Michael Williams v Katherine McDonough
[2015] ACTSC 315
•20 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Michael Williams v Katherine McDonough |
Citation: | [2015] ACTSC 315 |
Hearing Date(s): | 19 October 2015 |
DecisionDate: | 20 October 2015 |
Before: | Robinson AJ |
Decision: | The appeal is dismissed |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Appeal – totality principle – accumulation of sentences |
Legislation Cited: | Magistrates Court Act 1930 (ACT), s 209 |
Cases Cited: | Dinsdale v The Queen (2000) 202 CLR 321 House v The King (1936) 55 CLR 499 Zirilli v The Queen [2014] HCA 2 |
Parties: | Michael Williams (Appellant) Katherine McDonough (Respondent) |
Representation: | Counsel Mr J Lawton (Appellant) Ms P Burgoyne-Scutts (Respondent) |
| Solicitors Aboriginal Legal Service (NSW/ACT) (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 51 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Campbell Date of Decision: 4 June 2015 Case Title: Katherine McDonough v Michael Williams |
ROBINSON AJ:
On 4 June 2015, Magistrate Campbell sentenced Michael Williams, the Appellant, for 36 matters. In sentences, which I have found to have generous accumulation, the Appellant was ordered to serve a total of 45 months commencing from 19 November 2014 before being eligible for parole after 28 months. That date of eligibility was 18 March 2017.
The Appellant has appealed to the Supreme Court under s 209 of the Magistrates Courts Act upon the sole ground that the sentences were “manifestly harsh and excessive”.
The appeal, as argued, turns also upon a narrower point. The more specific challenge is to the way the Magistrate took into account the significance of another period of imprisonment arising from a NSW conviction on a charge of driving whilst disqualified.
There is no other specific challenge and it is not necessary for the resolution of the appeal to set out the offender’s long criminal record and subjective circumstances in any detail.
Relevant Facts
It is instructive to begin with setting out the dates of the commission of the offences which were before Magistrate Campbell.
20 November 2012 to 23 November 2012 16 offences 2 September 2014 1 offence 27 September 2014 2 offences 12 October 2014 1 offence 19 October 2014 8 offences 24 October 2014 2 offences 31 October 2014 2 offences 3 November 2014 4 Offences
On 15 July 2013 the Appellant was sentenced in NSW to a period of 18 months imprisonment as a result of driving whilst disqualified. That sentence commenced on 20 May 2013 and carried a non parole period of 8 months. Upon serving this 8 months the Appellant was released and admitted to parole. That date was 19 January 2014. However, that parole was itself revoked upon a breach. The Appellant served a further period of imprisonment from 11 March 2014 to 3 June 2014
The Appellant directed my attention to the actual date of commission of this offence of drive whilst disqualified. That date was 12 February 2010. The history of this offence was that the Queanbeyan Local Court had disposed of this matter on 29 July 2011 with a suspended sentence of 18 months. It was as a result of subsequent other criminal offences that the Appellant’s sentence was then activated in the way and at the time as set out in par [6] above.
Manifest Excess
The Appellant referred to, amongst other cases, House v The King (1936) 55 CLR 499, Dinsdale v The Queen (2000) 202 CLR 321, Melham v The Queen [2011] NSWCCA 121, The Queen v Ang [2014] ACTCA 17, Zirilli v The Queen [2014] HCA 2.
Counsel for the Appellant confined his submissions to me on this point to what I would describe as a general level of inspection of the nature of the offending. He pointed out that although no great leniency could be obtained from a consideration of the Appellant’s criminal record he was comparatively young at of 30 years of age. He made the submission that:
Perhaps the court can still consider that there is an opportunity for him to rehabilitate. Unfortunately, what he faces now is another probably two years in custody without even hope of parole.
That submission may be accepted but it is not to the point as error must be demonstrated.
In her judgment the Magistrate carefully worked herself through all the 36 offences at the hearing. I accept the submission from the Crown that she gave generous accumulation. For the most part the offences were significant offences of damage to property and theft. There was also a count of burglary. The Appellant could not call upon the criminal record for leniency.
I can find no error in the Magistrate’s determination. It is not a case where the result was unreasonable or plainly unjust.
Mill v The Queen
The Appellant sought to rely upon the principles set out in Mill v The Queen (1988) 166 CLR 59 with regard to the offence of drive while disqualified and the subsequent imprisonment for it. I have set out the time line above. One point initially at issue was whether the Magistrate had before her the full sentence served for the offence including the additional sentence as a result of the breach of parole. After argument at the bar table this matter became clear. The transcript at the hearing revealed the full imprisonment.
The Magistrate made two references to the principle in Mill v The Queen in her judgement. She applied that principle in coming to her process of accumulation. She specifically made allowance for “that term of imprisonment spent in New South Wales”.
The Appellant was not able to point to any error in the application of this principle to the facts.
Order
I dismiss the appeal.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: D.Hoitink Date: 20 October 2015 |
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