Kenneth James Armstrong v Jayson Kirk

[2010] ACTSC 88

KENNETH JAMES ARMSTRONG v JAYSON KIRK
[2010] ACTSC 88 (18 August 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 12 of 2010

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              18 August 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 12 of 2010
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

KENNETH JAMES ARMSTRONG

v

JAYSON KIRK

ORDER

Judge:  Higgins CJ
Date:  18 August 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The sentence of Magistrate Doogan on 11 February 2011 be confirmed. The sentence is to commence on 19 September 2010 and expire on 18 March 2012.

1. The non-parole period imposed by Magistrate Doogan on 11 February 2011 be set aside.

1. A non-parole period of 18 months be imposed which is to commence on 19 September 2009 and expire on 18 March 2011.

1. The issue in this appeal comes down to a fairly narrow one, as indeed is the scope of the appeal.  It is acknowledged that Mr Armstrong was sentenced, and properly sentenced, to a period of 2 years and 6 months in total for the matters which were before Magistrate Doogan.  No dispute or no quarrel is taken with that head sentence and if I may say so, I think that is entirely appropriate. 

1. Issue is taken, however, with the length of the non-parole period which was specified, and one can understand that her Honour would not be greatly impressed at the time when the sentencing took place with the appellant’s prospects for rehabilitation.  The pre-sentence report was not exactly brimming with optimism in that respect.  It does not mean that Mr Armstrong is not capable of reformation, but rather that not much was being indicated at that time.  The report also indicated that there may be steps that Mr Armstrong could take or submit to that might change that situation.

1. It was an appropriate case, in my view, for a non-parole period to be imposed so that at the end of that period Mr Armstrong would be afforded the opportunity to apply for parole and, if his circumstances seemed favourable to that outcome, to be granted it.  No doubt it would be granted on such conditions as seemed appropriate at that time.

1. The question is whether that opportunity should be deferred, or should have been deferred to the extent which it was.  I have commented during the course of submissions that the extent to which eligibility for parole was deferred is somewhat high, and indeed higher than I have previously come across where eligibility for parole has been granted at all.  There may be reasons why that is appropriate.  If so, of course, those reasons should be stated.

1. I think the same is true where it is proposed to impose a non-parole period that is outside the usual non-parole period, and there is a fair range for that.  It may range from fifty percent to two-thirds.  However, notwithstanding that there is a range; there is nevertheless a perceived range of normality in that respect.  In my opinion this range of normality has in this case been exceeded and without good reasons being assigned to it.  For those reasons I propose to uphold the appeal. 

1. However, the next question that arises is; what period should be imposed?  I do not propose to send it back to the Magistrates Court to simply do that exercise.  It seems to me that in all the circumstances an appropriate non-parole period would have been a period of eighteen months from the time when the sentence was first imposed, which would leave a period of twelve months to serve on parole.

1. I appreciate that that is slightly less than a period which would be fixed by reference to two-thirds, but it seems to me that a period of twelve months’ supervision on parole, should Mr Armstrong qualify for parole at all, would be appropriate.  I therefore substitute that order for the order made by her Honour, otherwise the sentence is confirmed. 

1. The date is, of course, specified in her Honour’s original sentence. I confirm the commencement date of that sentence and the commencement date of the non-parole period, being 19 September 2009. The non-parole period would therefore expire on 18 March 2011.

I certify that the preceding (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    7 September 2010

Counsel for the appellant:  Mr J Sabharwal          
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent:  Mr J Lawton
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  18 August 2010
Date of judgment:  18 August 2010