Wickey v McVicar

[2012] ACTCA 38

ROBERT LACHLAN WICKEY v THE QUEEN
 [2012] ACTCA 38 (2 August 2012)

EX TEMPORE JUDGMENT

Drugs of Dependence Act 1989 (ACT), ss 169(1), 171(1)(b)

Dinsdale v The Queen [2000] 202 CLR 321
House v The King (1936) 55 CLR 499
Mill v The Queen [1988] 166 CLR 59
R v De Simoni (1981) 147 CLR 383

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 49 - 2011
No. SCA 46 of 2011

Judges:         Penfold, North JJ, Nield AJ
Court of Appeal of the Australian Capital Territory
Date:            2 August 2012

IN THE SUPREME COURT OF THE       )          No. ACTCA 49 - 2011
  )          No. SCA 46 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT LACHLAN WICKEY

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Penfold, North JJ, Nield AJ
Date:  2 August 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed.

1. The appellant is resentenced to a total of 4 years 3 months imprisonment, backdated to 17 April 2011, with a non-parole period of 2 years 10 months expiring on 16 February 2014, and made up of the following sentences:

(a)        for the burglary and associated theft, two and a half years imprisonment and six months imprisonment, to be served concurrently;

(b)        for the theft of the elderly woman’s handbag, nine months imprisonment fully accumulated on the burglary sentence;

(c)        for the two minor thefts in the one shop and the associated property damage offence, three months imprisonment each, and for the associated assault and the fail to appear offence, six months imprisonment each, all to be served concurrently with each other but fully accumulated on the first handbag theft sentence; 

(d)        for the second property damage offence, three months fully accumulated on the assault sentence;

(e)        for the last minor theft, three months, and for the drug possession offence, one month, concurrent with each other but fully accumulated on the second property damage offence.

1. Charge number CC10/2512 be amended to refer to a drug of dependence rather than a prohibited substance, and to s 169(1) rather than s 171(1)(b) of the Drugs of Dependence Act 1989 (ACT).

IN THE SUPREME COURT OF THE       )          No. ACTCA 49 - 2011
  )          No. SCA 46 of 2011
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ROBERT LACHLAN WICKEY

Appellant

AND:THE QUEEN

Respondent

Judges:  Penfold, North JJ, Nield AJ
Date:  2 August 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

Introduction

1. Robert Lachlan Wickey was sentenced by Magistrate Doogan on 20 April 2011 to a total of five years imprisonment. 

The sentencing

1. The head sentence was made up of sentences for eleven different offences, being one burglary, two thefts and three minor thefts, two damage property offences, an assault, one offence of possession of…