R v Gordon
[2021] ACTSC 283
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | UM v Mesman | ||||||||||
| Citation: | [2022] ACTSC 84 | ||||||||||
| Hearing Date(s): | 21 April 2022 | ||||||||||
| Decision Date: | 21 April 2022 | ||||||||||
| Before: | Elkaim J | ||||||||||
| Decision: | See [21] | ||||||||||
| Catchwords: | APPEAL – SUPREME COURT OF APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – family violence offences – offences committed while in custody – where parole | ||||||||||
| extinguished by operation of s 118 of the Crimes (Sentencing) Act | |||||||||||
| 2005 (ACT) – manifestly excessive sentence – appellant re- | |||||||||||
| sentenced | |||||||||||
| Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 118 Crimes (Sentencing) Act 2005 (ACT) ss 64, 72 Family Violence Act 2016 (ACT) s 43 | ||||||||||
| Cases Cited: | Barrett v The Queen [2016] ACTCA 38 R v Gordon [2021] ACTSC 283 | ||||||||||
| Parties: | UM (Appellant) | ||||||||||
| J Mesman (Respondent) | |||||||||||
| Representation: | Counsel | ||||||||||
| T Taylor (Appellant) K McCann (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Hugo Law Group (Appellant) ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number: | SCA 36 of 2021 | ||||||||||
| Decision under appeal: |
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| Elkaim J |
1. On 4 June 2021 I sentenced the appellant for a number of offences stemming from the unlawful treatment of his wife. The effect of the sentences was that he was sent to prison for four years, one month and 26 days (to 3 April 2024) with a non-parole period that ended on 8 November 2022.
2. Notwithstanding his residence at the prison the appellant committed further offences against his former partner by contacting her contrary to family violence orders that said he should not do so.
3. He was charged with six offences under s 43(2) of the Family Violence Act 2016 (ACT). Each charge made him susceptible to 5 years imprisonment as well as a fine. The appellant pleaded guilty and was sentenced by Magistrate (E) Campbell on 21 October 2021.
4. The learned Magistrate clearly had reservations about the course she took but felt compelled to do so because of ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes Sentencing Act) and s 118 of the Crimes (Sentence Administration) Act 2005 (ACT).
5. The reasoning behind her Honour’s reservations was that the effect of the above
legislation would be to deprive the appellant of the possibility of release on the expiry
of his non-parole period. Her Honour observed, for example:We have to assume that this is the outcome, as unpalatable as it is, that the legislature intended that if you are in custody and you commit offences while you are in custody, you lose the benefit of that non-parole period.
6. The sentences imposed by her Honour were as follows: on the most serious charge the appellant was sentenced to 12 months imprisonment. On the balance of the charges he was sentenced, for each one, to three months imprisonment but all of them were to be served concurrently and have the same starting date as the 12 month term.
7. In order to ameliorate the effect of the above legislation, her Honour commenced the sentences on 4 October 2023, which is six months prior to the end of the sentences that I had imposed. The structure of the sentences is very conveniently described in a
chart included in the Crown’s written submissions. I will adopt the chart, with slight
amendment, and include it here:
8. It is evident from the chart that not only will the offender be deprived of seeking parole on 8 November 2022, but he will remain in custody for almost a year before the 12 month sentence commences.
9. Without more, the sentences imposed by the Magistrate were not excessive, nor open to criticism on any other basis. The question that arises in this appeal is whether or not the structure adopted by her Honour, as shown in the chart, had the consequence of creating a manifestly excess sentence.
10. A sentence is manifestly excessive if it is plainly unjust. The test for manifest excess was concisely stated in Barrett v The Queen [2016] ACTCA 38 at [34]:
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
11. The Magistrate correctly took the view that the legislation intended there to be a harsh consequence to an offender for crimes committed while in custody. Unquestionably the structure adopted by the Magistrate resulted in a harsher penalty than would otherwise have been the case. This is because, as illustrated above, the appellant will have to wait about 11 months past the expiry of his non-parole period before his sentence commences. Once commenced he will not have the benefit of a non-parole period during the 12 months imprisonment.
12. I think this result is plainly unjust. Because the offences were committed in custody the legislation says, and I think it appropriate, that there should be a harsher penalty. However I think the harshness in this case is excessive and should be adjusted.
13. The primary submission of the appellant was that I should follow the course that I took in R v Gordon [2021] ACTSC 283 (Gordon) and impose a sentence, as I understood the submissions, commencing at the end of the non-parole period, but then wholly suspended.
14. Besides noting that Gordon is subject to appeal, I think the appellant’s suggestion is
inappropriate. It would effectively result in the appellant being eligible for release at the end of the non-parole period, and if released, not suffering any real consequence for his criminal conduct while in custody.
15. The appellant also suggested that I consider my judgment as a guide to the Magistrates Court where, it was intimated, there was some confusion as to the approach to be taken to the structure of sentences where the offences are committed while an offender is in custody.
16. Putting aside my surprise at the suggestion of confusion amongst the learned Magistrates, I do not think this case is a suitable vehicle for the establishment of any guidelines. This is a case about whether or not a sentence is manifestly excessive. While the manifest excess may have been a product of the above legislative provisions I think this case is better seen as an expression of a need to correct an excess rather than any guide as to how the provisions are to be approached.
17. The appellant raised the issue of his deportation upon release. If my re-sentencing is applied his deportation might arise earlier than under the current sentences. The appellant apparently appreciated this fact but thought it beneficial because, if deported, he could commence his efforts to return to Australia at an earlier date.
18. The question then arises as to how to ensure proper punishment both in the context of the offences committed and having due regard to the legislative intent of a harsher penalty.
19. I think these objectives are achieved in this way: the sentences imposed by the Magistrate should be retained both as to their length and concurrency. However the starting date should be brought closer to the end of the non-parole period, but not up to it. This will ensure an overall less excessive punishment, but also achieve the demands of the legislature that the punishment be more severe than would otherwise have been the case.
20. If not implicitly evident from the above reasons, I specifically make a direction pursuant to s 72(3) of the Crimes (Sentencing) Act that the primary sentence be served partly concurrently and partly consecutively with the existing sentence. The reason for the direction is to avoid the imposition of a manifestly excessive term of imprisonment being imposed upon the appellant.
21. I make the following orders:
(i) The appeal is allowed.
(ii) The sentence imposed by Magistrate Campbell on 21 October 2021 is set aside.
(iii) The appellant is sentenced as follows:
(iv) For CC21/4712 the appellant is sentenced to 12 months imprisonment to commence on 3 May 2023 and end on 2 May 2024.
(v) For each of CC20211/4713, CC20211/4714, CC20211/4715, CC20211/4716 and CC20211/4717 the appellant is sentenced to 3 months imprisonment to commence on 3 May 2023 and end on 2 August 2023.
I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.
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