XT v Morgan

[2018] ACTSC 52

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

XT v Morgan

Citation:

[2018] ACTSC 52

Hearing Date:

19 February 2018

DecisionDate:

19 February 2018

Before:

Elkaim J

Decision:

See [13]

Catchwords:

APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the sentences imposed were manifestly excessive – whether irrelevant matters were taken into account

Parties:

XT (Appellant)

Robert Morgan (Respondent)

Representation:

Counsel

Mr D Hoitink (Appellant)

Mr M Fernandez (Respondent)

Solicitors

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (Respondent)

File Number:

SCA 72 of 2017

Decision under appeal: 

Court/Tribunal:             ACT Magistrates Court

Before:  Special Magistrate Hunter

Date of Decision:         12 September 2017

Case Title:  Richardson v [XT]

Court File Number:       CC 7792 of 2017               

ELKAIM J:

1. On 12 September 2017, the offender was sentenced by Special Magistrate Hunter for two offences of contravening a Family Violence Order.

1. In respect of CC 2017/7793, the offender was sentenced to eight months’ imprisonment, suspended after four months upon him signing an undertaking to be of good behaviour for 24 months. In respect of CC 2017/7792, he was sentenced to imprisonment for 50 days, commencing on the same date as the sentence for the former offence.

1. Both offences involved the offender leaving voicemail messages in contravention of Family Violence Orders. The offence which attracted the term of 50 days’ imprisonment involved a voicemail message congratulating the complainant on purchasing a new home.

1. The offence which resulted in the longer sentence involved a voicemail message in which the appellant apparently offered to repay an amount of $5,000 and asked about the welfare of their twin children.

1. Neither message appeared to contain any malicious content. However, both messages should not have been sent and deserve a term of imprisonment.  

1. I have had some difficulty in distinguishing between the two offences. The two voicemail messages that were left appear to be roughly of the same degree of seriousness. Nonetheless, one message attracted a term of imprisonment of 50 days, while the other attracted a term of 8 months, suspended after four months.

1. The Notice of Appeal contains a number of grounds. However, it is fairly plain that the primary ground of appeal is that the sentences imposed were manifestly excessive. I do not think that the sentence of 50 days’ imprisonment is manifestly excessive. I do, however, think that the other sentence is manifestly excessive.

1. I do not intend to set out the oft repeated principles regarding manifest excess. Suffice to say that, in my view, the sentence in respect of CC 2017/7793 is obviously unjust. It is simply too long and, more importantly, it is not proportionate to the sentence imposed in respect of the other charge.

1. Accordingly, I intend to set aside the sentence in respect of CC 2017/7793. Normally there would be submissions on resentencing but, having informed the appellant’s learned counsel of what I intended to do, he was content to not make any further submissions.

1. The Crown is, of course, constrained in making submissions about specific sentences. It nevertheless takes the view that a longer sentence might be appropriate, although accepts that there is an apparently unexplained distinction between the two sentences.

1. I think that I should sentence the appellant to the same term of imprisonment for each offence. However, in order to appropriately deal with what is not quite a pattern, but is certainly repeat offending, I am of the view that the Good Behaviour Order should remain in place.

1. I note that the appellant has served the full term of imprisonment in respect of both offences.

1. I make the following orders:

(a)The sentence in respect of the offence of contravene family violence order (CC 2017/7793) is set aside.

(b)The offender is resentenced as follows:

(i)In respect of the offence of contravene family violence order (CC 2017/7793), the offender is convicted and sentenced to 50 days’ imprisonment commencing on 11 August 2017 and ending on 29 September 2017.

(ii)The offender is to sign an undertaking to be of Good Behaviour for a period of 18 months commencing 19 February 2018.

I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 5 March 2018