Turner v Carr
[2020] ACTSC 176
•30 June 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Turner v Carr |
Citation: | [2020] ACTSC 176 |
Hearing Date: | 29 June 2020 |
DecisionDate: | 30 June 2020 |
Before: | Robinson AJ |
Decision: | See [14] |
Catchwords: | CRIMINAL LAW – APPEAL – Severity of sentence – lengthy delay in appeal being heard – delay seemingly due to failure to engross warrant – proven rehabilitation of offender – appeal allowed – sentenced to time already served |
Parties: | Gary Turner (Appellant) Joshua Carr (Respondent) |
Representation: | Counsel S McLaughlin (Appellant) C Wanigaratne (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 72 of 2002 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Somes Date of Decision: 11 November 2002 Case Title: Christopher Burgess v Gary Turner Court File Number: CC5067/2002 |
ROBINSON AJ:
Introduction
On 1 June 2002, Gary John Turner, (the appellant) was the driver of a Harley Davidson motorcycle on the streets of Ainslie with a pillion passenger. He was observed by police on a routine patrol, who followed him. A police pursuit ensued and only ended when the appellant and his passenger fell from the Harley Davidson when the rear wheel of the motorcycle lost traction and the motorcycle slid for a short distance on the roadway as a result.
The appellant was charged with driving whilst licence cancelled, driving recklessly, obstructing a police officer in the execution of his duty, not stopping when signalled by a police officer, driving an uninsured and unregistered motorbike and exceeding the prescribed concentration of alcohol. The appellant pleaded guilty to these charges before Magistrate Somes on 11 November 2002.
The appellant was sentenced to imprisonment for a total period of 27 months with a non‑parole period of 18 months in relation to the offences. He was also fined and disqualified from holding a driver’s licence.
On 15 November 2002 the appellant appealed. The Notice of Appeal was in manuscript hand and stated “I was sentenced to a period of 27 months’ imprisonment with 18 months to serve.” The Notice of Appeal goes on to say under the heading “orders sought”, “to suspend the sentence and in lieu I am seeking a period of weekend detention with supervision of probation and parole. To accept any and all directions of probation and parole”. The ground of appeal stated was “severity of sentence”.
The appeal in due course found its way to the then Justice Higgins who granted bail to the appellant on 13 December 2002. At a subsequent hearing, a query was raised on appeal as to whether the appellant should have leave to appeal against his conviction for driving without a licence. This doubt was consequent upon an earlier order imposed by Magistrate Ward in 1996, the efficacy of which was in question. In July 2004, the appellant was granted leave to appeal against the conviction concerning driving without a licence.
On 20 August 2004, it was brought to the attention of Chief Justice Higgins that the appellant did not reside at the address specified in his bail terms and the Chief Justice gave leave for a warrant to be issued for the appellant. It appears that no warrant was ever engrossed by the Director of Public Prosecutions for execution and obviously not executed. No further action appears to have been taken. The appellant, by this stage, had served a very small proportion of the sentence.
I interpolate to record here that the appellant, prior to coming before Magistrate Somes, had a very long criminal history. This had commenced in the Childrens Court and concerned such offences as stolen goods, burglary, offensive weapons, assaults, driving charges, drug charges and theft. The appellant was 42 years old at the time he was sentenced by the Magistrate.
The appellant has made recently an application for a driver’s licence to the ACT Road Transport Authority. Apparently, this has brought to the attention of the authorities what could be termed “unfinished business”.
The appeal was listed before me today.
At the hearing and in subsequent correspondence with the court, it appears that the appellant has only been before the courts on one occasion between 2002 and 2020. This was an occasion when he received a six-month suspended sentence of imprisonment and a two-year good behaviour order for contravening a protection order. That sentence expired in 2007.
The appellant is now 60 years of age. The evidence does not reveal that he took any active step in order to avoid answering any request that he attend on his appeal. The evidence reveals an almost complete reversal of his tenancy to antisocial behaviour and offending subsequent to 2002.
In the circumstances, I propose to allow the appeal on severity having regard to the passage of time and the now proven rehabilitation prospects of the offender. I propose to order that the appeal be upheld and that the sentence be reduced to the time served.
The offences by which the appellant was ordered to pay a fine were not the subject of an appeal. No order will be made in respect of them. I am told from the bar table that the appellant is paying off those fines, it being a precondition for him obtaining another driver’s licence that he does so.
Order
The orders of the Court are:
1. Allow the appeal.
2. Quash the sentence of Magistrate Somes of 27 months’ imprisonment.
3. Order that the appellant be sentenced to time served.
| I certify that the preceding fourteen [14] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 1 July 2020 |
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