Um v Mesman - [2022] ACTSC 84

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	UM v Mesman
Citation:	[2022] ACTSC 84
Hearing Date(s):	21 April 2022
DecisionDate:	21 April 2022
Before:	Elkaim J
Decision:	See [21]
Catchwords:	APPEAL – SUPREME COURT OF APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – family violence offences – offences committed while in custody – where parole extinguished by operation of s 118 of the Crimes (Sentencing) Act 2005 (ACT) – manifestly excessive sentence – appellant re-sentenced
Legislation Cited:	Crimes (Sentence Administration) Act 2005 (ACT) s 118 Crimes (Sentencing) Act 2005 (ACT) ss 64, 72 Family Violence Act 2016 (ACT) s 43
Cases Cited:	Barrett v The Queen [2016] ACTCA 38 R v Gordon [2021] ACTSC 283
Parties:	UM ( Appellant) J Mesman ( Respondent)
Representation:	Counsel T Taylor ( Appellant) K McCann ( Respondent)
Solicitors Hugo Law Group ( Appellant) ACT Director of Public Prosecutions ( Respondent)
File Number:	SCA 36 of 2021
Decision under appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Campbell Date of Decision: 21 October 2021 Case Title: Mesman v UM Court File Number: CAN 4712/2021

Elkaim J

On 4 June 2021 I sentenced the appellant for a number of offences stemming from the unlawful treatment of his wife. The effect of the sentences was that he was sent to prison for four years, one month and 26 days (to 3 April 2024) with a non-parole period that ended on 8 November 2022.

Notwithstanding his residence at the prison the appellant committed further offences against his former partner by contacting her contrary to family violence orders that said he should not do so.

He was charged with six offences under s 43(2) of the Family Violence Act 2016 (ACT). Each charge made him susceptible to 5 years imprisonment as well as a fine. The appellant pleaded guilty and was sentenced by Magistrate (E) Campbell on 21 October 2021.

The learned Magistrate clearly had reservations about the course she took but felt compelled to do so because of ss 64 and 72 of the Crimes (Sentencing) Act 2005 (ACT) (Crimes Sentencing Act) and s 118 of the Crimes (Sentence Administration) Act 2005 (ACT).

The reasoning behind her Honour’s reservations was that the effect of the above legislation would be to deprive the appellant of the possibility of release on the expiry of his non-parole period. Her Honour observed, for example:

We have to assume that this is the outcome, as unpalatable as it is, that the legislature intended that if you are in custody and you commit offences while you are in custody, you lose the benefit of that non-parole period.

The sentences imposed by her Honour were as follows: on the most serious charge the appellant was sentenced to 12 months imprisonment. On the balance of the charges he was sentenced, for each one, to three months imprisonment but all of them were to be served concurrently and have the same starting date as the 12 month…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Um v Mesman

Details

AGLC: Um v Mesman [2022] ACTSC 84
Case: [2022] ACTSC 84
Decision Date

CaseChat Overview and Summary

The appellant, UM, was convicted of family violence offences and subsequently committed further offences against his former partner while in custody. He appealed against the sentence imposed by the Magistrates Court, arguing that the sentence was manifestly excessive. The Supreme Court of the Australian Capital Territory reviewed the appeal and found that the structure of the sentence imposed by the Magistrate resulted in a harsher penalty than necessary, given the legislative intent of imposing a more severe punishment for offences committed while in custody. The Court concluded that the sentence was plainly unjust and therefore manifestly excessive.

The primary legal issue in this case was whether the sentence imposed by the Magistrate was manifestly excessive. The Court considered the appropriate interpretation and application of the relevant legislation, including the Crimes (Sentencing) Act 2005 (ACT) and the Crimes (Sentence Administration) Act 2005 (ACT). The Court also took into account the legislative intent behind imposing a harsher penalty for offences committed while in custody and the need to ensure proper punishment for the appellant's criminal conduct.

The Court found that the sentence imposed by the Magistrate, while not open to criticism on its length and concurrency, had the consequence of creating a manifestly excessive sentence due to its structure. The Court decided to retain the length and concurrency of the sentences but adjust the starting date to bring it closer to the end of the non-parole period. This decision aimed to achieve the objectives of proper punishment and having due regard to the legislative intent of a harsher penalty for offences committed while in custody. The Court also made a direction pursuant to s 72(3) of the Crimes (Sentencing) Act to avoid the imposition of a manifestly excessive term of imprisonment upon the appellant.

The Court allowed the appeal and set aside the sentence imposed by the Magistrate. The appellant was re-sentenced as follows: for the most serious charge, he was sentenced to 12 months imprisonment to commence on 3 May 2023 and end on 2 May 2024. For each of the other charges, he was sentenced to 3 months imprisonment to commence on 3 May 2023 and end on 2 August 2023. The Court's re-sentencing aimed to strike a balance between proper punishment for the appellant's criminal conduct and the legislative intent of imposing a harsher penalty for offences committed while in custody.

Orders