CHRISTOPHER GUY V KRISTY ANDERSON AND ERIN ALEXANDRA TELFORD [2013] ACTSC 5 (14 January 2013)
APPEAL AND NEW TRIAL – appeal against sentence – manifest excess – sentencing for several offences – cumulation and concurrency – double punishment erroneous despite concurrency of sentences – Pearce v The Queen (1998) 194 CLR 610 – appeal ground upheld
APPEAL AND NEW TRIAL – appeal against sentence – manifest excess – resentencing after breach of suspended sentence – where breach by conviction – Gyory v The Queen [2012] ACTCA 28 – no presumption of activation of the suspended sentence on breach – need to consider all available relevant material on resentencing – proportionality between breaching offence and sentence to be imposed – appeal ground upheld
APPEAL AND NEW TRIAL – appeal against sentence – specific error – court must take pre-sentence custody into account – court has discretion in how to account for pre-sentence custody – discretion not to backdate should be used sparingly – Hawkins v Hawkins (2009) 3 ACTLR 210 – pre-sentence custody not considered – appeal ground upheld
CRIMINAL LAW – property offences – sentencing – characterisation of offence in context of domestic violence – relevance of forgiveness and reconciliation – forgiveness by complainant to be treated cautiously
United Nations Standard Minimum Rules for Non-Custodial Measures (The Tokyo Rules), GA Res 45/110, UN GAOR, 45th sess, 68th plen mtg, Agenda Item 100, UN Doc A/RES/45/110 (14 December 1990)
Crime Prevention and Criminal Justice Branch, Commentary on the United Nations Minimum Rules for Non-Custodial Measures (The Tokyo Rules), UN Doc ST/CSDHA/22 (1993) Bartels, L, and Rice, S, ‘Reviewing Reforms to the Law of Suspended Sentences in the Australian Capital Territory’ (2012) 14 Flinders Law Journal 253
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Guy v Anderson [2013] ACTSC 5
Case
[2013] ACTSC 5
Decision Date
CaseChat Overview and Summary
In the case of Guy v Anderson, the appellant sought to appeal against the sentence imposed by the trial court for several criminal offences, including assault, theft, and breach of an apprehended domestic violence order. The trial court had sentenced the appellant to a term of imprisonment, which the appellant argued was manifestly excessive. The appeal was heard by the appellate court, which was required to determine whether the sentence imposed was indeed manifestly excessive, whether the court had adequately considered the principles of cumulation and concurrency in sentencing, and whether the court had failed to take into account the time the appellant had already spent in custody prior to sentencing. The court also had to consider whether the trial court had erred in its characterisation of the offences in the context of domestic violence.
The appellate court found that the sentence imposed by the trial court was indeed manifestly excessive, particularly in light of the fact that the appellant had already spent a significant amount of time in custody prior to sentencing. The court held that the trial court had failed to adequately consider the principles of cumulation and concurrency in sentencing, and that the sentences imposed for the various offences were not properly balanced. The court also found that the trial court had erred in its characterisation of the offences in the context of domestic violence, and that it had not adequately considered the fact that the complainant had forgiven the appellant for his actions. The court held that these errors were sufficient to warrant a new sentencing hearing.
The appellate court accordingly allowed the appeal and ordered a new sentencing hearing. The court emphasised that the trial court must take into account all relevant material, including the time the appellant had already spent in custody, and that it must properly balance the principles of cumulation and concurrency in sentencing. The court also emphasised that the characterisation of offences in the context of domestic violence must be approached with caution, particularly where there has been forgiveness and reconciliation between the parties. The court held that the trial court had not adequately considered these factors, and that this was a sufficient ground for allowing the appeal and ordering a new sentencing hearing.
The final order of the appellate court was that the appeal be upheld, and that a new sentencing hearing be conducted by the trial court. The court emphasised that the trial court must properly balance the principles of cumulation and concurrency in sentencing, take into account all relevant material, and approach the characterisation of offences in the context of domestic violence with caution. The court held that these factors had not been adequately considered by the trial court, and that this was a sufficient ground for allowing the appeal and ordering a new sentencing hearing.