Hamilton v The Queen
[2012] ACTCA 21
•May 2, 2012
SANDRA HAMILTON v THE QUEEN
[2012] ACTCA 21 (2 May 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 51 - 2011
No. SCC 191 of 2011
Judges: Higgins CJ, Refshauge and Lander JJ
Court of Appeal of the Australian Capital Territory
Date: 2 May 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 51 - 2011
) No. SCC 191 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SANDRA HAMILTON
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Refshauge and Lander JJ
Date: 2 May 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed to the extent of varying the non-parole period from 20 months to 15 months.
The sentence is otherwise confirmed.
IN THE SUPREME COURT OF THE ) No. ACTCA 51 - 2011
) No. SCC 191 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SANDRA HAMILTON
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and Lander JJ
Date: 2 May 2012
Place: Canberra
REASONS FOR JUDGMENT
HIGGINS CJ:
I am of the view that the appeal should be allowed to the extent that the non-parole period should be reduced from the period of 20 months specified by his Honour to a period of 15 months.
I say that because it seems to me that his Honour was intent on achieving an outcome that enabled rehabilitation to be undertaken whilst in custody, yet had no information upon which he could base a decision as to whether the non-parole should be 15 months or 20 months. In other words, there was not enough information for his Honour to do anything more than estimate what the period of time should be.
I am satisfied that that estimate was excessive in light of the information we now have. With respect to the choice between restructuring the sentence to allow for release after a specified time on a suspended sentence, or allowing the matter to proceed before the Sentence Administration Board, it is my opinion that there is insufficient information before this Court for it to sensibly set terms and conditions of release.
It seems to me that that can only be done after the gaol authorities have been able to report on the progress that Ms Hamilton has made in custody, including with the Solaris program. It is not information we have, and I think that it is therefore more appropriate that such reports be made in due course to the Sentence Administration Board, which can then consider the question of parole at the expiration of 15 months from the commencement of sentence as opposed to 20 months. That, of course, will enable the Sentence Administration Board to consider the matter in July this year.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 18 May 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 51 - 2011
) No. SCC 191 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SANDRA HAMILTON
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and Lander JJ
Date: 2 May 2012
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
I agree with the outcome that the Chief Justice proposes. It is true that arson is a very serious offence and I adopt what Spender J said in R v Relph [2002] ACTCA 6 at [26] ,namely, that, “[a]rson is an offence of great gravity, particularly if there is an element of recklessness or intent in relation to the possible endangering of human life.” I would, therefore, not interfere with the head sentence, which may indeed be seen, particularly in the light of a prior conviction for such an offence, to be on the low side of the sentencing range.
Nevertheless, having regard to what the psychiatrist found when Ms Hamilton was taken into custody, the evidence that she had delusions at the time that the offence was committed and the fact that it was committed when she was obviously mentally impaired (whether through her misuse of cannabis or through the apparent diagnosis of schizophrenia or otherwise), I find it difficult to understand why it was that his Honour found that general deterrence would play a significant part in the sentence. It seems to me that, in those circumstances, there is no need for a severe non-parole period.
In relation to the length of the non-parole period, it also seems to me that if Ms Hamilton is to be able to function in the community it is important that she have a relatively lengthy period of supervision in the community, and the non-parole period of approximately two thirds seems to me to be too long to allow for that lengthy period of supervision. One half is not inappropriate in the circumstances.
I agree with the Chief Justice that it is not appropriate for us to determine whether and when she should be released other than by the setting of the non-parole period. It is a matter for the Sentence Administration Board, and this Court should resist the temptation to convert itself into a Sentence Administration Board, even in the difficult circumstances where there are litigants in person. It is important that Ms Hamilton achieves the objectives that his Honour set for her, namely, to undertake and complete appropriate programs. That determination is one for which the Sentence Administration Board is particularly suited, and, in those circumstances, it seems to me that the fixing of a non-parole period, although a lower period than his Honour thought was appropriate, is fair and just in all the circumstances. I agree with 15 months and I agree with the order proposed by the Chief Justice.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 18 May 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 51 - 2011
) No. SCC 191 of 2011
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:SANDRA HAMILTON
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Refshauge and Lander JJ
Date: 2 May 2012
Place: Canberra
REASONS FOR JUDGMENT
LANDER J:
I would dismiss the appeal. This is the second time that the appellant has been convicted of a most serious crime of arson. On the previous occasion, she was sentenced to be imprisoned for a period of four years. On this occasion, the head sentence was two years and six months and the non-parole period was a period of 20 months.
In my opinion, the non-parole period was appropriate, having regard to the head sentence which was imposed. The head sentence cannot be criticised, having regard to the appellant’s antecedents, and having regard to the fact that the crime which she committed on this occasion caused $100,000.00 worth of damage.
There has been nothing put before the Court to demonstrate error on the part of the sentencing judge, and in those circumstances the sentencing judge’s sentence should be supported by this Court. This Court is not here for the purpose of extending sympathy to those who have been properly sentenced in the sentencing process.
Whilst we would all sympathise with Ms Hamilton, who has had a most unfortunate life, this Court cannot, in my opinion, give up its role as a Court of Appeal to correct error to become a court of sympathy. I would dismiss the appeal.
I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.
Associate:
Date: 18 May 2012
Counsel for the Appellant: Self represented
Counsel for the Respondent: Mr A Doig
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 2 May 2012
Date of judgment: 2 May 2012
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