Nathan Reid v Sean Maxwell
[2012] ACTSC 72
•30 April 2012
NATHAN REID v SEAN MAXWELL & ANOR
[2012] ACTSC 72 (30 April 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 91 of 2011
Judge: Higgins CJ
Supreme Court of the ACT
Date: 30 April 2012
IN THE SUPREME COURT OF THE )
) No. SCA 91 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:NATHAN KERRY REID
Appellant
AND:SEAN MAXWELL and SARAH MARSHALL
Respondents
ORDER
Judge: Higgins CJ
Date: 30 April 2012
Place: Canberra
THE COURT ORDERS THAT:
The sentence of six months’ imprisonment imposed in respect of CC11/3130 be confirmed.
The sentence of nine months’ imprisonment imposed in respect of CC11/3367 be confirmed, but varied so that it be cumulative with the previous sentence as to six months.
The sentence of nine months’ imprisonment imposed in respect of CC11/3368 be confirmed, but varied so that it be cumulative with the previous sentences as to three months.
The sentence of nine months’ imprisonment imposed in respect of CC11/3369 be reduced to three months and be concurrent with the previous sentences.
The sentence of nine months’ imprisonment imposed in respect of CC11/9349 be confirmed, but varied so that it be cumulative with the previous sentences as to four months.
The appellant is sentenced to a total of 19 months’ imprisonment from 21 March 2011.
The appellant be eligible for parole as of 30 April 2012.
In this matter, the appellant pleaded guilty before her Honour Magistrate Doogan to four separate offences of contravening a protection order. In addition to that, he was in breach of a good behaviour order which had been imposed upon him by Chief Magistrate Cahill on 12 October 2009. His Honour had sentenced the appellant to imprisonment for a period of nine months, which had been suspended on terms that he be of good behaviour for 24 months. That sentence was imposed in respect of an assault upon his then partner, who is the current victim of the breaches of the protection order. I might add that, in respect of that conviction and sentence, he did not come before the Court as a person without prior convictions. Indeed, he had been on parole. I will not go into that in any detail now because it has already been dealt with. Suffice to say that he was, unsurprisingly, made the subject of a protection order by the complainant.
Mr Reid breached that order in the first instance by entering the complainant’s premises. He was observed doing so, although there was no direct contact between himself and the complainant. Taking into account the plea of guilty and so forth, he was given a sentence of imprisonment for six months. I must say, I do not regard that as inappropriate. Indeed, it might even be regarded as somewhat lenient in the circumstances, particularly as his pleas were apparently entered fairly late.
In regards to the second offence, Mr Reid approached the complainant and snatched her wallet. That is an egregious act, not merely because of the contact with the complainant, but because of the distress it caused to her. For that, he was sentenced to nine months of imprisonment, which was again reduced for an early plea.
The third breach occurred only a few days later. The appellant entered the complainant’s premises and argued with the complainant for some time. That is not to suggest that he assaulted her, or, indeed, that there was any threat of physical violence made against her. Nevertheless, it was an egregious breach.
The next occasion was perhaps even more distressing. Having been taken into custody, the appellant made a phone call to the complainant from the police station. That, as her Honour rightly said, constituted a blatant thumbing of his nose at the protection order, although, of itself, it was not as serious a breach.
The difficulty that arises in this matter starts with the fact that her Honour, in sentencing Mr Reid, said that she, in respect of the breach of the recognizance, would sentence him to an additional four months of imprisonment. How that was calculated is impossible to understand. It was nine months of imprisonment. It could have been accumulated on the sentences which would have been imposed on the breach of protection order or it could have been partly accumulated. Perhaps that is what her Honour had in mind, but if so, it was not reflected in that which then transpired. There is clearly an error of a kind that cannot really be understood. The only way to take account of that is to assume that what her Honour meant was that the sentence for the breach of the good behaviour order would be accumulated, but only as to four months.
The next question is whether the protection order offences should have been accumulated to the extent that they were. I would say that the second of the offences was more egregious in the sense of being more defiant of the law, and a degree of accumulation would certainly be required. The third and the fourth offences were in close proximity. I note that all of them seem to have been undertaken whilst Mr Reid was severely intoxicated, and, if you look at his record, that does seem to be a feature of his offending behaviour.
In all the circumstances, I think that the first sentence of six months should be confirmed. The second sentence of nine months should be confirmed but accumulated as to six months upon the first sentence.
The third sentence of nine months of imprisonment should also be confirmed but should be accumulated as to three months on the previous sentences. I reduce the fourth sentence to three months, but confirm that it be concurrent with the previous sentences. In regards to the breach of the good behaviour order, I think five months of that should be concurrent and four months should be added to the previous sentences.
Mr Reid has already served 14 months in prison and the sentences which I propose amount to 19 months in total.
Mr Reid should now be eligible for parole. The period between the start of the sentences to today, that is, 21 March 2011 to 30 April 2012, would be the non-parole period. It will be a matter for Mr Reid to persuade the Sentence Administration Board that he is indeed worthy of being released on parole rather than serving the remainder of his sentence. It may be that, and it does seem to me that, he needs to attend some place like Wayback and undertake the course seriously. It may be that that will resolve the issues which he obviously has. As his record makes clear, if he does not choose to do that, he will simply be coming back again and again to serve increasingly lengthy terms of imprisonment.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 17 May 2012
Counsel for the Appellant: Ms T Warwick
Solicitor for the Appellant: Kim Bolas Criminal Lawyer
Counsel for the Respondent: Ms A Begley
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 30 April 2012
Date of judgment: 30 April 2012
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