Wayne Norton Pearce v Christopher James Tanner - [2010] ACTSC 122

WAYNE NORTON PEARCE v CHRISTOPHER JAMES TANNER
[2010] ACTSC 122 (15 September 2010)

APPEAL – appeal from ACT Magistrates Court – appeal against sentence imposed for breach of suspended sentence.
APPEAL – Magistrate cancelled good behaviour order and imposed sentence – appellant submitted that the Magistrate did not give proper effect to the actual operation of the previous sentence which had been imposed.

SENTENCING – Magistrate erred in imposing sentence.

Domestic Violence Protection Orders Act 2008 (ACT) ss 40, 90(2)
Criminal Code 2002 (ACT) s 363(1)

Crimes (Sentence) Administration Act 2005 (ACT) ss 43, 70, 79, 86, 110

Crimes (Sentencing) Act 2005 (ACT) ss 11(5), 12, 13, 27

Ledson v Taylor & Ors [2010] ACTSC 42
R v Taylor (No 2) [2008] ACTSC 97

R v Hamid (2006) 164 A Crim R 179

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 84 of 2009

Judge: Refshauge J
Supreme Court of the ACT

Date: 15 September 2010

IN THE SUPREME COURT OF THE     )
  )          No. SCA 84 of 2009
AUSTRALIAN CAPITAL TERRITORY           )

WAYNE NORTON PEARCE

Appellant

CHRISTOPHER JAMES TANNER

Respondent

ORDER

Judge:  Refshauge J
Date:  15 September 2010
Place:  Canberra

THE COURT ORDERS THAT:

The convictions for the charges of contravening a protection order on 14 June 2009 and resisting a police officer on 15 June 2009 be confirmed.

As these offences constitute a breach of the good behaviour order of 11 May 2009 imposed with respect to a suspended sentence, the cancellation of that order under s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT) is confirmed.

It be noted that Mr Pearce has had the periodic detention portion of the sentence imposed on 11 May 2009 cancelled and that the period of full time detention for that ends on 16 March 2010.

He is directed to serve the sentence that was suspended, namely four months and 10 days to commence on 17 March 2010 and to end on 27 July 2010.

He is sentenced to 15 months imprisonment for the breach of the protection order reduced to take account of the plea of guilty from the 18 months which would have been appropriate, three months of which is to be concurrent with the sentence that was suspended in order to take account of totality but also the 74 days of pre-sentence custody in respect of those proceedings so that the sentence commences on 13 February 2010.

The sentence for the charge of resisting a police officer is confirmed.

For the total sentence which will now end on 13 May 2011, a non-parole period is set to expire on 13 October 2010.

Sentencing is probably the most common substantive judicial act in the administration of criminal justice, but it has become much more complex overtime with judicially imposed obligations and principles that bind sentencers and increasingly detailed legislation that must be implemented by them.

It is not surprising, therefore, that errors are sometimes made by judicial officers when imposing…

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.

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Details

Case: [2010] ACTSC 122
Decision Date

CaseChat Overview and Summary

Wayne Norton Pearce appeals against the sentence imposed by the Magistrates Court of the Australian Capital Territory, which was for a breach of a suspended sentence. The appellant was found guilty of breaching a domestic violence protection order on 14 June 2009 and resisting a police officer on 15 June 2009. The offences amounted to a breach of a good behaviour order, which had been imposed in relation to a suspended sentence. The sentencing magistrate cancelled the good behaviour order and imposed a sentence, which the appellant argues was not properly calculated.

The central legal issue is whether the sentencing magistrate erred in imposing the sentence by not giving proper effect to the actual operation of the previous sentence that had been imposed. The appellant argues that the magistrate did not account for the fact that he had already served most of the first two components of the 12 months sentence of imprisonment, and that there was only six months less 50 days left to serve.

Justice Refshauge found that the magistrate did indeed err in imposing the 12-month sentence, as the suspended sentence was the sentence that represented the period from 11 November 2009 (had the appellant served his periodic detention as required) to 21 March 2010. The complicated mathematical calculations were irrelevant to the issue. The court set aside the sentences imposed by the magistrate and imposed a new sentence.

The convictions for the charges of contravening a protection order on 14 June 2009 and resisting a police officer on 15 June 2009 were confirmed. The offences were found to constitute a breach of the good behaviour order of 11 May 2009 imposed with respect to a suspended sentence, and the cancellation of that order under s 110 of the Sentencing Administration Act was confirmed. The appellant was sentenced to 15 months imprisonment for the breach of the protection order, reduced to take account of the plea of guilty, with three months to be concurrent with the suspended sentence. The sentence for the charge of resisting a police officer was confirmed, and the total sentence would now end on 13 May 2011, with a non-parole period set to expire on 13 October 2010.

Orders