Gillard v Smyth
[2017] ACTSC 417
•27 October 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Gillard v Smyth |
Citation: | [2017] ACTSC 417 |
Hearing Date: | 27 October 2017 |
DecisionDate: | 27 October 2017 |
Before: | Mossop J |
Decision: | 1. The appeal be allowed. 2. The sentences on charges CC2017/12290 and CC2017/2562 be confirmed. 3. The sentence on charge CC2015/1216 be set aside. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – error in sentencing process – perfected court orders did not reflect what the magistrate had ordered – not appropriate to impose suspended sentence |
Parties: | Raymond James Douglas Gillard (Appellant) Talbot Lee Smyth (First Respondent) Daniel James Murphy (Second Respondent) Justin Alexander (Third Respondent) |
Representation: | Counsel Self-represented (Appellant) K McCann (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 65 of 2017 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the Australian Capital Territory Before: Magistrate Boss Date of Decision: 8 August 2017 Case Titles: Talbot Lee Smyth v Raymond James Douglas Gillard Daniel James Murphy v Raymond James Douglas Gillard Justin Alexander v Raymond James Douglas Gillard Court File Numbers: CC2017/2562 CC2016/12990 CC2015/1216 |
MOSSOP J:
Introduction
This is an appeal against sentences imposed by a magistrate in the ACT Magistrates Court. Those sentences were as follows:
a. a sentence of three months’ imprisonment (charge CC2017/2562), a charge of failing to appear pursuant to a bail undertaking which required the appellant to be imprisoned from 13 May 2017 until 12 August 2017;
b. a sentence of three months’ imprisonment (charge CC2016/12990), a charge of damaging property which required the imprisonment of the appellant from 13 May 2017 to 12 August 2017; and
c. a sentence of six months’ imprisonment from 8 August 2017 to 7 February 2018 (charge CC2015/1216), which was the imposition of the suspended part of a suspended sentence previously imposed.
Mr Gillard was unrepresented upon the hearing of the appeal. By the time his appeal came to be heard, he had already served the first two sentences and his appeal was therefore targeted at the third sentence, namely the period of six months’ imprisonment from 8 August 2017 to 7 February 2018. The ground of appeal set out on the Notice of Appeal was that the individual sentences and the total aggregate sentence were manifestly excessive in all the circumstances. The sentence of six months’ imprisonment was a suspended sentence order, shown on the criminal history as having been made on
7 July 2016 as a result of a re-sentencing following an earlier breach of a good behaviour order attached to a six month suspended sentence imposed on 17 June 2015.
Because the appellant was unrepresented, Ms McCann, who appeared for the Respondent, assisted the Court by articulating arguments which Mr Gillard, had he been represented, might have advanced, as well as appropriate prosecution submissions in response.
During the hearing it emerged that it would be of assistance to obtain the Statement of Facts for the original offence of assault occasioning actual bodily harm which led to the imposition of the suspended sentence. For that reason proceedings were adjourned. However, the need to examine the original Statement of Facts was overtaken by the discovery of a fundamental error underlying the six month sentence.
The documents provided by the Magistrates Court disclose the following chronology:
a. On 17 June 2015 a magistrate imposed a six month suspended sentence and a good behaviour order for a period of 12 months in relation to the conviction for assault occasioning actual bodily harm.
b. In January 2016 breach proceedings were commenced as a consequence of the appellant’s failure to comply with his supervision obligations.
Those proceedings were only determined by the Magistrates Court on 7 July 2016, that is, just over a year after the original sentence was imposed.
At that point the magistrate who was then hearing the matter cancelled the good behaviour order and re-sentenced the appellant. That is recorded in the criminal history as follows: “Good behaviour order cancelled, re-sentenced to six months’ imprisonment, suspended forthwith and released on entering a good behaviour order for one year and three weeks.”
However, that summary of the orders made by the Magistrates Court did not properly reflect what the magistrate had done. The bench sheet records the orders made on that day as follows: “GBO cancelled. Re-sentenced. Imprisonment 6 months fully suspend on GBO from 17/6/15 – 7/7/16. Therefore completed.” The terms of those orders make it clear that whilst it was necessary to cancel the good behaviour order because of the breach, it was not appropriate to impose the suspended sentence because the breaches related to compliance with supervision requirements rather than any further offending conduct. It was therefore appropriate to effectively back date the period the subject of the good behaviour order to that period since the original sentence was imposed because it was clear by the time of the resentencing exercise that, although he had failed to comply with his supervision obligations, the appellant had in fact been of good behaviour during that period.
Amongst the documents generated within the Registry of the Magistrates Court, some were confusingly recorded, so it was not clear on all the documents generated that the period of the good behaviour order was in the past. It is this that led to the recording of the outcome of the re-sentencing exercise in the criminal history in the manner that it was, which reasonably led to the assumption that the one year and three weeks reflected a good behaviour order that went beyond 7 July 2016 rather than being one which expired on that date. The offences that were the subject of this sentence appeal were imposed in relation to offences committed in December 2016 and February 2017. As a consequence, if the good behaviour order ran for a period which expired on 7 July 2016, then the present offences did not involve a breach of that order. On the other hand, if the good behaviour order ran for one year and three months from 7 July 2016, then it is clear that the offences occurred within the period of the good behaviour order.
At the hearing in the Magistrates Court, neither counsel for the offender, counsel for the Crown or the magistrate went beyond the criminal history in a way that led to the detection of its misleading nature. The sentencing of the offender proceeded on the basis that the good behaviour order remained in effect at the time when the two offences occurred. That was clearly an error. The appellant was not in breach of that good behaviour order and should not have had the six month period of imprisonment imposed. It is therefore appropriate to set aside that sentence.
Orders
The orders of the Court are:
1. The appeal be allowed;
2. The sentences on charges CC2016/12290 and CC2017/2562 be confirmed; and
3. The sentence on charge CC2015/1216 be set aside.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 1 March 2018 |
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