Lee Peter Mannell v Kris Anthony Spence; R v Lee Peter Mannell

[2011] ACTSC 103

LEE PETER MANNELL v KRIS ANTHONY SPENCE;
R v LEE PETER MANNELL
 [2011] ACTSC 103 ( 23 June 2011)

APPEAL – appeal from ACT Magistrates Court – appeal against sentence – failure to take account of a plea of guilty - No penalty other than imprisonment was appropriate – significant changes in appellant’s subjective circumstances.
CRIMINAL LAW – sentence – assault occasioning actual bodily harm – guilty plea entered on first day of trial – totality of sentence considered with other matters.
PRACTICE AND PROCEDURE – appeal and sentence proceedings heard together – appellant/offender resentenced on all matters having regard to the additional material put before this Court.

REASONS FOR DECISION

Crimes (Sentencing) Act 2005 ss 10(4), 33

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 53 of  2010

SCC 207 of 2009

Judge:   Gray J
Supreme Court of the ACT
Date:    23 June 2011

IN THE SUPREME COURT OF THE       )  No. SCA 53 of  2010
     )  No. SCC 207 of 2009            
 AUSTRALIAN CAPITAL TERRITORY   )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LEE PETER MANNELL

Appellant

AND:  KRIS ANTHONY SPENCE
  Respondent

AND BETWEEN:       R

AND:  LEE PETER MANNELL

REASONS FOR DECISION

Judge:  Gray J
Date:  23 June 2011 
Place:  Canberra

ON 3 MAY 2011 THE COURT ORDERED THAT:

1. Lee (aka Leigh) Peter Mannell (“the offender”) be convicted and sentenced as follows:

a.   The offence of assault occasioning actual bodily harm breaches the good behaviour order placed on the offender in relation to CC2007/5438 – the offender be re-sentenced in respect of CC2007/5438 and the suspended sentence of 4 months imprisonment be re-imposed.

b.   CC2008/9739 – assault occasioning actual bodily harm – the offender is sentenced to 7 months imprisonment consecutive on the previous sentence.

c.   CC2010/3351 – drive motor vehicle with alcohol in blood – the offender is sentenced to 3 months imprisonment consecutive on the previous sentences.

2. The total sentence of imprisonment is 14 months to be served by way of periodic detention.

3. The periodic detention period is to commence on 6 May 2011.

4. The offender is to first report for periodic detention to Symonston Periodic Detention Centre, Mugga Lane, Symonston ACT on 6 May 2011 at 7:00pm.

5. The offender’s licence be disqualified for a period of 4 years and 4 months from 3 May 2011.

1. The matter came before me on 11 March 2011 as an appeal by Lee Peter Mannell (the appellant) against a sentence of 3 months imprisonment imposed by a magistrate in the ACT Magistrates Court on 5 August 2010.  That sentence had been imposed in respect of an offence of driving a motor vehicle as a repeat offender with level 4 alcohol in his blood to which the appellant had pleaded guilty.  The appellant had committed that offence on 1 January 2010.

1. On 1 June 2009 the appellant had been committed for trial in this court in respect of a charge of assault occasioning actual bodily harm.  The offence was alleged to have been committed on 27 June 2008.  That matter had been set for trial on 21 February 2011.  On that day the appellant pleaded guilty and the matter set for sentence before me on 17 March 2011. 

1. The appeal had originally been set for hearing on 3 December 2010 before Acting Justice Matthews but it did not proceed on that day and amended grounds of appeal were permitted to be filed.

1. As a consequence, both the appeal and the sentence proceedings were then set to be heard before me on 17 March 2011 and the matters proceeded before me.

1. One of the amended grounds of appeal raised the issue of the failure to take account of the effect that the appellant’s guilty plea should have had on the sentence that had been imposed upon him by the magistrate.

1. The prosecution said that, in the situation where neither party nor the magistrate had adverted, at all, to that circumstance, the prosecution would concede that the proceedings before the magistrate had miscarried.

1. Having regard to the complication to the sentencing process that I was to undertake which was posed by the fact of the appellant having pleaded guilty to the charge of assault occasioning actual bodily harm it seemed to me that the practicalities favoured the appeal being allowed.  Accordingly, I was invited by both parties to resentence the appellant in respect of the charge the subject of the appeal as well as the charge to which the appellant had pleaded at trial before me.

1. Notwithstanding these concessions, I would wish to deal expressly with one of the other amended grounds of appeal which challenged the magistrates finding that no penalty other than imprisonment was appropriate in the case before her. As far as that amended ground of appeal is concerned, the magistrate’s conclusion was reached after her express reference to the salient matters she was required to consider under s 33 of the Crimes (Sentencing) Act 2005. The matters of particular concern to her in this case were:

·    the high blood alcohol concentration (.17);

·    the finding that the appellant has not realised the need to be accountable for his actions;

·    the past opportunities for rehabilitation and the present lack of “insight”; and

·    the need in this case for general and specific deterrence.

1. A consideration of these matters clearly justifies the magistrate’s finding that imprisonment is the only appropriate sentence in this case. In my view, in accordance with s 10(4) of the Crimes (Sentencing) Act 2005, appropriate and satisfactory reasons were in fact given and recorded for the magistrate’s conclusion. The appellant’s contentions to the contrary were rejected. That ground of appeal was bound to fail and I expressly reject it.

1. Nor do I consider that there is any merit in the other grounds of appeal upon which the appellant would have sought to rely.  In light of the prosecution concession that the proceedings miscarried and the way that I propose to deal with this matter, it does not seem to me to be necessary to consider those other grounds.

1. In my view, the sentence of 3 months, imprisonment imposed by the magistrate taking into account the appellant’s plea of guilty, was an appropriate outcome.  I think that it can be fairly said that but for the plea of guilty a sentence of up to 4 months imprisonment would have been appropriate.  This being the case, it would often not be at all appropriate to interfere with the magistrate’s sentence.  However, in this case there have been significant changes to the appellant’s subjective circumstances, as well as certain consequences resulting from the conviction which I am to impose for the charge of assault occasioning actual bodily harm that need to be taken into account.  Overall, there is an issue as to the totality of any sentence to be imposed which is a further circumstance that should be considered in assessing the whole of the appellant’s criminal conduct.

1. It is in these somewhat unusual circumstances that I considered it appropriate that I resentence the appellant on all the matters before me having regard to the additional material that the parties asked me to consider.

1. Such resentencing requires that I record a conviction in respect of the charge of assault occasioning actual bodily harm.  The recording of that conviction has the effect of placing Mr Mannell in breach of a suspended sentence order imposed in the ACT Magistrates Court on 28 September 2007 when a sentence of 4 months imprisonment on a charge of driving under the influence was imposed but suspended upon a 2 year good behaviour order.  I propose to cancel that good behaviour order and impose the sentence that had been suspended.

1. As far as the charge of assault occasioning actual bodily harm is concerned, that arose out of an altercation between Mr Mannell and the victim on 27 June 2008. The offence occurred at licensed premises.  It involved Mr Mannell throwing a glass at the victim causing a laceration under the victim’s left eyebrow, requiring ten stitches.  Mr Mannell was intoxicated at the time.  Offences of this kind in or about licensed premises where alcohol is involved are all too prevalent.  The seriousness of the offence, taking into account Mr Mannell’s past offending history which, includes assaults in which alcohol played a role, mean that a sentence of imprisonment is the only appropriate sentencing option open to me.

1. Mr Mannell is now 23 years old.  He has expressed remorse for the offence and I am satisfied that he has now come to appreciate the affect that any further offending can have on his personal relationships and his employment.  Importantly, he seems to now understand that he cannot maintain his previous pattern of alcohol consumption without the risk of further offending.  I am prepared to accept that he now has insight into the continuing commitment that he must make.

1. The first pre-sentence report that I received indicated that Mr Mannell has taken positive steps to address his issues as consequence of the stable relationship that he is in and more particularly because he now has a new born son.

1. In order to assess Mr Mannell’s expressed goal of “turning his life around” I sought further assistance in assessing this aspect.  As a consequence Mr Mannell attended appointments with the Counselling and Treatment Service of the ACT Alcohol and Drug Program.  From a subsequent pre-sentence report I was satisfied that it is appropriate to give Mr Mannell an opportunity to serve in the community the inevitable prison sentence that must be imposed and to permit him to discharge his obligations in that regard by having him serve the sentence by way of periodic detention.

1. Accordingly, on 3 May 2011 I made the following orders:

1.   Lee (aka Leigh) Peter Mannell (“the offender”) be convicted and sentenced as follows:

a.The offence of assault occasioning actual bodily harm breaches the good behaviour order placed on the offender in relation to CC2007/5438 – the offender be re-sentenced in respect of CC2007/5438 and the suspended sentence of 4 months imprisonment be re-imposed.

b.CC2008/9739 – assault occasioning actual bodily harm – the offender is sentenced to 7 months imprisonment consecutive on the previous sentence.

c.CC2010/3351 – drive motor vehicle with alcohol in blood – the offender is sentenced to 3 months imprisonment consecutive on the previous sentences.

2.   The total sentence of imprisonment is 14 months to be served by way of periodic detention.

3.   The periodic detention period is to commence on 6 May 2011.

4.   The offender is to first report for periodic detention to Symonston Periodic Detention Centre, Mugga Lane, Symonston ACT on 6 May 2011 at 7:00pm.

1. I also ordered that Lee (aka Leigh) Peter Mannell’s licence be disqualified for a period of 4 years and 4 months from 3 May 2011 in order to take account of the period for which the magistrate’s order of disqualification was stayed as a consequence of the institution of the appeal.

   I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

   Associate:
   Date:    23 June 2011

Counsel for the appellant/defendant:                 Mr K Archer
Solicitor for the appellant/defendant:                 Kamy Saeedi Lawyers
Counsel for the respondent/prosecution:           Mr J Lawton
Solicitor for the respondent/prosecution:           ACT Director of Public Prosecutions
Date of hearing:  3 May 2011 
Date of judgment:  23 June 2011