Townsend v Witteveen
[2020] ACTSC 306
•11 August 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Townsend v Witteveen | ||||||||||
| Citation: | [2020] ACTSC 306 | ||||||||||
| Hearing Dates: | 11 August 2020 and 11 November 2020 | ||||||||||
| Decision Date: | 13 November 2020 | ||||||||||
| Before: | Loukas-Karlsson J | ||||||||||
| Decision: | See [74] | ||||||||||
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from the Magistrates Court – appeal against sentence – theft – possession of stolen property | ||||||||||
| – specific error – failure to specify discount for pleas of guilty – | |||||||||||
| manifest excess – re-sentence – suspended sentence | |||||||||||
| Legislation Cited: | Crimes (Sentencing Procedure) Act 1999 (NSW) Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 12, 33, 35, 37 Crimes Act 1900 (ACT) s 114C Criminal Code 2002 (ACT) ss 308, 313 Magistrates Court Act 1930 (ACT) Pt 3.10 | ||||||||||
| Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Achuthan v Coates (1986) 6 NSWLR 472 Baker v Thorpe (1985) 62 ACTR 1 Blundell v The Queen [2019] ACTCA 34 Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 Fox v Percy [2003] HCA 22; 214 CLR 118 Gillard v The Queen [2016] ACTCA 50 Hili v the Queen [2010] HCA 45; 242 CLR 520 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Laipato v The Queen [2020] ACTCA 35 Le Clair v The Queen; Achanfua-Yeboah v The Queen [2017] ACTCA 19 Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 Linggo v The Queen [2017] NSWCCA 67 Liu v Milner [2019] ACTSC 115 Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Mill v The Queen (1988) 166 CLR 59 Peverill v Crampton [2010] ACTSC 79 R v Berry (Unreported, ACT Supreme Court, Burns J, 2 October 2012) R v Close [2015] ACTSC 119 R v Cousins (Unreported, ACT Supreme Court, Higgins CJ, 26 March 2012) | ||||||||||
| R v Diamond [2015] ACTSC 60 | |||||||||||
| R v Dibley (Unreported, ACT Supreme Court, Burns J, 16 September 2013) R v Foley [2001] ACTSC 109 R v Hogan [2015] ACTSC 367 R v McLeod [2018] ACTSC 228 R v Meyboom [2012] ACTCA 48 R v Mooney [2017] ACTSC 358 R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376 R v Olbrich [1999] HCA 54; 199 CLR 270 R v Pham [2015] HCA 39; 256 CLR 550 R v QU [2019] ACTSC 155 R v Riordan [2015] ACTSC 26 R v Sinclair (Unreported, ACT Supreme Court, Burns J, 5 March 2014) | |||||||||||
| R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 | |||||||||||
| R v Tucker (Unreported, ACT Supreme Court, Refshauge J, 30 August 2010) R v West [2015] ACTSC 134 R v Wheeler (Unreported, ACT Supreme Court, Higgins CJ, 22 February 2013) Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149 Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 Walto v Gilmour [2015] ACTSC 411 White v The Queen [2016] NSWCCA 190; 261 A Crim R 302 Zdravkovic v The Queen [2016] ACTCA 53 | |||||||||||
| Parties: | Lee Townsend (Appellant) Michael Witteveen (Respondent) | ||||||||||
| Representation: | Counsel | ||||||||||
| J Campbell (Appellant) S McFarland (Respondent) | |||||||||||
| Solicitors | |||||||||||
| Legal Aid ACT (Appellant) | |||||||||||
| ACT Director of Public Prosecutions (Respondent) | |||||||||||
| File Number: | SCA 21 of 2020 | ||||||||||
| Decision under appeal: |
| ||||||||||
| LOUKAS-KARLSSON J: Introduction |
1. On 1 May 2020, the appellant was convicted and sentenced for the following offences:
| (a) | Theft, contrary to s 308 of the Criminal Code 2002 (ACT); and |
| (b) | Possession of proceeds of crime, contrary to s 114C of the Crimes Act 1900 (ACT). |
2. The maximum penalty for theft is 1,000 penalty units, imprisonment for 10 years, or both. The maximum penalty for possession of proceeds of crime is 200 penalty units, imprisonment for two years, or both. As the offences were dealt with summarily in the Magistrates Court, the maximum penalty that may be imposed is two years of imprisonment.
3. For the theft, the appellant was sentenced to eight months of imprisonment, suspended after serving two months upon entering a good behaviour order.
4. For the offence of possession of proceeds of crime, the appellant was sentenced to four months of imprisonment, to be served concurrently with the theft sentence and also to be suspended after two months upon entering a good behaviour order.
5. The appellant appeals against those sentences.
Jurisdiction
The Court’s jurisdiction to hear the matter is derived from Part 3.10 of the Magistrates
Court Act 1930 (ACT), and in particular, s 208(1)(d) and (e).
7. The appeal is by way of re-hearing: Baker v Thorpe (1985) 62 ACTR 1; Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Walto v Gilmour [2015] ACTSC 411, Fox v Percy [2003] HCA 22; 214 CLR 118, and Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24. The principles in relation to this type of appeal are summarised by Refshauge J in Peverill v Crampton [2010] ACTSC 79 at [24].
Grounds of Appeal
8. The grounds of appeal are as follows:
(a)
the sentence imposed by the learned Magistrate was manifestly excessive in all of the circumstances; and
(b) the learned Magistrate failed to specify discounts for the pleas of guilty.
Background to the Appeal
9. The Statement of Facts state that the appellant was an employee of the victim of the theft during the relevant period. During this time, he stole $2,433.50 of stock.
Subsequently, a search warrant was executed on the appellant’s house, and an
amount of stolen fishing equipment was located. These items are the subject of the dealing with proceeds of crime offence. There is no assertion that this equipment was stolen from the victim of the theft offence and no assertion that the appellant was the person who stole those items, noting the rule in De Simoni.
Pleas of Guilty
10. The appellant was originally charged with an offence of receiving stolen property contrary to s 313 of the Criminal Code. He was summonsed to appear in the ACT Magistrates Court in relation to that charge on 7 February 2019. That charge related to more than $100,000 of property. A plea of not guilty was entered and, in November 2019, the appellant was committed to the Supreme Court for trial in relation to offences of receiving stolen property and joint commission money laundering. These charges involve maximum penalties of 10 years of imprisonment.
11. Following negotiations between the parties, two replacement charges were laid (theft and possession of stolen property). The appellant entered pleas of guilty to these charges on the first occasion in the Magistrates Court. The matter was adjourned for the preparation of a pre-sentence report, and the appellant was sentenced on the second occasion in Court.
Specific Error in Relation to s 37
12. In ex tempore sentencing remarks, the learned Magistrate made reference to
“allowances” for the pleas of guilty; however, there was a failure to specify the
sentences that would otherwise have been imposed had there not been pleas of guilty.
13. The respondent conceded that this amounted to a specific error in that there was non- compliance with s 37 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). That concession was properly made.
14. I note the statement of Kirby P in Achuthan v Coates (1986) 6 NSWLR 472 at 479 that it would be an error to examine:
… an unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court,
as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
I further note Johnson J’s comments in DPP (NSW) v Illawarra Cashmart Pty Ltd [2006]
NSWSC 343; 67 NSWLR 402 at [15] that an ex tempore decision should not be “picked over” and “appropriate allowance should be given to the pressures under which
magistrates are placed”.
16. Nevertheless, while the learned Magistrate purported to take the pleas of guilty into account, the learned Magistrate did not comply with s 37 of the Sentencing Act. This is a specific error of significance: Urlich v The Queen [2019] ACTCA 30; 14 ACTLR 267 (Urlich).
17. Section 37 of the Sentencing Act relevantly provides:
Reduction of sentence – statement by court about penalty
(1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence – guilty plea), section 35A (Reduction of sentence – assistance in administration of justice) or section 36 (Reduction of sentence – assistance to law
enforcement authorities).
(2) The court must state–
a. The penalty (including any shorter non-parole period) it would otherwise have imposed; and b. If the lesser penalty is imposed under section 35A or section 36 – the reason for the imposition of the lesser penalty.
18. The requirement to make a pronouncement pursuant to s 37 was addressed by the Court of Appeal in Urlich. The case concerned a reduction of sentence following assistance in the administration of justice, however, the requirement to state the discount was pursuant to s 37. The Court concluded at [53] that:
In this case, the sentencing judge did refer to the admissions and their impact on the administration of justice, finding that the length of the trial was greatly shortened and the number of witnesses therefore reduced, and thereby purported to exercise the relevant discretion. In doing so, however, he did not comply with the terms of section 37 and did not
state the “penalty [he] would otherwise have imposed”. This is a specific error of significance
as underlined in UG.
19. The learned Magistrate recognised that a discount referable to s 35 was appropriate but failed to comply with s 37(2), thus falling into a specific error of significance, as set out above: Urlich.
20. The consequence of a sentence being affected by specific error was recently summarised by the Court of Appeal in Laipato v The Queen [2020] ACTCA 35 at [162]. Where a sentence is affected by specific error, it is the duty of the appeal court to resentence unless, in the separate and independent exercise of its discretion, it concludes that no different sentence should be passed: AB v The Queen [1999] HCA 46; 198 CLR 111 at [130] and Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35].
21. It was submitted by the respondent that, despite the specific error, no different sentence should be passed.
Manifest Excess
22. Because I consider that there was specific error and the question of resentence is consequently raised, there is no need to determine the ground of manifest excess. Nevertheless, the submissions on this ground will be outlined for completeness as the submissions are also relevant to resentence.
Appellant’s Submissions
23. It was submitted by the appellant that the sentence imposed was manifestly excessive,
in particular having regard to the “relatively low objective seriousness of the offences
and the appellant’s prior good character”: at [33].
Objective Seriousness
24. The appellant submitted that the offence of theft was aggravated due to the position of trust held by the appellant as an employee of the victim. The appellant noted, however,
that the theft was of “a relatively modest value”: at [24].
25. The offending was particularised as occurring between 13 April 2013 and 2 January 2018. It was unclear exactly when the offending had occurred.
At the sentence hearing, the learned Magistrate stated: “implicit in the submissions that
Mr McLaughlin made and in your pleas to the charges is an acknowledgement that you
engaged in numerous acts of dishonesty over a significant period of time” (T 19.28-30).
The appellant did not accept that Mr McLaughlin, the appellant’s solicitor in the
Magistrates Court, made this acknowledgement. It was submitted that this finding could not have been established beyond a reasonable doubt on the material before the Court, as required by R v Olbrich [1999] HCA 54; 199 CLR 270.
27. The appellant submitted that the figure of $2,433.50 was the retail value of the items stolen. While it was accepted that the loss to the victim is impossible to calculate, the appellant submitted that the loss was likely to be less than the retail value of the items: at [26].
28. The possession of stolen property offence related to $16,502.97 of property which was
located at the appellant’s house. While it was accepted that the property had been
stolen, there was no suggestion that it was the appellant who stole it. The appellant’s
offending in this regard is restricted to possessing items which had been stolen by someone else from an unspecified source. Consequently, it was submitted that this offence does not involve the same breach of trust as the theft.
29. I accept the appellant’s submissions as they accord with my view of the facts of the
matter.
Subjective Circumstances
30. The appellant was born in Zimbabwe in 1986, and he completed the equivalent of Year 12. He moved to Australia in 2008 where he met his wife. The couple have one child
and reside together in a granny flat at the appellant’s wife’s parents’ house. Prior to this offence, the appellant’s criminal record included one offence relating to not possessing
an angling licence, for which he was convicted and fined $200.
31. The appellant has worked in various retail jobs and, at the time of sentencing, was
completing a stonemason’s apprenticeship. He is well regarded by his employer who
provided a reference to the Magistrates Court. The appellant has a very modest apprentice salary and is the sole breadwinner for his family. His wife lost her employment this year due to COVID-19.
32. The pre-sentence report (PSR) prepared in relation to the offender determined that the appellant had a low risk of general reoffending.
Specific Deterrence
33. The PSR stated the offender had a low risk of general reoffending. The respondent
submitted at the sentence hearing that “general deterrence … is likely to be the primary
sentencing consideration” (T 17.18-19). The appellant submitted that, despite this, the
learned Magistrate placed “significant emphasis on specific deterrence in imposing a sentence involving actual incarceration”: at [28]. In imposing the sentence for the
charge of theft, the learned Magistrate stated: “it seems to be that specific deterrence
in particular demands that that [a sentence of imprisonment] occur” (T 21.6-7).
The appellant submitted that “it is difficult to appreciate how a person who is assessed
as a low risk of general reoffending (a finding which was not questioned), appears not to require reform or rehabilitation, and appears to subsequently be living a pro-social
life requires specific deterrence in the form of actual incarceration”: at [30].
35. Finally, it was submitted that the sentence imposed was manifestly excessive in all the circumstances.
Respondent’s Submissions
36. The respondent submitted that the sentences imposed were not manifestly excessive. In making an assessment of manifest excess, the respondent submitted that the following factors are relevant:
(a) Maximum penalty: Markarian v The Queen [2005] HCA 25; 228 CLR 357 (b) Objective seriousness – breach of trust (c) Subjective circumstances – appellant’s character (d) Totality – structure of the combined sentences 37. In relation to (a), maximum penalty, the respondent submitted that the terms of
imprisonment were “towards the lower end of the maximum penalty available to be
imposed”: at [31].
38. In relation to (b), breach of trust, the respondent submitted that one of the most significant aspects of this offence is the breach of trust: at [34]. I accept this submission as it accords with my view.
39. In respect of (c), the respondent accepted that the appellant was entitled to some leniency due to his prior good character; however, it was submitted that this would be
limited by the fact that the appellant’s prior good character was used to place himself
in the position which allowed him to commit the offence: R v Dibley, (Unreported, ACT Supreme Court, Burns J, 16 September 2013), R v Cousins (Unreported, ACT Supreme Court, Higgins CJ, 26 March 2012) and R v West [2015] ACTSC 134. The respondent further referred to R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376 at [41]. Again, I accept these submissions.
40. In relation to (d), totality, the respondent referred to Mill v The Queen (1988) 166 CLR 59 at 63-64, R v Tonari [2014] NSWCCA 232, and Le Clair v The Queen; Achanfua- Yeboah v The Queen [2017] ACTCA 19 at [65].
Comparable Cases
41. Bare sentencing statistics provide limited assistance: R v Pham [2015] HCA 39; 256 CLR 550. Statistics do not provide information about why sentences were fixed as they were in each case: Hili v the Queen [2010] HCA 45; 242 CLR 520 (Hili). There are a number of decisions of the court relating to offenders who committed similar offences. Additionally, it should be noted that, as the High Court stated in Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428 at [4]:
[C]onsiderations to which a sentencing judge is obliged … to have regard cannot be applied mechanically … given that the factors that must be taken into account are incommensurable,
and … in many respects, inconsistent.
These cases provide a “yardstick” as referred to by the High Court in relation to this
sentencing exercise: Hili at [53]-[54].
43. The respondent provided the court with a table of comparative sentences for offences
of theft, or similar offences, from employers. These cases provide a “yardstick” as
referred to by the High Court in relation to this sentencing exercise:
(a) R v McLeod [2018] ACTSC 228 (b) R v Mooney [2017] ACTSC 358 (c) R v Riordan [2015] ATSC 26 (d) R v Hogan [2015] ACTSC 367 (e) R v West [2015] ACTSC 134 (f) R v Diamond [2015] ACTSC 60 (g) R v Tucker (Unreported, ACT Supreme Court, Refshauge J, 30 August 2010) (h) R v Foley [2001] ACTSC 109 (i) R v Sinclair (Unreported, ACT Supreme Court, Burns J, 5 March 2014)
(j) R v Dibley (Unreported, ACT Supreme Court, Burns J, 16 September 2013) (k) R v Berry (Unreported, ACT Supreme Court, Burns J, 2 October 2012) (l) R v Wheeler (Unreported, ACT Supreme Court, Higgins CJ, 22 February 2013) (m) R v Cousins (Unreported, ACT Supreme Court, Higgins CJ, 26 March 2012) (n) R v Close [2015] ACTSC 119 44. The respondent noted in relation to these cases that, in most cases, there was a difference in the degree of seriousness of the offending.
45. Counsel for the appellant referred to the cases of Liu v Milner [2019] ACTSC 115 and R v QU [2019] ACTSC 155. QU involved fraud by a person involved with Summernats in the amount of $160,430. Counsel for the appellant submitted that this offending was
“much larger … much more calculated and sophisticated” (T 21.17-40). In that case,
the offender received a term of imprisonment of two years, to be served by way of ICO.
Re-Sentence
Intensive Correction Order Assessment Report
46. On 11 August 2020, I referred the offender for an intensive order correction (ICO) assessment. The report noted that the offender had been in the Alexander Maconochie Centre between May and June 2020, and no disciplinary incidents were recorded during this time. It also noted that the offender attended all appointments in relation to the preparation of the report.
47. The offender was re-assessed in relation to his risk of re-offending and was again found to have a low risk of re-offending.
48. The report stated that, at the time of preparation of the report, the offender was employed in a full-time capacity and had no significant debts. He reported that he has a group of pro-social friends and does not to consume any alcohol or illicit drugs.
49. The report stated that the offender is not suitable for a community service work condition, as the offender is currently employed six days per week. He was assessed as suitable for an ICO; however, it was noted that there are no suitable programs for the offender due to his low risk of re-offending and pro-social lifestyle.
Victim Impact Statement
50. The victim impact statement of Ms Doris Pratt was read aloud in Court as part of the re-sentence exercise. The offences clearly had a significant impact on Ms Pratt and her late husband, Dr Pratt, both financially and emotionally. The victim impact statement included the following:
…I had two tackle shops that were profitable with staff, a wage and a good life. I’ve been
forced to close both shops, let all the staff go. This destroyed them, because they were not
able to do the job that they loved. I’ve had to watch my husband pass away while dealingwith a staff member that was stealing from us hand over fist. While I was nursing my sick husband, I had to devote time that I will not get back to trying to save my business, which was also my legacy to my children.
…
Please can the law attempt to reform this person as I cannot bear to think of him being let loose on the community to repeat his stealing, as there are far more consequences than just
theft. …
Submissions on Re-Sentence
51. The respondent noted the relevance of the maximum penalties, emphasised the seriousness of the breach of trust involved in these offences, and restated the importance of general deterrence and denunciation (T 10.1-18 and T 13.24-30).
52. The appellant submitted that, while the breach of trust was an aggravating feature, the
sum stolen was “a modest sum” (T 15.17-18). The appellant submitted that the ICO
assessment report identified no areas of focus for rehabilitation and, therefore, that a suspended sentence was the appropriate sentencing disposition, rather than an ICO.
53. In relation to re-sentence, the appellant submitted that the offender’s time in custody in
May and June 2020 was particularly difficult due to the circumstances of COVID-19. The appellant further made submissions in relation to the delay in the proceedings, and
the additional hardship placed on the appellant’s family as a result of his time in
custody.
54. Counsel for the appellant submitted that the offender should be given the benefit of some leniency, and that that leniency is to be found in a suspended sentence (T 21.40- 45).
55. Counsel for the appellant maintained the position that a suspended sentence with no period of fulltime custody was an appropriate sentencing disposition. The respondent maintained the position that a period of imprisonment to be served by way of fulltime custody was appropriate, and that a fully suspended sentence would not be appropriate. The respondent accepted, however, that an ICO would deal with the relevant sentencing factors.
Consideration – Re-Sentence
56. If an appellate court identifies a specific error, the sentence imposed must be set aside
and the appellant court is to exercise the sentencing discretion afresh, unless “in the
separate and independent exercise of its discretion [the appellate court] concludes that
no different sentence should be passed”: see Kentwell v The Queen [2014] HCA 37;
252 CLR 601 at [35], [42] (Kentwell), Gillard v The Queen [2016] ACTCA 50 at [43], McLeod v The Queen [2018] ACTCA 59, and Linggo v The Queen [2017] NSWCCA 67.
57. As stated above, non-compliance with s 37 is a specific error of significance and the
Court’s power to intervene is enlivened. Whether re-sentence is required is a different
question, in accordance with the principles outlined in Kentwell. In Kentwell, French CJ,
Hayne, Bell and Keane JJ relevantly stated at [35]:In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
58. In White v The Queen [2016] NSWCCA 190; 261 A Crim R 302, Simpson JA emphasised the need to disregard the original sentence in carrying out the resentencing exercise, stating at [131]:
The necessity to re-exercise the sentencing discretion requires that I put out of my mind the sentence originally passed, and bring to the exercise a fresh mind, taking into account all relevant circumstances. That involves a genuine fresh approach to sentencing, uninfluenced by the selection of sentence at first instance. The duty is not discharged by starting with the original sentence, and reducing it by a margin, to accommodate what might be taken to have been the effect of the errors exposed. A genuine re-sentencing exercise might, in some cases, result in the imposition of a sentence longer than that originally imposed, although if that were to be done, it would be necessary to warn the applicant: Parker v Director of Public Prosecutions (1992) 28 NSWLR 282.
In other words, the Court of Appeal’s task is to re-exercise the sentencing discretion
afresh and form its own view of the appropriate sentence, but not necessarily re- sentence: Lehn v The Queen [2016] NSWCCA 255; 93 NSWLR 205 at [77], citing Kentwell.
Pleas of Guilty
60. The offender entered pleas of guilty at the first mention, following charge negotiations: Blundell v The Queen [2019] ACTCA 34.
61. Pursuant to s 33(1)(j) of the Sentencing Act, when deciding how to sentence an offender, the sentencing court is required to take into account a plea of guilty by the offender. Section 35 provides for the matters that must be considered in that regard. This provision may be compared with the less prescriptive terms of s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW). Section 22 is focused on the utilitarian value
of pleas of guilty: see R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [41]-[48].
62. I therefore allow a 25% discount for the pleas of guilty.
Statutory and Other Relevant Considerations
63. In sentencing the offender, the court is required to take into account those matters under s 33 of the Sentencing Act that are known and relevant. I have referred to the relevant matters above.
64. The court sentences in the context of the objects of the Sentencing Act in s 6 and the sentencing purposes in s 7 of the Sentencing Act. The sentencing purposes of punishment, general and specific deterrence, the protection of the community, accountability, denunciation, and recognition of harm to the victim are important sentencing considerations. Rehabilitation is also an important consideration having
regard to the offender’s previous good character.
65. The sentencing process also requires an examination of s 10 of the Sentencing Act and alternatives to prison.
66. As with every sentencing exercise, careful attention must be paid to the maximum penalty, which provides a yardstick: Markarian v The Queen [2005] HCA 25; 228 CLR 357.
67. When sentencing for multiple offences, I must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64] (Zdravkovic). The real question is whether the total sentence is “just and appropriate” to reflect the total criminality: Mill v
The Queen (1988) 166 CLR 59; R v Meyboom [2012] ACTCA 48 at [66]; Zdravkovic at
[71].68. I take these principles into account on re-sentence.
69. It must be recognised by the Court that the offence of theft has had a serious and significant impact upon the victims, as set out in the Victim Impact Statement. Both the short and long-term consequences of being the victim of this offence must be acknowledged.
70. In coming to a sentence by way of instinctive synthesis, I have taken into account all the matters discussed above, including the objective seriousness of the offences and the subjective circumstances.
71. The appropriate sentence for the theft is 10 months of imprisonment, reduced to 7 months and 15 days on account of the plea of guilty.
72. The appropriate sentence for the possession of stolen property is four months of imprisonment, reduced to three months on account of the plea of guilty.
73. The sentences of imprisonment will be partially concurrent. Noting that the offender spent 11 days in custody in relation to these offences, the sentences will be suspended after serving 11 days imprisonment.
Orders
74. I make the following orders:
(a) The appeal is allowed. (b) The sentences recorded by the learned Magistrate are set aside. (c) The offender is re-sentenced as follows:
i. In relation to the offence of theft (CC 2020/2205), the offender is re- sentenced to a term of 7 months and 15 days of imprisonment, commencing on 2 November 2020 and concluding on 16 June 2021. ii. In relation to the offence of possession of stolen property (CC 2020/2206), the offender is re-sentenced to a term of three months of imprisonment, commencing on 2 April 2021 and concluding on 1 July 2021. iii. Pursuant to s 12 of the Crimes (Sentencing) Act 2005 (ACT), the sentence will be suspended after serving 11 days of imprisonment. The sentence is therefore suspended from today upon the entry into a good behaviour order for a period of 12 months. I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for of her Honour Justice Loukas-Karlsson.
Associate:
Date: 20 November 2020
3
5