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:

Court/Tribunal:	Magistrates Court of the ACT
Before:	Magistrate Campbell
Date of Decision:	21 October 2021
Case Title:	Mesman v UM
Court File Number:	CAN 4712/2021

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…

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 R v Gordon

Details

AGLC: R v Gordon [2021] ACTSC 283
Case: [2021] ACTSC 283
Decision Date

CaseChat Overview and Summary

In the case of UM v Mesman, the appellant, UM, appealed against the sentence imposed by Magistrate Campbell in the Magistrates Court of the ACT. The appellant was convicted of multiple family violence offences committed while he was in custody. The legal issues before the Supreme Court were whether the sentence imposed by the Magistrate was manifestly excessive and whether the court should follow a particular approach in sentencing for offences committed while in custody.

The Supreme Court found that the sentence imposed by the Magistrate was manifestly excessive, as it deprived the appellant of the possibility of release on the expiry of his non-parole period. The court held that while the legislation intended a harsher penalty for crimes committed while in custody, the harshness in this case was excessive and should be adjusted. The court rejected the appellant's suggestion that the sentence should commence at the end of the non-parole period but be wholly suspended, as it would not provide any real consequence for his criminal conduct while in custody. Instead, the court decided to retain the length and concurrency of the sentences imposed by the Magistrate but adjust the starting date to ensure a less excessive punishment while still achieving the demands of the legislature for a harsher penalty.

The court ordered that the appeal be allowed, the sentence imposed by Magistrate Campbell be set aside, and the appellant be re-sentenced as follows: for the most serious charge, the appellant is sentenced to 12 months imprisonment to commence on 3 May 2023 and end on 2 May 2024. For each of the remaining charges, the appellant is sentenced to 3 months imprisonment to commence on 3 May 2023 and end on 2 August 2023. The primary sentence is to be served partly concurrently and partly consecutively with the existing sentence to avoid imposing a manifestly excessive term of imprisonment upon the appellant.

Orders