West v The Queen
[2012] ACTCA 5
•February 7, 2012
TIMOTHY JAMES WEST v THE QUEEN
[2012] ACTCA 5 (7 February 2012)
EX TEMPORE JUDGMENT
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 38 - 2011
No. SCC 450 of 2009
No. SCC 463 of 2009
Judges: Higgins CJ, Penfold and North JJ
Court of Appeal of the Australian Capital Territory
Date: 7 February 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 38 - 2011
) No. SCC 450 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 463 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:TIMOTHY JAMES WEST
Appellant
AND:THE QUEEN
Respondent
ORDER
Judges: Higgins CJ, Penfold and North JJ
Date: 7 February 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
The period of accumulation between the sentence imposed for the offence of burglary and the offence of receiving stolen property be reduced to six months.
IN THE SUPREME COURT OF THE ) No. ACTCA 38 - 2011
) No. SCC 450 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SCC 463 of 2009
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:TIMOTHY JAMES WEST
Appellant
AND:THE QUEEN
Respondent
Judges: Higgins CJ, Penfold and North JJ
Date: 7 February 2012
Place: Canberra
REASONS FOR JUDGMENT
THE COURT:
The facts and circumstances relating to this appeal are set out in the judgment of his Honour Nield AJ in commendable detail. We need not repeat them. Suffice to say that there are, before this Court, two groups of offences, arising from a burglary occurring in 2005 and a receiving of stolen property occurring in 2009. The burglary offence was accompanied by a theft and the receiving was accompanied by the use of a vehicle without authority. In each of those cases, the second offence has been taken to be totally concurrent with the first and need not, therefore, be of any practical consequence in the present appeal.
The appellant’s complaint comes down to this: that the sentences for the burglary occurring in 2005 and for the receiving of stolen property occurring in 2009 were accumulated to an extent (specifically, that the receiving sentence of 27 months added 11 months to the total sentence) that leads to the total sentence being excessive.
We agree with that assertion for two reasons. First, there are circumstances, attending both this offender and the proceedings, which resulted in a considerable and quite unreasonable delay in the prosecution of the initial offences of burglary and theft. Secondly, it seems to us that insufficient weight was given to the steps the appellant had taken with respect to rehabilitation.
As to the first matter, we note that in R v Bruce and Hollick (1998) 71 SASR 536 (“Bruce”) at 541, Doyle CJ said, and we agree, that:
it is proper to make some allowance, in a manner in which one cannot be precise, for the fact that a term of imprisonment has already been served for offences that are part of the same pattern of conduct.
That is without, of course, taking a “bulk discount” approach and noting that, to again quote his Honour in Bruce at 541:
[p]eople who commit multiple offences cannot assume that the sentences imposed will be less than each offence warrants in isolation. It is only when the combined effect of the sentences is more than is warranted that any question of reduction can arise.
That is the situation here.
We do not reduce the sentences that were imposed in themselves. Indeed, we have not been asked to do that. We do note that in respect of the question of delay, both before and after 2005, there was a similar pattern of offending, so this matter falls quite properly and squarely within what Doyle CJ said in the case of Bruce.
The question, then, is what would be the proper approach in all those circumstances, having agreed that the original sentence should be set aside? We should say that the only issue that we address is the issue of the accumulation as between the two sets of offences. We think the burglary and receiving of stolen property should be accumulated only to the extent of six months.
That would indicate that a combined sentence of three years and one month should be imposed which, beginning on 20 April 2011, would expire on 19 May 2014.
In re-sentencing the appellant, we have regard to the affidavit which has been filed. We simply note that it does add support to the view that the appellant should be released from that sentence as of today, upon him being bound by a good behaviour order for a period of three years from today. Pursuant to that order he is required to:
(a) accept the supervision of Corrective Services and obey all reasonable directions given by them;
(b) undertake any assessment, counselling or program as directed, particularly regarding substance abuse issues and including residential rehabilitation if thought appropriate;
(c) not use illicit drugs;
(d) undertake urinalysis as and when directed; and
(e) adhere to any medication that may be prescribed by medical or mental health practitioners (that may include, of course, Naltrexone, depending on what a medical practitioner deems appropriate).
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.
Associate:
Date: 17 April 2012
Counsel for the Appellant: Mr R Livingston
Solicitor for the Appellant: Legal Aid (ACT)
Counsel for the Respondent: Ms M Jones
Solicitor for the Respondent: Director of Public Prosecutions for the ACT
Date of hearing: 7 February 2012
Date of judgment: 7 February 2012