Okwechime v Sindel

Case [2009] ACTSC 162

CHIDI CHIKE OKWECHIME v SCOTT GRAEME SINDEL [2009]
ACTSC 162 (8 December 2009)

APPEAL – refusal to set non-parole period for sentence of 13 months imprisonment – whether reasons for refusal required – whether annotation on bench sheet amounted to reasons – requirement that sentencing reasons be published orally – whether annotation reciting the statutory considerations for refusal amounted to reasons – whether failure to give reasons was a sentencing error – suggestion of inconsistent reasons for refusal highlights error in failing to give reasons.

APPEAL – sentence imposed by Magistrate on Ngambra Circle Sentencing Court recommendation – whether good behaviour order condition had been breached – whether another Magistrate had jurisdiction to re-sentence following a breach – operation of Ngambra Circle Sentencing Court under Practice Direction.

SENTENCING – purposes of non-parole periods – whether ss 10(4) and (5), Crimes (Sentencing) Act 2005 (ACT) apply to requirement to set non-parole period – sentences for offences arising out of same incident appropriately served concurrently.

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 71
Road Transport (Driver Licensing) Act 1999 (ACT), paras 32(2)(a), 32(1)(a)
Magistrates Court Act 1930 (ACT), s 214
Criminal Appeal Act 1912 (NSW), subs 6(3)
Crimes (Sentencing) Act 2005 (ACT), ss 65, 10, 75, 78, 68
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 45, 10A

Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)

Baxter v The Queen (2007) 173 A Crim R 284
Curtis v The Queen [2007] NSWCCA 11
De Iacovo v Lacanale [1957] VR 553
Devereux v Kehl [2005] ACTSC 131
Dinsdale v The Queen (2000) 202 CLR 321
Harper v Low and Wood [2009] ACTSC 136
House v The King (1936) 55 CLR 499
Leach v The Queen (2005) 16 NTLR 117
Lowndes v The Queen (1999) 195 CLR 665
Markarian v The Queen (2005) 228 CLR 357
Pearce v The Queen (1998) 194 CLR 610
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Shrestha (1991) 173 CLR 48
Scott Paul Matheson v The Queen (2007) 176 A Crim R 466

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 33 of 2008

Judge:             Penfold J
Supreme Court of the ACT

Date:              8 December 2009

IN THE SUPREME COURT OF THE     )
  )          No. SCA 33 of 2008
AUSTRALIAN CAPITAL TERRITORY )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CHIDI CHIKE OKWECHIME

Appellant

AND:SCOTT GRAEME SINDEL

Respondent

ORDER

Judge:  Penfold J
Date:  8 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

(a)        The appeal is upheld, and Mr Okwechime will be re-sentenced.

(b)        I shall hear the parties before the re-sentencing.

Introduction

  1. Chidi Chike Okwechime has appealed from three sentences imposed in the Magistrates Court on 14 April 2008 by Magistrate Lalor.  These relate to:

(a)one offence of driving recklessly, under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CC 2007/11722);

(b)one offence of driving while suspended, under paragraph 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT)…

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Details
AGLC
Okwechime v Sindel [2009] ACTSC 162
Case
[2009] ACTSC 162
Decision Date

CaseChat Overview and Summary

the refusal to set a non-parole period for a sentence of 13 months imprisonment, the imposition of a sentence of imprisonment for a period of 13 months with a non-parole period of 9 months, and the imposition of a sentence of imprisonment for a period of 6 months with a non-parole period of 4 months. The refusal to set a non-parole period was based on a recommendation from the Ngambra Circle Sentencing Court. The legal issues the court was required to decide included whether the magistrate was required to provide reasons for the refusal, whether an annotation on the bench sheet constituted adequate reasons, and whether the requirement to publish sentencing reasons orally applied. The court also had to determine whether the annotation, which recited the statutory considerations for refusal, amounted to reasons and whether the failure to give reasons was a sentencing error.

The court found that the magistrate was required to provide reasons for the refusal of a non-parole period. While an annotation on the bench sheet was considered, it was not deemed to constitute adequate reasons. The court emphasised that sentencing reasons should be published orally to ensure transparency and accountability. The annotation that recited the statutory considerations for refusal was not considered to be sufficient reasons. The failure to give reasons was identified as a sentencing error, particularly given the suggestion of inconsistent reasons for refusal. The court concluded that the magistrate did not provide adequate reasons for the refusal of a non-parole period, which constituted a significant error.

Regarding the good behaviour order condition breach, the court considered whether another magistrate had jurisdiction to re-sentence following a breach. The operation of the Ngambra Circle Sentencing Court under the Practice Direction was also examined. The court found that another magistrate had the jurisdiction to re-sentence following a breach of a good behaviour order condition. The sentence imposed by the magistrate was based on the Ngambra Circle Sentencing Court recommendation, and the court found that the sentences for offences arising out of the same incident should appropriately be served concurrently. The final orders included the appeal being allowed in part, with the sentences being quashed and remitted to the Magistrates Court for resentencing.

Orders

Orders of the court

1.

Chidi Chike Okwechime has appealed from three sentences imposed in the Magistrates Court on 14 April 2008 by Magistrate Lalor. These relate to:

Background

Background to the litigation

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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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