Vince v Wickey
[2014] ACTSC 258
•1 July 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Vince & Anor v Wickey |
Citation: | [2014] ACTSC 258 |
Hearing Date: | 1 July 2014 |
DecisionDate: | 1 July 2014 |
Before: | Murrell CJ |
Decision: | See [29]-[30] |
Category: | Principal Judgment |
Catchwords: | APPEAL – Crown appeal against sentence – whether sentence manifestly inadequate – accumulation – whether nonparole period should have been set – burglary |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33, 65 Magistrates Court Act 1930 (ACT) s 207 |
Cases Cited: | Fusimalohi v The Queen [2012] ACTCA 49 Hili v R (2010) 242 CLR 520 |
Parties: | Jesse Ryan Vince (First Appellant) Luke Napier (Second Appellant) Robert Lachlan Wickey (Respondent) |
Representation: | Counsel Mr K Lee (First and Second Appellants) Mr A Wong (Respondent) |
| Solicitors Director of Public Prosecutions (ACT) (First and Second Appellants) Aboriginal Legal Service (NSW/ACT) (Respondent) | |
File Number: | SCA 6 of 2014 |
Decision under appeal: | Court: Magistrates Court Before: Magistrate Cook Date of Decision: 13 January 2014 Case Title: Vince v Wickey Court File Numbers: CC No 4200 to 4202 of 2013; CC No 6846 to 6849 of 2013 |
MURRELL CJ:
Introduction
The Crown appeals against sentences imposed by the Magistrates Court on 30 January 2014 for three offences of burglary, three related offences of theft and one offence of assault occasioning actual bodily harm. The grounds of the appeal are:
(a)manifest inadequacy, and
(b)failure to set a non-parole period.
The respondent consented to amendment of the grounds of appeal to incorporate the second ground. The Court failed to set a nonparole period under as required by s 65 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).
The first ground of appeal, manifest inadequacy, has two aspects. First, the Crown contends that the length of individual sentences was manifestly inadequate. Second, the Crown contends that the decision to make the sentences wholly concurrent resulted in an overall sentence that was manifestly inadequate.
The sentences imposed at first instance
For the offence of assault occasioning actual bodily harm (which carries a maximum available penalty of five years’ imprisonment) the Magistrate indicated that but for the plea of guilty, his Honour would have imposed a sentence of nine months’ imprisonment. Taking the plea of guilty into account, the Magistrate imposed a sentence of seven months’ imprisonment. For each of the burglary offences (which carry a maximum available penalty of 14 years’ imprisonment) the Magistrate indicated that, but for the pleas of guilty, the sentence would have been five months’ imprisonment. Taking the pleas of guilty into account, the sentence was four months’ imprisonment. In relation to each of the matters of theft (which carry a maximum available penalty of 10 years’ imprisonment), taking the pleas of guilty into account, the Magistrate imposed a sentence of one month’s imprisonment for the theft involving Ms Wright, and three months’ imprisonment for each of the other two offences.
The Magistrate ordered that all sentences be served concurrently, to commence on 31 December 2012, at the expiry of a parole period that the respondent was serving. At the time of commission of the subject offences, the appellant was on parole for like matters, having been released to parole on 23 April 2013. Less than a month later, he was arrested for the subject offences and detained in prison from 20 May 2013. Parole was revoked on 9 July 2013.
The effect was that the respondent had spent the period from 17 April 2010 to 23 April 2013 in custody, he was detained from his arrest on 20 May 2013, and he was to be released seven months after 31 December 2014, on 30 July 2015.
Proceedings in the Magistrates Court
The facts of the offences are as follows. During the early hours of 20 May 2014, the respondent entered a secure residential apartment, which was occupied, and stole a laptop, USB stick, purse, money and other items to the total value of $1040.
Either shortly before or shortly afterwards, he entered a second residential premises where he stole a handbag, wallet, camera and other items to a total value of $1940.
At about 4.30 am, he went to a third residential premises, and entered via an unlocked sliding front door. He went to the bedroom. The respondent removed a mobile telephone that belonged to the occupant and accidentally woke the occupant, who observed the respondent standing beside the bed. When he saw that she had woken up, he fled the scene. Soon after, he was observed by police. As they were attempting to arrest him, he grabbed a piece of wood that was lying nearby and hit a police officer in the face, causing an injury to the area of the officer’s left eye. He tried to run away, but was brought to the ground and secured. The mobile telephone that he had just stolen and most of the items that had been stolen earlier that night were found in his possession.
The Magistrate gave very full consideration to the matter, referring to all of the relevant considerations. His Honour referred to the maximum penalties and to the relevant considerations in ss 7 and 33 of the Sentencing Act. His Honour carefully analysed the relevant objective features of the offences and set out, in some detail, the relevant subjective features.
In relation to the objective features, the incidents occurred at night, they involved thefts from residential premises when people would be expected to be at home, and the occupants of those premises were at home at the time. The victim Ms Wright was woken up. She must have been terrified when she saw someone standing over her bed. There was no evidence of planning. There is no evidence that the respondent had tools in his possession. There is no evidence of any threat made to an occupant. There was no vandalism and no gratuitous damage was occasioned. Almost all of the property was recovered. Nevertheless, as the Magistrate observed, the burglary offences fell at least in the medium range and possibly in the higher medium range in terms of their objective seriousness.
One very important feature was that the respondent was on conditional liberty at the time that the offences were committed.
Counsel for the appellant referred me to the New South Wales guideline decision in R v Ponfield (1999) 48 NSWLR 327, where the Court set out a number of factors that may serve to aggravate sentences imposed for offences of this nature.
In relation to the subjective features of the matter, the Magistrate was well aware that the respondent had had a very dysfunctional and sad childhood and that he suffered from a chronic drug addiction. He had attempted rehabilitation but relapsed.
The respondent had a very lengthy criminal history, including a number of similar matters and other matters of dishonesty and violence. The Magistrate approached the respondent with appropriate sympathy, noting that the respondent faced a danger of institutionalisation. The Magistrate noted that the respondent was vulnerable upon release and had lacked proper supported when last released. As a consequence, he relapsed rapidly into criminal activity.
No fault can be taken with the manner in which the Magistrate reasoned. It is a careful and erudite decision. The difficulty lies in the ultimate result.
Nature of the appeal by the Crown
An appeal by the Crown is exceptional. The circumstances in which it may be appropriate for the Crown to appeal are set out in the decision of Charles JA in R v Clarke (1996) 85 A Crim R 114 at 116-117.
In this case, the sentences imposed by the Magistrate departed dramatically from the usual sentencing range for offences of this nature. In Fusimalohi v The Queen [2012] ACTCA 49 (Fusimalohi), the Court of Appeal referred to the usual range of imprisonment in this jurisdiction for burglary offences. Cases involving sentences for burglary were summarised by Refshauge J in Tate v The Queen [2012] ACTCA 50 (Tate). In Tate, his Honour confirmed that sentences of around 18 months were within the range for ordinary domestic burglaries.
I have referred to the ACT sentencing statistics, but the number of matters recorded in relation to burglaries is not statistically significant. Nevertheless, the observations made in Fusimalohi and in Tate regarding the sentencing range for offences of burglary are generally borne out by the sentencing statistics. Of course, sentencing is not a mathematical exercise, as was pointed out in Hili v R (2010) 242 CLR 520 at [49].
The appeal
An appeal such as the present under s 207 of the Magistrates Court Act 1930 (ACT) is by way of a review, not by way of a re-hearing. Generally, it is necessary that an errors of law or fact be identified, but even if no specific error can be identified, error may be inferred if the sentence is manifestly excessive, manifestly inadequate, unreasonable or plainly unjust.
Generally it is for an appellant to identify matters that may indicate that a sentence is unreasonable or plainly unjust.
The maximum available penalty is a critical marker in terms of an appropriate sentencing range: Markarian v The Queen (2005) 228 CLR 357.
In this case, in respect of the matter of assault occasioning actual bodily harm the sentence imposed by the learned Magistrate was lenient but I could not say that it was manifestly inadequate in the sense of being plainly unreasonable or unjust. There was one strike and there was no premeditation. It was an opportunistic use of a weapon for the purpose of attempting to avoid police detention. The injury was significant. In the circumstances, it was an offence of at least a mid-level objective seriousness, and when one considers the maximum available penalty of five years, a sentence of nine months reduced to seven months is relatively lenient. However, as the Crown conceded, the fact that a police officer was the victim is not something that can be taken into account, as the respondent could have been charged with the more serious Commonwealth offence of causing harm to a Commonwealth public official. In the context of the maximum available penalty of five years’ imprisonment, seven months was lenient but not outside the range.
Unfortunately, in relation to the sentences that were imposed for the burglary and related theft matters, the same cannot be said. The burglary matters carried a maximum available penalty of 14 years’ imprisonment. The subject matters were of moderate objective seriousness. The respondent is entitled to no leniency, given his criminal record. Despite the subjective circumstances, which are strong, sentences of one month and four months are, to my mind, plainly unreasonable. The appeals should be allowed in relation to those sentences.
In relation to concurrency, where there is separate conduct, and separate loss and damage, the sentences that are imposed for individual matters should be partially accumulated to reflect the separate conduct. The result should reflect the number of separate offences. The principles in R v Pearce (1998) 194 CLR 610 require that significant additional criminality attract a significant additional effective sentence. The effective result must also reflect the overall criminality.
In this case, there was a course of conduct over one night. Consequently, a relatively high level of concurrency is warranted. However, the additional criminality associated with each of the separate matters must be recognised. I find that manifest inadequacy is also established in relation to this aspect of the appeal.
In addition, it is agreed that a nonparole period should be set as required by s 65 of the Sentencing Act.
The setting of a nonparole period is not easy. In addition to taking into account sentences to be imposed for these offences, the overall picture of criminality must be borne in mind. The respondent has been incarcerated for all but a month of the period since 17 April 2010.
Conclusion
The sentences imposed by the Magistrate Court are set aside. In lieu, I impose the following penalties. For the offence of assault occasioning actual bodily harm, I impose a sentence of imprisonment from 20 February 2014 to 19 September 2014. This sentence of seven months has been reduced from nine months. For the first offence of burglary, I impose a sentence of 18 months’ imprisonment reduced from two years to run from 20 May 2014 to 19 November 2015. For the associated offence of theft, I impose a sentence of 12 months’ imprisonment reduced from 16 months to run from 20 May 2014 to 19 May 2015. For the second offence of burglary I impose a sentence of 18 months’ imprisonment reduced from two years to run from 20 November 2014 to 19 May 2016. For the associated offence of theft, I impose a sentence of 12 months’ imprisonment reduced from 16 months to run from 20 November 2014 to 19 November 2015. For the offence of burglary involving Ms Wright, I impose a sentence of two years’ imprisonment reduced from two and a half years to run from 20 May 2015 to 19 May 2017. For the associated offence of theft I impose a sentence of 12 months’ imprisonment reduced from 16 months’ to run from 20 May 2015 to 19 May 2016.
The total effective sentence that I have imposed is three years and three months’ imprisonment. In setting the nonparole period, I have regard to the total period of imprisonment associated with these matters and also to the previous period of imprisonment from 17 April 2010. I fix a non-parole period to commence on 20 February 2014 and expire on 19 September 2015.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 1 October 2014 |
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