Mckie v Chard

[2020] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mckie v Chard
Citation:	[2020] ACTSC 205
Hearing Date:	30 July 2020
Decision Date:	30 July 2020
Before:	Elkaim J
Decision:	See [17]
Catchwords:	APPEAL FROM MAGISTRATES COURT – SENTENCE – Manifest Excess – Failure to give reasons – whether the sentence imposed was cumulative – repetition of violence factor
Parties:	Anthony James Mckie (Appellant) Andrew Chard (Respondent)
Representation:	Counsel S McLaughlin (Appellant) M Smith (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	CA 22 of 2020
Decision under appeal:	Court:   Before: Date of Decision: Case Title: Court File Number:	ACT Magistrates Court Chief Magistrate Walker 8 May 2020 Chard v McKie CC13397/2020; CC13399/2020; CC6025/2018; CC6062/2018

ELKAIM J:

1. On 15 May 2020 the appellant filed a Notice of Appeal against the sentences imposed by Chief Magistrate Walker on 8 May 2020. Her Honour imposed a total sentence of 11 months' imprisonment.  There was no need to set a nonparole period.

1. The appeal can be separated into two areas. There is the appeal in relation to a choking offence, for which the appellant received a sentence of eight months' imprisonment. The second area relates to re-sentencing in respect of two breaches of suspended sentence orders, for which the balance of three months' imprisonment was imposed.

1. It is necessary for me to identify error if I am going to interfere in these sentences.

1. The appellant’s grounds of appeal are that:

(a)The sentences for both the breach matters and the choking offence are manifestly excessive. Additionally, in relation to the sentences imposed for the breach matters, the appellant submitted that this effectively created a cumulative sentence from two concurrent sentences. That is, the Chief Magistrate imposed a sentence of 90 days when a sentence of 60 days or perhaps even 46 days (the length of the appellant’s sentence which was suspended) should have been set;

(b)For the breach matters, her Honour failed to properly evaluate the objective circumstances before imposing the sentences; and

(c)The total aggregate sentence was manifestly excessive.

1. The appellant also submitted that the Chief Magistrate failed to give reasons when exercising the Court’s wide discretion in re-sentencing for the breach matters. It is contended that her Honour did not consider the Statement of Facts for the breach matters and appeared to have proceeded on an erroneous understanding of the appellant’s earlier offending.

1. I am not satisfied that a failure to give reasons has been established. The fact that her Honour has not specifically said anything about the Statement of Facts does not indicate she did not take it into account.

1. As to the question of manifest excess, the often‑repeated principles were concisely summarised in Barrett v The Queen [2016] ACTCA 38, at [34]:

It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.

1. I do not think the sentences for the breach matters fall…