Frank Skeen v Steven Donald Bannerman
[2012] ACTSC 40
•9 March 2012
FRANK SKEEN v STEVEN DONALD BANNERMAN
[2012] ACTSC 40 (9 March 2012)
Crimes Act 1914 (Cth), s 19AJ
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 94 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 9 March 2012
IN THE SUPREME COURT OF THE )
) No. SCA 94 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:FRANK SKEEN
Appellant
AND: STEVEN DONALD BANNERMAN
Respondent
ORDER
Judge: Burns J
Date: 9 March 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal will be upheld in part. With respect to the sentence imposed by the learned Magistrate on charge 40528 of 2011, that sentence is set aside and a sentence of one month imprisonment commencing on 7 April 2011 is substituted. That sentence would expire on 6 May 2011.
The sentence of five months imprisonment imposed on charge number 40529 of 2011 is confirmed. That sentence commences on 7 April 2011 and expires on 6 September 2011.
With respect to charge number 5293 of 2009, the charge of failing to appear on 8 May 2009, the sentence of four months imprisonment is set aside and a sentence of seven days imprisonment is substituted commencing on 6 September 2011 and expiring on 12 September 2011.
With respect to charge number 7492 of 2009, the charge of contravening the protection order, the sentence of 15 months imprisonment is confirmed. That sentence will commence on 6 September 2011 and expire on 5 December 2012.
With respect to charge number 5747 of 2011, the charge of failing to appear on 18 January 2010, the sentence of six months imprisonment is confirmed. That sentence will commence on 5 August 2012 and expire on 4 February 2013.
I fix a non-parole period commencing on 6 September 2011 and expiring on the 6 June 2012.
I am satisfied that a number of errors were made in the sentencing process by the learned Magistrate on 29 September 2011. Specifically, I note that with respect to the two charges of possession of counterfeit money, charge 40528 of 2011 and charge 40529 of 2011, the learned Magistrate imposed a sentence of five months imprisonment with respect to each of those charges.
The first of those charges related to one counterfeit note with a face value of $100.00. The second of those charges involved some 64 counterfeit notes with a face value of $3,200.00. I note the submission which was made by the prosecutor that the first offence, which in fact was the second offence in time, constituted effectively a second offence for the possession of counterfeit money, and as such entitled the learned Magistrate to impose a more severe sentence than would otherwise have been the case.
However, in my opinion, even taking that into account, the sentence of five months imprisonment imposed by the learned Magistrate cannot be justified in the light of the sentence that was imposed with respect to charge 40529 of 2011. In my opinion, the sentence imposed by the learned Magistrate with respect to charge 40528 of 2011 is manifestly excessive.
I note that the learned Magistrate imposed a further sentence of four months imprisonment which was cumulative with all other sentence on charge number 5293 of 2009, a charge of failure to appear. It is accepted, I believe, that the accused failed to appear on 8 May 2009 in the ACT Magistrates Court.
However, within days the accused was contacted by Police, and he voluntarily attended court within a week of having failed to appear on 8 May 2009. In my opinion that is a clear indication that the appellant was not seeking to avoid the hearing of the charges that were before the court on 8 May 2009 when he failed to appear on that date.
There is no suggestion that 8 May 2009 was a hearing date or that significant cost or inconvenience was occasioned by reason of the appellant’s failure to appear on that date. In those circumstances a sentence of four months imprisonment, in my view, was manifestly excessive.
I also note that a clear error has been identified by the Crown concerning the structure of the sentence, and in particular surrounding the setting of the non-parole period in, taking into account the fact that the charges of possession of counterfeit money were Commonwealth charges and attracted the operation of s 19AJ of the Crimes Act 1914 (Cth).
The other sentences complained of, being a sentence of 15 months imprisonment with respect to charge 7492 of 2009 and a sentence of six months imprisonment on charge 5747 of 2011, individually in my view were warranted by the facts and the appellant’s criminal history.
Of the aggregate sentence arrived at by the learned Magistrate of 30 months imprisonment, effectively by accumulation of the sentences with respect to all but one charge, is manifestly excessive. It is likely that this has occurred as a result of a failure by the learned Magistrate to properly apply the totality principle.
The appeal will be upheld in part. With respect to the sentence imposed by the learned Magistrate on charge 40528 of 2011, that sentence is set aside and a sentence of one month imprisonment commencing on 7 April 2011 is substituted. That sentence would expire on 6 May 2011.
The sentence of five months imprisonment imposed on charge number 40529 of 2011 is confirmed. That sentence commences on 7 April 2011 and expires on 6 September 2011.
With respect to charge number 5293 of 2009, the charge of failing to appear on 8 May 2009, the sentence of four months imprisonment is set aside and a sentence of seven days imprisonment is substituted commencing on 6 September 2011 and expiring on 12 September 2011.
With respect to charge number 7492 of 2009, the charge of contravening the protection order, the sentence of 15 months imprisonment is confirmed. That sentence will commence on 6 September 2011 and expire on 5 December 2012.
With respect to charge number 5747 of 2011, the charge of failing to appear on 18 January 2010, the sentence of six months imprisonment is confirmed. That sentence will commence on 5 August 2012 and expire on 4 February 2013.
I fix a non-parole period commencing on 6 September 2011 and expiring on the 6 June 2012.
I note that I am not obliged to make a conditional release order with respect to the Commonwealth matters as the aggregate sentence imposed with respect to those matters is less than six months imprisonment.
The time served is to count in accordance with the sentences that I have just imposed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 16 March 2012
Counsel for the appellant: Ms T Warwick
Solicitor for the appellant: Wilson Phillips Lawyers
Counsel for the respondent: Ms K Musgrove
Solicitor for the respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 9 March 2012
Date of judgment: 9 March 2012
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