GJ v Adam Robert Moore
[2013] ACTSC 93
•24 April 2013
GJ v ADAM ROBERT MOORE
[2013] ACTSC 93 (24 April 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 122 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 24 April 2013
IN THE SUPREME COURT OF THE )
) No. SCA 122 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GJ
Appellant
AND:ADAM ROBERT MOORE
Respondent
ORDER
Judge: Higgins CJ
Date: 24 April 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed to the following extent:
a) The appellant be resentenced to a total imprisonment of 8 months to commence on 10 August 2012 and end on 9 April 2013.
b) Otherwise, the sentence imposed in the ACT Magistrates Court on 16 November 2011 be confirmed.
This is an appeal against severity only in respect of a number of convictions recorded by Magistrate Lalor in the ACT Magistrates Court. The offences for which those sentences were imposed are as follows.
Firstly, the offence of common assault which was on the same day as the offence of assault occasioning actual bodily harm which is also referred to. For this offence the offender was given an 18 month Good Behaviour Order which will expire on 15 May 2013.
Secondly, a sentence of imprisonment was imposed for the offence of assault occasioning actual bodily harm. Actual bodily harm was indeed inflicted, as is apparent from both the description given by police and the photographs taken. The term was 18 months imprisonment dating from 9 April 2011. The appeal, essentially, is against that particular sentence.
There is no appeal as I understand it against the offence of being an unlicensed driver; the $500 fine with no time to pay has subsequently been served.
Thirdly, the other matter is the offence of contravening a protection order, for which the offender was sentence to four months of imprisonment, which was made cumulative. Now, I will say two things about that. One is there is no reason why it should not be made cumulative. It was a separate occasion. The question is the appropriate penalty to be imposed for that matter.
His Honour, in sentencing, noted the 217 days spent in custody. There had, indeed, been no issue before him as to when the sentence should commence. That is to say it was agreed that, as the prosecutor submitted, it should commence on the day he was taken into custody or, at least, that the period in custody should be taken into account.
So far as the protection order is concerned it does seem to be apparent that the breach was occasioned by a consensual meeting between the appellant and the complainant which, as I have said, was prohibited for both parties not just the appellant.
There are two ameliorating factors as I understand it. One is that there was no other breach of the protection order. There was no assault, no intimidation and no threat of violence of any kind. Secondly, there was also the fact that there had been filed, albeit it had not been heard or granted, an application for the order to be varied so as to allow the contact that was then taking place. It was not open to either of them, of course, to anticipate that and it remains an offence to have disregarded the court order.
His Honour took account the other order that was disregarded in relation to being an unlicensed driver and characterised the appellant as being “contumacious” in respect of court orders. It may have been a little harsh but certainly was not a matter to be lightly disregarded.
The other factor was that, for what reason I do not understand, while there was a 33% discount allowed in respect of the breach of protection order there was only a 10% discount allowed in respect to the assault. In each case the pleas of guilty were entered at the earliest practicable time so it is difficult to understand the difference between the two discounts. Also his Honour fixed a non-parole period which he then pronounced as dating from the date of the conviction for a period of 12 months instead of from the date when the custody commenced, as to when the sentence of imprisonment actually commenced.
Now, that does not necessarily amount to an error because the court has a discretion as to when the non-parole period starts or finishes and, in one sense, it does not matter when the non-parole period started. It is when it finishes that is actually the essential matter. However, it does give the wrong impression about the sentence. That there is a 12 month non-parole period in respect of a sentence of 22 months certainly does not sound terribly excessive however, when you work out the fact that that means that, in fact, there was a non-parole period of 19 months it does look a bit odd. Indeed, in the circumstances, that is a non-parole period that strikes me as being excessive.
Looking at the other factors and the circumstances of the offending behaviour, certainly in connection with the breach of protection order, it does seem to me to have led his Honour to an excessive sentence. I think his Honour was unduly carried away by the fact that it was indeed a breach of a court order and that deserves some degree of sanction but a period of four months imprisonment, even allowing for 33.3% discount, was excessive. It seems to me that a net sentence of no more than two months’ imprisonment would have been appropriate for that offence.
As far as the assault occasioning actual bodily harm is concerned, certainly a term of imprisonment was not inappropriate given the degree of violence exhibited by the offender. Even if it had been accepted that not all of the damage to the complainant was intended, some sentence of imprisonment was certainly appropriate. Allowing for the fact there was an early plea which would attract, in my view, about a 25% discount, I would have imposed a sentence of six months of imprisonment for that offence. His Honour’s sentence of 18 months was manifestly excessive.
There is, as I remarked earlier, no reason why the two sentences should not have been cumulative and so allowing for all of that I would impose a sentence of eight months of imprisonment substituting that for the sentences imposed of imprisonment otherwise confirming the sentence imposed by the Magistrate on 16 November 2011, that is the good behaviour order and the fine. That sentence of imprisonment should date from 10 August 2012 which means the sentence expired on 9 April. For that reason I do not direct any non-parole period. The appeal is allowed to that extent.
I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 22 May 2013
Counsel for the Appellant: Mr J Lawton
Solicitor for the Appellant: Legal Aid ACT
Counsel for the Respondent: Ms S McMurray
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 24 April 2013
Date of judgment: 24 April 2013
0
0
0