Rees v The Queen

[2012] ACTCA 6

JESSE REES v THE QUEEN
[2012] ACTCA 6 (6 February 2012)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 21 - 2011
No. SCC 57 of 2011

Judges:        Higgins CJ, Refshauge and North JJ
Court of Appeal of the Australian Capital Territory
Date:           6 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 21 - 2011
  )          No. SCC 57 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JESSE REES

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Refshauge and North JJ
Date:  6 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be partly upheld.

2. The sentences imposed by Nield AJ be varied as follows:

   i.       with respect to count one on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to six months;

   ii.with respect to count two on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to four months, one month of which is to be served concurrently with the sentence upon count one;

   iii.with respect to count three on the indictment, being the offence of dishonestly obtaining  financial advantage by deception, the period of imprisonment be reduced from one year to three months, which shall be cumulative upon the sentences imposed on counts one and four;

   iv.with respect to count four on the indictment, being the offence of dishonestly obtaining financial advantage by deception, the period of imprisonment be reduced from one year to six months, which shall be cumulative upon the sentence imposed on count three as to three months ;

   v.with respect to count five on the indictment, being the offence of dishonestly obtaining property by deception, the period of imprisonment be reduced from one year to six months, which shall be cumulative upon count three as to three months;

   vi.with respect to count six on the indictment, being the offence of  dishonestly  obtaining property be deception, the period of imprisonment be reduced from one year to three months, which shall be cumulative upon the other counts.

3. Pursuant to those variations, the total term of imprisonment shall be 18 months dating from 25 May 2011. 

4. A non-parole period of 11 months dating from 25 May 2011 be imposed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 21 - 2011
  )          No. SCC 57 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JESSE REES

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Refshauge and North JJ
Date:  6 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. In this matter there is an appeal by Mr Rees against sentences imposed in respect of six matters by his Honour Nield AJ.  The details of the offences are set out in the statement of facts annexed to the Appeal Book and are certainly not in dispute. Nor in dispute, of course, is the progress of the matter before his Honour, nor the sentences imposed. 

1. There are two matters which cause us concern and lead us to consider that the appeal must, at least in part, be upheld.  The first is the offender’s record, which contains a gap in offending of nearly four years.  We appreciate not much was made of that before his Honour, but nevertheless, it does objectively appear in the record and does not sit well with the view his Honour expressed about the continuing criminality of the appellant.  Indeed, it should have been a matter for which the appellant gained some degree of benefit. 

1. More importantly, however, and, indeed, to our minds decisive, is the lack of differentiation in the sentences between the objective seriousness of the various offences.  We accept Mr White’s very sensible and reasonable submission that there must, of course, be a level of underlying criminality, whatever the amount of property involved, and that objective seriousness is only one factor.  Nevertheless, it is not an insignificant factor, particularly when, as in this Territory, the offence of misappropriation of property, in the event of the value of the property being $1,000 or less, can be charged as a summary offence carrying six months of imprisonment. 

1. It seems hard to ignore the legislature’s indication that six months be the statutory maximum for a minor theft, because if it is prosecutable as an indictable offence, the maximum is still ten years.  It would be a very rare case, we would have thought, where more than six months could be justified for what is, in truth, a minor theft. 

1. That leads us to suppose that the sentences imposed by his Honour, each of them being for one year, are manifestly excessive, and that the accumulation of each of them, even to the extent of only three months, leads to a manifestly excessive result.  That is particularly so given that two of the offences were committed simultaneously and each of them involved $500, which is, of course, $1,000 or less, even in aggregate. 

1. We would therefore allow the appeal in part and vary the sentences his Honour imposed.  As to the first offence involving $928, we would impose a sentence of six months.  With respect to the offence involving $179, we would vary the sentence to four months of imprisonment and we would accumulate that second offence as to three months, making a total of nine months.  For the third offence involving $24.95, we think a sentence of three months is appropriate and we would impose that in substitution, allowing three months’ accumulation. 

1. As for the fourth and fifth offences, we would impose six months’ imprisonment in respect of each, allowing them as wholly concurrent with each other, but cumulative as to three months on the sentences previously imposed.  With respect to the final matter, which involved, we understand, two cartons of cigarettes, we would impose a sentence of only three months and make that cumulative upon the remainder of the matters. 

1. That amounts to a total of 18 months of imprisonment from 25 May 2011. We would impose a non-parole period of 11 months in respect of that, dating from 25 May 2011. 

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:    5 March 2012

Counsel for the Appellant:  Self represented
Counsel for the Respondent:  Mr J White
Solicitor for the Respondent:  Director of Public Prosecutions for the ACT
Date of hearing:  6 February 2012
Date of judgment:  6 February 2012