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Paul Edward Scheele v Christopher Watson

Paul Edward Scheele v Christopher Watson

Case [2012] ACTSC 196 17 December 2012

Appeal

Jurisdiction

Sentencing

Human Rights Act 2004 (ACT) s 11

Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o)

Criminal Law

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HUMAN RIGHTS ACT

PAUL EDWARD SCHEELE v CHRISTOPHER WATSON
[2012] ACTSC 196 (17 December 2012)

APPEAL AND NEW TRIAL – in general and right of appeal – appeal from the Magistrates Court – appeal against sentence – specific error – combination of fines and imprisonment – Crimes (Sentence Administration) Act 2005 (ACT) s 116ZP – where no basis for requiring payment of fines in addition to imprisonment – appeal ground upheld – periodic detention – where absence of reasons suggest periodic detention was not considered – appeal ground upheld

CRIMINAL LAW – traffic offences – Road Transport (Driver Licensing) Act 1999 (ACT)

s 32(1) – words and phrases – meaning of “repeat offender” – Reynolds v McTernan [2012] ACTMC 3 not applicable – principle of statutory construction not displaced – accused must have been convicted of the first offence before the commission of the second offence to be a “repeat offender” – appellant not a repeat offender

CRIMINAL LAW – general principles – obligation to give reasons – reasons must set out relevant factors and articulate essential grounds of decision – reasons should address significant issues raised in submissions

CRIMINAL LAW – jurisdiction, practice and procedure – sentencing – amending sentence to resolve inconsistency – procedure to be used – R v Gorman [2009] ACTSC 7

CRIMINAL LAW – sentencing – sentence of imprisonment to be served by full-time custody – relevant factors – hardship to offender’s family – where children at risk of being unsupervised – Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o) – Human Rights Act 2004 (ACT) s 11

Crimes (Sentencing) Act 2005 (ACT), ss 10(2), 11(1)(b), 33(1)(o), 40A, 44, 78(6)(a), 116A
Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP
Human Rights Act 2004 (ACT), s 11
Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, s 216
Road Transport (General) Act 1999 (ACT), ss 44, 69
Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 4F
Road Transport (Driver Licensing) Act1999 (ACT), s 32(1)

Court Procedures Rules 2006 (ACT), rr 5137–9

Explanatory Statement, Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 (ACT)
Hostettler, J, Sir Edward Coke: A force for freedom (Universal Law Publishing Co, 2006)

Aldridge v The Queen [2011] ACTCA 20
Attorney General v Tichy (1982) 30 SASR 84
Australian Crime Commission v Stoddart [2011] HCATrans 44 (1 March 2011)
Belcher (1981) 3 A Crim R 124
Boyle (1987) 34 A Crim R 202
Carter v Denham [1984] WAR 123
Christie v Britnell [1895] 21 VLR 71
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Craft v Diebert [2004] ACTCA 15
Edwards v Marinos [2010] ACTSC 57
Elson v Ayton (2010) 241 FLR 178
Farrington v Thompson [1959] VR 286
Fraser (1985) 20 A Crim R 4
JCE (2000) 120 A Crim R 18
Markovic v The Queen (2009) 30 VR 589
Mawson v Nayda (1995) 5 NTLR 56
Moore v Fingleton (1972) 3 SASR 164
Mwauluka v Turkich [2013] ACTSC 1
O’Connor v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paul Edward Scheele v Christopher Watson

Details

AGLC: Paul Edward Scheele v Christopher Watson [2012] ACTSC 196
Case: [2012] ACTSC 196
Decision Date: 17 December 2012

CaseChat Overview and Summary

The appellant, Paul Edward Scheele, appealed against his conviction and sentence in the Magistrates Court of the Australian Capital Territory. Scheele was convicted of two traffic offences under the Road Transport (Driver Licensing) Act 1999 (ACT). The primary legal issues in this appeal revolved around the sentence imposed, specifically the combination of fines and imprisonment, and the classification of Scheele as a repeat offender. Scheele argued that the court should not have required him to pay fines in addition to serving a period of imprisonment, and that he was not a repeat offender as he had not been convicted of a previous offence before committing the current ones. Additionally, Scheele contended that the court had failed to provide adequate reasons for imposing periodic detention.

The Court examined the grounds of appeal and found merit in two of them. Firstly, the Court held that there was no basis for requiring Scheele to pay fines in addition to serving a period of imprisonment. The Court noted that under the Crimes (Sentence Administration) Act 2005 (ACT), if an offender is already serving a term of imprisonment, there is generally no need for additional fines unless specific circumstances justify it. The Court found that the Magistrate had not provided adequate reasons for imposing both fines and imprisonment. Secondly, the Court found that Scheele was not a repeat offender as he had not been convicted of the first offence before committing the subsequent ones. The Court clarified that for an offender to be classified as a repeat offender, they must have been convicted of the first offence before committing the second offence, a principle upheld by the Court in Reynolds v McTernan [2012] ACTMC 3.

The Court concluded that the appeal should be upheld on the grounds that the Magistrate failed to adequately consider the requirement for periodic detention and misclassified Scheele as a repeat offender. The Court amended the sentence to resolve the inconsistency by imposing a term of imprisonment to be served by full-time custody, taking into account the hardship to Scheele’s family, particularly the risk of his children being unsupervised. The Court’s decision was based on the principle that reasons for sentencing must address significant issues raised in submissions and set out relevant factors and essential grounds of decision. The Court referred to R v Gorman [2009] ACTSC 7 for the appropriate procedure in amending a sentence. The final order was that the appeal was upheld, and the sentence was amended accordingly.

Orders

Orders of the court

The appeal is upheld.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Paul Edward Scheele v Christopher Watson [2012] ACTSC 196

Most Recent Citation

Thost-Hedge v Marshall [2015] ACTSC 232

Cases citing this decision · 4 of 4 shown

R v Forrest (No 4)
[2017] ACTSC 200 Para 1

…Despite this, errors can occur. As I pointed out in Scheele v Watson [2012] ACTSC 196 at [31], even judicial officers are human and many are not so mathematically adept that mistakes will never occur. The possibility of mistakes is increased with the greater complexity of the sentencing task.…
R v NF (No 2)
[2016] ACTSC 227 Para 1

…I said in Scheele v Watson [2012] ACTSC 196 at [31] that judicial officers are human and make mistakes. The same applies to Registry staff.…
R v BL
[2016] ACTSC 209

…2009] ACTSC 7 R v H [2004] 2 AC 134 R v Macfarlane; Ex parte O’Flanagan and Kelly (1923) 32 CLR 518 R v Smith [1994] Crim LR 458 Scheele v Watson [2012] ACTSC 196 Smellie (1919) 14 Cr App R 128 West (1990) 51 A Crim R 317…
Thost-Hedge v Marshall
[2015] ACTSC 232 Para 1

…v Johnston [2011] ACTSC 201 at [10], and in McDonald v Vandervalk and Wong (No 1) [2014] ACTSC 67 at [38], Burns J found error; in Scheele v Watson [2012] ACTSC 196, at [77], Refshauge J found error.…

View all 4 citing cases →

Cases cited in this decision · 20 of 20 shown

Mwauluka v Turkich
[2013] ACTSC 1

…E (2000) 120 A Crim R 18 Markovic v The Queen (2009) 30 VR 589 Mawson v Nayda (1995) 5 NTLR 56 Moore v Fingleton (1972) 3 SASR 164 Mwauluka v Turkich [2013] ACTSC 1 O’Connor v Bini [1908] VLR 567 O’Hara v Harrington [1962] Tas SR 165 R v Gorman [2009] ACTSC 7 R v Licensing Justices for the County Borough of South…
Paul Lawrence Reynolds v Brendan James McTernan
[2012] ACTMC 3 Para 1

…It appears that the decision to which her Honour was referring was Reynolds v McTernan [2012] ACTMC 3, decided on 2 August 2012. It was submitted by Mr Livingston that the decision was not applicable to the decision that I faced. I agree.…
Aldridge v The Queen
[2011] ACTCA 20 Para 1

…004 (ACT) requires the rights of children for proper protection to be respected and this is relevant to sentence as I noted in Aldridge v The Queen [2011] ACTCA 20 at [34].…
Australian Crime Commission v Stoddart & Anor [2011] HCATrans 44
[2011] HCATrans 44

…Aldridge v The Queen [2011] ACTCA 20 Attorney General v Tichy (1982) 30 SASR 84 Australian Crime Commission v Stoddart [2011] HCATrans 44 (1 March 2011) Belcher (1981) 3 A Crim R 124 Boyle (1987) 34 A Crim R 202 Carter v Denham [1984] WAR 123 Christie v Britnell [1895] 21 VLR 71 Cooper v Corvisy (No 2) (2010) 5 ACTLR…
Cooper v Corvisy (No 2)
[2010] ACTSC 166 Para 1

…The power of this Court to hear and determine appeals from the Magistrates Court is set out in pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates appeals in criminal matters such as this appeal. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles sur…
Shero v Hinton
[2010] ACTSC 73 Para 1

…This approach, is, of course, to be adapted to the need to recognise, as was noted in Sherrow v Hinton [2010] ACTSC 73 at [33], that in a busy Magistrates Court the sentencing remarks may often incorporate, though preferably by reference, such as by expressly referring to the fact that an issue has been addressed…
Elson v Ayton
[2010] ACTSC 70 Para 1

…istency is not in doubt. See R v Gorman [2009] ACTSC 7. That it was done without advice to the parties is not permissible. I set out in Elson v Ayton (2010) 241 FLR 178 at 192–4; [81]–[93] the proper approach to amending sentences.…
Markovic v The Queen
[2010] VSCA 105

…v Marinos [2010] ACTSC 57 Elson v Ayton (2010) 241 FLR 178 Farrington v Thompson [1959] VR 286 Fraser (1985) 20 A Crim R 4 JCE (2000) 120 A Crim R 18 Markovic v The Queen (2009) 30 VR 589 Mawson v Nayda (1995) 5 NTLR 56 Moore v Fingleton (1972) 3 SASR 164 Mwauluka v Turkich [2013] ACTSC 1 O’Connor v Bini [1908] VLR 567 O’Hara…
R v Gorman
[2009] ACTSC 7 Para 1

…That the sentence was able to be amended to resolve the inconsistency is not in doubt. See R v Gorman [2009] ACTSC 7. That it was done without advice to the parties is not permissible. I set out in Elson v Ayton (2010) 241 FLR 178 at 192–4; [81]–[93] the proper approach to amending sentences.…
Cotter v Corvisy
[2008] ACTSC 64 Para 1

…e police and admitting that he had been disqualified was more serious. It seems to me that the offending here was contumacious as I have discussed in Cotter v Corvisy (2008) 1 ACTLR 299 at 307–8; [36]–[38], namely, that it was driving in defiance of the order of the Court that he not be permitted to drive and that he knew…
R v Mangano
[2006] NSWCCA 35 Para 1

…ourt. In the absence of a reference to an important matter, the inference can be drawn that the matter was not taken into account or addressed. See R v Mangano (2006) 160 A Crim R 480 at 493; [51]. See also Craft v Diebert [2004] ACTCA 15 at [69].…
Craft v Diebert
[2004] ACTCA 15 Para 1

…an be drawn that the matter was not taken into account or addressed. See R v Mangano (2006) 160 A Crim R 480 at 493; [51]. See also Craft v Diebert [2004] ACTCA 15 at [69].…
Scott Adam Robinson v The Queen
[2004] ACTCA 1 Para 1

…The Court of Appeal addressed this issue in Robinson v The Queen [2004] ACTCA 1, where the Court addressed the nature of the reasons required. The Court (at [18]) acknowledged the observations of McHugh JA, as his Honour then was, in Soulemenzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, that the rea…
Wong v The Queen
[2001] HCA 64 Para 1

…te the essential ground or grounds of the decision. Often the test is stated that the reasons must permit, as Kirby J pointed out in Wong v The Queen (2001) 207 CLR 584 at 627; [116], “the persons affected, a court to which appeal may lie and the community [to be] aware of the essential chain of reasoning that brough…
R v Thomson; R v Houlton
[2000] NSWCCA 383 Para 1

…Perhaps more importantly there is, as Spigelman CJ pointed out in R v Thompson (2000) 49 NSWLR 383 at 394; [41]–[42], an obligation on sentencers to give reasons for their decisions.…
Veen v The Queen (No 2)
[1988] HCA 14 Para 1

…of the sentence. Indeed, the offences, having regard to his record for such offences, though he cannot be punished for them ( Veen v The Queen (No 2) (1988) 164 CLR 465 at 477), probably do not justify any part of the sentence being suspended. On the other hand, there is a real question as to whether the sentence, or…
HCA 40, 55 CLR 499; Janima v Edginton
[1995] NTSC 36 Para 1

…they can without parental supervision and support”. See also R v Wirth (1976) 14 SASR 291 at 296; T (1990) 47 A Crim R 29 at 40; Mawson v Nayda (1995) 5 NTLR 56 at 57. For a recent detailed examination of these issues see Markovic v The Queen (2009) 30 VR 589.…
Schluter v Trenerry
[1997] NTSC 102

…ot previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour. (See Schluter v Trenerry [1997] NTSC 102).…
[1911] 2 KB 1
[1911] 2 KB 1

…ini [1908] VLR 567 O’Hara v Harrington [1962] Tas SR 165 R v Gorman [2009] ACTSC 7 R v Licensing Justices for the County Borough of South Shields [1911] 2 KB 1 R v Mangano (2006) 160 A Crim R 480 R v Savundranayagan [1968] 1 WLR 1761 R v Thompson (2000) 49 NSWLR 383 R v Wirth (1976) 14 SASR 291 Reynolds v McTern…
[1968] 1 WLR 1761
[1968] 1 WLR 1761 Para 1

…e associated issue of concurrency or accumulation are relevant, especially as fine default may result in additional imprisonment: R v Savundranayagan [1968] 1 WLR 1761 at 1766; Belcher at 128; Fraser at 11.…

Legislation cited in this decision · 8

Crimes (Sentencing) Act 2005 (ACT)
10(2), 11(1)(b), 116A, 33(1)(o), 40A, 44... 7 mentions (from Para 1)
Human Rights Act 2004 (ACT)
11 3 mentions (from Para 1)
Road Transport (General) Act 1999 (ACT)
44, 69 3 mentions (from Para 1)
Court Procedures Rules 2006 (ACT)
5137 2 mentions (from Para 1)
Road Transport (Alcohol and Drugs) Act 1977 (ACT)
4F 2 mentions (from Para 1)
Road Transport (Driver Licensing) Act 1999 (ACT)
32(1) 2 mentions (from Para 1)
Crimes (Sentence Administration) Act 2005 (ACT)
116ZP 1 mention
Magistrates Court Act 1930 (ACT)
1 mention (from Para 1)