Krutsky v McCormick
[2024] ACTSC 3
•18 July 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Krutsky v McCormick |
Citation: | [2024] ACTSC 3 |
Hearing Date: | 18 July 2023 |
Decision Date: | 18 July 2023 |
Reasons Date: | 18 January 2024 |
Before: | Loukas-Karlsson J |
Decision: | The appeal is dismissed. |
Catchwords: | APPEAL – APPEAL FROM MAGISTRATES COURT – Offender appeal on sentence – whether sentence was manifestly excessive – sentence concerning offences of act endangering life and damaging property – high degree of concurrency and orthodox approach to totality – lenient sentence and nonparole period – appeal dismissed |
Legislation Cited: | Crimes Act 1900 (ACT) s 27 |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 |
Parties: | Rebecca Katherine Krutsky ( Appellant) Director of Public Prosecutions ( Respondent) |
Representation: | Counsel J Sabharwal ( Appellant) L Crocker ( Respondent) |
| Solicitors Fraser Criminal Law ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 16 of 2023 |
Decision Under Appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 22 February 2023 Case Title: McCormick v Krutsky Charge Numbers: CC2022/8955, CC2022/8957, CC2022/8953 |
LOUKAS-KARLSSON J:
Introduction
1․On 18 July 2023, I heard an appeal of a sentence imposed in the Magistrates Court.
On that day, I ordered that the appeal be dismissed. Reasons were reserved. Those reasons now follow.2․This appeal concerns a sentence imposed by Magistrate Theakston (the Magistrate).
Ms Krutsky, the appellant, was sentenced in respect of the following offences:(a)For two offences of act endangering life contrary to s 27(3)(c) of the Crimes Act 1900 (ACT) (Crimes Act) (CC2022/8955, CC2022/8957), to 18 months’ imprisonment for each offence to be served concurrently, commencing on 8 September 2022 and concluding on 7 March 2024; and
(b)For the offence of damaging property contrary to s 403 of the Criminal Code 2002 (ACT) (CC2022/8953), to 18 months’ imprisonment to commence on 8 September 2023 and conclude on 7 March 2025.
3․The maximum penalty for each offence is 10 years’ imprisonment.
4․The sentences imposed for the two offences of act endangering life were ordered to be concurrent. The sentence for damaging property was partly concurrent with those sentences, 12 months of which was cumulative.
5․The total head sentence imposed for the three offences was therefore two years and six months’ imprisonment, commencing 8 September 2022 and expiring 7 March 2025. The Magistrate imposed a nonparole period of 11 months, approximately 37 percent of the head sentence. I note that the Magistrate also made a reparation order in the sum of $1,500.
6․I formed the view that, far from being a manifestly excessive sentence, the sentence was lenient. The appeal was therefore dismissed.
Ground of appeal
7․The appellant appealed against the sentence on the sole ground of manifest excess.
8․Counsel for the appellant submitted that manifest excess is demonstrated by the “significant incongruity between the way in which punishment for property damage has been delivered compared with punishment for the endangerment of two lives”. Counsel for the appellant submitted that this may give the impression that the Court placed a “higher premium on the maintenance of property than the maintenance of human life”.
9․Counsel for the appellant further submitted that the Magistrate’s order as to concurrency meant that “the appellant effectively received 12 months for the property damage compared with only nine months each for the acts endangering life”.
10․Counsel for the appellant additionally submitted that the incongruity is heightened by the fact that the appellant entered a plea of guilty to the property damage offence, but the charges of act endangering life went to contested hearing, with greater cost, time and angst involved for the victims and the community.
11․Moreover, counsel for the appellant submitted that, despite the Magistrate stating that “aiming at two is worse than aiming at one”, the Court imposed wholly concurrent sentences for the two offences of act endangering life. Counsel for the appellant submitted it would have been appropriate for the Magistrate to extend complete concurrence to the property damage sentence as it was also part of the single course of conduct over a short period of time.
12․Finally, counsel for the appellant alleged that insufficient weight was placed on the appellant’s period in segregation while in custody.
Jurisdiction and the relevant appellate principles
13․This Court’s jurisdiction to hear this appeal against sentence imposed in the Magistrates Court is exercised pursuant to pt 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act): see divs 3.10.1 and 3.10.2 (in particular, ss 207 and 208). The orders the Supreme Court may make on such an appeal are set out in s 218 of the Magistrates CourtAct.
14․The nature of the appeal is by way of rehearing: Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]. A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. Further, I note the respondent’s submissions concerning “tinkering”. There are injunctions against appellate “tinkering” with sentence on a prosecution appeal on sentence: see Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62]. See also Basten JA in Hillier v Director of Public Prosecutions (NSW) [2009] NSWCCA 312; 198 A Crim R 565. Nevertheless, it is not appropriate to apply any such principle in a sentence appeal by an offender as it concerns the liberty of the subject.
15․The principles that apply to a complaint of manifest excess are well established: see, for example, Tracey v The Queen [2020] ACTCA 51 at [37]-[38].
16․A ground of manifest excess is an error in the nature of the fourth proposition in House v The King (1936) 55 CLR 499 (House v The King). In those circumstances, the appellate court must be satisfied that the sentence is “unreasonable or plainly unjust”: House v The King at 505. See also Barrett v The Queen [2016] ACTCA 38 at [34].
17․It is also well established, and I underline that, the discretionary nature of sentencing, of necessity, means that “as much flexibility as is in accordance with consistency of approach and applicable sentencing principles” is to be afforded to judges at first instance: see Kelly v The Queen [2021] ACTCA 15 at [42]. Sentencing is the exercise of a discretion and reasonable minds may differ within the proper application of principle.
Facts of the offending
18․On 5 October 2022, at the third mention of the matter, the appellant entered a plea of guilty to the offence of damage property. Pleas of not guilty were maintained on the other two charges which were proved at hearing on 14 February 2022.
19․The events giving rise to the offences occurred on 8 September 2022 and were usefully summarised by the Magistrate in his ex tempore reasons. The events occurred as follows.
20․At approximately 2pm on 8 September 2022, the appellant was driving a motor vehicle in Taylor, ACT. At this time, two women who had been visiting a friend were crossing the road. The appellant drove up alongside them, yelled at them and then abruptly, without warning and in a sharp single motion, drove her vehicle towards the two women on the footpath. The two women moved quickly to avoid being struck by the vehicle. The offences of committing an act endangering life were particularised on the basis that the appellant had intentionally and unlawfully used against another person an offensive weapon, namely the motor vehicle, in a manner likely to cause grievous bodily harm.
21․The two women then ran from the location, down the road and returned to their friend’s residence whom they had been visiting. The appellant reversed back onto the street, drove down the street towards where the women were running, drove into the driveway of the house in which the women had sheltered and then drove straight into the garage door. The appellant struck and significantly damaged a vehicle valued at $65,000. The vehicle was described as “written off” by this damage. The appellant then caused extensive damage to the inside of the house agreed to be in the order of $30,000.
22․The appellant was arrested later than day and remanded in custody.
The sentence was not manifestly excessive
Objective seriousness
23․It is well established that the assessment of objective seriousness is a matter for the sentencing magistrate as “[i]t is, if not a finding of fact, then the exercise of an evaluative process akin to fact finding or the exercise of a discretion”: Mulato v R [2006] NSWCCA 282 at [46]. In his reasons, the Magistrate characterised all three offences as falling “above the halfway point of objective seriousness”. This, in my view, was a finding well open to the Magistrate.
24․The Magistrate went on to note the following in his reasons:
The offence of damage property and use of offensive weapon which is dangerous to a person, they’re serious examples of those types of offences. There was real potential for both women to be… very seriously injured and/or killed by the [appellant]’s conduct, and the driving into the house could only be described as an explosive intrusion into that family home with a car through the garage door.
25․With respect to the damaging property offence, counsel for the respondent correctly submitted certain features were relevant to an assessment of objective seriousness in this case, including the following:
(a)The significant value of damage caused (approximately $95,000);
(b)The nature of the damaged property, being a home and its contents; and
(c)The driving of the motor vehicle with “considerable power”.
26․In relation to the acts endangering life, matters relevant to assessing objective seriousness included:
(a)The potentially lethal nature of the offensive weapon, namely a motor vehicle;
(b)The unprovoked nature of the attack; and
(c)The fact that, had the women “hesitated for even a second or so” before moving, they would have been struck by the vehicle.
27․Counsel for the respondent submitted that the finding that the offences fell “above the halfway point of objective seriousness” was plainly open having regard to the circumstances of the offending. I agree, taking into account the matters set out above pertaining to objective seriousness.
“Significant incongruity” between sentences
28․As stated earlier, counsel for the appellant alleged that the consequence of the concurrency imposed by the Magistrate was that the appellant received an effective term of 12 months’ imprisonment for the offence of damage property, and nine months’ imprisonment for each offence of act endangering life. Counsel for the appellant described this as a “significant incongruity”.
29․Counsel for the respondent noted that the submission by counsel for the appellant that the concurrency imposed resulted in an inappropriate outcome is inconsistent with the appellant’s own submission that there should have been complete concurrency across all three sentences. If this were to be followed, by the same logic, this would suggest that there was no effective sentence for the acts of endangering life.
30․In my view, the Magistrate’s approach was a wholly unexceptional, orthodox application of totality: see O’Brien v The Queen [2015] ACTCA 47 at [26]. The Magistrate determined the appropriate sentence for each offence, before turning to consider questions of accumulation and concurrence in order to give effect to an appropriate total sentence. There is, in my view, nothing to criticise in the Magistrate’s approach concerning totality. There are, of course, a number of ways in which totality can be given effect to: see, for example, Kilby v Carey [2023] ACTSC 119.
31․The submissions of the appellant’s counsel appear to be based on the blanket proposition that every example of a property offence is objectively less serious than an offence under s 27 of the Crimes Act of endangering life and that, therefore, the damaging property sentence is manifestly excessive. That is not the correct approach for the following reasons.
32․First, this simplistic approach ignores that all the offences, both acts endangering life and damaging property, in this case carry the same maximum penalty of 10 years.
33․Second, as the respondent correctly contended, the facts in each individual count will always determine the objective seriousness of the offences. Therefore, it is not possible to compare the sentences in this case and draw from this the impression that “the Court placed a higher premium on the maintenance of property than the maintenance of human life”. That is not what the reasons of the Magistrate reflect.
34․Third, the sentence imposed was not manifestly excessive. It was lenient. The individual sentences were lenient. The overall head sentence of two years and six months’ imprisonment was lenient. The 37 percent nonparole period of 11 months was, on any view, lenient. I note that nonparole periods in this jurisdiction are typically in the order of 50-70 percent of the head sentence. Nevertheless, the percentage as such may of course be lower within a proper application of principle, further noting that the nonparole period represents “the minimum period of imprisonment that justice requires to be served”: Taylor v The Queen [2014] ACTCA 9 at [19]. See The Queen v Ruwhiu [2023] ACTCA 18 at [62]-[68]; R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [100]-[103]; Power v The Queen [1974] HCA 26; 131 CLR 623 at [4]; Millard v The Queen [2016] ACTCA 14 at [64]; Lowe v The Queen [1984] HCA 46; 154 CLR 606 at [6]; Inge v The Queen [1999] HCA 55; 199 CLR 296 at [8], [57], [59].
Conditions of imprisonment
35․Counsel for the appellant submitted that the Magistrate “might have considered the appellant’s period of segregation at the Alexander Maconochie Centre [(AMC)] to have been more serious than he found it to be”. Counsel for the appellant submitted that the Magistrate spoke of the term “human rights complaint” being “bandied around” regarding the prison and noted several limitations within the AMC’s remit. However, the Magistrate did not expand upon this beyond noting that the prison had to deal with male and female tenants, individuals on remand and sentenced prisoners and remarked that “there’s only so much one institution can do”. Counsel for the appellant made references to the reports of an independent prison reviewer Neil McAllister in November 2022, and later in July 2023, concerning the AMC.
36․Counsel for the respondent submitted that the Magistrate “actively engaged” with counsel on the issue of the appellant’s conditions of imprisonment as a matter that goes to subjective circumstances at the sentence hearing. My review of the transcript and reasons confirms this. The Magistrates referred to the appellant’s conditions of imprisonment including noting the following:
…[A]lso of concern is that the defendant has been in segregation for some months, since October I am told, and I have no reasons not to accept this and that is, as a consequence, she has been held in her cell for 23 hours a day and receives what could only be described as the bare minimum amount of time outside that cell and that’s a period of one hour each day.
The term “human rights complaint” is often an expression bandied around to describe the Alexander Maconochie Centre here in the Territory. It’s a jail or a detention institution that held great promise, but, unfortunately, it appears to be a single, or it is clearly a single institution which needs to do everything for everyone. It needs to. It has been designed to provide services and detention and imprisonment for all types of detainees and prisoners in the Territory, whatever their needs, whatever their sex or gender, whether or not they’re on remand or as a sentenced prisoner, and as so, there’s only so much one institution can do… but I take into account that that is a very difficult way to serve any period in custody, either on remand or as a sentenced prisoner.
(emphasis added.)
37․It is clear from the Magistrate’s reasons that weight was placed on this factor. An assertion of inadequate weight is tested by examining the sentence as to manifest excess or otherwise: see Hanania v R [2012] NSWCCA 220 at [33]. As stated earlier, manifest excess has not been established.
38․The question of weight to be given to this factor was a matter for the Magistrate as part of the judicial process of instinctive synthesis. The authorities are clear on this point.
Conclusion
39․Neither the individual sentences nor the overall sentence was manifestly excessive. Error has not been demonstrated.
Orders
40․For the foregoing reasons, the following order was made:
(1)The appeal is dismissed.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson. Associate: Date: 18 January 2024 |
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