Weldon v Polosak

Case [2020] ACTSC 234


SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Weldon v Polosak

Citation:

[2020] ACTSC 234

Hearing Date:

27 August 2020

DecisionDate:

3 September 2020

Before:

McWilliam AsJ

Decision:

See [72]

Catchwords:

CRIMINAL LAW – APPEAL – Judgment and Punishment – sentence – where sentence previously suspended after a period of imprisonment – where subsequent breach of good behaviour order and further crimes committed – where error established in imposing totality of sentence rather than remainder of sentence – where fresh evidence admitted relevant to rehabilitation – re‑exercise of sentencing discretion

Legislation Cited:

Court Procedure Rules 2006 (ACT) s 6906

Crimes (Sentence Administration) Act 2005 (ACT) s 110
Crimes (Sentencing) Act2005 (ACT) ss 7, 33
Criminal Code 2002 (ACT) ss 311, 318
Magistrates Court Act 1930 (ACT) s 218
Road Transport (Driver Licensing) Act 1999 (ACT) s 32(1)(a)

Road Transport (Vehicle Registration) Act 1999 (ACT) s 20(c)

Cases Cited:

Barron v Laverty [2019] ACTSC 198; 346 FLR 442

Betts v The Queen [2016] HCA 25; 258 CLR 420
Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41
DPP v Grabovac [1998] 1 VR 664
DPP v O’Neill [2015] VSCA 325; 47 VR 395
Gillard v The Queen [2016] ACTCA 50
Kentwell v The Queen [2014] HCA 37; 252 CLR 601
Lewis v Storey [2019] ACTSC 74
McLeod v The Queen [2018] ACTCA 59
Neal v The Queen (1982) 149 CLR 305
O’Brien v The Queen[2015] ACTCA 47 
R v Engert (1995) 84 A Crim R 67
R v KN [2020] ACTSC 218
R v Knight [2005] NSWCCA 253; 155 A Crim R 252
R v MAK [2006] NSWCCA 381; 167 A Crim R 159
R v Verdins; R v Buckley; R v Vo [2007] VSCA 102
R v Weldon [2002] NSWCCA 475; 136 A Crim R 55
R v XX [2009] NSWCCA 115;195 A Crim R 38
The Queen v Potts [2020] ACTCA 12
Thorn v Laidlaw [2005] ACTCA 49

Zdravkovic v The Queen [2016] ACTCA 53

Parties:

Rosemary Weldon (Appellant)

Robert Polosak (Respondent)

Representation:

Counsel

J Cooper (Appellant)

K Marson (Respondent)

Solicitors

Aboriginal Legal Service NSW/ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 24 of 2020

Decision under appeal: 

Court/Tribunal:             Magistrates Court of the ACT

Before:  Chief Magistrate Walker

Date of Decision:          25 May 2020

Case Title:  Maher v Weldon

Court File Numbers:      CC2019/5346; CC2020/1709; CC2020/1711; CC2020/1713;  CC2020/1714; and CC2020/1715

McWilliam AsJ:

  1. On 27 August 2020, I heard an appeal from the orders of Chief Magistrate Walker made on 25 May 2020, sentencing the appellant in relation to six offences as follows:

Charge Offence Date Offence Maximum Penalty of Imprisonment Sentence
CC2019/5346 10 May 2019 Burglary with intent to steal, in contravention of s 311 Criminal Code 2002 (ACT) (Code) 14 years

10 months

CC2020/1709 22 October 2019 Take motor vehicle without consent in contravention of s 318(1)…

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Weldon v Polosak [2020] ACTSC 234
Case
[2020] ACTSC 234
Decision Date

CaseChat Overview and Summary

Weldon v Polosak was a case heard by the Supreme Court of the Australian Capital Territory. The appellant, Weldon, appealed against a sentence previously suspended after a period of imprisonment. The sentence was imposed following a breach of a good behaviour order and subsequent further crimes. The court was required to address an error made in imposing the totality of the sentence rather than the remainder of the sentence, as well as to consider fresh evidence relevant to the appellant’s rehabilitation. The court needed to re-exercise its sentencing discretion in light of these considerations.

The court identified that the sentencing court had intended to impose only the balance of the suspended sentence, pursuant to section 110 of the Crimes (Sentence Administration) Act 2005 (ACT). The error was acknowledged by the respondent. The court found that the appropriate course of action was to allow the appeal and re-exercise the sentencing discretion. The court was empowered to give the order it considered appropriate under section 218 of the Magistrates Court Act 1930 (ACT). The court also noted a potential error in the commencement date of the original sentence, which had consequences for the suspended sentence. However, due to a lack of evidence, the court could not properly consider this issue and required an adjournment to investigate further.

The court concluded that the appropriate sentence to be imposed was a further 154 days’ imprisonment, backdated to 31 January 2020, when the appellant was arrested for the subsequent offences. The court did not find it necessary to impose a different sentence from the one originally intended by the sentencing court, and the transcript of the initial sentencing was deemed relevant to this determination.

ORDERS:
The court allowed the appeal and ordered that Weldon be imprisoned for a further 154 days, backdated to 31 January 2020. The court also required an adjournment to allow the respondent to present further evidence regarding the potential error in the commencement date of the original sentence.

Orders

Orders of the court

See [72]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The transcript revealed that what the sentencing court, through the Chief Magistrate, had intended to do in relation to that offence was to impose the balance of the suspended sentence pursuant s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), which applies where a good behaviour order pursuant to a suspended sentence is made and the offender breaches the order. Under s 110(2), the court must cancel the good behaviour order and either impose the suspended sentence imposed for the offence, or re-sentence the offender for the offence. The order that was in fact made imposed the entirety of the original sentence of 10 months. This also had consequences for the commencement dates of the other sentences. What should have occurred (consistent with the transcript of the Chief Magistrate’s reasoning to the effect that the Magistrate intended to impose the remainder of the suspended sentence, rather than to resentence the offender) was an imposition of only a further 154 days’ imprisonment, backdated to 31 January 2020, when the appellant was arrested for the offences referred to in CC2020/1713, CC2020/1714 and CC2020/1715. The error was conceded by the respondent. It was something that perhaps could have been dealt with through the slip rule (r 6906 of the Court Procedure Rules 2006 (ACT)) by drawing the matter to the attention of the sentencing court. However, as the proceedings were already before this Court for the hearing of the appeal at the time the error was identified, the error was dealt with as part of these proceedings. The appropriate course was to allow the appeal and to re-exercise the sentencing discretion. Pursuant to s 218 of the Magistrates Court Act 1930 (ACT), the Supreme Court is empowered to give the order that in all the circumstances it considers ‘appropriate’. This task was complicated by a further issue that was identified by the respondent in relation to orders previously made for the CC2019/5346 offence, which would have required an adjournment to fully investigate. When the original sentence was imposed by Special Magistrate Hunter on 7 August 2019, the sentence was backdated to commence on 10 March 2019, which was a date that was not only before the appellant was taken into custody, but before she had committed the original offence. This had consequences for the suspended sentence, in that while the appellant had ‘served’ 151 days of her sentence by reference to the date stated on the original order made by Special Magistrate Hunter, in fact she had only been in custody for 89 days. The respondent in this appeal submitted that there may have simply been a typographical error, and that the orders of Special Magistrate Hunter were meant to commence on 10 May 2019, but there was no transcript before this Court to permit a proper consideration of that issue and the respondent required an adjournment in order to put that evidence before the Court. The respondent otherwise submitted the Court ought to find that no different sentence was appropriate and that the transcript of what occurred before Special Magistrate Hunter, when the initial sentence was made for offence CC2019/5346, was also relevant to that point.