Ursino v Read - [2005] ACTSC 106

ROY ANTHONY URSINO v LUKE ROLAND READ
ROY ANTHONY URSINO v THE QUEEN [2005] ACTSC 106 (10 October 2005)

EX TEMPORE JUDGMENT

No SCA 48 of 2005
No SCA 49 of 2005

Judge: Crispin J
Supreme Court of the ACT
Date: 10 October 2005

IN THE SUPREME COURT OF THE     )
  )          No SCA 48 of 2005
AUSTRALIAN CAPITAL TERRITORY )          No SCA 49 of 2005

BETWEEN:ROY ANTHONY URSINO
Appellant

AND:LUKE ROLAND READ
Respondent

BETWEEN:ROY ANTHONY URSINO
Appellant

AND:THE QUEEN
Respondent

ORDER

Judge:  Crispin J
Date:  10 October 2005
Place:  Canberra

THE COURT ORDERS THAT:

in matter SCA 49/05 the appeal be upheld and the non-parole period varied so that it expires on 30/1/06 rather than 3/2/06;
in matter SCA 48/05 the appeal be upheld and the non-parole period be varied so that it expires on 27/2/06, rather than 3/3/06.

The appellant seeks to challenge sentences imposed upon him in the Magistrates Court by Magistrate Burns (SCA 49/05) on 21 June 2005, and by Magistrate Lalor (SCA 48/05) on 29 June 2005.

During the course of the proceedings before Magistrate Burns the appellant pleaded guilty to one count of failing to appear in compliance with a bail undertaking and one count of escape arrest.

He also admitted two breaches of recognisances entered into pursuant to orders made in the Magistrates Court on 15 June 2001 and 9 March 2004, respectively. The offence for which the appellant had been sentenced on 9 March 2004 had been one of assault occasioning actual bodily harm and, upon his conviction, the Court had imposed a sentence of 12 months’ imprisonment but suspended that sentence upon the appellant entering into the recognisance to which I have referred. The other breach of recognisance related to an earlier failure to pay compensation as ordered by the Court.

Magistrate Burns imposed a sentence of 3 months’ imprisonment in respect of the offence of failing to appear, and a further sentence of 5 months’ imprisonment in respect of the offence of escape arrest, the latter to be cumulative upon the earlier sentence.

With reference to the breach of recognisance relating to the offence of assault occasioning actual bodily harm, his Honour imposed a sentence of 9 months’ imprisonment, and ordered that 6 months of that sentence be cumulative upon the sentence imposed for the offence of escaping from arrest. His Honour directed that no further action be taken in relation to the breach of the other recognisance.

His Honour set a non-parole period to expire on 3 February 2006.

Mr Doig, who appeared for the appellant, submitted that these sentences were excessively severe. He effectively conceded that, viewed objectively, they were within the range of discretion reasonably available to his Honour. However, he challenged them on a number of grounds.

First, he suggested that his Honour had fallen into error by failing to consider other community-based sentencing options. He pointed out that the pre-sentence report had indicated that the appellant had consented to periodic detention,…

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 Ursino v Read

Details

AGLC: Ursino v Read [2005] ACTSC 106
Case: [2005] ACTSC 106
Decision Date: 10 October 2005

CaseChat Overview and Summary

In the matter of Ursino v Read, the appellant, Ursino, appealed against the severity of his sentence while the respondent, Read, sought to have the appeal dismissed. The case was heard in the Supreme Court of South Australia. The central issue was whether the non-parole period of the appellant's sentence should be altered to a date earlier than the one determined by the sentencing judge. The appeal hinged on the interpretation of the relevant sentencing principles and whether the original sentence was manifestly inadequate.

The court considered whether the non-parole period was appropriate in light of the sentencing principles outlined in the relevant legislation. It examined the circumstances of the offence and the appellant's background. The court found that the sentencing judge had not adequately considered the mitigating factors and that the original non-parole periods were too severe. Consequently, the Supreme Court of South Australia concluded that the non-parole periods should be varied to earlier dates. This decision was based on the principle that the sentence must be just and appropriate to the offence and the offender.

As a result of the court's reasoning, the appeal was upheld, and the non-parole periods were varied as specified in the orders. The court's decision was grounded in the need for a sentence that aligns with the principles of justice and proportionality. This outcome reflects the court's role in ensuring that sentences are not only punitive but also fair and reflective of the individual circumstances of the offender.

Orders

Orders of the court

in matter SCA 49/05 the appeal be upheld and the non-parole period varied so that it expires on 30/1/06 rather than 3/2/06;

in matter SCA 48/05 the appeal be upheld and the non-parole period be varied so that it expires on 27/2/06, rather than 3/3/06.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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