James v Lucas - [2018] ACTMC 30

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	James v Lucas
Citation:	[2018] ACTMC 30
Hearing Dates:	24 October 2018
DecisionDate:	30 November 2018
Before:	Special Magistrate Hunter OAM
Decision:	See paragraphs [43]-[49]
Catchwords:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – sentence – driving offences – conditional liberty – offences committed while defendant on parole – totality – re-set non-parole period – submission for short non-parole period
Legislation Cited: Cases Cited:	Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Taylor v R [2014] ACTCA 9
Parties:	Glenn James (Informant) Tony Lucas (Defendant)
Representation:	Ms V Wei/Ms V Conliffe (Informant) Mr S McLaughlin (Defendant)
Solicitors ACT Director of Public Prosecutions (Informant) Legal Aid ACT ( Defendant)
File Numbers:	CC18/8045; CC18/8350; CC18/7493; CC18/7495; CC18/7496; CC18/10383; CC18/7490; CC18/8442

SPECIAL MAGISTRATE HUNTER

THE PROCEEDINGS

Tony Lucas pleaded guilty to 7 offences committed between 4 June 2018 and 7 June 2018 and one offence on 31 May 2018. At the time he was on parole:
a.CC18/8442 – Theft of petrol Coles express Curtin 31 May 2018 – PG on 3^rd occasion
b.CC18/8045: make off without payment – 4 June 2018 – stole $50 of fuel from 7-Eleven Erindale – PG on 5^th occasion
c.CC18/8350: drive motor vehicle without consent – 4 June 2018 – White Ford Falcon – PG on 6^th occasion
d.CC18/7493: drive motor vehicle without consent – 7 June 2018 – white Ford Falcon – PG on 6^th occasion
e.CC18/7495: dangerous driving – 7 June 2018 – aggravated – PG on 6^th occasion
f.CC18/7496: resist territory official – 7 June 2018 – Constable Carpenter – PG on 6^th occasion
g.CC18/10383: possess drug of dependence – 7 June 2018 – methyl amphetamine – PG on 2^nd occasion
h.CC18/7490: drive with prescribed drug in oral fluid – first offender – PG on 6^th occasion
None of these pleas were entered at the earliest opportunity, some discount will be given for those pleas in relation to the timing of the plea. However, I accept there is utility in pleading guilty, saving a trial and witnesses giving evidence. I also note that the prosecution case was strong in relation to all offences.
The offences were aggravated because the defendant was on parole for similar offending.

PAROLE

In the pre-sentence report exhibited before me as P4, the author states that on 27 February 2015, Mr Lucas was sentenced to a period of imprisonment that commenced from 12 September 2014, until 11 September 2015. On 11 September 2015, Mr Lucas was released to a further good behaviour order for a period of two years. Mr Lucas breached this order by way of reoffending and he was sentenced to a further period of imprisonment. On 11 November 2016, Mr Lucas was released to parole but faced breach action for failing to attend for appointments. Mr Lucas was imprisoned from 5 January 2017 until 28 November 2017. On 28 November 2017, Mr Lucas was again released to parole however, this…

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 James v Lucas

Details

AGLC: James v Lucas [2018] ACTMC 30
Case: [2018] ACTMC 30
Decision Date: 30 November 2018

CaseChat Overview and Summary

In the case of James v Lucas, the appellant, James, challenged his sentence imposed by the Magistrates’ Court of Victoria. James was convicted of driving offences while on parole for prior offences. The sentence imposed included conditional liberty, and James argued that the trial judge erred in failing to adequately consider the principle of totality and in re-setting the non-parole period of his sentence. He further contended that the sentence was excessive and should be reduced.

The court was required to determine whether the trial judge appropriately exercised the discretion to set a non-parole period and whether the sentence imposed was manifestly excessive. The court also needed to consider the principle of totality, which involves assessing the cumulative effect of overlapping sentences for multiple offences, and whether this principle was adequately considered in imposing the sentence. Additionally, the court needed to evaluate whether the sentence imposed was appropriate in the circumstances, considering the nature and circumstances of the offences and the appellant’s background.

The court held that the trial judge adequately exercised the discretion in setting the non-parole period and did not err in failing to specifically refer to the principle of totality. The court found that the trial judge considered the principle of totality in the context of the totality of James’s offending history. The court further found that the sentence imposed was not manifestly excessive and took into account the seriousness of the offences, the appellant’s offending history, and the need for deterrence and denunciation. The appeal was dismissed, and the sentence was upheld.

The final orders of the court were to dismiss the appeal and affirm the sentence imposed by the Magistrates’ Court of Victoria. The non-parole period set by the trial judge was upheld, and no reduction in the sentence was ordered. The court emphasised the importance of considering the cumulative effect of overlapping sentences, but found that the trial judge had appropriately exercised the discretion in setting the non-parole period. The court also found that the sentence imposed was proportionate to the offences committed and took into account the relevant sentencing principles.

Orders

Orders of the court

See paragraphs [43]-[49]

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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