St v Whyte
[2015] ACTSC 340
•22 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ST v Whyte |
Citation: | [2015] ACTSC 340 |
Hearing Date(s): | 22 October 2015 |
DecisionDate: | 22 October 2015 |
Before: | Burns J |
Decision: | The appeal against sentence is upheld and the sentence of the Magistrates Court is set aside. The offender is re-sentenced, see [7] – [10]. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – stalking – unlawful possession – minor theft – obtaining a financial advantage by deception. APPEAL – Appeals from and Control over Magistrates – appeal against sentence – sentences manifestly excessive – appeal against sentence upheld – offender re-sentenced. |
Parties: | ST (Appellant) Jamie Joseph Whyte (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Ms K Mackenzie (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 46 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Hunter Date of Decision: 6 May 2015 Case Title: R v [ST] Court File Number(s): CC No 1633 of 2015 |
BURNS J:
[ST], this matter comes before me by way of an appeal from a magistrate who sentenced you to a number of terms of imprisonment. I have determined that the sentences that were imposed by the Magistrate were manifestly excessive and I have set aside those sentences. It now falls to me to re-sentence you with respect to these matters.
I take into account that you entered pleas of guilty to all of the charges. I accept that your guilty plea had a utilitarian value, in that it saved the community the cost of having to conduct a trial or hearing in relation to those charges. I also accept that it demonstrated a degree of remorse on your part. I take into account the fact that, at the time you committed the offence of stalking, you were only 18 years of age. I also take into account the fact that you committed the offences of unlawful possession, minor theft and obtaining a financial advantage by deception on 4 January 2015, not long after you had turned 19. Your relative youth is a significant sentencing consideration and particularly points towards the desirability of imposing sentences that are directed towards your rehabilitation.
You had a previous criminal history which was not insignificant, in particular in relation to Childrens Court matters, where you had been dealt with for a number of serious offences of dishonesty, and you had been sentenced to terms of imprisonment with respect to those offences. But I note that, on each occasion, any term of imprisonment was suspended. As such, any sentence of imprisonment which was imposed by the Magistrate with respect to the present offences involved a sentence requiring you for the first occasion to serve a term of imprisonment by way of actual full-time imprisonment.
The offence of stalking to which you entered a plea of guilty carries a maximum penalty of two years' imprisonment. The facts surrounding that offence reveal that, for a short period, you harassed the complainant and made at least one threatening communication, albeit I accept that the threat was not directed personally to the complainant. Undoubtedly, that would have been a very distressing time for the complainant. It is of significance, however, that, after having been spoken to by the police with respect to this matter, you apparently desisted from your conduct and there is no suggestion that you have made any further unwanted contact with the complainant.
I now turn to the offences that occurred on 4 January this year, namely the offences of unlawful possession, minor theft and obtaining a financial advantage by deception. I accept that the taking of the credit card was an opportunistic offence and that there was little by way of thought that went into it or any premeditation. The same, however, cannot be said with respect to the other offences of obtaining a financial advantage. It is clear that some degree of premeditation was involved in those offences, although I accept that they are not in any way complicated offences.
I note that you have spent 178 days in custody with respect to these matters before you were granted bail on 15 July this year.
Re-sentence
With respect to the offence of stalking, the conviction imposed by the Magistrate will be confirmed. You will be sentenced to three months' imprisonment commencing on 27 April this year and expiring on 26 July this year.
With respect to the charge of unlawful possession, the conviction again is confirmed and you are sentenced to one month’s imprisonment commencing on 27 July this year and expiring on 26 August this year.
With respect to the offence of minor theft, the conviction is confirmed and you will be sentenced to one month's imprisonment commencing on 27 August this year and expiring on 27 September this year. It will be clear to you from those dates that you have already served those terms of imprisonment.
With respect to each of the offences of obtaining a financial advantage by deception, again, each conviction is confirmed. I will impose a Good Behaviour Order for a period of 15 months from today with conditions:
(a)first, that you are to accept the supervision of ACT Corrections for that period of 15 months, or such lesser period as may be determined by your supervising officer;
(b)secondly, you are to undertake such assessments, counselling or treatment for alcohol and drug abuse as directed by officers of ACT Corrective Services; and,
(c)thirdly, you are to undertake such programs as directed with respect to employment opportunities as directed by ACT Corrective Services.
[ST], you have served the terms of imprisonment that I have imposed. I think, however, that it is clear that, from this point on, any significant offences of dishonesty are likely to result in terms of imprisonment and it will simply become a question of the terms becoming longer and longer as you continue to offend. Now is the time to address any issues such as drug abuse that may lead you to commit further offences. You have been leading a fairly aimless life and it is not unusual in those circumstances that young men who have nothing else to do with their time get themselves into trouble. As I said, if that is the way in which you continue to lead your life, you have got nobody to blame but yourself when ultimately you continue to use drugs, you commit further offences and you spend most of your young adult life in gaol. So that is ultimately a matter for you.
| I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 4 November 2015 |
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