Smarzak v Fergusson

[2017] ACTSC 113

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Smarzak v Fergusson

Citation:

[2017] ACTSC 113

Hearing Date:

16 May 2017

DecisionDate:

16 May 2017

Before:

Elkaim J

Decision:

See paragraph [21]  

Catchwords:

APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Appeal from the Magistrates Court – appeal against sentence – possessing implements with intent to commit theft – whether the sentence imposed was manifestly excessive – whether the learned Magistrate erred in failing to apply the totality principle.

Cases Cited:

Mill v R (1998) 166 CLR 59

R v AB [2017] NSWCCA 88
R v Todd [1982] 2 NSWLR 517

Zdravkovic v R [2016] ACTCA 53

Parties:

Filip Smarzak (Appellant)

Angus Fergusson (Respondent)

Representation:

Counsel

Ms H Hayunga (Appellant)

Ms T Skvortsova (Respondent)

Solicitors

Legal Aid ACT (Appellant)

Office of the ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 13 of 2017

Decision under appeal: 

Court:  ACT Magistrates Court

Before:  Special Magistrate Hunter

Date of Decision:         30 January 2017

Case Title:  Fergusson v Smarzak

Court File Number:      CC 3623 of 2016

ELKAIM J:

1. On 30 January 2017 the appellant was sentenced to a period of imprisonment of seven months, commencing on that day and ending on 29 August 2017. He received the sentence following his plea of guilty on 18 August 2016 to a single offence of possessing implements with intent to commit theft.

1. The maximum penalty for the offence is 300 penalty units and/or three years imprisonment.

1. The appellant was originally arrested on 28 March 2016. His first appearance in the ACT Magistrates Court was on 21 April 2016. On that occasion, and on three further occasions, the matter was adjourned because the appellant was in custody in New South Wales. There were another two later adjournments for the same reason. The appellant was in prison in New South Wales for a total of six months and three weeks, although there were two distinct periods of imprisonment.

1. The first period was from 4 May 2016 to 3 August 2016, when the appellant was serving the non-parole period of a seven month sentence that had been imposed for an offence of larceny.

1. The second period, from 1 September 2016 to 27 December 2016, was served due to the revocation of parole for a separate offence.

1. The appellant has two complaints with the sentence he received from the Magistrate. Firstly, he submits that it was manifestly excessive. Secondly, he says that the Magistrate made an error by failing to apply the totality principle.

1. In Zdravokovic v The Queen [2016] ACTCA 53, the Court of Appeal of the ACT, at paragraphs [51] and [52], made the following comments about manifestly excessive sentences:

A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis (1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaarv The Queen [2012] ACTCA 26 at [61].

When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarianv The Queen [2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.

1. Very recently, in R v AB [2017] NSWCCA 88, the New South Wales Court of Criminal Appeal, at paragraphs [57] and [58], described the principles in this way:

The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]-[60].

In cases such as the present where there is only one ground of appeal, manifest inadequacy, it is not necessary to identify specific error. As was pointed out in Dinsdale supra(at [6]) manifest inadequacy is a conclusion not dependent upon attribution of identified specific error and frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive: see also R v Harris [2015] NSWCCA 81 at [46]. Nevertheless, as was pointed out in Harris, identification of specific error may help explain why the sentence is inadequate.

1. A “plainly unjust” sentence is usually apparent on first reading. That is not the case here. For the reasons given by the Magistrate, notwithstanding that the facts of the offence may have put it in the lower range of objective seriousness, there was no basis for the offender being treated with any degree of leniency. Without more, I reject the submission that the sentence was manifestly excessive. This conclusion is, however, subject to dealing with the second complaint made by the appellant.

1. The essence of the totality complaint is that the offences for which the appellant was convicted in New South Wales are similar to the offence which is the subject of this appeal. However, because he was necessarily sentenced separately, the offender was deprived of the opportunity to submit to the sentencing judicial officer that all of his offences should be taken into account. He now submits that the Magistrate sentencing him in the ACT should have taken this into account when sentencing him.

1. In support of this proposition, the appellant relies on Mill v R (1988) 166 CLR 59 (Mill), where the High Court, at paragraph [15], stated:

The intervention of a State boundary denies to an offender the opportunity of having the series of offences dealt with together by a sentencing court which can avail itself of the flexibility in sentencing provided by concurrent sentences.

1. Later in the judgment, at paragraph [16], the High Court continued:  

In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.

1. The learned Magistrate was specifically asked to take Mill into account. She sought comment from the prosecutor. He responded:

Here’s the problem for him. He was on parole at the time, your Honour. Ultimately he has spent more time since this offence back in custody for having breached his parole. Your Honour, I submit that doesn’t count. He should not be getting a benefit for having breached his parole. Now, he did commit another offence, your Honour, but that certainly goes against him. He simply constantly commits offending.

1. Her Honour then responded with the observation that Mill was distinguishable because, in the present case, the offence had been committed after the offences for which he had been sentenced in New South Wales. The prosecutor, displaying a degree of over-enthusiasm, then responded:

Indeed, your Honour. The majority (indistinct) spent the last 12 months in goal has been because of breaching his parole. That is not to his credit, your Honour. That is to his disgrace.

1. The Magistrate commented on the offender’s extremely long criminal history. She observed: “He’s just a habitual offender”. She afforded him no leniency against this background, although she did provide for a 25 per cent discount arising from his plea of guilty. The extent of this discount might be described as generous.

1. Her Honour did later seem to accept that Mill might have some application. She said: “There is a totality aspect, I suppose, in some regards.” This acceptance did not carry over into the sentencing remarks, when her Honour said:

Your solicitor quite appropriately submitted that I should take into account Mill v The Queen in terms of some sort of totality aspect. As I’ve indicated, I can’t see any reason why I would do so, because in my view Mill v The Queen doesn’t apply to you in this particular matter.

1. It is common ground that if I were to interfere it could only be because I had identified error in the Magistrate’s decision. The respondent has submitted that the Magistrate has achieved totality even if she did not state that it was based on the principle in Mill. The difficulty with the submission is twofold:

(a)It is not immediately apparent from the reasons for sentence where totality has been applied.

(b)There is the inconsistency between her Honour’s statements, as set out in paragraph [16] above.

1. In my view, there is error in her Honour’s approach, in particular in her apparent adherence to the principles of totality but the absence of their implementation. This permits me to set aside the sentence and impose a fresh sentence. One of the difficulties, however, is that the overall sentence imposed is not one that is manifestly excessive having regard to the appellant’s history and all of the matters, besides totality, identified by her Honour. There is even an argument that the sentence imposed could have been greater.

1. It is, however, important that totality is applied in appropriate circumstances. This is so even where it might lead to an otherwise apparently undeserved element of leniency. This is highlighted in Mill in paragraph [11], where the comments of Street CJ in R v Todd [1982] 2 NSWLR 517 are quoted.

1. In my view, the proper approach to be adopted here is to re-sentence the appellant applying generally the same approach as that taken by the Magistrate but adding an element reflecting a totality approach. This, I think, will be achieved by reducing the sentence by one month.

1. I make the following orders:

(a)The appeal is allowed.

(b)The sentence imposed by the Magistrate is set aside.

(c)In lieu thereof the appellant is sentenced to a period of imprisonment of 6 months to commence on 30 January 2017 and ending on 29 July 2017.

I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of His Honour Justice Elkaim.

Associate:

Date: 16 May 2017