MATTHEW TAYLOR v LUKE MATTHEW BOWDEN
[2009] ACTSC 13 (2 MARCH 2009)
APPEAL – criminal law –appeal against sentence – guilty plea – allowance for utilitarian value of plea.
APPEAL – criminal law – cancellation of good behaviour order – s 110 Crimes (Sentencing Administration) Act 2005 (ACT) – considerations affecting whether court should impose suspended sentence or re-sentence for the offence.
Crimes (Sentencing Administration) Act 2005 (ACT), s 108, s 110
Crimes (Sentencing) Act 2005 (ACT), s 27, s 35, s 37, s 63, s 65, s 117
R v Thomson; R v Houlton (2000) 49 NSWLR 383
Thompson v Young [2008] ACTSC 11
DPP v Cooke and Anor (2007) 168 A Crim R 379
R v Marston (1993) 60 SASR 320
R v Cooke; Cooke v R [2007] NSWCCA 184
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 22 of 2008
Judge: Gray J
Supreme Court of the ACT
Date: 2 March 2009
IN THE SUPREME COURT OF THE )
) No. SCA 22 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:MATTHEW TAYLOR
Appellant
AND:LUKE BOWDEN
Respondent
ORDER
Judge: Gray J
Date: 2 March 2009
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The sentence and orders made on 26 March 2008 be set aside.
The appellant be re-sentenced. On the charge of burglary committed on 14 January 2008, a sentence of 18 months imprisonment be imposed to commence on 14 January 2008. The good behaviour order made on 14 December 2007 be cancelled and the appellant re-sentenced to 15 months imprisonment to commence when seven months of the sentence of 18 months imprisonment has been served. That is a total sentence of 22 months.
A non-parole period of 15 months is set to start on 14 January 2008 and to end on 13 April 2009.
Matthew Taylor (the appellant) appeals from a sentence imposed by Magistrate Doogan in the ACT Magistrates Court on 26 March 2008.
The sentence imposed was one of 18 months imprisonment for a charge of burglary committed on 14 January 2008 with a concurrent sentence of six months imprisonment for the theft of $711.01 taken in the burglary. The appellant had been in custody since 4 January 2008 and the learned magistrate backdated the sentence to that date.
His conviction on those charges put him in breach of a good behaviour order for 18 months that had been imposed when Magistrate Burns sentenced him to 15 months imprisonment on 14 December 2007 in respect of a charge of burglary committed on 12 March 2007. On that occasion, a suspended sentence order was made and it was ordered that he be released forthwith upon that good behaviour order.
Magistrate Doogan cancelled the good behaviour order as she was required to do under s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT) (Sentencing Administration Act) and said that she “re-sentenced” the appellant…
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- Taylor v Bowden [2009] ACTSC 13
- Case
- [2009] ACTSC 13
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CaseChat Overview and Summary
The primary legal issue before the court was whether the magistrate had given insufficient weight to the appellant's guilty plea when sentencing. The court had to determine if the sentence imposed was just and whether the failure to state the alternative penalty affected the fairness of the sentencing process. Additionally, the court considered whether the magistrate had appropriately exercised her discretion under the Sentencing Administration Act when cancelling the good behaviour order and imposing a new sentence.
The court held that the magistrate had given effect to the utilitarian value of the guilty plea by imposing a sentence of 18 months imprisonment. Although the magistrate did not explicitly state the penalty that would otherwise have been imposed, the court inferred that the sentence imposed indicated a reduction for the plea. The court noted that a sentence of not less than 21 months imprisonment would have been appropriate to reflect the reduction for the plea. However, the court found that the sentence was justified and that the failure to articulate the alternative penalty did not assist the appellant's appeal. The court also found that the magistrate's cancellation of the good behaviour order and imposition of a new sentence was appropriate under the Sentencing Administration Act.
The appeal was allowed, and the sentence and orders made on 26 March 2008 were set aside. The court ordered that the appellant be re-sentenced. A sentence of 18 months imprisonment was imposed for the burglary, with a non-parole period of 15 months, set to end on 13 April 2009. The good behaviour order made on 14 December 2007 was cancelled, and the appellant was re-sentenced to 15 months imprisonment to commence when seven months of the 18-month sentence had been served, resulting in a total sentence of 22 months.
Orders
Orders of the court
1. The appeal be allowed.
2. The sentence and orders made on 26 March 2008 be set aside.
3. The appellant be re-sentenced. On the charge of burglary committed on 14 January 2008, a sentence of 18 months imprisonment be imposed to commence on 14 January 2008. The good behaviour order made on 14 December 2007 be cancelled and the appellant re-sentenced to 15 months imprisonment to commence when seven months of the sentence of 18 months imprisonment has been served. That is a total sentence of 22 months.
4. A non-parole period of 15 months is set to start on 14 January 2008 and to end on 13 April 2009.
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
Magistrate Doogan cancelled the good behaviour order as she was required to do under s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT) (Sentencing Administration Act) and said that she “re-sentenced” the appellant to 15 months imprisonment to be cumulative upon the sentence for the burglary that she had imposed. She set a non-parole period of 24 months to date from 14 January 2008 and expressed it as concluding on 14 January 2010. In addition, “upon release” the magistrate made a good behaviour order on the appellant’s own surety of $1,000.00 for 24 months with conditions. There does not appear to be any reason given for such an order and, in my view, there is nothing in the material to justify such an order in circumstances where a non-parole period has been set. The appellant filed his own appeal on 27 March 2008 which sought to challenge the 24 month non-parole period that had been set. He then filed an amended notice of appeal on 22 May 2008 purporting to be an “all grounds and severity” appeal but specifically challenging the non-parole period of 24 months. Finally, a further amended notice of appeal was filed on his behalf by the Legal Aid Office, by leave granted by this court on 9 September 2008. That appeal specified the following grounds: The offence occurred in the afternoon of 14 January 2008. The occupant of the premises returned home and surprised a person who was burgling his house. He chased the offender through the backyard and, when he was about 10 metres from him, the offender stopped and threatened to stab him, although no weapon was produced. The occupant was able to give police a distinctive description of the offender. Some 10 minutes after the commission of the offence, police observed a person matching the description of the offender some streets away in the same suburb riding a small pink child’s bike. An amount of cash roughly equating to what had been taken in the burglary was found on him, together with other property. Grounds (a) and (b) are: The learned magistrate remarked: Section 35(3) and (4) Crimes (Sentencing) Act 2005 (Sentencing Act) provides: Section 37 of the Sentencing Act provides: It is said that the magistrate’s remarks indicated that no significant reduction for the guilty plea had been made and that by reason of the fact that no penalty was stated as to what the court would otherwise have imposed, the magistrate can be taken to not have imposed a lesser penalty as a consequence of the plea of guilty. It was then submitted that the prosecution case for the offence would not amount to such an overwhelmingly strong case as to justify not giving the appellant the benefit of his plea of guilty. It is true that the approach taken by the magistrate to the plea seems to give little weight to it although the magistrate regards it as the “only” mitigating factor. I am satisfied that, as far as this case is concerned in respect of the penalty that she imposed, the magistrate should be taken to have given effect to the utilitarian value of the plea of guilty. The penalty that she imposed indicates this. The imposition of a sentence of 18 months imprisonment for a charge of burglary in this case, particularly having regard to the appellant’s background of earlier offending, does not indicate to me that the magistrate has erred. The magistrate could and should have stated that the penalty that she would otherwise have imposed would have been a sentence of not less than twenty-one months imprisonment. Such a sentence would properly indicate the reduction that any court would have made for the plea. It follows that as I consider the sentence imposed by the magistrate to be justified, the magistrate’s failure to state the penalty that would otherwise have been imposed, does not assist the appellant.