Wronski v Raue

[2012] ACTSC 87

STEFAN JORDAN WRONSKI v ROBERT ALEXANDER RAUE
[2012] ACTSC 87 (16 May 2012)

APPEAL – Appeal from sentences imposed by Magistrate – backdating of sentences – whether pre-sentence custody should have been taken into account – whether same period of pre-sentence custody should be accounted for in two separate sentencing proceedings – totality principle – backdated sentences imposed in earlier sentencing proceedings should have been considered in later sentencing proceedings involving same period of pre-sentence custody – appeal upheld – appellant re-sentenced.

EX TEMPORE JUDGMENT

Crimes (Sentencing) Act 2005 (ACT), s 63
Crimes (Sentence Administration) Act 2005 (ACT)

Hawkins v Hawkins [2009] ACTSC 148
Mill v The Queen 166 CLR 59

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 116 of 2011

Judge:             Penfold J
Supreme Court of the ACT

Date:              16 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 116 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:STEFAN JORDAN WRONSKI

Appellant

AND:ROBERT ALEXANDER RAUE

Respondent

ORDER

Judge:  Penfold J
Date:  16 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld.
2. The appellant is resentenced to terms of imprisonment as follows:

(a)    for the breach of the protection order – six months imprisonment, backdated to 24 February 2012;

(b)   for the burglary – four months imprisonment to be served concurrently with the first sentence;

(c)    for the theft – one month’s imprisonment to be served concurrently with the first sentence;

(d)   for the assault – one month’s imprisonment to be served concurrently with the first sentence.

3. The outstanding sentences, being for the breach of the protection order and the burglary, are suspended with effect from 16 May 2012, subject to good behaviour orders:

(a)    for 12 months with a single security of $500; and

(b)   subject to conditions that the appellant accept the supervision of ACT Corrective Services and obey all reasonable directions of the Director-General or her delegate, and undertake such counselling, courses, programs or treatments as directed by his supervising officer.

Introduction

1. Stefan Wronski appealed against convictions and sentences in respect of four offences committed on 5 October 2010.  By the time of the hearing of the appeal, he had abandoned his conviction appeal, and all grounds of his sentencing appeals except a ground to the effect that the sentencing Magistrate had erred in refusing to backdate his sentence to take account of time served. 

1. Before considering whether there was an error of this kind, it is necessary to describe the offences involved and the sentencing proceedings concerned. 

Background to the appeals

The sentences appealed against

1. The sentences appealed against arose out of an incident in which Mr Wronski entered the home of his former partner, the complainant, through a window, without her consent, after engaging in conversation with her through the window.  Once he was in the house there was a scuffle with the complainant, and when he left the house he took…