Ian Andrew Smith v Timothy James Elliot - [2007] ACTSC 65

IAN ANDREW SMITH v TIMOTHY JAMES ELLIOT
[2007] ACTSC 65 (24 August 2007)

SENTENCING – Appeal from magistrate – no error of fact or law in imposing imprisonment – sentence not manifestly excessive – re-offending may operate as denial of leniency - incorrect imposition of a non-parole period – recognizance release order imposed in lieu.

Crimes Act 1914 (Cth), s 4K, s 16A, s 19AC
Criminal Code Act 1995 (Cth), s 474.17

Crimes (Sentencing) Act 2005 (ACT) , s 7

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes Act 1900 (ACT), Part 13

Judiciary Act 1903 (Cth)

Putland v The Queen (2004) 218 CLR 174

Weinert v Commonwealth Department of Public Prosecutions [1999] SASC 34, unreported, 9 February 1999, Nyland J

Maier v Police [2004] SASC 367, unreported, 19 November 2004,White J

Mason-Stuart v R (1993) 61 SASR 204

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 51 of 2007

Judge: Gray J
Supreme Court of the ACT

Date: 24 August 2007

IN THE SUPREME COURT OF THE       )
  )          No. SCA 51 of 2007
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:IAN ANDREW SMITH
Appellant

AND:TIMOTHY JAMES ELLIOT
Respondent

ORDER

Judge:  Gray J
Date:  24 August 2007
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be upheld for the purpose that the non-parole period imposed by the magistrate be quashed and in lieu thereof there be a recognizance release order.

The magistrate’s order that a sentence of ten months imprisonment take effect from 18 June 2007 and to end on 18 April 2008 be confirmed.

The appellant be released on 18 November 2007 on a recognizance release order for a period of five months from that date on condition that he accept the supervision of the Chief Executive of ACT Corrective Services or the Chief Executive’s nominee for the period upon which he is subject to that order.

Ian Andrew Smith appeals against a sentence of imprisonment imposed upon him in the ACT Magistrates Court on 18 June 2007 in respect of 12 charges of using a carriage service to cause offence. The penalty prescribed for the charge is three years imprisonment. A single penalty was imposed and that penalty was 10 months imprisonment with a non-parole period of five months. The imposition of a single penalty is authorised by s 4K of the Crimes Act 1914 (Cth) (Crimes Act).

The offences

Section 474.17(1) of the Criminal Code Act 1995 (Cth) provides:

Using a carriage service to menace, harass or cause offence
(1) A person is guilty of an offence if:
(a)the person uses a carriage service; and
(b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

Penalty: Imprisonment for 3 years.

The charges relate to one offence under that subsection which is alleged to have occurred on 5 February 2007, six…

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.

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Details

Case: [2007] ACTSC 65
Decision Date: 24 August 2007

CaseChat Overview and Summary

Ian Andrew Smith appealed against his conviction and sentence imposed by a magistrate for various criminal offences, including assault occasioning actual bodily harm and dangerous driving. The Court of Appeal was tasked with determining whether the magistrate erred in imposing the sentence and whether the non-parole period was correctly set. The appeal specifically questioned the appropriateness of the ten-month imprisonment term and the associated non-parole period.

The primary legal issue for the Court of Appeal was whether the magistrate erred in imposing a sentence of imprisonment and, if so, whether the error was material enough to warrant a new sentence. Additionally, the Court considered whether the non-parole period was correctly imposed and whether the re-offending nature of the crime justified a harsher sentence. The Court also assessed whether the sentence was manifestly excessive.

In its judgment, the Court of Appeal found no material error in the magistrate's assessment of the evidence or in the imposition of a custodial sentence. The Court confirmed that the sentence of ten months imprisonment was appropriate given the appellant's re-offending and the seriousness of the offences. However, the Court determined that the magistrate incorrectly imposed a non-parole period. The Court quashed the non-parole period and ordered that the appellant be released on a recognizance release order for a period of five months. The Court held that the magistrate's order regarding the commencement and end dates of the sentence was to be confirmed. The appellant was to be released on 18 November 2007 on a recognizance release order, subject to the supervision of the Chief Executive of ACT Corrective Services or their nominee.

Orders

Orders of the court

1. The appeal be upheld for the purpose that the non-parole period imposed by the magistrate be quashed and in lieu thereof there be a recognizance release order.

2. The magistrate?s order that a sentence of ten months imprisonment take effect from 18 June 2007 and to end on 18 April 2008 be confirmed.

3. The appellant be released on 18 November 2007 on a recognizance release order for a period of five months from that date on condition that he accept the supervision of the Chief Executive of ACT Corrective Services or the Chief Executive?s nominee for the period upon which he is subject to that order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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