Harper v Newman - [2022] ACTSC 207

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Harper v Newman
Citation:	[2022] ACTSC 207
Hearing Date:	5 August 2022
DecisionDate:	5 August 2022
Before:	Mossop J
Decision:	Appeal dismissed.
Catchwords:	CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – minor theft – driving unlicensed – breach of good behaviour order – appeal on ground of manifest excess – sentences imposed did not disclose misapplication of sentencing principle – appeal dismissed
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT), s 110(2) Criminal Code 2002 (ACT), s 321 Legislation Act 2001 (ACT) Road Transport (Driver Licensing) Act 1999 (ACT), s 31(2)
Cases Cited:	House v The King (1936) 55 CLR 499 Samios v Petersilka (unreported, Supreme Court of the Australian Capital Territory, Master Hogan, 23 December 1993) Tracey v The Queen [2020] ACTCA 51
Parties:	Jason Harper (Appellant) Benjamin Newman (Respondent)
Representation:	Counsel Self-represented (Appellant) K McCann (Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 18 of 2022
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 31 May 2022 Case Title: Newman v Harper Court File Numbers: CC2019/10534 CC2021/9419

MOSSOP J:

Introduction

On 31 May 2022 the appellant, Jason Harper, was sentenced by a magistrate in relation to one charge of minor theft contrary to s 321 of the Criminal Code 2002 (ACT) (CC2021/9419) and a breach of a suspended sentence order in relation to a charge of driving unlicenced contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2019/1053). The appellant was sentenced to an effective sentence of three months and one day’s imprisonment commencing on 31 May 2022 and ending on 31 August 2022.

The appellant has appealed against the whole of the sentence imposed on the basis of an allegation of manifest excess. In oral submissions, the target of the claim of manifest excess was focused upon the extent of concurrency between the two sentences.

Background

The events giving rise to the charge of minor theft were set out in the Statement of Facts tendered on sentence. In summary, the appellant attended BWS in Hawker, Australian Capital Territory (ACT) on two occasions on 31 July 2021 and on a further occasion on 14 August 2021. He stole bottles of alcohol totalling, between the three occasions, $150.30. Each occasion was captured on CCTV. The appellant was summonsed and first appeared in the ACT Magistrates Court on 6 December 2021. He entered a plea of guilty on 25 March 2022.

At the time of the offending, the appellant was subject to a good behaviour order attaching to a suspended sentence which had been imposed on 24 February 2021. The appellant was originally sentenced on 24 August 2020 for the offence of driving unlicensed, to a term of two months’ imprisonment which was suspended upon entering into a good behaviour order for 12 months. On 24 February 2021 the appellant was re‑sentenced following a breach of the order…

Grounds of appeal

[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.

Continue reading Harper v Newman

Details

AGLC: Harper v Newman [2022] ACTSC 207
Case: [2022] ACTSC 207
Decision Date

CaseChat Overview and Summary

In Harper v Newman, the appellant, Jason Harper, appealed against the sentence imposed by the ACT Magistrates Court. The appellant was sentenced to three months and one day’s imprisonment for one charge of minor theft and a breach of a suspended sentence for driving unlicenced. The appellant argued that the sentence was manifestly excessive, specifically citing the extent of concurrency between the two sentences. The central legal issue was whether the sentence imposed by the magistrate was so disproportionate that it indicated a misapplication of sentencing principles.

The court examined the individual components of the sentence. For the minor theft, the sentence of two months’ imprisonment was deemed appropriate given the appellant’s criminal history and the objective seriousness of the offence. The court acknowledged the appellant’s poor subjective circumstances but noted that these did not outweigh the aggravating factors present. For the breach of the suspended sentence, the court found that the imposition of the suspended sentence was necessary to maintain the integrity of the suspended sentence system, given the appellant's breach of the good behaviour order. The court concluded that the aggregate term of imprisonment was not plainly unreasonable, as the magistrate had appropriately balanced the need for separate and adequate punishment with the need to avoid double punishment.

The court held that the sentences imposed did not disclose a misapplication of sentencing principles and that the appellant’s claim of manifest excess was not substantiated. The appeal was therefore dismissed.

Orders