Jaqueline Jane Perceval v Koley Quirk and Phillip Mark Chamberlain
[2012] ACTSC 174
•5 November 2012
JAQUELINE JANE PERCEVAL v KOLEY QUIRK AND PHILLIP MARK CHAMBERLAIN
[2012] ACTSC 174 (5 November 2012)
Crimes Act 1914 (Cth), s 20A(5)(c), 20(1)(b)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 59 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 5 November 2012
IN THE SUPREME COURT OF THE )
) No. SCA 59 of 2012
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JAQUELINE JANE PERCEVAL
Appellant
AND: KOLEY QUIRK
First Respondent
PHILLIP MARK CHAMBERLAIN
Second Respondent
ORDER
Judge: Burns J
Date: 5 November 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal will be allowed, and the sentences imposed by the magistrate will be set aside.
With respect to charge 41394 of 2011, the conviction is confirmed. A sentence of six months’ imprisonment will be imposed, to commence on 2 July 2013 and expiring on 1 January 2014, with that sentence to be served by way of periodic detention.
On the basis of the above conviction, the offender is in breach of the order which was made on 5 December 2007. With respect to matter 41592 of 2007, the order suspending the sentence is revoked. The sentence of 12 months’ imprisonment is to be served by way of periodic detention, such sentence commencing on 3 July 2012 and expiring on 2 July 2013.
Finally, on charge 40435 of 2012, the conviction is confirmed and as sentence of eight months’ imprisonment commencing today is imposed. The sentence is wholly suspended and there will be a recognizance self in the sum of $1,000 to be of good behaviour for a period of two years, with conditions:
to accept the supervision of ACT Corrective Services for that period of two years, or such lesser period as deemed appropriate by the supervising officer;
to attend and engage in any educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed by ACT Corrective Services, particularly with respect to mental health issues and problem gambling.
The reparation orders made by the magistrate will be confirmed.
On 3 July this year, the appellant appeared before the Magistrates Court and was sentenced in relation to two offences. At the same time, she was sentenced in relation to an earlier offence. The two offences for which she was sentenced on 3 July this year were matters number 41394 of 2011 and 40435 of 2012, each being a charge of obtaining a financial advantage knowing or believing that she was not eligible to receive that financial advantage.
The offence date with respect to the 2011 charge was from 10 October 2007 to 4 March 2009. With respect to that matter, she was convicted and sentenced to six months’ imprisonment to commence on 3 January 2013. I will come back to the commencement date for that in a moment.
On the 2012 charge, the dates relevant to the offence were 10 May 2009 to 13 July 2011. On that date, she was convicted and sentenced to nine months’ imprisonment also to commence on 3 January 2013.
The reason for the delay in commencement of the sentences imposed with respect to those two charges was that the magistrate re-sentenced with respect to a charge that was dealt with by another magistrate in the Magistrates Court on 5 December 2007.
On that date, his Honour dealt with charge 41592 of 2007, a further charge of obtaining a financial advantage knowing or believing she was not eligible to receive that advantage.
The dates relevant to that offence were 28 May 2002 to 12 August 2005. As I understand it, the magistrate had imposed a sentence of 12 months’ imprisonment, but suspended the operation of the sentence of imprisonment pursuant to the provisions of section 20(1)(b) of the Crimes Act 1914 (Cth).
In re-sentencing the appellant with respect to the offence which had been dealt with on 5 December 2007, the sentencing magistrate imposed a sentence of six months’ imprisonment commencing on the sentence date, being 3 July 2012.
It is clear that her Honour was in error in imposing the sentence which she did. Section 20A(5)(c) of the Crimes Act 1914 provides the options for a court re-sentencing with respect to a suspended sentence. Imposing a lesser sentence of imprisonment than that which was originally imposed is not one of the options which is available under that section.
It is conceded, and rightly conceded, by the Crown that the sentence imposed by the sentencing magistrate cannot be maintained. It is also rightly conceded that this court must now undertake the exercise of re-sentencing the appellant with respect to all three of the matters that were before the sentencing magistrate.
In addition to which, of course, I now have material which is before me which was not before her Honour. Accordingly, in re-sentencing the appellant, I now exercise my own discretion in relation to the appropriate sentences with respect to these offences.
I take into account, of course, the pleas of guilty that were entered by the appellant with respect to these matters. I also take into account those matters that were set out in the pre-sentence reports that were before the sentencing magistrate. I take into account the testimonials and other documents that have now been put before me during the course of this appeal and which now form part of Exhibit 1.
Of particular significance, in my opinion, is the report by Associate Professor Stephens dated 20 June this year. He assessed the appellant in relation to the charges which were then extant in the Magistrates Court, and diagnosed her with bipolar one disorder and also features of a borderline personality disorder. Associate Professor Stephens then said, and I quote:
She has considerable mental health related issues. The bipolar disorder is very unstable, with mood swings between elation and depression. This would also affect her judgment and would give her the sense of her life always being in a crisis.
It must be accepted that the offences which come before me now for sentencing are objectively serious offences. They call for the imposition of terms of imprisonment but the question is whether, taking into account all of the material, the appellant should be required to serve those terms of imprisonment by way of full time imprisonment. It is of course axiomatic that a term of full time imprisonment is to be reserved for a case where no other sentence would be appropriate.
I must also now sentence on the basis that the appellant has spent a period of time since 3 July this year in full time imprisonment. I note that the appellant has not previously served a term of imprisonment. I propose proceeding by way of periodic detention and also suspended sentence.
The appeal will be allowed, and the sentences imposed by the magistrate will be set aside. With respect to charge 41394 of 2011, the conviction is confirmed. On the basis of that conviction, you are in breach of the order which was made on 5 December 2007. With respect to matter 41592 of 2007, the order suspending the sentence is revoked. The sentence of 12 months’ imprisonment is to be served by way of periodic detention, such sentence commencing on 3 July 2012 and expiring on 2 July 2013.
Returning now to matter number 41394, as I said, I have already imposed the conviction. A sentence of six months’ imprisonment will be imposed, to commence on 2 July 2013 and expiring on 1 January 2014, with that sentence to be served by way of periodic detention.
Finally, on charge 40435 of 2012, the conviction is confirmed and you will be sentenced to eight months’ imprisonment commencing today which will be wholly suspended and there will be a recognizance self in the sum of $1,000 to be of good behaviour for a period of two years, with conditions that you are to accept the supervision of ACT Corrective Services for that period of two years, or such lesser period as deemed appropriate by your supervising officer and you are to attend and engage in any educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed by ACT Corrective Services, particularly with respect to mental health issues and problem gambling.
The reparation orders made by the magistrate will be confirmed.
Ms Perceval, what I have done, and I am sure this will be explained to you further by Mr Doig, is that you will now be eligible for release, but you will be serving still quite a significant period of imprisonment by way of periodic detention. You will also be obliged to accept supervision by Corrective Services and obey all reasonable directions of that service.
In large measure, I have taken the course that I have because clearly you have a number of very significant mental health issues which, in my view, reduced your moral culpability with respect to your offending. However, if this type of behaviour continues or is repeated, then there does come a point at which requirements for personal deterrence would be such that you will have to spend a significant period in prison.
You have to keep trying. You have to ensure that you don’t re-offend, because otherwise, you will end up back in prison.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate: James Middleton
Date: 26 November 2012
Counsel for the appellant: Mr Doig
Solicitor for the appellant: ACT Legal Aid
Counsel for the respondent: Ms Musgrove
Solicitor for the respondent: Commonwealth DPP
Date of hearing: 5 November 2012
Date of judgment: 5 November 2012
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