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”…