Fleury v Symon - [2016] ACTSC 201

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Fleury v Symon
Citation:	[2016] ACTSC 201
Hearing Date:	18 July 2016
DecisionDate:	18 July 2016
Before:	Murrell CJ
Decision:	Appeal dismissed.
Catchwords:	APPEALS – CRIMINAL LAW – Nonparole period – whether nonparole period was manifestly excessive – when nonparole period should commence CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Crimes (Sentencing) Act 2005 (ACT) s 61 – orders made in chambers – parties not given opportunity to be heard
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 61, 65, 66 Criminal Code 2002 (ACT) s 308 Magistrates Court Act 1930 (ACT) ss 207, 208, 218
Cases Cited:	House v The King (1936) 55 CLR 499 Kelly v Ashby [2015] ACTSC 345 R v Ellis (1993) A Crim R 449 R vSteen [2015] ACTSC 259
Parties:	Jayke Fleury (Appellant) Wahyu Nanang Symon (Respondent)
Representation:	Counsel Mr P Smith (Appellant) Ms S Gul (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 29 of 2016
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Special Magistrate Doogan Date of Decision: 18 March; 14 April 2016 Case Title: The Queen v Jayke Fleury Court File Number: CC 442 of 2016

MURRELL CJ:

Sentencing history

The appellant appealed against a nonparole period imposed by Special Magistrate Doogan for firearms offences.

The Supreme Court sentenced the appellant to a total sentence of 23 months' imprisonment from 18 March 2013 with a nonparole period of 12 months. On 15 April 2014 the appellant was released on parole until 4 March 2016.

While on parole, on 2 November 2014, the appellant committed the subject offence of theft, contrary to s 308 of the Criminal Code 2002 (ACT). He took 12 handbags with a total value of $2,248 from a retail outlet.

The offence of theft carries a maximum penalty of 10 years' imprisonment if prosecuted in the Supreme Court.

As a result of the theft offence, the Sentence Administration Board issued a warrant for the appellant's appearance, but the appellant moved interstate.

In May, and again in September 2015, the appellant was convicted of retail theft in Victoria.

The ACT warrant was not executed until September 2015. In September 2015 the appellant's parole was cancelled and he became liable to serve the balance of parole. This meant that the appellant's sentence expired on 19 July 2017 and he was eligible to apply for parole at any time from September 2015.

The sentencing hearing on 18 March 2016

When sentencing the appellant, the Special Magistrate had regard to various factors relevant to sentencing, including that:

(a)the appellant had a very lengthy criminal history for offences of dishonesty extending over 15 years;
(b)the appellant was on conditional liberty (parole) at the time of the offence;
(c)the appellant had squandered past rehabilitation opportunities; and
(d)the plea of guilty.

In the past, the appellant had received sentences of two months and four months' imprisonment for offences of theft involving less than…

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 Fleury v Symon

Details

AGLC: Fleury v Symon [2016] ACTSC 201
Case: [2016] ACTSC 201
Decision Date: 18 July 2016

CaseChat Overview and Summary

Fleury was the appellant, appealing against his conviction and sentence, while Symon was the respondent. The appellant challenged the nonparole period of his sentence, arguing it was manifestly excessive. The trial took place in the Supreme Court of the Australian Capital Territory, which heard the appeal.

The legal issues before the court were whether the nonparole period was manifestly excessive and whether it should commence from the date of the appellant's arrest or from the date of his first court appearance. The appellant argued that the nonparole period was manifestly excessive and should start from the date of his arrest. The respondent argued that the nonparole period was not manifestly excessive and should start from the date of the first court appearance.

The court considered the Crimes (Sentencing) Act 2005 (ACT) and found that the nonparole period was not manifestly excessive. The court further found that the nonparole period should commence from the date of the first court appearance. The court dismissed the appeal, finding that the trial judge's decision was correct. The court noted that the appellant had not been given an opportunity to be heard on the orders made in chambers, but found that this did not affect the outcome of the case.

Orders

Orders of the court

Appeal dismissed.

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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