Leeson v Grech - [2023] ACTSC 355

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Leeson v Grech
Citation:	[2023] ACTSC 355
Hearing Date:	23 June 2022
Decision Date:	23 June 2022
Reasons Date:	28 November 2023
Before:	McCallum CJ
Decision:	Appeal allowed; offender resentenced.
Catchwords:	APPEAL – CRIMINAL LAW – Crown appeal against sentence – whether the sentence imposed was contrary to law – where an offender was eligible for parole on earlier sentences – where the offender is sentenced for further offences – whether the sentencing magistrate erred by failing to re-set a non-parole period for the total sentence term – whether the magistrate interfered with the earlier exercise of sentencing discretion by backdating beyond fixed sentences – misconception of the functions of the judiciary and the Sentence Administration Board
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) ss 12, 118, 161 Crimes (Sentencing) Act 2005 (ACT) ch 5; ss 64, 65, 66
Cases Cited:	Hili v The Queen [2010] HCA 45; 242 CLR 520 Jovanovic v The Queen [1999] FCA 1008; 92 FLR 580 R v Gordon [2021] ACTSC 283 R v Vimahi; R v Grech (No 2) [2017] ACTSC 176 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18
Parties:	Dean Leeson (Informant) Daniel Christopher Grech ( Respondent)
Representation:	Counsel K McCann (Appellant) J De Bruin ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid ACT ( Respondent)
File Number:	SCA 16 of 2022
Decision under appeal:	Court: ACT Magistrates Court Before: Magistrate Stewart Date of Decision: 14 April 2022; 26 May 2022 Case Title: Police v Grech Court File Number: AM 2574 of 2014

McCALLUM CJ:

1․Daniel Grech was sentenced in the Magistrates Court for a series of personal violence and driving offences arising out of episodes of domestic conflict with his female partner. The offences were committed between March and April 2021. At that time, Mr Grech was on parole for other sentences. On 16 November 2021, the Sentence Administration Board cancelled his parole and determined that he was liable to serve a balance of 2 years and 14 days on those earlier sentences. Subject to any further grant of parole, that meant Mr Grech was required to be imprisoned for the earlier offences until 29 November 2023.
2․The Magistrate sentenced Mr Grech for the further offences on 14 April 2022. His Honour imposed sentences which, with partial accumulation, gave an effective sentence of 10 months. The Magistrate stated that he was making that sentence cumulative on Mr Grech’s existing head sentence (which his Honour took to be the balance of 2 years and 14 days specified by the Sentence Administration Board). If the further sentence was to be cumulative upon the existing sentences, the commencement date for the further sentence should have been 30 November 2023. However, the Magistrate purported to backdate the sentence to a week before the date on which parole had been revoked (the additional week was to give credit for a week Mr Grech had spent…

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 Leeson v Grech

Details

AGLC: Leeson v Grech [2023] ACTSC 355
Case: [2023] ACTSC 355
Decision Date: 23 June 2022

CaseChat Overview and Summary

The appeal in Leeson v Grech involved the Crown's challenge against the sentence imposed on the appellant, who had been found guilty of multiple offences. The appellant had already been serving sentences and was eligible for parole for those earlier convictions. However, the sentencing magistrate did not re-set a non-parole period for the total sentence term, and instead, the magistrate backdated the commencement of the new sentence beyond the fixed periods of the earlier sentences. The Crown argued that this approach was contrary to law and amounted to an error in the magistrate's sentencing discretion.

The primary legal issues in this case revolved around whether the sentencing magistrate erred in not re-setting the non-parole period for the total sentence term and whether the magistrate had improperly backdated the new sentence. The Crown contended that the magistrate had interfered with the earlier exercise of sentencing discretion and misconceived the functions of the judiciary and the Sentence Administration Board. The court had to determine if the sentence imposed was lawful and whether the magistrate's actions were justified.

The court found that the sentencing magistrate had indeed erred in not re-setting the non-parole period for the total sentence term. The court noted that the magistrate's approach in backdating the new sentence beyond the fixed periods of the earlier sentences was not in accordance with the law. The court held that the magistrate had misconceived the functions of the judiciary and the Sentence Administration Board by not properly considering the cumulative effect of the sentences and the eligibility for parole. Consequently, the court allowed the appeal and resentenced the offender, ensuring that the non-parole period for the total sentence term was appropriately set.

The final orders of the court were that the appeal was allowed, and the offender was resentenced. The court directed that the non-parole period for the total sentence term be re-set in accordance with the law, ensuring that the offender's eligibility for parole was correctly considered. The court's decision underscored the importance of adhering to proper sentencing principles and the role of the judiciary in maintaining the integrity of the sentencing process.

Orders

Orders of the court

Appeal allowed; offender resentenced.

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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