Thost-Hedge v Marshall

[2015] ACTSC 232

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Thost-Hedge v Marshall

Citation:

[2015] ACTSC 232

Hearing Date(s):

15 May 2015; 31 July 2015

DecisionDate:

31 July 2015

Before:

Walmsley AJ

Decision:

The appeal is allowed, see [20]. The sentence of the Magistrates Court is set aside and a new sentence imposed, see [43].

Category:

Principal Judgment

Catchwords:

APPEAL – Appeal principles – sentencing options other than full-time imprisonment – failure to state reasons for order contrary to recommendation – periodic detention - subjective circumstances

CRIMINAL LAW – Particular offences – affray – sentencing – mental health – plea of guilty

Legislation Cited:

Crimes (Sentencing) Act 2005, s 78

Cases Cited:

Ajetovic v Johnston; Kahric v Johnston [2011] ACTSC 201

EF v R, [2015] NSWCCA 36
McDonald v Vandervalk and Wong (No 1) [2014] ACTSC 67
Scheele v Watson [2012] ACTSC 196

Wilson v the Queen [2007] ACTCA 25

Parties:

Emma Thost-Hedge (Appellant)

Sarah Kate Marshall (Respondent)

Representation:

Counsel

Mr J De Bruin  (Appellant)

Mr T Hickey (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number(s):

SCA 5 of 2015

WALMSLEY AJ:

Background

1. On 9 January 2015, the appellant was convicted and sentenced in the Magistrates Court.

1. For a count of affray she was convicted and sentenced to six months imprisonment of which she was ordered to serve three months full‑time, the remainder being suspended on her entering a good behaviour bond for 18 months. 

1. On each of two counts of damage property she was convicted and ordered upon her release from custody to enter into a good behaviour order for 18 months. 

1. There were also two counts of breach of good behaviour orders. As to them, it was directed no further action be taken. 

1. The appellant has appealed against her sentences. Although her notice of appeal was mainly focused on the sentence for the affray, it covered all matters. 

1. The appellant relies on the following grounds:

(i)The sentence for the affray was manifestly excessive in all the circumstances;

(ii)The same sentence had the effect of depriving her of the opportunity of engaging in ongoing counselling and other suitable programs identified in a pre‑sentence report, thus denying her any realistic rehabilitation through community-based orders;

(iii)The sentencing Magistrate did not adequately have regard to sentencing options other than full‑time custody. 

Nature of the Appeal

1. I may only interfere in the sentencing process if satisfied that the Magistrate made an error or imposed a manifestly excessive sentence. 

1. The learned Magistrate was made aware at the time she sentenced the appellant that the appellant had been assessed as suitable for community service and periodic detention. Section 78(6)(b) of the Crimes (Sentencing) Act 2005 (‘the Sentencing Act’) requires the court to state the reasons why it acts contrary to such a recommendation in the pre‑sentence report where, for example, an offender has qualified for periodic detention. No such reasons for not so acting were stated.

Consideration

1. It is clear from the transcript of the sentencing hearing…