R v Beniamini (No 3)

[2017] ACTSC 80

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

R v Beniamini (No 3)

Citation:

[2017] ACTSC 80

DecisionDate:

10 April 2017

Before:

Refshauge ACJ

Decision:

1.   In paragraph [82] point 9 of the reasons in R v Beniamini (No 2) [2017] ACTSC 32, the word “nine” be omitted and “eight” substituted.

2.   A Corrigendum to those reasons be published.

Catchwords:

PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Correction of reasons for sentence – no issue of principle

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT)

Cases Cited:

Beniamini v Craig [2017] ACTSC 30

Brennand v Hartung (No 3) [2015] ACTSC 149

Millard v The Queen (No 2) [2016] ACTCA 41

R v Beniamini (No 2) [2017] ACTSC 32

R v Kelly (No 2) [2017] ACTSC 64

The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13

Parties:

The Queen (Crown)

Adam Beniamini (Respondent)

Representation:

Solicitors

ACT Director of Public Prosecutions (Crown)

Legal Aid ACT (Accused)

File Number:

SCC 36 of 2016

REFSHAUGE ACJ:

1. Adam Beniamini has a significant criminal history. Since 2010, the majority of the offences he has committed have been offences of violence.

1. It is not necessary in this decision to recount his history, other than to say that he has breached a number of Good Behaviour Orders by committing further offences, as well as committing further offences while on bail.

1. On 23 February 2017, I sentenced Mr Beniamini for a number of offences. The sentencing involved re-sentencing following his breach of a Good Behaviour Order,

   
   

   re-sentencing him following a successful appeal against sentencing for certain offences originally dealt with in the ACT Magistrates Court, and sentencing him for further offences.

1. A complication in the nevertheless complex sentencing was that he had committed and had been sentenced by a different Magistrate for offences committed after he had committed the offences the sentencing for which was the subject of the successful appeal from the Magistrates Court. Indeed, at the time of committing those further offences, he was on bail in association with a Deferred Sentence Order made in relation to the earlier Magistrates Court offences.

1. When upholding the appeal, I addressed the need in sentencing Mr Beniamini to have regard to the fact that, though for the later committed offences, Mr Beniamini was then serving that earlier imposed sentence. This required consideration of the principle of totality.  See Beniamini v Craig [2017] ACTSC 30 at [178]-[189].

1. In re-sentencing Mr Beniamini, I took into account that earlier sentence, deciding that the principle of totality required some concurrency between it and the sentence to be imposed by me.  See R v Beniamini (No 2) [2017] ACTSC 32.

1. In sentencing Mr Beniamini, I said in R v Beniamini (No 2) at [82] point 9, after setting out the sentences and the respective dates of commencement which recognised relevant concurrency and cumulation:

That is a total of three years and two months imprisonment. Together with the sentences imposed by the Chief Magistrate, that is imprisonment for four years and nine months in total.

1. Though pronounced commonly in the course of imposing a sentence, this is not in truth a sentence or part of the sentence. It is, as described in Millard v The Queen (No 2) [2016] ACTCA 41 at [11], not an operative order. It is not a sentence as defined in the Crimes (Sentencing) Act 2005 (ACT).

1. It is in the nature of an explanation of the sentence, part of the reasons for sentence as described in R v Kelly (No 2) [2017] ACTSC 64.

1. After the sentence of the Court had been made and entered into the Court records, an officer of the Sentence Administration Section of ACT Corrective Services contacted my associate to point out that the sentences I had imposed, together with the earlier effective sentences of the Magistrates Court, having regard to the level of concurrency I made, came to a total of four years and eight months, not the four years and nine months I had pronounced.

1. While there is no operative effect in this error, it seems that it is desirable to have the reasons for sentence consistent with the sentences imposed.

1. I have discussed in Brennand v Hartung (No 3) [2015] ACTSC 149 at [29]-[51] the amendment of reasons for judgment. I concluded that it can be effected without a formal order, prior notice to the parties or the delivery of reasons.

1. On the other hand, when the matter involved is a sentence, there is, perhaps, a somewhat greater need for transparency than in the case of other amendments made by the simple publication of a corrigendum.

1. I took such an approach in R v Kelly (No 2), though, in that case, I was dealing also with the amendment of an actual sentencing order as well.

1. I have contacted the parties, advised of the error, and advised that I proposed to amend the relevant paragraph.  No opportunity to make submissions was requested by any party, the parties consented to the amendment, and neither party sought to be present for the making of the amendment.

1. For reasons such as those set out in R v Kelly (No 2) at [41], it is unsurprising that Mr Beniamini did not see the need to attend when the order for amendment is made.

1. Accordingly, I will make the amendment in chambers, as to which, see The Owners of Units Plan No 932 v Marhaba [2017] ACTSC 13 at [37]-[39].

Disposition

1. I will order that in paragraph [82] point 9 of the reasons in R v Beniamini (No 2), the word “nine” be omitted and “eight’ be substituted.

I certify that the preceding eighteen [18] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.

Associate:

Date:  10 April 2017