Gavin Massey v Glyn EVAN Roberts
[2010] ACTSC 126
•1 October 2010
GAVIN MASSEY v GLYN EVAN ROBERTS [2010] ACTSC 126 (1 October 2010)
RESERVED JUDGMENT
No. SCA 81 of 2009
Judge: Nield A/J
Supreme Court of the ACT
Date: 1 October 2010
IN THE SUPREME COURT OF THE )
) No. SCA 81 of 2009
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:GAVIN MASSEY
Appellant
AND: GLYN EVAN ROBERTS
Respondent
ORDER
Judge: Nield A/J
Date: 1 October 2010
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The sentences imposed by the magistrate on 25 November 2009 are confirmed.
The sentence of imprisonment for three years for the offence of possessing a prohibited firearm on 7 September 2009 is to commence from 13 December 2009.
The appellant is Gavin Massey. He was born on 14 January 1983. He committed the offences, which are the subject of his appeal, between 25 July 2009 and 7 September 2009. He was then aged 26 years six months. He is now aged 27 years eight months.
The appellant is the second of his parents’ four children. Details of his background and upbringing, his education and employments, his alcohol and drug use, or, more correctly, abuse, and his physical and mental health are set out in the pre‑sentence report dated 15 October 2009 and need not be recited.
The appellant has a long and varied criminal record. He has been dealt with for 67 offences. Of those offences, 11 were driving a motor vehicle when not licensed to do so, one was driving a motor vehicle when disqualified from holding or obtaining a driver’s licence, three were taking a motor vehicle without the consent of the owner, four were driving a motor vehicle taken without the consent of the owner, two were riding in a motor vehicle taken without the consent of the owner, three were possessing property suspected of having been stolen, and two were failing to comply with a bail undertaking. Now I am to consider sentences imposed upon him for:
a) one offence of driving a motor vehicle taken without the consent of the owner;
b) one offence of riding in a motor vehicle taken without the consent of the owner;
c) two offences of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence;
d) one offence of stealing property;
e) one offence of receiving stolen property;
f) one offence of possessing property suspected of being stolen;
g) one offence of failing to appear in court in accordance with a bail undertaking;
h) one offence of possessing a prohibited weapon; and
i) one offence of hindering police in the performance of duty.
I do not refer to the appellant’s criminal record as an aggravating factor of any of the 10 offences, but his record is obviously relevant to questions of personal deterrence, prospects for rehabilitation and likelihood of not re-offending.
On 26 July 2009 the appellant was charged with three offences committed on 25 July 2009, those being:
a) driving a motor vehicle taken without the consent of the owner, contrary to section 318(2) of the ACT Criminal Code, for which the prescribed penalty is imprisonment for a maximum of five years or a fine of a maximum of 500 penalty units or both;
b) being a repeat offender, driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence, contrary to section 32(1)(a) of the ACT Road Transport (Driver Licensing) Act, for which the prescribed penalty is imprisonment for a maximum of 12 months or a fine of a maximum of $10,000 or both, with disqualification from holding or obtaining a driver’s licence for two years;
c) receiving stolen property, namely a mobile telephone, contrary to section 313 of the ACT Criminal Code, for which the prescribed penalty is imprisonment for a maximum of 10 years or a fine of a maximum of 1,000 penalty units or both.
After being charged, the appellant was remanded in custody, bail refused, to appear later before a magistrate in the ACT Magistrates Court on 31 July 2009 to answer the charges.
Accordingly, on 31 July 2009 the appellant appeared before a magistrate in the ACT Magistrates Court to answer the charges. So far as I can tell from the bench sheets, he pleaded not guilty to the charge of driving a motor vehicle taken without the consent of the owner and the hearing of that charge was stood over to 19 August 2009, and he did not enter a plea to either of the charges of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence or of receiving stolen property.
Thus, on 19 August 2009 the appellant appeared again before a magistrate in the ACT Magistrates Court for the hearing of the charge of driving a motor vehicle taken without the consent of the owner. So far as I can tell from the bench sheets, on this occasion he pleaded guilty to the charges of driving a motor vehicle taken without the consent of the owner and receiving stolen property, and again he did not enter a plea to the charge of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence. Also, so far as I can tell from the bench sheets, the magistrate stood over the proceedings to 30 October 2009 and granted conditional bail to the appellant.
Then, three days later, on 22 August 2009 the appellant committed a further two offences, those being:
a) stealing property valued at $39.25 from Eureka Operations Pty Ltd, trading as Coles Express, Manuka, contrary to section 321 of the ACT Criminal Code, for which the prescribed penalty is imprisonment for a maximum of six months or a fine of a maximum of 50 penalty units or both; and
b) being a repeat offender, driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence which, as I have said already, is an offence contrary to section 32(1)(a) of the ACT Road Transport (Driver Licensing) Act.
These offences were committed in breach of the bail granted to the appellant on 19 August 2009 and this is a seriously aggravating factor of these offences. The appellant was arrested for these offences on 7 September 2009.
On 27 August 2009 a report was made by police that the appellant had breached the bail granted to him on 19 August 2009 by failing to report to police in accordance with a condition of the bail undertaking. Accordingly, so far as I can tell from the bench sheets, the charges related to the offences committed on 25 July 2009 were listed before a magistrate in the ACT Magistrates Court on 31 August 2009 and the appellant was ordered to appear before the court on that date.
On 31 August 2009 the appellant failed to appear before a magistrate in the ACT Magistrates Court in relation to the offences committed on 25 July 2009 and bail was revoked and a warrant for the arrest of the appellant was issued.
Then, on 7 September 2009, as I have said already, the appellant was arrested and, after being arrested, he was charged with the offences of:
a) stealing on 22 August 2009;
b) driving a motor vehicle on 22 August 2009 whilst disqualified from holding or obtaining a driver’s licence;
c) failing to appear in court on 31 August 2009 in accordance with the bail undertaking;
d) possessing a prohibited firearm, namely a sawn-off shotgun, when not authorised by licence or permit to do so on 7 September 2009, contrary to section 42(a)(iii) of the ACT Firearms Act, for which the prescribed penalty is imprisonment for a maximum of 10 years;
e) riding in a motor vehicle taken without the consent of the owner on 7 September 2009, contrary to section 318(2) of the ACT Criminal Code, for which the prescribed penalty is imprisonment for a maximum of five years or a fine of a maximum of 500 penalty units or both;
f) possessing property, namely a car key and a Leagues Club card suspected of being stolen on 7 September 2009, contrary to section 324(1) of the ACT Criminal Code, for which the prescribed penalty is imprisonment for a maximum of six months or a fine of a maximum of 50 penalty units or both; and
g) resisting a public official, a Senior Constable of Police, in the performance of his function on 7 September 2009, contrary to section 149(1)(i) of the Commonwealth Criminal Code, for which the prescribed penalty is imprisonment for a maximum of two years.
The offences of 7 September 2009 were committed when the appellant was at large in breach of bail granted on 19 August 2009, and this is a seriously aggravating factor of the offences.
In due course, on 12 November 2009 the appellant appeared before a magistrate in the ACT Magistrates Court to answer all of the various charges. He pleaded guilty to the charges to which he had not entered a plea, and he consented to the Magistrates Court having jurisdiction to determine the sentence for all of the offences, including those which were indictable. The magistrate fixed 23 November 2009 for the sentencing proceedings.
Accordingly, on 23 November 2009 the appellant appeared again before a magistrate in the ACT Magistrates Court for the sentencing proceedings. The magistrate received:
a) a statement of facts in relation to the offences committed on 25 July 2009;
b) a statement of facts in relation to the offences committed on 22 August 2009;
c) photographs related to the stealing from the Coles Express Service Station;
d) a claim for compensation related to the property stolen from the Coles Express Service Station;
e) a statement of facts in relation to the offences committed on 7 September 2009;
f) a photograph of the sawn-off shotgun;
g) the appellant’s criminal record; and
h) a pre‑sentence report;
from the Crown prosecutor. The appellant did not give evidence or present any evidence. The magistrate heard submissions as to sentence from counsel, after which she stood over the sentencing of the appellant to 25 November 2009.
On 25 November 2009 the magistrate sentenced the appellant as follows:
a) driving a motor vehicle on 25 July 2009 taken without the consent of the owner – imprisonment for 12 months from 13 August 2009 to 12 August 2010;
b) driving whilst disqualified on 25 July 2009 – imprisonment for four months from 13 August 2009 to 12 December 2009, with disqualification from holding or obtaining a driver’s licence for two years;
c) receiving stolen property on 25 July 2009 – imprisonment for six months from 13 August 2009 to 12 February 2010;
d) stealing on 22 August 2009 – imprisonment for four months from 13 June 2010 to 12 October 2010;
e) driving whilst disqualified on 22 August 2009 – imprisonment for six months from 13 June 2010 to 12 December 2010, with disqualification from holding or obtaining a driver’s licence for two years;
f) failing to appear in court on 31 August 2009 in accordance with the bail undertaking – imprisonment for four months from 13 June 2010 to 12 October 2010;
g) possessing a prohibited firearm on 7 September 2009 – imprisonment for three years from either 13 June 2009 to 12 June 2012 or 13 December 2009 to 12 December 2012;
h) riding in a motor vehicle taken without the consent of the owner on 7 September 2009 – imprisonment for 12 months from either 13 June 2010 to 12 June 2011 or 13 December 2010 to 12 December 2011;
i) possessing property suspected of being stolen on 7 September 2009 – imprisonment for three months from either 13 June 2010 to 12 September 2010 or from 13 December 2010 to 12 March 2011; and
j) resisting a public official in the performance of his function on 7 September 2009 – imprisonment for three months from either 13 June 2010 to 12 September 2010 or 13 December 2010 to 12 February 2011.
The magistrate fixed a total sentence of imprisonment for three years four months from 13 August 2009 to 12 December 2012. Unfortunately, the magistrate’s sentences do not produce this result.
The magistrate set a single Non-Parole Period of two years four months from 13 August 2009 to 12 December 2011. Thus the earliest date on which the appellant is eligible to be released from prison on parole is 12 December 2011.
In determining appropriate sentence for each offence the magistrate referred to:
a) the circumstance in which each offence had been committed;
b) the penalties prescribed for each offence;
c) the objective seriousness of each offence;
d) the purposes of sentencing stated in section 7 of the ACT Crimes (Sentencing) Act;
e) the fact that the offences committed on 22 August 2009 and 7 September 2009 were committed in breach of bail granted on 19 August 2009;
f) the fact that, in relation to the offences of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence, the appellant was a repeat offender;
g) the appellant’s criminal record;
h) the appellant’s pleas of guilty, for which she allowed a discount, which I have calculated to be about 13%;
i) the effect of section 35(4) of the ACT Crimes (Sentencing) Act;
j) the offender’s lack of remorse, other than which might flow from his guilty pleas;
k) the lack of any evidence as to the appellant’s prospects for rehabilitation;
l) the need for both personal and general deterrence;
m) the fact that the offences called for sentences of imprisonment; and
n) the need to backdate the date for commencement of the first sentence to take into account the time spent by the appellant between his arrest on 26 July 2009 and his release on bail on 19 August 2009, a period of 25 days.
On 9 December 2009 the appellant lodged his Notice of Appeal against the sentences imposed upon him by the magistrate, claiming that the sentences were excessive.
On 30 September 2010 I heard the appellant’s appeal. I had received written submissions dated 29 September 2010 from the appellant’s counsel and those dated 30 September 2010 from the Crown prosecutor before hearing their submissions in court.
In my opinion, it cannot be said, and I do not understand the appellant’s counsel to submit, that, although she did not refer to section 33(1) of the ACT Crimes (Sentencing) Act, the magistrate failed to consider relevant matters, or considered irrelevant matters. I would have preferred the magistrate to specify the discount for the guilty pleas, but her failure to do so is not an appealable error, particularly as the discount for the guilty pleas can be calculated from what she said in her judgment. Also, I would have liked the magistrate to refer to section 33(1) of the Crimes (Sentencing) Act but, again, her failure to do so is not an appealable error, particularly as she referred to all of the relevant matters known to her. Furthermore, I would have liked the magistrate to assess the likelihood of the offender’s re-offending but, again, her failure to do so is not an appealable error, particularly as there was simply nothing to suggest that the appellant was unlikely to re‑offend, and there was everything to suggest that the appellant was likely to re-offend.
Although I might have structured the total sentence differently, I am unable to see any error by the magistrate in determining:
a) the appropriate sentence for each offence;
b) that the sentences should be served either concurrently in some cases, and partly concurrently and partly consecutively in other cases.
It is not a question whether I would have imposed the same sentences, or less severe sentences, or more severe sentences; only whether the sentences fall within the range of appropriate sentences. I do not see any of the various sentences as being obviously or manifestly excessive, and I do not see either the total sentence of three years four months or the single Non-Parole Period of two years four months as being obviously or manifestly excessive.
Therefore, in my opinion, a lesser sentence for each offence, and specifically, for the offence of possessing a prohibited firearm, or the offences of driving a motor vehicle whilst disqualified from holding or obtaining a driver’s licence, is not warranted. In my opinion, it is beyond argument that the appellant does not have any regard for the rights of others or for the orders of the courts. The offences that he committed on 22 August 2009 and on 7 September 2009 were committed in blatant disregard of the rights of others and the order of the court of 19 August 2009. He must be made to realise that he cannot live his life without regard to the rights of others or orders of the court, and that, if he wishes to continue to offend, he can expect more severe sentences than those imposed upon him by the magistrate. The appellant’s appeal is dismissed. The sentences imposed by the magistrate on 25 November 2009 are confirmed. However, the sentence of imprisonment for three years for the offence of possessing a prohibited firearm on 7 September 2009 is to commence from 13 December 2009.
I certify that the preceding twenty two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 19 October 2010
Counsel for the plaintiff: Mr D Sahu Khan
Solicitor for the plaintiff: ACT Director of Public Prosecutions
Counsel for the defendant: Ms T Warwick
Solicitor for the defendant: Craig Lynch and Associates
Date of hearing: 30 September 2010
Date of judgment: 1 October 2010
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