Peter Michael Crawford v Michael Laverty

[2008] ACTSC 107

PETER MICHAEL CRAWFORD v MICHAEL LAVERTY [2008] ACTSC 107 (13 October 2008)

APPEAL – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals.

CRIMINAL LAW – sentencing principles – subjective features of appellant – Fernando principles.
CRIMINAL LAW – sentencing principles – subjective features of appellant – offender’s youth and prospects of rehabilitation.
CRIMINAL LAW – sentencing considerations – reliance placed on recommendations of pre-sentence report.
CRIMINAL LAW – sentencing principles – terms of imprisonment – error by Magistrate in imposing sentence exceeding maximum penalty.
CRIMINAL LAW – sentencing principles – terms of imprisonment – failure of Magistrate to specify reasons for applying maximum penalty in respect of offence.
CRIMINAL LAW – sentencing principles – terms of imprisonment – principle of totality – accumulation of sentences – multiple offences arising out of the same course of conduct.

CRIMINAL LAW – sentencing principles – principle of totality – splitting of sentencing for related offences.

Crimes (Forensic Procedures) Act 2000 (ACT), s 24

Stanley Edward Fernando (1992) 76 A Crim R 58
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357
Rogers v Green [2008] ACTSC 78 (27 August 2008)
R v Meyboom [2001] FCA 861 (10 July 2001)
R v Seckold [2005] ACTSC 34 (18, 22 February 2005)
Mill v R (1988) 166 CLR 59
High v Willis [2008] ACTSC 88 (26 September 2008)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 106 of 2007

Judge:              Penfold J
Supreme Court of the ACT

Date:               13 October 2008

IN THE SUPREME COURT OF THE       )
  )          No. SCA 106 of 2007
AUSTRALIAN CAPITAL TERRITORY    )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:PETER CRAWFORD

Applicant

AND:MICHAEL LAVERTY

Respondent

ORDER

Judge:  Penfold J
Date:  13 October 2008
Place:  Canberra

THE COURT ORDERS THAT:

(a)       the appeal is allowed;

(b)       the appellant will be re-sentenced.

Introduction

1. Peter Crawford appeals from eight sentences of imprisonment imposed in the Magistrates Court on 12 September 2007.  These relate to:

(a)        one offence of entering a building with intent to commit theft (the burglary offence);

(b)        one offence of intentionally damaging property (the damage offence);

(c)        two offences of minor theft;

(d)        three offences of dishonestly and without consent riding in a motor vehicle (the motor vehicle offences); and

(e)        one offence of intentionally obstructing a forensic procedure (the obstruction offence).

1. Mr Crawford was sentenced to what was described by the learned Magistrate as a head sentence of 27 months imprisonment, with a non-parole period of 18 months.  However, the 27 months and the 18 months covered only the periods that the appellant was yet to serve, and did not include the 5-month term imposed for the earliest offence, which was backdated to take account of 5 months already spent in custody.  Thus, in effect, the head sentence was 32 months and the non-parole period was…