Stewart v Greenup - [2017] ACTSC 345

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Stewart v Greenup
Citation:	[2017] ACTSC 345
Hearing Date:	1 November 2017
DecisionDate:	1 November 2017
Before:	Murrell CJ
Decision:	Appeal partially upheld. Sentences of imprisonment confirmed. Nonparole period refixed. Good behaviour order set aside.
Catchwords:	APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – property offences – whether sentencing magistrate erred in imposing a good behaviour order which ran concurrently with the parole period – prospects of rehabilitation – failure to give reasons – lengthy nonparole period – error of law
Cases Cited:	Peter v Wade [2017] ACTSC 122; 80 MVR 268
Parties:	Adam Stewart (Appellant) Lauren Eve Greenup (Respondent)
Representation:	Counsel Self-represented (Appellant) Mr J De Bruin (Respondent)
Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	SCA 35 of 2017
Decision under appeal:	Court/Tribunal: ACTMC Before: Special Magistrate Mulligan Date of Decision: 26 April 2017 Case Title: R v Stewart Court File Numbers: CC16/4335; CC16/4336

MURRELL CJ:

On 26 April 2017, Special Magistrate Mulligan (the Magistrate) sentenced the appellant for four matters, including offences of burglary and theft that occurred on 24 March 2016. The offences were committed at about 5.00 am at the Canberra Antique Centre. They involved the theft of jewellery of significant value.

In his reasons, the Magistrate set the facts out in some detail. His Honour concluded that the offences involved a "well thought out plan" and did not occur on the spur of the moment. The total value of the items that were taken was $26 822. The Magistrate assessed the matter as having mid to high level objective seriousness. No issue could be taken with that assessment.

The Magistrate discussed the appellant's subjective circumstances at length. His Honour noted a significant criminal history for offences of dishonesty, a history of non-compliance with supervision, and the dysfunctional upbringing experienced by the offender. I observe that the expression "dysfunctional upbringing" understates the profound disadvantage that the appellant experienced in his youth. The Magistrate also noted some positive matters, including the appellant's current relationship with his mother, partner and young child, and the fact that he had a history of some employment. His Honour noted that the offender had "done fairly well at times" and was "not a man without talent."

However, the Magistrate went on to state that the CADAS report – although I note that there was no CADAS report – and pre-sentence report (PSR) "do not give me much comfort in your commitment to change, your commitment to not offending." This was perhaps too negative view of the PSR. The report referred to factors supporting a commitment to change, including stable accommodation, sporadic periods of employment, reduced substance abuse, and insight and responsibility in relation to offending behaviour. Having regard to these relatively positive matters, the author of the PSR assessed the appellant as at a:

…medium risk of general reoffending. Should he take steps to address his antisocial attitudes, employment status and illicit substance abuse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Stewart v Greenup

Details

AGLC: Stewart v Greenup [2017] ACTSC 345
Case: [2017] ACTSC 345
Decision Date: 1 November 2017

CaseChat Overview and Summary

The case of Stewart v Greenup involved an appeal against a sentencing decision made by a lower court. The appellant, Stewart, was convicted of property offences and was subject to a sentence that included a term of imprisonment, a nonparole period, and a good behaviour order. The respondent, Greenup, argued that the sentencing magistrate had erred in imposing a good behaviour order which ran concurrently with the parole period, thereby potentially hindering the appellant's prospects of rehabilitation. Additionally, it was contended that the sentencing magistrate failed to provide reasons for the lengthy nonparole period imposed, which amounted to an error of law.

The central legal issues before the court were whether the imposition of the concurrent good behaviour order and parole period was appropriate, and whether the sentencing magistrate's failure to provide reasons for the lengthy nonparole period constituted a legal error. The court needed to determine whether these errors warranted a reconsideration of the sentence imposed on the appellant. Furthermore, the court had to address whether the magistrate's failure to articulate the rationale behind the nonparole period was a significant procedural defect.

The court found that while the sentences of imprisonment and the nonparole period were properly imposed, the concurrent good behaviour order and parole period did not adequately address the appellant's prospects of rehabilitation. The court also held that the sentencing magistrate's failure to provide reasons for the length of the nonparole period was a material error of law. Consequently, the appeal was partially upheld, and the sentences of imprisonment were confirmed. However, the nonparole period was refixed, and the good behaviour order was set aside. The court's decision reflected the need for clear and reasoned sentencing decisions that consider the individual circumstances of the offender, including their potential for rehabilitation.

Orders

Orders of the court

Appeal partially upheld. Sentences of imprisonment confirmed. Nonparole period refixed. Good behaviour order set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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