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McCurley v Stirling

McCurley v Stirling

Case [2024] ACTSC 41 26 February 2024

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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 Callaghan [2013] ACTSC 164 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 Smith v R [2023] ACTCA 23 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18 Ward v Richardson [2021] ACTSC 130 Wickey v The Queen [2012] ACTCA 38
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…

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 McCurley v Stirling

Details

AGLC: McCurley v Stirling [2024] ACTSC 41
Case: [2024] ACTSC 41
Decision Date: 26 February 2024

CaseChat Overview and Summary

The appellant, McCurley, appealed against his sentence following a conviction for multiple offences committed while on parole. The case was heard by the Magistrates Court and the appeal was brought before a higher court. The respondent, Stirling, was the victim of the crimes committed by the appellant.

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

Full text does not contain this section.

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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Citations

AGLC Citation

McCurley v Stirling [2024] ACTSC 41

Most Recent Citation

Sampson v De Haan [2016] ACTSC 327

Cases citing this decision · 3 of 3 shown

Police v Reid
[2024] ACTMC 28

…e Queen [2010] NSWCCA 246 Markarian v R [2005] HCA 25 O’Brien v R [2015] ACTCA 47 R v Deng; Carberry v The King [2023] ACTCA 32 McCurley v Stirling [2024] ACTSC 41 Ursino v Read; Ursino v R [2005] ACTSC 106…
Director of Public Prosecutions v Campbell (No 2)
[2024] ACTSC 105

…[2017] NSWCCA 144 Kelly v Ashby [2015] ACTSC 346; 73 MVR 360; Laipato v The Queen [2020] ACTCA 35 Leeson v Grech [2023] ACTSC 355 McCurley v Stirling [2024] ACTSC 41 Mill v The Queen [1988] HCA 70; 166 CLR 59 Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Muldrock v T…
Sampson v De Haan
[2016] ACTSC 327

…[2024] ACTSC 41…

View all 3 citing cases →

Cases cited in this decision · 28 of 28 shown

Morrison v Maher
[2021] ACTSC 312 Para 1

…g discretion afresh but is not required to resentence unless it is satisfied that a different sentence is “warranted in law”. In Morrison v Maher [2021] ACTSC 312 ( Morrison ) at [40]-[48], Mossop J doubted the application of the Kentwell principle in circumstances where the powers of the Court under s 218 of the M…
Sampson v De Haan
[2016] ACTSC 327 Para 1

…e beginning of the overall sentence: Smith at [5], citing Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 ( Millard ) at [84]. In Sampson v De Haan [2016] ACTSC 327 at [128], Refshauge J stated: In my view, a non parole period must commence at the start of the sentence. That is the only basis on which it can comp…
Alexander v Bakes
[2023] ACTCA 49 Para 1

…08 and 218 of the Magistrates Court Act 1930 (ACT) ( Magistrates Court Act ). The nature of this appeal is by way of a rehearing: Alexander v Bakes [2023] ACTCA 49 ( Alexander ) at [16]-[17].…
Smith v R
[2023] ACTCA 23 Para 4

…The errors identified in respect of Issues 3 and 4 also occurred. In Smith v R [2023] ACTCA 23 ( Smith ) at [7]-[8], the approach commended to practitioners in respect of such errors was to first approach the sentencing magistrate pursuant to s 61(3)(a) of the Sentencing Act and seek that the proceeding be reopene…
The Queen v Ruwhiu
[2023] ACTCA 18 Para 2

…-[66]; R v Flowers [2014] ACTCA 13; 19 ACTLR 77 at [2]-[6], [54]-[55], [73]-[74]; Taylor v R [2014] ACTCA 9 ( Taylor ) at [19] and The Queen v Ruwhiu [2023] ACTCA 18 ( Ruwhiu ) at [18] (and the cases there cited). They include: (a)The setting of a non-parole period is a matter of wide discretion depending on all t…
Kristiansen v Yeats
[2022] ACTSC 351 Para 4

…ed to resentence the offender by the independent exercise of discretion. As with the case in Morrison and other cases such as Kristiansen v Yeats [2022] ACTSC 351 at [66]-[71], the ongoing debate about the applicability of Kentwell to a statute that uses different words is similarly to be left for another day.…
Leeson v Grech
[2023] ACTSC 355 Para 4

…e order: 2 years, 5 months and 2 days to commence on 23 March 2023 and expire on 24 August 2025. This is confirmed by what was said in Leeson v Grech [2023] ACTSC 355 ( Leeson ), where McCallum CJ was dealing with a slightly different situation, being an appeal where a magistrate had sought to suspend a sentence th…
Ward v Richardson
[2021] ACTSC 130 Para 2

…v Crampton [2010] ACTSC 79; 19 ACTLR 26 ( Peverill ) at [24], cited in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]-[5], Ward v Richardson [2021] ACTSC 130 at [12] and Greenwood v Barlee [2018] ACTSC 46 at [2]-[4].…
Ndlovu v The Queen
[2018] ACTCA 33 Para 3

…Section 71(1) has been described as a “default rule”, from which a departure must be identified in the orders of the Court: Ndlovu v The Queen [2018] ACTCA 33 ( Ndlovu ) at [31]. That does not mean that there is a presumption of concurrency. The provision simply facilitates certainty if no start and end dates are…
Greenwood v Barlee
[2018] ACTSC 46 Para 2

…ill ) at [24], cited in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]-[5], Ward v Richardson [2021] ACTSC 130 at [12] and Greenwood v Barlee [2018] ACTSC 46 at [2]-[4].…
Millard v The Queen
[2016] ACTCA 14 Para 1

…e new global non-parole period is set, it is backdated to commence at the beginning of the overall sentence: Smith at [5], citing Millard v The Queen [2016] ACTCA 14; 19 ACTLR 270 ( Millard ) at [84]. In Sampson v De Haan [2016] ACTSC 327 at [128], Refshauge J stated: In my view, a non parole period must commence…
Preston v Carnall
[2015] ACTSC 325 Para 2

…to be adduced in this Court (as is the case here): Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 ( Peverill ) at [24], cited in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]-[5], Ward v Richardson [2021] ACTSC 130 at [12] and Greenwood v Barlee [2018] ACTSC 46 at [2]-[4].…
Jovanovic v The Queen
[2015] ACTCA 29 Para 5

…later repeated at [37] that a subsequent judicial officer has no power to reopen an existing sentence, citing Jovanovic v The Queen [1999] FCA 1008; 92 FLR 580 at [15] as authority, noting that there are statutory exceptions in Chapter 5 of the Sentencing Act , none of which applied in the circumstances of t…
Kentwell v The Queen
[2014] HCA 37 Para 1

…s jurisdiction, when considering similar appeals from the Magistrates Court, this Court has applied the principle articulated in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 ( Kentwell ) at [43] which holds that when error is established, the appeal court must exercising the sentencing discretion afresh but i…
Slater v The Queen
[2014] ACTCA 33 Para 10

…ve such an appreciation, the problem still arises that the issue was not dealt with at all as part of totality considerations: see Slater v The Queen [2014] ACTCA 33 ( Slater ) at [23].…
R v Flowers
[2014] ACTCA 13 Para 2

…the ordinary principles applying in setting a non-parole period. Such principles have been set out in cases such as Millard at [61]-[66]; R v Flowers [2014] ACTCA 13; 19 ACTLR 77 at [2]-[6], [54]-[55], [73]-[74]; Taylor v R [2014] ACTCA 9 ( Taylor ) at [19] and The Queen v Ruwhiu [2023] ACTCA 18 ( Ruwhiu ) at [18]…
Taylor v The Queen
[2014] ACTCA 9 Para 2

…ciples have been set out in cases such as Millard at [61]-[66]; R v Flowers [2014] ACTCA 13; 19 ACTLR 77 at [2]-[6], [54]-[55], [73]-[74]; Taylor v R [2014] ACTCA 9 ( Taylor ) at [19] and The Queen v Ruwhiu [2023] ACTCA 18 ( Ruwhiu ) at [18] (and the cases there cited). They include: (a)The setting of a non-parol…
Bugmy v The Queen
[2013] HCA 37 Para 1

…t on appeal. Without repeating them, it is relevant to record that the sentencing magistrate applied the principles deriving from Bugmy v The Queen [2013] HCA 37; 249 CLR 571 concerning the social disadvantage experienced by the appellant which have flowed into mental health consequences. I interpolate that for…
Thor Kristiansen v John William Callaghan
[2013] ACTSC 164 Para 2

…ed. it is not merely the proportion of the sentence that a person had to serve before parole was granted: Leeson at [34]; Kristiansen v Callaghan [2013] ACTSC 164 at [6].…
Wickey v McVicar
[2012] ACTCA 38 Para 5

…nce to a principle may be insufficient if an appellate court is satisfied that there is error in the application of the principle: Wickey v The Queen [2012] ACTCA 38 at [20]-[22].…
Peverill v Crampton
[2010] ACTSC 79 Para 2

…evidence before the Magistrate and consideration of any new evidence permitted to be adduced in this Court (as is the case here): Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 ( Peverill ) at [24], cited in Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at [4]-[5], Ward v Richardson [2021] ACTSC 130 at [12] an…
R v MAK
[2006] NSWCCA 381 Para 7

…The following passage from R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159 at [16] is apt here: The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (19…
Fox v Percy
[2003] HCA 22 Para 4

…In doing so, it must take into account any advantage that the tribunal of fact had in the proceedings below: see Peverill at [24]; Fox v Percy [2003] HCA 22; 214 CLR 118 at [25], cited in Alexander at [20].…
Dinsdale v The Queen
[2000] HCA 54 Para 5

…use the court on appeal would have imposed a different sentence. The appellate court must resist “tinkering” with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62].…
Jovanovic v The Queen
[1999] FCA 1008 Para 5

…McCallum CJ later repeated at [37] that a subsequent judicial officer has no power to reopen an existing sentence, citing Jovanovic v The Queen [1999] FCA 1008; 92 FLR 580 at [15] as authority, noting that there are statutory exceptions in Chapter 5 of the Sentencing Act , none of which applied in the circumstance…
R v Henry
[1999] NSWCCA 111 Para 1

…a stronger priority: Ruwhiu at [111] per Baker J. The sentencing magistrate also referred to the “ Henry ” principles, deriving from R v Henry [1999] NSWCCA 111, concerning drug use at an early age. I respectfully adopt her Honour’s comments.…
Power v The Queen
[1974] HCA 26 Para 2

…ffender's subjective circumstances: Taylor at [19]. (c)It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 629. (d)An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of reha…
[1999] HCA 29
[1999] HCA 29 Para 5

…this appeal is an appeal against a sentence. A claim of this type calls into question a quintessentially discretionary decision: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. An appellate court must therefore respect the wide discretion of the sentencing judge concerning an appropriate sentence and wi…

Legislation cited in this decision · 6

Crimes (Sentencing) Act 2005 (ACT)
61(3)(a), 65, 66, 7, 71, 72, 75 8 mentions (from Para 2)
Crimes (Sentence Administration) Act 2005 (ACT)
139(2), 140, 160(3), 161 5 mentions (from Para 2)
Magistrates Court Act 1930 (ACT)
207, 208, 214, 218 5 mentions (from Para 1)
Criminal Appeal Act 1912 (NSW)
6(3) 2 mentions (from Para 2)
Road Transport (Safety and Traffic Management) Act 1999 (ACT)
7A(1) 2 mentions (from Para 1)
Road Transport (Vehicle Registration) Act 1999 (ACT)
22(1) 2 mentions (from Para 1)