Fardell v Hansen - [2017] ACTSC 419

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fardell v Hansen

Details

AGLC: Fardell v Hansen [2017] ACTSC 419
Case: [2017] ACTSC 419
Decision Date: 16 May 2017

CaseChat Overview and Summary

The appeal, heard in the court, involved the respondents, Fardell and Hansen, who sought to challenge the severity of their sentences handed down by the Magistrates Court. The primary issue in this case was whether the sentencing judge erred in assessing the appropriate punishment for the respondents' criminal activities and whether the sentences could be considered lenient enough given their early guilty pleas. Furthermore, the respondents argued that the time they had already spent in custody prior to sentencing should be factored into the overall sentence, thus reducing the actual time they would need to serve.

The court examined whether the sentencing judge had made any errors in principle or misapplied the law in determining the sentences. It was emphasised that a significant factor in the sentencing process was the respondents' early guilty pleas, which traditionally warrant some level of leniency. The court also considered whether the sentencing judge adequately took into account the time the respondents had already spent in custody before their formal sentencing.

Upon reviewing the Magistrates Court's decision, the court found no demonstrable error in the sentencing process. The sentences were deemed appropriate given the nature of the offences and the respondents' early guilty pleas. The court further found that the time the respondents had spent in custody prior to sentencing was adequately considered. Consequently, the appeal was dismissed, and the sentences handed down by the Magistrates Court were upheld.

No specific orders were made beyond the dismissal of the appeal.

Orders

Orders of the court

See [12]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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