Hawkins v Stuart
[2018] ACTSC 349
•12 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hawkins v Stuart |
Citation: | [2018] ACTSC 349 |
Hearing Date: | 12 December 2018 |
DecisionDate: | 12 December 2018 |
Before: | Elkaim J |
Decision: | See [11] |
Catchwords: | APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – manifest excess |
Parties: | Jason Paul Hawkins (Appellant) Benjamin John Stuart (First Respondent) Gregory John Harlovich (Second Respondent) Tracey Joanne Darrah (Third Respondent) Troy Vincent Mensinga (Fourth Respondent) Benjamin Peter Russell (Fifth Respondent) Christopher Stephen Barton (Sixth Respondent) Lane Alan Brian (Seventh Respondent) |
Representation: | Counsel Self-Represented (Appellant) Mr M Howe (Respondents) |
| Solicitors Self-Represented (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 48 of 2018 |
Decision under appeal: | Court: ACT Magistrates Court Before: Special Magistrate Cush Date of Decision: 16 August 2018 Case Title: Stuart v Hawkins Citation: CC 2017/11880; CC 2017/2888; CC 2017/8063; CC 2017/10497; CC 2017/8548; CC 2017/8385; CC 2017/8388; CC 2017/8387; CC 2017/8389; CC 2017/12062; CC 2017/12063; CC 2017/12064; CC 2017/13841; CC 2017/13842; CC 2017/2887; CC 2017/3088; CC 2017/8391 |
ELKAIM J:
The appellant was sentenced by Special Magistrate Cush on 16 August 2018. The following sentences were imposed:
(a)Receiving stolen property (CC 2017/11880): 6 months’ imprisonment commencing 2 December 2017 and ending 1 June 2018;
(b)Unlicensed driver (CC 2017/2888): 1 month imprisonment commencing 2 June 2018 and ending 1 July 2018 and disqualified from holding or obtaining a licence for 3 years;
(c)Obtain property by deception (CC 2017/8063): 6 months’ imprisonment commencing on 2 July 2018 and ending 1 January 2019;
(d)Unlawful possession of stolen property (CC 2017/10497): 3 months’ imprisonment commencing 2 August 2018 and ending 1 November 2018;
(e)Unlicensed driver (CC 2017/8548): 2 months’ imprisonment commencing 2 November 2018 and ending 1 January 2019 and disqualified from holding or obtaining a licence for 3 years;
(f)Fail to stop motor vehicle for police (CC 2017/8385): fined $750 payable immediately and disqualified from holding or obtaining a licence for 12 months;
(g)Use unregistered vehicle (CC 2017/8387): fined $650 payable immediately;
(h)Use uninsured vehicle (CC 2017/8388): fined $801 payable immediately;
(i)Proceeding through red traffic light (CC 2017/8389): fined $500 payable immediately;
(j)Use vehicle with numberplate not issued (CC 2017/8391): fined $500 payable immediately;
(k)Unlicensed driver (CC 2017/12062): 2 months’ imprisonment commencing on 2 January 2019 and ending 1 March 2019 and disqualified from holding or obtaining a licence for 3 years;
(l)Use unregistered vehicle (CC 2017/12063): fined $650 payable immediately;
(m)Use uninsured vehicle (CC 2017/12064): fined $801 payable immediately;
(n)Contravene Family Violence Order (CC 2017/13841): 1 month imprisonment commencing on 2 February 2019 and ending 1 March 2019;
(o)Contravene Family Violence Order (CC 2017/13842): 3 months’ imprisonment commencing on 2 March 2019 and ending 1 June 2019;
(p)Driving with a prescribed drug in oral fluid or blood (CC 2017/2887): fined $500 payable immediately and disqualified from holding or obtaining a licence for 3 years; and
(q)Common assault (CC 2017/3088): no further action taken on breach.
In relation to imprisonment, the overall effect of the above sentences is that the appellant will remain in prison until 1 June 2019. The overall length of imprisonment, dating from 2 December 2017 is to 1 June 2019, is 18 months. He is eligible for parole on 1 January 2019.
The appellant is unhappy with the above sentences. Based on the Notice of Appeal, dated 4 October 2018, he thinks the sentences are too severe.
The Crown disagrees but has made a concession about three of the individual sentences (CC 2017/2888, CC 2017/8548 and CC 2017/12062). These sentences relate to driving offences for which the appellant was sentenced as a repeat offender. Sentences of imprisonment were imposed. The appellant, however, was not a repeat offender and was not liable to be imprisoned for these offences. These three sentences, therefore, need to be set aside and the non-parole period adjusted.
The Crown submitted that the length of the other sentences should not be changed, although some of their commencement dates should be altered to take account of the effect of the identified and conceded errors.
In order to succeed the appellant must establish error on the part of the Magistrate. This has been achieved through the concessions made by the Crown.
In a written note filed on 7 December 2018, the appellant says that he has evidence:
to show that the author of the ICO report got some things wrong and the judge got confused when he was making his decision about my ex-partner being not there but she was on the second time that I got three months for the DPP conceded that she had invited me there. I feel that should have been concurrent not on top.
He ends up by saying that he will elaborate at Court.
However, following the appellant reading the Crown’s submissions and an explanation being given to him in Court he said that he was satisfied, happy even, with the changes suggested by the Crown to his sentencing regime. He abandoned his desire to elaborate. These changes have the effect of reducing his overall sentence by two months and making him immediately eligible for parole.
10. I agree with the identification of error set out by the Crown and for the need for there to be an overall resentencing to achieve the intended result of reducing the total sentence by two months and rendering the appellant eligible for parole forthwith.
11. Accordingly, I make the following orders:
(a)The appeal is allowed.
(b)The sentences imposed by Special Magistrate Cush on 16 August 2018 are set aside.
(c)The appellant is resentenced as follows:
(i)Receiving stolen property (CC 2017/11880): 6 months’ imprisonment commencing 2 December 2017 and ending 1 June 2018;
(ii)Unlicensed driver (CC 2017/2888): fined $100 payable immediately.
(iii)Obtain property by deception (CC 2017/8063): 6 months’ imprisonment commencing on 2 June 2018 and ending 1 December 2018;
(iv)Unlawful possession of stolen property (CC 2017/10497): 3 months’ imprisonment commencing 2 August 2018 and ending 1 November 2018;
(v)Unlicensed driver (CC 2017/8548): fined $100 payable immediately;
(vi)Fail to stop motor vehicle for police (CC 2017/8385): fined $750 payable immediately and disqualified from obtaining or holding a licence for 12 months, the period of disqualification to end on 15 August 2019;
(vii)Use unregistered vehicle (CC 2017/8387): fined $650 payable immediately;
(viii)Use uninsured vehicle (CC 2017/8388): fined $801 payable immediately;
(ix)Proceeding through red traffic light (CC 2017/8389): fined $500 payable immediately;
(x)Use vehicle with numberplate not issued (CC 2017/8391): fined $500 payable immediately;
(xi)Unlicensed driver (CC 2017/12062): fined $100 payable immediately;
(xii)Use unregistered vehicle (CC 2017/12063): fined $650 payable immediately;
(xiii)Use uninsured vehicle (CC 2017/12064): fined $801 payable immediately;
(xiv)Contravene Family Violence Order (CC 2017/13841): 1 month imprisonment commencing on 2 December 2018 and ending 1 January 2019;
(xv)Contravene Family Violence Order (CC 2017/13842): 3 months’ imprisonment commencing on 2 January 2019 and ending 1 April 2019;
(xvi)Driving with a prescribed drug in oral fluid or blood (CC 2017/2887): fined $500 payable immediately and disqualified from obtaining or holding a licence until 15 August 2019.
(xvii)Common assault (CC 2017/3088): no further action taken on breach.
(d)The total period of imprisonment is 16 months commencing on 2 December 2017 and ending on 1 April 2019.
(e)The non-parole period is set to expire on 12 December 2018.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 12 December 2018 |
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