxii) Minor theft (CC18/6483), sentenced to the rising of the court;
(xxiii) Fail to appear (CC18/3981), fine of $1,000 with not time to pay;
(xxiv) Joint commission minor theft (CC18/12580), sentenced to the rising of the court;
(xxv) Minor theft (CC18/12581), sentenced to the rising of the court;
(xxvi) Possess drug of dependence (CC18/14542), fine of $500 with no time to pay;
(xxvii) Trespass (CC18/13991), fine of $400 with no time to pay;
(xxviii) Minor theft (CC18/5227), sentenced to the rising of the court;
(xxix) Possess drug of dependence (CC18/5228), fine of $500 with no time to pay; and
(xxx) Possess prohibited substance (CC17/12751), fine of $1,000 with no time to pay.
(d) The total aggregate sentence is now 13 months’ imprisonment, commencing on 27 August 2018 ending on 26 September 2019 with a non-parole period of 8 months, starting on 27 August 2018 ending on 26 April 2019.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 29 March 2019 |
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