Fardell v Hansen

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Fardell v Hansen
Citation:	[2017] ACTSC 419
Hearing Date:	16 May 2017
DecisionDate:	16 May 2017
Before:	Mossop J
Decision:	See [12]
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – sentence appeal – leniency for guilty plea – backdating for time in custody prior to sentencing – no demonstrable error found – appeal dismissed
Legislation Cited:	Magistrates Court Act 1930 (ACT), ss 214, 215, 216, 217, 218
Cases Cited:	Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Peverill v Crampton [2010] ACTSC 79
Parties:	Tracey Lee Fardell (Appellant) Danya Lyn Hansen (First Respondent) Chris Raymond Hotchkis (Second Respondent) Kristian James Harris (Third Respondent) Scott Thomas Heyne (Fourth Respondent) Alan Quang Duong (Fifth Respondent) David Anthony Reis (Sixth Respondent) Nicole Johanna Jevic (Seventh Respondent) Shaun Edward Cunningham (Eighth Respondent) Benjamin Francis Barnard (Ninth Respondent)
Representation:	Counsel Self-represented (Appellant) S McFarland (Respondents)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondents)
File Number:	SCA 88 of 2016
Decision under appeal:	Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Campbell Date of Decision: 18 November 2016 Case Title: Hansen v Fardell Court File Numbers: CC13/9950 CC13/10144 CC13/10145 CC13/10160 CC13/11630 CC14/40 CC14/1902 CC14/3334 CC14/3335 CC14/3336 CC14/3337 CC16/1514 CC16/2620 CC16/2621 CC16/2622 CC16/2623 CC16/3572 CC16/3573 CC16/3806 CC16/6127 CC16/11296

Mossop J:

Introduction

This is an appeal by Tracey Fardell, also known as Tracey Little, who was sentenced by Magistrate Campbell on 18 November 2016 in relation to a large number of offences. The amended notice of appeal identifies that the grounds of appeal are "no leniency for pleading guilty, no backdate time served." The orders sought as set out in the notice of appeal are "supervised GBO or suspended sentence". The offences to which the appellant pleaded guilty are as follows:

Charge Number	Charge Name	Date of Offence	Offending conduct	Maximum penalty	Sentence imposed
CC13/9950	Unlawful possession of stolen property	1 November 2013	Possession of two JVC high definition “Enverio” camcorders	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, five months imprisonment imposed, commencing 2/6/16 to 1/12/16
CC13/10144	Minor theft	1 November 2013	Dishonestly appropriating a “Rusk” brand “Miracurl” hair curler from Price Attack at the Westfield Woden shopping plaza	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, three months imprisonment imposed, concurrent with CC13/9950, commencing 2/6/16 to 1/10/16
CC13/10145	Minor theft	2 November 2013	Dishonestly appropriating a “Silver Bullet Keratin 230” hair straightener from Price Attack at the Westfield Woden shopping plaza	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, three months imprisonment imposed, concurrent with CC13/9950, commencing 2/6/16 to 1/10/16
CC13/10160	Minor theft	27 October 2013	Dishonestly appropriating a box of “Ed Hardy” perfume from Priceline at the Westfield Woden shopping plaza	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, two months imprisonment imposed, concurrent with CC13/9950, commencing 2/6/16 to 1/9/16
CC13/11630	Minor theft	2 November 2013	Dishonestly appropriating a purse and its contents	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, five months imprisonment imposed, consecutive on CC13/9950, commencing 2/12/16 to 1/5/17
CC14/40	Minor theft	5 November 2013	Dishonestly appropriating a “Free Woman” dress and a “Agenda Woman” shirt from David Jones	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, three months imprisonment imposed, concurrent on CC14/1902, commencing 2/3/17 to 1/6/17
CC14/1902	Minor theft	5 November 2013	Dishonestly appropriating a “Delonghi” coffee machine from Harvey Norman Furniture at Fyshwick	A fine of $7000, imprisonment for six months or both	Good behaviour order cancelled, five months imprisonment imposed, two months concurrent on CC13/11630, three months consecutive, commencing 2/3/17 to 1/8/17
CC14/3334	Obtain property by deception	2 November 2013	By deception, dishonestly obtaining a “BIC” lighter from the BP petrol station at Braddon	A fine of $140,000, imprisonment for 10 years or both	Good behaviour order cancelled, three months imprisonment imposed, concurrent with CC13/11630, commencing 2/12/16 to 1/3/17
CC14/3335	Obtain property by deception	2 November 2013	By deception, dishonestly obtaining four packets of “Virginia” 30 pack cigarettes from the BP petrol station at Braddon	A fine of $150,000, imprisonment for 10 years or both	Good Behaviour Order cancelled, three months imprisonment imposed, concurrent with CC13/11630, commencing 2/12/16 to 1/3/17
CC14/3336	Obtain property by deception	2 November 2013	By deception, dishonestly obtaining four packets of “Virginia” 30 pack cigarettes from the 7 Eleven at Braddon	A fine of $140,000, imprisonment for 10 years or both	Good behaviour order cancelled, three months imprisonment imposed, concurrent with CC13/11630, commencing 2/12/16 to 1/3/17
CC14/3337	Obtain property by deception	2 November 2013	By deception, dishonestly obtaining four packets of “Virginia 30” pack cigarettes from the Caltex petrol station at Braddon	A fine of $140,000, imprisonment for 10 years or both	Good behaviour order cancelled, three months imprisonment imposed, concurrent with CC13/11630, commencing 2/12/16 to 1/3/17
CC16/1514	Minor theft	25 September 2015	Dishonestly appropriating a “Graham Leather” vest from G-Staw Raw	A fine of $7500, imprisonment for six months or both	Two months imprisonment imposed, consecutive on CC14/1902, commencing 2/8/17 to 1/10/17
CC16/2620	Minor theft	11 February 2016	Dishonestly appropriating a “Rockwell” “Shop Series” impact drill from Supercheap Auto	A fine of $7500, imprisonment for six months or both	Three months imprisonment imposed, 2 months consecutive on CC16/1514, commencing 2/9/17 to 1/12/17
CC16/2621	Minor theft	11 February 2016	Dishonestly appropriating a “Matso” dual battery kit from Supercheap Auto	A fine of $7500, imprisonment for six months or both	Three months imprisonment imposed, two months consecutive on CC16/1514, commencing 2/9/17 to 1/12/17
CC16/2622	Minor theft	11 February 2016	Dishonestly appropriating a “Quadcopter” remote controlled “Hawkeye” drone from Jaycar Electronics	A fine of $7500, imprisonment for six months or both	Three months imprisonment imposed, two months consecutive on CC16/1514, commencing 2/9/17 to 1/12/17
CC16/2623	Minor theft	11 February 2016	Dishonestly appropriating a 41 piece “SP” socket set from Autopro	A fine of $7500, imprisonment for six months or both	Three months imprisonment imposed, two months consecutive on CC16/1514, commencing 2/9/17 to 1/12/17
CC16/3572	Minor theft	25 March 2016	Dishonestly appropriating wallet and its contents	A fine of $7500, imprisonment for six months or both	Three months imprisonment imposed, one month consecutive on CC16/6127, commencing 2/12/17 to 1/3/18
CC16/3573	Unlawful possession of stolen property	25 March 2016	Possession of a wallet and its contents reasonably suspected of being stolen or otherwise unlawfully obtained	A fine of $7500, imprisonment for six months or both	One month imprisonment imposed, concurrent on CC16/3572, commencing 2/12/17 to 1/1/18
CC16/3806	Minor theft	4 April 2016	Dishonestly appropriating a double bed comforter set, electric blanket and woollen under blanket, an upright vacuum and a “piranha” vacuum from Kmart Australia	A fine of $7500, imprisonment for six months or both	One month imprisonment imposed, consecutive on CC16/3572, commencing 2/3/18 to 1/4/18
CC16/6127	Minor theft	25 February 2016	Dishonestly appropriating four pairs of sunglasses from Bupa Optical	A fine of $7500, imprisonment for six months or both	Two months imprisonment imposed, one month consecutive on CC16/11296, commencing 2/12/17 to 1/2/18
CC16/11296	Minor theft	21 February 2016	Dishonestly appropriating a bottle of “Absolute” vodka from Liquorland Belconnen	A fine of $7500, imprisonment for six months or both	One month imprisonment imposed, consecutive on CC2620, commencing 2/12/17 to 1/1/18

Leniency for pleading guilty

In relation to the first ground of appeal, that there was no leniency for the plea of guilty, that was an issue which, during the course of her Honour's reasons, was expressly dealt with at page 2 of the transcript. Her Honour said “I have taken into account the pleas of guilty”.

She also referred to that issue at page 4 of the transcript where there was an exchange with the solicitor appearing for the appellant as follows:

HER HONOUR:   Even though my view is each was a separate act of criminality, each - - -
MR SMITH:   Yes.
HER HONOUR:   - - - could in effect have a separate penalty. That is the way I have taken into account the pleas of guilty and reduced my head sentence - - -
MR SMITH:   Yes.
HER HONOUR:   - - - considerably ...

Because it is clear from the transcript that her Honour did take into account the plea, I dismiss that ground of appeal.

Backdate of time served

The second ground of appeal was that there had been no backdating. That is an issue which, once again, is expressly dealt with in the transcript. There is a discussion at page 3 of the transcript which identifies some 139 days that the appellant had spent in custody prior to the sentencing date. She had been in custody from 24 June 2016 until 9 November 2016. That is some days prior to the sentencing date, which was

18 November 2016.

The appellant had been released from custody so as to attend a funeral and was allowed to remain out of custody until the date of the sentence. It is for that reason that the backdating of the sentences was only such that the earliest of the sentences commenced on 2 July 2016 rather than 24 June 2016. In my view, it is clear that her Honour did appropriately backdate the sentence of imprisonment, and as a consequence that ground of appeal must also be rejected.

Appeal must show error

During the course of oral submissions to this Court, Ms Fardell referred in some detail to her personal circumstances and the particular difficulties that she has been facing. Those difficulties included matters that occurred both before and after the sentencing date. In relation to matters prior to the sentencing date, she referred, amongst other things, to the death of her oldest child and the death of her partner's daughter. She also referred to her embarrassment at going to court and having to deal with the numerous matters with which the sentencing magistrate did deal. In relation to matters that

post-dated the sentencing, she referred to her adverse circumstances relating to the state of her house or the house where she had lived. Those circumstances gave rise to a grant of bail by Elkaim J for a limited period so she could address some of those issues.

She referred to the particular difficulties she had whilst on bail in dealing with her house and, in addition, the lack of support that she perceives she had during that period. She also submitted that she had sworn that she never wanted to go back to gaol and that she presently had supports available, including counsellors from a church, which will permit her to start afresh and over again. She submitted that the outcome that she wished to have was a reduction of the non-parole period so that she, amongst other things, was able to scatter the ashes of her son, but also, as I understand it, so that she might attempt to make a fresh start.

All of these matters might have been relevant had this been a hearing de novo, instead it is an appeal which must demonstrate error. The nature of an appeal is identified in the statutory provisions, most particularly ss 214–218 of the Magistrates Court Act 1930 (ACT). The principles to be applied are summarised in Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [11], [18], and in Peverill v Crampton [2010] ACTSC 79 at [23]–[24]. It is clear on those authorities that the nature of the appeal is such that it is not open to simply reconsider the submissions that might have been directed to the sentencing judge, but instead that some error must be demonstrated.

As a consequence, while I have noted the various matters to which the appellant has referred, I do not consider that they fall within the grounds of appeal or provide an alternative ground of appeal. Looking at the matter, I rule that it is clear that the magistrate took significant steps to reduce the totality of the penalty that was imposed. Having regard to the appellant's criminal history, the circumstances of the offending conduct and the number of offences with which she had been charged, the overall sentence imposed by her Honour can be seen as a lenient sentence. As a consequence, it is appropriate to, in substance, dismiss the appeal.

However, because there have been 35 days whilst the appeal was pending during which the appellant has been on bail or otherwise at large, it is necessary to adjust the unserved sentences so as to take that period into account. This will not have the effect of enlarging the overall sentence but simply involves adjusting the dates so the period on bail or otherwise at large is not taken into account towards service of the sentences. I will do that by adjusting the dates of the sentences that had not been completely served as of the date of the grant of bail so as to add an additional 35 days to the start and end date.

Orders

As a consequence the orders of the Court are:

(a)The appeal is dismissed and the sentences imposed are confirmed except to the extent required by order 2.
(b)The sentences on the following charges are amended so that their start and finish dates are as follows:
i.CC2013/11630 start date amended to 6 January 2017 and end date amended to 5 June 2017.
ii.CC2014/1902 start date amended to 6 April 2017 and end date amended to 5 September 2017.
iii.CC2014/40 start date amended to 6 April 2017 and end date amended to 5 July 2017.
iv.CC2016/1514 start date amended to 6 September 2017 and end date amended to 5 November 2017.
v.CC2016/2620 start date amended to 7 October 2017 and end date amended to 6 January 2018.
vi.CC2016/2621 start date amended to 7 October 2017 and end date amended to 6 January 2018.
vii.CC2016/2622 start date amended to 7 October 2017 and end date amended to 6 January 2018.

viii.CC2016/2623 start date amended to 7 October 2017 and end date amended to 6 January 2018.
ix.CC2016/6127 start date amended to 6 January 2018 and end date amended to 5 March 2018.
x.CC2016/3572 start date amended to 6 January 2018 and end date amended to 5 April 2018.
xi.CC2016/3573 start date amended to 6 January 2018 and end date amended to 5 February 2018.
xii.CC2016/3806 start date amended to 6 April 2018 and end date amended to 5 May 2018.

xiii.CC2016/11296 start date amended to 6 January 2018 and end date amended to 5 February 2018.

(a) Non-parole period adjusted so that it starts on 2 July 2016 and ends on 5 September 2017.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 7 March 2018

[2017] ACTSC 419

16 May 2017