Hall v Russell
[2018] ACTSC 377
•6 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hall v Russell |
Citation: | [2018] ACTSC 377 |
Hearing Date: | 6 August 2018 |
DecisionDate: | 6 August 2018 |
Before: | Burns J |
Decision: | [12] – [15] |
Catchwords: | APPEAL – MAGISTRATES COURT APPEAL – Criminal Law - appeal from sentence imposed in Magistrates Court – whether sentence imposed in Magistrates Court was excessive |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) |
Parties: | Marley Hall (Appellant) Benjamin Peter Russell (Respondent) |
Representation: | Counsel Mr D Hoitink (Appellant) Mr M Thomas (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 22 of 2018 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 22 May 2018 Case Title: Russell v Hall Court File Number: CC2016/7613 |
BURNS J
This is an appeal from a sentence imposed in the Magistrates Court on 12 April 2018 and corrected on 22 May 2018, in relation to a charge of burglary (CC2016/7613). The single appeal ground is effectively in relation to the imposition of a two year Good Behaviour Order by the magistrate, which was imposed in addition to a sentence of two years' imprisonment.
Her Honour imposed a sentence of two years' imprisonment which she made concurrent with the sentences that I had imposed on 22 November 2016 for other matters. The magistrate slightly increased the non-parole period but did not increase the head sentence.
The magistrate initially simply imposed a two year Good Behaviour Order to commence upon the expiry of the sentence for the burglary, which would have meant that it was concurrent with the parole period on the sentence I had imposed in November 2016. The commencement date for that Good Behaviour Order would have been the date that he was released on parole, presuming he was released on parole at the earliest opportunity.
Then, having presumably read the provisions of the Crimes (Sentencing) Act 2005 (ACT) and seen that she was not entitled to impose a Good Behaviour Order during a period when the offender was on parole, her Honour amended the order to make the Good Behaviour Order commence at the date of the expiration of the head sentence of the terms of imprisonment.
I note that there must come a point at which an offender is entitled to say, ‘I have served my sentence and I've put this behind me.’ I could understand if her Honour had adopted the course of making the two year sentence that she imposed for the burglary partly concurrent and partly consecutive with the sentences which I had imposed and had then increased the non-parole period. That, effectively, would have resulted in a longer period that had to be served before the offender could be released on parole, and it would also have resulted in a longer period during which he would be subject to parole supervision.
Instead, her Honour simply tacked two years on the end of the sentence he was serving in the form of a Good Behaviour Order, which was divorced entirely from the sentence of two years' imprisonment which she was otherwise imposing, because it was not to commence until some two or two and a half years after the end of the sentence of imprisonment that she was imposing. Theoretically this approach might be possible, but whether it is appropriate is at issue.
I accept that her Honour wanted to give him an opportunity. The offender suffered from a number of issues that were appropriate for rehabilitation and the magistrate intended that the Good Behaviour Order was to assist him with those issues to do with rehabilitation.
Nonetheless, it is clear in terms of determining the appropriate length of sentence, including any Good Behaviour Order, that her Honour was initially of the opinion that all that was required was a period of two years after he was released on parole. This was an error of law, but also an indication of what the magistrate initially thought was sufficient to appropriately punish him for the offence.
This was excessive. If her Honour thought that he needed to be assisted in his rehabilitation for a longer period than the parole period that was specified in the sentences that had been imposed both by myself and by her, she could have restructured the sentence in such a way as to increase the parole period or the expiration of the head sentence. Her Honour did not do that, and indeed she thought that the Good Behaviour Order was sufficient to assist in his rehabilitation acting concurrently with the parole period.
Decision
For the reasons that I have given, I am satisfied that the magistrate's sentencing discretion went astray.
To the extent necessary, I would find that the imposition of a two year Good Behaviour Order divorced entirely from the term of imprisonment that was imposed by her Honour and coming into effect some two and a half years later and then extending from the end of his parole period, is excessive and manifestly so.
I propose to uphold the appeal.
The imposing of the Good Behaviour Order will be set aside.
I will otherwise confirm the orders made by the magistrate.
I will attempt to achieve what I understand her Honour was attempting to achieve by making a recommendation to the Sentence Administration Board that it consider directing the appellant to undertake programs upon any release for parole such as those which were part of the Good Behaviour Order imposed by the magistrate on 12 April 2018, as corrected on 22 May 2018.
I think that that will achieve effectively what her Honour set out to do but without so significantly increasing the period during which he will be subject to supervision which, as I have said, in the light of the fact that it was not to commence until nearly two and a half years after he was released on parole and the expiration of the two year sentence of imprisonment for the burglary was simply inappropriate.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 6 June 2019 |
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