Vince v Wickey - [2014] ACTSC 258

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 Markarian v The Queen (2005) 228 CLR 357 R v Clarke (1996) 85 A Crim R 114 R v Pearce (1998) 194 CLR 610 R v Ponfield (1999) 48 NSWLR 327 Tate v The Queen [2012] ACTCA 50
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…

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 Vince v Wickey

Details

AGLC: Vince v Wickey [2014] ACTSC 258
Case: [2014] ACTSC 258
Decision Date: 1 July 2014

CaseChat Overview and Summary

The appeal before the court involved a challenge by the Crown to the sentence imposed on a defendant for a series of burglaries. The respondent, having pleaded guilty to multiple charges of burglary, was sentenced to a term of imprisonment with a non-parole period set by the sentencing judge. The Crown argued that the sentence was manifestly inadequate and that the non-parole period should have been set higher, given the cumulative nature of the offences and the respondent's criminal history.

The court was tasked with determining whether the sentence was manifestly inadequate and whether the non-parole period should have been set. The legal principles guiding the court included the need to consider the totality of the offending, the deterrence value of the sentence, and the protection of the community. The Crown contended that the sentence failed to adequately reflect the seriousness of the offences, particularly given the accumulation of the burglaries, and that a higher non-parole period was warranted to ensure public safety.

In assessing the appeal, the court considered the nature and extent of the respondent's offending, the appropriate punishment for such crimes, and the need to provide an adequate deterrent effect. The court found that the sentence imposed was indeed manifestly inadequate, taking into account the accumulation of the burglaries and the respondent's criminal history. Consequently, the court set a higher non-parole period, reflecting the seriousness of the offending and the need for a sufficient punitive and deterrent sentence.

The final orders of the court were to set a new non-parole period for the sentence, as outlined in the judgment. The respondent's original sentence was thus altered to reflect the court's determination that it was manifestly inadequate and required adjustment to appropriately address the cumulative nature of the offending and to provide adequate deterrence.

Orders

Orders of the court

See [29]-[30]

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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