Gavin Massey v Yves Naspe

GAVIN MASSEY v YVES NASPE
 [2012] ACTSC 161 (19 October 2012)

APPEAL – appeal from the ACT Magistrates Court – appeal against sentence on the first ground that the reimposed non-parole period was manifestly excessive – appeal against sentence on the second ground that totality principle was improperly applied – appeal against sentence on the third and fourth grounds that the relevant legislation was misapplied

Crimes (Sentencing) Act 2005 (ACT), s 63

Hawkins v Hawkins [2009] ACTSC 148
Butler v Vickers, Yates and Katz [2011] ACTSC 134
Wronski v Roue [2012] ACTSC 87

No. SCA 36 of 2012

Judge:             Burns J            
Supreme Court of the ACT

Date:              19 October 2012        

IN THE SUPREME COURT OF THE     )
  )          No. SCA 36 of 2012
AUSTRALIAN CAPITAL TERRITORY )          

BETWEEN:   GAVIN MASSEY   

Appellant      

AND:  YVES NASPE

Respondent   

ORDER

Judge:  Burns J
Date:  19 October 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed in part.

1. The sentences imposed by the learned magistrate on 3 May 2012 be confirmed.

1. The non-parole period imposed by the learned magistrate is varied such that it expires on 4 May 2013.

1. On 3 May 2012 the appellant, Gavin Massey, was convicted in the ACT Magistrates Court of one offence of driving whilst disqualified as a repeat offender (CC 2012/2451) and one offence of driving recklessly as a repeat offender (CC 2012/2452).  He was sentenced to serve terms of imprisonment of seven months and eight months respectively (the primary sentences).  The sentences were to be served concurrently.

1. On 25 November 2009 the appellant had been sentenced in the ACT Magistrates Court to terms of imprisonment amounting to 40 months commencing on 13 August 2009 and expiring on 12 December 2012.  A non-parole period was set, expiring on 12 December 2011.

1. On 9 July 2010 the appellant was then sentenced by in this Court to six months imprisonment, which was to be served consecutively upon the sentence of 40 months imposed in the ACT Magistrates Court on 25 November 2009.  The aggregate sentence was thus one of 46 months.  The non-parole period was not varied.

1. The appellant was subsequently released on parole, presumably on or about 12 December 2011.  After the offences that were before the magistrate on 3 May this year were committed, the appellant’s parole was revoked.  He became liable to serve the balance of 18 months imprisonment imposed in the ACT Magistrates Court and in this Court.  That sentence will expire on 19 September 2013, allowing for time spent at liberty on parole.

1. The sentences imposed in the ACT Magistrates Court were to be served mostly consecutive upon the sentence of 18 months the appellant was already serving, but concurrent as to 15 days of that sentence to allow for time spent in custody by the appellant before his parole was revoked.  His Honour said at AB 28:

In all the circumstances and taking into account the principle of totality, I have concluded that the whole of the new sentence imposed by me should…