Paul Palmer v Daniel Fisher

PAUL PALMER v DANIEL FISHER  [2006] ACTSC 118 (21 November 2006)

APPEAL – Magistrate’s sentence – custodial sentence for assault of fellow remandee.
FRESH EVIDENCE – Evidence of mental illness – evidence not available to Magistrate – evidence would have affected sentencing discretion.

Periodic Detention Act 1995, s 29, s 31
Crimes Sentencing Act 2005

Browne v R [2006] ACTCA 15

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 18 of 2006

Judge: Connolly J       
Supreme Court of the ACT
Date: 21 November 2006

IN THE SUPREME COURT OF THE       )
  )          No. SCA 18 of 2006
AUSTRALIAN CAPITAL TERRITORY    )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN:PAUL PALMER

Appellant

AND: DANIEL FISHER

Respondent

ORDER

Judge:   Connolly J

Date:   21 November 2006

Place:   Canberra

THE COURT ORDERS THAT:

1. the appeal be allowed.

1. the sentence imposed on 27 March 2006 of 20 months be set aside and in lieu thereof, the prisoner be sentenced to 3 months imprisonment, commencing on 27 March 2006.

1. the earlier sentence of 18 months periodic detention, which has by reason of s 29 of the Periodic Detention Act 1995 become a sentence of full-time imprisonment, be suspended from 21 November 2006, pursuant to s 32 of the Act.

1. the prisoner be released, subject to a recognizance to be of good behaviour for 8 months with the following conditions:

-the core conditions pursuant to Crimes (Sentencing) Act 2005;

-submit to supervision of ACT Corrective Services in relation to drug and alcohol programs;

-submit to urinalysis as directed;

-any other directions considered appropriate by ACT Corrective Services.

1. This is an appeal from a sentencing decision of the Magistrates Court.  I delivered oral reasons on 21 November 2006 that are the basis for these written reasons, which I have expanded upon.

1. Mr Palmer (the appellant) was sentenced by Magistrate Burns on 27 March 2006 in relation to his plea of guilty to an assault on a fellow remandee that occurred at the Belconnen Remand Centre.  There was some material before his Honour suggesting that the appellant was “not on his medication” at the time of the offence, but that was not gone into in any detail and his Honour formed the view as he was entitled to form on the basis of the material then before him, that it simply related to the appellant’s previous use of amphetamines and his coming off amphetamines during the period that he was in custody in the remand centre.

1. His Honour took the view that an assault by one detainee on another in the remand centre was a serious matter, which indeed it is, and accordingly, and without expressly referring to but by implication referring to appellate authority, imposed a substantial period of imprisonment in relation to that offence.  He imposed, in fact, 20 months imprisonment.  That, it seems to me, is entirely within range for an unprovoked assault by one remandee on another, absent any additional information and given that the appellant has a substantial criminal…