Guy v Anderson

Case [2013] ACTSC 5


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

Crimes Act1900 (ACT), ss 24, 26, 116
Criminal Code 2002 (ACT), s 403(1)
Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, s 216
Crimes (Sentencing) Act 2005 (ACT), pt 4.2, ss 10(2), 12(3), 63
Crimes (Sentence Administration) Act 2005 (ACT), ss 86, 110
Domestic Violence and Protection Orders Act 2008 (ACT), sch 1 item 47

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

Attorney-General v Tichy (1982) 30 SASR 84
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Director of Public Prosecutions (NSW) v Cooke (2007) 168 A Crim R 379
Elson v Ayton (2010) 241 FLR 178
Gyory v The Queen [2012] ACTCA 28
Halden (1983) 9 A Crim R 30
Hawkins v Hawkins (2009) 3 ACTLR 210
Kien v The Queen [2012] ACTCA 25
Nevard v Harley (1980) 31 ACTR 13
Pearce v The Queen (1998) 194 CLR 610
R v Buckman (1987) 47 SASR 303
R v Burton [2008] NSWCCA 128
R v Campbell [2010] ACTCA 20
R v De Simoni (1981) 147 CLR 383
R v Glen (Unreported, Supreme Court of New South Wales Court of Criminal Appeal, Grove, Simpson JJ and Loveday AJ, 19 December 1994)
R v Hamid (2006) 164 A Crim R 179
R v Marston (1993) 60 SASR 320
R v Meyboom [2012] ACTCA 48
R v Palu

Continue reading Guy v Anderson

Sign in free to access the full text

Details
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.

Orders

Orders of the court

1.

The appeal be upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.