PM v Geoffrey Hyde
[2013] ACTSC 101
PM v GEOFFREY HYDE
[2013] ACTSC 101 (29 MAY 2013)
EX TEMPORE JUDGMENT
ON APPEAL FROM THE CHILDREN’S COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 19 of 2013
Judge: Nield AJ
Supreme Court of the ACT
Date: 29 May 2013
IN THE SUPREME COURT OF THE )
) No. SCA 19 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE CHILDREN’S COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PM
Appellant
AND:GEOFFREY HYDE
Respondent
ORDER
Judge: Nield AJ
Date: 29 May 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The orders of the sentencing magistrate be confirmed.
The appellant appeared before Magistrate Fryar in the ACT Magistrates Court on 18 February 2013 to answer 36 charges. He pleaded guilty to all of the charges, although had pleaded not guilty to some of them and guilty to some of them. Magistrate Fryar was provided with material and she heard submissions from the Crown Prosecutor and the appellant’s solicitor. She reserved her judgment.
On 12 March 2013 she imposed sentences upon the appellant. She noted the material to which she had been referred and the submissions made by the Crown Prosecutor and the appellant’s solicitor. She noted the fact that the appellant was a juvenile and was to be sentenced according to the principles that apply to sentencing of a juvenile. She was aware that rehabilitation is an important, if not the most important, factor in determining sentences to impose upon a juvenile. She noted also that sentences of imprisonment were sentences of last resort and that any sentence of imprisonment should be the minimum period possible. The sentences in total were imprisonment for 40 months with a minimum period of 25 months and a suspension of execution of sentence for 15 months.
Being dissatisfied with Magistrate Fryar’s total sentence and the apportionment of it into a minimum period and a suspended period the appellant appealed to this Court. Today I have heard submissions as to the appeal.
The jurisdiction of this Court in relation to an appeal from the Magistrates Court requires a finding of error on the part of the magistrate. The error might be the failure to take into account a relevant factor or taking into account an irrelevant factor or simply imposing a sentence or sentences manifestly inadequate or manifestly excessive so as to show some error in principle.
I do not consider what sentences I would impose upon the appellant for the various offences. I must consider whether, in what she did, Magistrate Fryar erred in some relevant way. Learned counsel for the appellant has submitted that, whilst the overall sentence of 40 months might well be appropriate, and he did not argue that it is inappropriate, the minimum period of 25 months was excessive. He conceded that variation of that period into a lesser period and, therefore, the increase of the suspended sentence period, would be in effect tinkering with Magistrate Fryar’s decision. With that I agree.
Magistrate Fryar was presented with a difficult sentencing task. She had to sentence a juvenile who committed 36 offences over a period of about 3 years, with more than one offence being committed at any one time, and in total resulting in the loss of about $80,000 worth of property.
In my view Magistrate Fryar was correct in her determination of the total sentence and the minimum period of it. I might have done things differently to the way that she did things. I might have determined a sentence for a particular offence as either more than or less than that imposed by Magistrate Fryar but that is not my role in this appeal.
My role in this appeal is to determine whether there was relevant error. I cannot see any relevant error. I have some sympathy for the appellant who is now a juvenile but will serve some of the total sentence as an adult because he will attain the age of 18 years before the expiration of the 25 months period. That will be unfortunate but it is a consequence of his own making.
He was given chances before committing a number of the offences. He did not take those chances. He was not prepared to act in his best interests towards rehabilitation. It is to be hoped that he will learn a lesson from his imprisonment and that, during the period of the suspended sentences, he will not re-offend.
I am sure that he has been warned that re-offending whilst subject to a suspended sentence is a foolish thing to do because the suspended sentence might well take effect in addition to any sentence for further offending.
In the result, I dismiss the appeal and I confirm Magistrate Fryar’s orders.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.
Associate:
Date: 31 May 2013
Counsel for the Appellant: Mr A Doig
Solicitor for the Appellant: Daryl Perkins Solicitors
Counsel for the Respondent: Ms R Griffiths
Solicitor for the Respondent: ACT Director of Public Prosecutions
Date of hearing: 29 May 2013
Date of judgment: 29 May 2013
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