Peter v Wade - [2017] ACTSC 122

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Peter v Wade
Citation:	[2017] ACTSC 122
Hearing Date:	16 May 2017
DecisionDate:	16 May 2017
Before:	Murrell CJ
Decision:	Appeal allowed in part. Sentences of imprisonment confirmed. Good behaviour orders cancelled.
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Motor vehicle offences – Failure to appear – Appeal against sentence – Whether sentence was manifestly excessive – Whether sentencing magistrate erred in imposing good behaviour orders which ran concurrently with the parole period – Offender with substantial criminal history – Offender’s need for drug and alcohol rehabilitation
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 149 Crimes (Sentencing) Act 2005 (ACT) ss 12, 29, 31 Legislation Act2001 (ACT) s 126(4)
Cases Cited:	O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 Pettitt v Dunkley [1971] 1 NSWLR 376 R v Lee [2016] ACTCA 69 R v Pumpa [2015] ACTSC 177 Van Leeuwen v Hawke [2012] ACTSC 8; 256 FLR 433
Parties:	Nicholas Peter (Appellant) Troy Adam Wade (Respondent)
Representation:	Counsel Mr R Davies (Appellant) Mr D Swan (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 4 of 2017
Decision under appeal:	Court/Tribunal: ACTMC Before: Magistrate Boss Date of Decision: 2 December 2016 Case Title: Wade v Peter Court File Number: CC15/1598

MURRELL CJ:

On 2 December 2016, Magistrate Boss (the Magistrate) imposed three sentences which are the subject of appeal:

(a)Drive motor vehicle without consent – 12 months’ imprisonment from 3 July 2016 (reduced from 14 months’ imprisonment for the plea of guilty), conditional good behaviour order for 12 months to be entered upon release from custody. The maximum penalty was five years’ imprisonment.
(b)Fail to appear – three months’ imprisonment from 3 January 2017 (reduced from four months’ imprisonment for the plea of guilty). The maximum penalty was two years’ imprisonment. This sentence was totally concurrent with other sentences.
(c)Take motor vehicle without consent – 14 months’ imprisonment from 3 January 2017, conditional good behaviour order for 12 months to be entered upon release from custody. The maximum penalty was five years’ imprisonment. There was no reduction for a plea of guilty as the matter was defended.

Her Honour also sentenced the appellant to three months’ imprisonment for possession of cannabis plants (reduced from four months for the plea of guilty). That sentence was to be served from 4 June 2016.

The effective sentence was from 4 June 2016 to 2 March 2018, a total period of 21 months’ imprisonment. The Magistrate fixed a nonparole period to expire on 3 June 2017 (12 months of the total sentence, or a little under 60%).

The good behaviour orders were to run from 4 June 2017 to 3 June 2018, i.e. they were partly concurrent with the parole period. The Magistrate imposed extensive conditions on the good behaviour orders, including obligations to accept the supervision of the Director-General of Corrective Services, to supply samples of…

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 Peter v Wade

Details

AGLC: Peter v Wade [2017] ACTSC 122
Case: [2017] ACTSC 122
Decision Date: 16 May 2017

CaseChat Overview and Summary

Peter appealed against his sentence, contending that it was manifestly excessive and that the sentencing magistrate had erred in imposing good behaviour orders which ran concurrently with his parole period. The respondent, Wade, argued that the sentence was appropriate given the offender’s criminal history and the need for drug and alcohol rehabilitation. The case was heard in the Supreme Court of Queensland.

The court was required to determine whether the sentence imposed was manifestly excessive and whether the sentencing magistrate erred in imposing the good behaviour orders. This involved assessing the proportionality of the sentence in light of the offender's criminal history and the sentencing principles relevant to such cases. The court also needed to examine whether the orders were correctly imposed and whether they should run concurrently with the parole period.

The Supreme Court found that while the sentences of imprisonment were confirmed as appropriate, the good behaviour orders were not validly imposed. The orders were quashed because they were not aligned with the statutory framework for such orders and ran concurrently with the parole period. The court concluded that the sentencing magistrate had not erred in imposing the imprisonment sentences, but had erred in the imposition of the good behaviour orders.

The final orders were that the appeal was allowed in part. The sentences of imprisonment were confirmed, but the good behaviour orders were cancelled. The court’s decision highlights the importance of ensuring that sentencing orders are correctly imposed and aligned with statutory requirements.

Orders

Orders of the court

Appeal allowed in part. Sentences of imprisonment confirmed. Good behaviour orders cancelled.

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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