Thor Kristiansen v Robert Campbell Young

[2010] ACTSC 61

THOR KRISTIANSEN v ROBERT CAMPBELL YOUNG [2010] ACTSC 61
(10 June 2010)

EX TEMPORE JUDGMENT

Magistrates Court Act 1930 (ACT), s 216
Crimes (Sentencing) Act2005 (ACT), s 41

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 51 of 2009

Judge:             Penfold J
Supreme Court of the ACT

Date:              10 June 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 51 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THOR KRISTIANSEN
Appellant

v

ROBERT CAMPBELL YOUNG
Respondent

ORDER

Judge:  Penfold J
Date:  10 June 2010
Place:  Canberra

THE COURT ORDERS THAT:

1.          The appeal is dismissed except to the extent required to re-sentence the appellant.

2.          The Court will hear submissions on re-sentencing.

Introduction

1. On 13 October 2009, Magistrate Lalor sentenced Thor Kristiansen to 9 months imprisonment for a fairly unpleasant assault, arising out of an incident in which he and a co-offender threatened a neighbour with a machete carried by Mr Kristiansen, and what seems to have been a metal baseball bat.  Mr Kristiansen was also sentenced to a concurrent term of 2 months imprisonment on a charge of possessing an offensive weapon with intent.

1. On 19 October 2009, Mr Kristiansen lodged an appeal (dated 15 October) against his sentence, indicating that the grounds of appeal were that the sentence was manifestly excessive, that the Magistrate did not take into account relevant mitigating factors before sentencing him, and that the Magistrate had not obtained a pre-sentence report before sentencing him.

1. Mr Kristiansen’s sentence was, under s 216 of the Magistrates Court Act 1930 (ACT), stayed by the lodging of the appeal, and it seems that on 23 October 2009, he was granted bail. On 17 December 2009 he was sentenced by Magistrate Cush on separate charges to a total of 13 months imprisonment backdated to 11 November, with a non-parole period of 8 months, which would have expired two days before the original expiry of the sentence now appealed against.

Appeal hearing

1. Mr Kristiansen was refused legal aid for his appeal, and represented himself when the appeal came before me on 27 May 2010. 

1. He began by providing a rather different version of the circumstances of the assault from that found in the police statement of facts, which had effectively been agreed to as part of his plea of guilty.  He claimed that he had difficulty reading, and had not read the statement of facts properly before pleading guilty.  However, Mr Kristiansen was represented in the Magistrates Court, and the statement of facts was read out in that court, so I am not satisfied that Mr Kristiansen was deprived of the opportunity to put forward the version of the facts he offered at the appeal.

1. At the appeal hearing, and without objection from the prosecutor, Mr Kristiansen made submissions that addressed his stated appeal grounds and also, in effect, raised several grounds of appeal not mentioned in the notice of appeal.

The Magistrate’s attitude

1. Mr Kristiansen’s first complaint related to the Magistrate’s general approach to him and to his hearing.  Mr Kristiansen arrived at court half an hour late for his hearing, and the Magistrate had already ordered a warrant to issue.  He was unimpressed by Mr Kristiansen’s excuse that he had a new-born baby who didn’t sleep much.  The transcript certainly suggests that his Honour was impatient with Mr Kristiansen, but I cannot see that his impatience was itself an error.  On the other hand, it may have explained aspects of his Honour’s approach that were raised by Mr Kristiansen as separate issues.  Certainly it left Mr Kristiansen with a general sense of grievance, which I suspect played as much of a role in generating the appeal as did the sentence actually imposed.

Failure to obtain pre-sentence report

1. Next, Mr Kristiansen submitted that his Honour should not have sentenced him to prison without a pre-sentence report. Mr Kristiansen’s counsel had requested that a pre-sentence report be ordered, and the prosecutor indicated that there was no objection, but his Honour made it clear that he did not intend to order one, and that he intended to sentence Mr Kristiansen that afternoon. Section 41 of the Crimes (Sentencing) Act2005 (ACT) says that a sentencing court must order a pre-sentence report before sentencing a person to serve a sentence as periodic detention, or to perform community service, but there is no requirement for a pre-sentence report to be obtained before an offender can be sentenced to full time custody. Mr Kristiansen conceded at the appeal that he had appeared before the sentencing Magistrate on previous occasions, and that his Honour was probably well aware of the kinds of matters that would have been set out in any pre-sentence report that had been ordered.

Parity—the co-offender’s sentence

1. Mr Kristiansen then drew attention to the very different sentence imposed by Magistrate Lalor on his co-offender, who was sentenced to 20 days imprisonment, being time served.  I note first that the fact that both sentences were imposed by the same Magistrate makes it unlikely that the question of parity was overlooked in respect of either offender. 

1. Unsurprisingly, since the parity issue had not been raised in Mr Kristiansen’s notice of appeal, no relevant evidence was able to be provided at the hearing.  Mr Kristiansen conceded that his co-offender had a far less substantial criminal record than he did.  This was confirmed by the prosecutor who indicated, one can only hope making an unfortunate choice of words, that the co-offender “had only effectively started his offending history last year” and “doesn’t have the record that the appellant has”.

1. Mr Kristiansen’s criminal record, in contrast, is remarkable for a person who is still only 21.  He has been dealt with for around 70 offences as a juvenile, and another 20 or so since he turned 18.  Both his juvenile history and his adult history include reasonably serious offences such as burglary, theft and assault.  I note also that both the police statement of facts and Mr Kristiansen’s alternative version of the incident giving rise to the charge suggest that Mr Kristiansen was the principal player in the dealings with his neighbour that culminated in Mr Kristiansen and the co-offender approaching the neighbour armed with dangerous weapons.  Having regard to the information that is available to me, I have no basis for finding that his Honour breached the parity principle in the sentence he imposed on Mr Kristiansen. 

Manifest excess

1. Mr Kristiansen did not make formal submissions about manifest excess, but he did suggest in general terms that he thought the sentence was too severe.  It is true that a sentence of 9 months imprisonment, reduced from 12 months for a plea of guilty, is relatively high for an offence with a maximum term of imprisonment of 2 years, but on the other hand, the assault was a serious one in terms of the concern it would have caused to the victim, who found himself caught between two obviously angry men armed with very nasty weapons.  For an offender with a criminal record like Mr Kristiansen’s, it cannot be said that the sentence was so high that error by the sentencing Magistrate must be inferred. 

Conclusion

1. Thus, Mr Kristiansen has not demonstrated any error on the part of the sentencing Magistrate and the substantive aspects of his appeal must be dismissed.  I shall hear further submissions on the re-sentencing required.

   I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:
   Date:    30 June 2010

Counsel for the Appellant:  Self represented
Counsel for the Respondent:  Mr T Jackson
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  27 May, 10 June, 2010
Date of judgment:  10 June 2010