Gavin Massey v Yves Naspe
[2012] ACTSC 161
•19 October 2012
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:
The appeal be allowed in part.
The sentences imposed by the learned magistrate on 3 May 2012 be confirmed.
The non-parole period imposed by the learned magistrate is varied such that it expires on 4 May 2013.
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.
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.
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.
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 After the offences that were before the magistrate on 3 May this year were committed, the appellant’s parole was revoked.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.
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 be served cumulatively upon the current sentence. Although it does seem to me that the best way to give effect to the credit for the time spent in custody on remand will probably be to start the new sentence 15 days before the end of the current term.
The current term expires on 19 September 2013. To give effect to the allowance for time in custody, the new term would therefore commence on 4 September 2013 and end on 3 May 2014. I am required to reset a parole date. I reset the parole end date as 4 November 2013. To the extent that the legislation requires me to specify both a start and end date for the non-parole period, it seems appropriate that I specify today as the start of the non-parole period.
The appellant appeals from the orders made by the learned magistrate on 3 May this year on the following grounds:
(a)the non-parole period re-imposed for the existing sentences was manifestly excessive in all circumstances;
(b)the Learned Magistrate erred in failing to properly apply the totality principle by ordering that the primary sentences be wholly consecutive upon the existing sentences;
(c)the Learned Magistrate mis-applied the provisions of Sections 66, 70 and 71 of the Crimes (Sentencing) Act 2005 in re-determining the appellant’s non-parole period;
(d)the Learned Magistrate mis-applied the provisions of Section 63 of the Crimes (Sentencing) Act 2005 by failing to take into account the whole of the appellant’s time in custody in relation to the offences.
I am unpersuaded that the learned magistrate failed to properly apply the totality principle by ordering that the primary sentences be served wholly consecutively upon his existing sentences. Nor am I satisfied that the learned magistrate misapplied the provisions of the Crimes (Sentencing) Act2005 (ACT) in re-determining the appellant’s non-parole period as submitted by the appellant. A reading of the learned magistrate’s sentencing remarks does not allow such findings to be made. As such, grounds (b) and (c) are unsuccessful.
Nor am I persuaded that the learned magistrate misapplied s 63 of the Crimes (Sentencing) Act 2005 (ACT) by failing to backdate the primary sentences to the date the appellant was first taken into custody on charges CC 2012/2451 and CC 2012/2452. As was made clear in Hawkins v Hawkins [2009] ACTSC 148 and Butler v Vickers, Yates and Katz [2011] ACTSC 134, s 63 grants a sentencing court a discretion to backdate a sentence. It is only if the sentencer exercises that discretion that s 63 (2) obliges him or her to “take into account” any period during which the offender has been held in custody prior to sentencing in relation to the offence. It was also made clear in Wronski v Roue [2012] ACTSC 87 that in taking into account any pre-sentence custody the sentencer is not obliged to backdate the sentence so as to account for, within the term of the sentence, all of the time the offender has spent in custody prior to sentencing. As Penfold J said in Wronski v Roue at [17], s 62 (2):
17. ... confers adequate scope for a sentencing court to backdate to an extent that is in all the circumstances fair, without requiring backdating that is inappropriately generous or permitting backdating that is inappropriately unfair.
In the exercise of his discretion, the learned magistrate was entitled to limit the extent to which he backdated the sentences he imposed to a period equal to that during which the appellant was held in custody prior to the revocation of his parole. There is no merit in ground (d).
I am satisfied that the final ground of appeal, that the non-parole period set by the learned magistrate was manifestly excessive, must be upheld. Whilst the ground is unfortunately expressed as relating to the reimposition of a non-parole period for the existing sentences, it is clear that the appellant complains of the non-parole period set with respect to the aggregate of the existing and primary sentences. Before the appellant was sentenced on 3 May this year, he was serving a sentence of 46 months imprisonment with a non-parole period of 28 months. As such the non-parole period equated to 60.8 per cent of the head sentence. The learned magistrate imposed a further eight months imprisonment, taking the aggregate head sentence to 54 months, and set an effective non-parole period of 44 months, or 81 per cent of the head sentence. The learned magistrate did not explain why he saw it necessary to so significantly increase the proportion of the sentence which had to be served before the appellant could be released on parole when he was only increasing the head sentence by a small margin. Thus, a 17 per cent increase in the head sentence was accompanied by a 57 per cent increase in the non parole period.
I do not suggest that where an offender currently serving a sentence of imprisonment is sentenced to a further term of imprisonment, any non-parole period set for the new aggregate sentence must be in the same proportion to the head sentence as a non-parole period had been to the original sentence. Much will depend on the circumstances. But where a relatively small addition to the original head sentence is accompanied by a much more significant increase to the proportion of the aggregate sentence that must be served before the offender is eligible for parole, it is incumbent on the sentencer to explain why he or she adopted that course. Without such an explanation, the circumstances suggest error. A non-parole period of more than 80 per cent of the head sentence is higher than that which has commonly been seen as appropriate in most jurisdictions. I do not suggest that such a proportion of non-parole period to head sentence could never be appropriate, but I would expect some explanation.
I am satisfied that the non-parole period imposed by the learned magistrate is manifestly excessive. I will confirm the sentences imposed by the learned magistrate, but the non-parole period will be varied to expire on 4 May 2013.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 19 October 2012
Counsel for the appellant: Mr R Davies
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent: Ms M Hunter
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 10 August 2012
Date of judgment: 19 October 2012
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