Michael Ngere Ngere v Rebecca Anne Hodgkin

[2010] ACTSC 38

MICHAEL NGERE NGERE v REBECCA ANNE HODGKIN & ORS
[2010] ACTSC 38 (16 April 2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 2 of 2010

Judge:             Higgins CJ
Supreme Court of the ACT

Date:              16 April 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 2 of 2010
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:MICHAEL NGERE NGERE

Appellant

AND:REBECCA ANNE HODGKIN, PAUL ANTHONY JOHN MOTHERSOLE and MICHAEL DAVID SMITH

Respondents

ORDER

Judge:  Higgins CJ
Date:  16 April 2010
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. Mr Ngere Ngere be resentenced.

1. Mr Davies, you have made out a case for reconsidering the sentences.  To say that the pleas of guilty had limited benefit does not really explain what benefit, if any, was accorded them.  I do not know that you would have to identify every matter as identified in the legislation in order to avoid the sentence being defective. 

1. Certainly that is one that was not identified or quantified.  The role of the mental illness of the appellant was perhaps oversimplified, so I think there are grounds for reconsidering the sentences imposed, and I propose to do that.

1. I have to say that, even having taken account of the pleas of guilty, it does not really apply to the breaches of recognisance but it does apply to the other three matters, it probably would have warranted maybe a 25 per cent discount being given, and I would have thought that would have been appropriate.  I think that the theft of the meat at four months was probably a tad excessive, and I propose to reduce that to three. 

1. Apart from that, I think even accounting for that 25 per cent discount, the first three offences, including that one of course, coming out at three months, two months and three months is probably relatively appropriate. 

1. The three months and two months for the other two seem to be reasonably appropriate, and they were, in any event, concurrent with each other and with the other sentences.  So his Honour did not, as it were, load them on to the end of the other sentence, which he might well have done.  He would have been warranted in doing so. 

1. In brief, I propose that I should uphold the appeal, impose a sentence of three months in respect of the theft, two months in respect of the damage to the sliding door and three months in respect of the stealing of the dog, which makes a total of eight months, rather than nine.  The other two penalties I confirm and confirm the fact that they are concurrent with the other two sentences. 

1. I direct that Mr Ngere Ngere be released after serving five months of that combined sentence, upon entering into a good behaviour order for a period of 12 months, which will require him, apart from being of good behaviour, to accept supervision of the ACT Corrective Services, undertake any relevant programs or treatment as deemed appropriate, including submitting to blood, breath or urine analysis. 

1. That would mean that he would be eligible for release on the 22nd of this month, that is sometime next week. 

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:    29 April 2010

Counsel for the Appellant:    Mr R Davies   
Solicitor for the Appellant:   ACT Legal Aid Office          
Counsel for the Respondent:   Mr M Thomas
Solicitor for the Respondent:   Director of Public Prosecutions for the ACT
Date of hearing:   16 April 2010
Date of judgment:   16 April 2010