SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | McCurley v Stirling |
Citation: | [2024] ACTSC 41 |
Hearing Date: | 12 February 2024 |
Decision Date: | 26 February 2024 |
Before: | McWilliam J |
Decision: | Appeal allowed; offender resentenced. |
Catchwords: | APPEAL – CRIMINAL LAW – Judgment and Punishment – sentence – appeal from Magistrates Court – where further sentence imposed following offences committed while on parole – whether error in making sentence consecutive upon existing sentence – whether error in re-setting non-parole period to commence from the date when the offender’s parole was cancelled as opposed to the date when the original sentence commenced – principles applying to resetting non-parole period discussed |
Legislation Cited: | Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Code 2002 (ACT) ss 318(2), 324(1) Crimes (Sentencing) Act 2005 (ACT) ss 7, 61(3)(a), 65, 66, 71, 72, 75, Ch 5 Crimes (Sentence Administration) Act 2005 (ACT), ss 139(2), 140, 160(3), 161, Div 7.5A.3 Magistrates Court Act 1930 (ACT) ss 207, 208, 214, 218 Road Transport (Safety and Traffic Management) Act 1999 (ACT) s 7A(1) Road Transport (Vehicle Registration) Act 1999 (ACT) s 22(1) |
Cases Cited: | Alexander v Bakes [2023] ACTCA 49 Bugmy v The Queen[2013] HCA 37; 249 CLR 571 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Fox v Percy [2003] HCA 22; 214 CLR 118 Greenwood v Barlee [2018] ACTSC 46 Jovanovic v The Queen [1999] FCA 1008; 92 FLR 580 Kentwell v The Queen[2014] HCA 37; 252 CLR 601 Kristiansen v Yeats [2022] ACTSC 351 Leeson v Grech [2023] ACTSC 355 Lowndes v The Queen [1999] HCA 29; 195 CLR 665 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 Morrison v Maher[2021] ACTSC 312 Ndlovu v The Queen [2018] ACTCA 33 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 Power v The Queen (1974) 131 CLR 623 Preston v Carnall [2015] ACTSC 325; 300 FLR 302 R v Flowers [2014] ACTCA 13; 19 ACTLR 77 R v Henry [1999] NSWCCA 111 R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 Sampson v De Haan [2016] ACTSC 327 Slater v The Queen [2014] ACTCA 33 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18 |
Parties: | Patrick McCurley ( Appellant) William Stirling ( Respondent) |
Representation: | Counsel J Tyler-Stott ( Appellant) C Mutharajah ( Respondent) |
| Solicitors Ken Cush & Associates ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 39 of 2023 |
Decision Under Appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 14 June 2023 Case Title: Stirling v McCurley Charge Numbers: CAN 2994 of 2023 CAN 2995 of 2023 CAN 2996 of 2023 CAN 5173 of 2023 |
McWilliam J:
Sentencing a person who contravenes the laws of the Territory can be…
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- McCurley v Stirling [2024] ACTSC 41
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- [2024] ACTSC 41
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CaseChat Overview and Summary
The primary legal issue before the court was whether the sentencing judge erred in making the sentence consecutive to the existing sentence, and whether the non-parole period was correctly reset. The court needed to determine if the sentence should have run concurrently with the existing sentence and if the non-parole period should have been calculated from the date the original sentence commenced instead of the date parole was cancelled.
The court found that the sentencing judge did indeed err in making the sentence consecutive, as the law requires that sentences for multiple offences be concurrent unless there are exceptional circumstances that justify otherwise. The court also found that the non-parole period should have been calculated from the date of the original sentence, not from the date parole was cancelled. The court emphasised that the non-parole period should reflect the overall punishment for all the offences and should not be artificially extended by parole cancellation.
The appeal was allowed and the appellant was resentenced. The court determined that the correct approach was to impose a concurrent sentence and to reset the non-parole period to commence from the date of the original sentence. This decision ensures that the sentence reflects the overall punishment for all the offences committed by the appellant.
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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