Stephanie Snaidero v Brooke Amy Crampton and Bridget O'Sullivan (No 3)
[2014] ACTSC 388
•27 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stephanie Snaidero v Brooke Amy Crampton and Bridget O’Sullivan (No 3) |
Citation: | [2014] ACTSC 388 |
Hearing Date(s): | 27 October 2014 |
DecisionDate: | 27 October 2014 |
Before: | Refshauge J |
Decision: | 1. The appeal be allowed to the extent of reducing the period imposed by the one week of imprisonment served by periodic detention already served by the applicant which is given effect to by orders 2, 3, 4 and 5 below. 2. The sentence of imprisonment of three months imposed on CC 11/10988 be confirmed, but commence on 29 August 2013 and be suspended by operation of s 216 of the Magistrates Court Act 1930 (ACT) from 5 September 2013 to 27 October 2014 and recommence on 27 October 2014 and end on 19 January 2015. 3. The sentence of imprisonment of six months imposed on CC 12/1376 be cumulative as to four months on the sentence of imprisonment imposed on CC 11/10988 be confirmed, but commence on 20 November 2014 and end on 19 June 2015. 4. The sentence of imprisonment of eight months imposed on CC 12/1577 be cumulative as to five months on the sentence of imprisonment imposed on CC 12/1376 be confirmed but commence on 20 February 2015 and end on 19 November 2015. 5. The sentence be served by periodic detention for a period of five months and three weeks to commence on 27 October 2014 and end on 16 April 2015, the first detention period to commence on 31 October 2014, when Stephanie Snaidero is to report to the Symonston Periodic Detention Centre, Mugga Lane, Red Hill ACT on that date at 7:00 pm. 6. The appeal be otherwise dismissed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Judgment and Punishment – Sentencing following appeal – Power of Court to amend sentence where sentence not in accordance with law |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) |
Cases Cited: | Hadba v The Queen [2004] ACTSC 62 Snaidero v Crampton [2014] ACTSC 262 |
Parties: | Stephanie Snaidero (Appellant) Brook Amy Crampton (First Respondent) Bridget O’Sullivan (Second Respondents) |
Representation: | Counsel Self-represented (Appellant) Mr S McLaughlin (First and Second Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (First and Second Respondent) | |
File Number(s): | SCA 80 of 2013 |
Decision under appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Morrison Date of Decision: 29 August 2013 Case Title: Brooke Amy Crampton and Bridget O’Sullivan v Stephanie Snaidero Court File Number(s): 155226 |
Refshauge J:
Stephanie Snaidero was sentenced to imprisonment on 29 October 2013 for two counts of being a repeat offender driving whilst disqualified, to a total period of twelve months’ imprisonment on the three charges to which she pleaded guilty and of which six months was to be served by periodic detention.
Ms Snaidero appealed against that decision and, on 28 July 2014, I dismissed the appeal: Snaidero v Crampton [2014] ACTSC 262. Unfortunately, I assumed that in dismissing the appeal, the sentence would have been reinstated and to take effect that, I thought, being the effect of the orders that I made, including the effect on s 216 of the Magistrates Court Act 1930 (ACT), which imposes an automatic stay on the sentence of imprisonment pending the determination of the appeal.
That was not, however, the view of the Sentence Administration Board which, when Ms Snaidero inquired of what she had to do after the appeal, did not indicate that they were prepared to receive her at the Periodic Detention Centre and give effect to what I thought had been the effect of my dismissal of the proceedings.
As I outlined in Snaidero v Crampton (No 2) [2014] ACTSC 367, it appears that I was required, in making the orders that I did, to comply with s 11 of the Crimes (Sentencing) Act 2005 (ACT), especially s 11(4), which provides
(4) When the court sets the periodic detention period, the court must state—
(a) when the periodic detention period starts and ends; and
(b)the day the first detention period under the Crimes (Sentence Administration) Act 2005 for the offender is to start.
It also appears that it is desirable under s 218 of the Magistrates Court Act for the appeal court actually to confirm the sentences imposed, which brings into play the ability under s 218(2) of that Act for the orders of this court then to be enforced in the Magistrates Court. That would appear to solve some of the problems that we now encounter.
As I did not comply with s 11, especially s 11(4), of the Crimes (Sentencing) Act, I appear to have made a sentencing order that does not comply with law. Accordingly, I am able to rectify that under s 61 of the Crimes (Sentencing) Act. In doing so, however, I must ensure that the order complies with the sentence that was intended to be imposed by the Magistrates Court.
In this case, that requires me to take into account the one period of periodic detention that was served by Ms Snaidero before the appeal was lodged and the stay under s 216 of the Magistrates Court Act, which became operative on the lodgement of her Notice of Appeal. I note, however, that s 11(4) of the Crimes (Sentencing) Act assumes that periodic detention will be served continuously.
There is a provision for the extension of time for the periodic detention to be served under the Crimes (Sentence Administration) Act 2005 (ACT) where there are periods that are missed by the offender or periods when the offender is given leave of absence, but that does not appear to be operative when actually sentencing, to allow for broken periods of periodic detention.
Thus, I must take into account the one period of periodic detention which has been served by Ms Snaidero. That can be done by allowing the appeal to the extent that is necessary to take that period into account. There is power in the Court to do so. See Hadba v The Queen [2004] ACTSC 62. That applies even though the appeal is substantially dismissed.
Accordingly, I will vary the orders I made by setting them aside and substituting other orders as follows:
1.The appeal is allowed to the extent of reducing the period imposed by the one week of imprisonment served by periodic detention already served by the applicant which is given effect to by orders 2, 3, 4 and 5 below.
2.The sentence of imprisonment of three months imposed on charge number CC11/10988 is confirmed, but is to commence on 29 August 2013 and to be suspended by operation of s 216 of the Magistrates Court Act 1930 (ACT) from 5 September 2013 to 27 October 2014 and to recommence today and to end on 19 January 2015.
3.The sentence of imprisonment of six months imposed on charge number CC 12/1376 to be cumulative as to four months on the sentence of imprisonment imposed on CC 11/10988 is confirmed, but to commence on 20 November 2014 and end on 19 June 2015.
4.The sentence of imprisonment of eight months imposed on charge number CC 12/1577 to be cumulative as to five months on the sentence of imprisonment imposed on CC 12/1376 is confirmed but to commence on 20 February 2015 and end on 19 November 2015.
5.I direct that the sentence is to be served by periodic detention for a period of five months and three weeks to commence today and end on 16 April 2015. The first detention period is to commence on 31 October 2014 and Ms Snaidero is to report to the Symonston Periodic Detention Centre, Mugga Lane, Red Hill ACT on that date at 7:00 pm.
6.The appeal is otherwise dismissed.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 4 February 2015 |
0
3
3