Yeats v Winters
[2017] ACTSC 224
•15 August 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Yeats v Winters |
Citation: | [2017] ACTSC 224 |
Hearing Date: | 14 August 2017 |
DecisionDate: | 15 August 2017 |
Before: | Elkaim J |
Decision: | See paragraph [24] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Crown appeal against sentence – whether the sentence imposed by the learned magistrate was manifestly inadequate. |
Cases Cited: | Law v Ilievski [2016] ACTSC 291 Peter v Wade [2017] ACTSC 122 R v Dugdale [2017] ACTSC 203 |
Parties: | Katherine Yeats (First Appellant) Joshua Winters (Respondent) |
Representation: | Counsel Mr J Walker (Appellant) Mr R Davies (Respondent) |
| Solicitors Office of the ACT Director of Public Prosecutions (Appellant) ACT Legal Aid (Respondent) | |
File Number: | SCA 26 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Mulligan Date of Decision: 18 April 2017 Case Title: Director of Public Prosecutions v Winters Court File Number: CC 12019 of 2016 |
ELKAIM J:
On 18 April 2017, the respondent was sentenced in the ACT Magistrates Court in respect of a number of offences. The offences are set out in the Notice of Appeal filed by the Crown on 24 April 2017.
The Crown alleges that the overall sentence imposed is manifestly inadequate.
The principles that need to be applied in an appeal of this type are well known and do not need to be repeated here. Suffice to say that the starting point is whether or not the sentences imposed were plainly wrong. Bearing in mind that this is a Crown appeal against sentence, it is then necessary to identify any specific errors that may have been made by the Magistrate in the application of sentencing principles.
For convenience, I intend to approach the matter in a different order to that stated above. As will be seen, I think that there have been specific errors made by the Magistrate which need to be stated. Ultimately however, subject to one technical point, the appeal should be dismissed.
There were actually two technical points that arose in the appeal. Only one of them requires intervention.
The gravamen of the appeal concerns the sentences imposed for the three burglary offences. Each of the burglary offences attracted a period of 18 months imprisonment. This period was also the head sentence. A non-parole period of 12 months was set.
Both parties provided me with very useful written submissions, for which I am grateful. With the further assistance of oral submissions, I think I can distil the Crown’s complaints to the following:
(a)The Magistrate’s attempt at achieving totality, or avoiding an overly long head sentence, was flawed.
(b)Firstly, the Magistrate made a specific error in sentencing the offender to the same term of imprisonment for each burglary, even though they were assessed as being of different objective severity.
(c)Secondly, the Magistrate erred in making the three sentences for each burglary concurrent, notwithstanding that they were separate offences committed on separate occasions at different locations.
The first burglary charge was assessed as being of high objective seriousness. The second charge was assessed as being of medium objective seriousness. The third charge was assessed as being of low objective seriousness. The Crown’s point is simple. If sentencing principles dictate that the objective seriousness of an offence must be taken into account, then how could the three burglaries, so differently assessed, receive the same sentence?
I think that the Crown’s point is correct and that this does indicate error on the Magistrate’s part. Even if his Honour took the approach that he did to achieve totality, his Honour could still have sentenced the offender to different terms of imprisonment for each charge. The first charge could have been left at 18 months and his Honour could have reduced the sentence for the other two charges.
It is important to note that the Crown made the following concession:
Each of the burglary sentences was within the range/current sentencing practice stated in [the applicable authorities].
It therefore follows that the sentence for the first burglary cannot, on its own, be attacked. This does raise the somewhat contrary argument that the other two burglaries should have attracted lesser sentences. No such submission was made, but the consequence of the point is that the identified error on the part of the Magistrate does not ultimately assist the Crown’s argument.
I think that the second point made by the Crown also demonstrates error on the part of the Magistrate. Each of the burglaries was a separate offence. This is not recognised by the terms of imprisonment running concurrently.
Situations can, of course, arise where the number of offences precludes accumulation because it would result in an overly long head sentence. This was the case in R v Dugdale [2017] ACTSC 203. The distinguishing factor in that case was that it involved 27 offences, including 13 burglaries.
In this case, it would not have created a totality issue to have had a degree of accumulation in the terms of imprisonment for the three burglaries. It is important the public sees that an offender is punished for each of the offences he commits. It is perhaps more important that the individual victims are able to see that an offender has been punished for the offence applicable to that victim.
Although, as I have stated above, the starting point is whether the sentence is plainly wrong, I have identified specific errors made by the Magistrate. This emphasises the issue of manifest inadequacy or, in other words, whether the sentences imposed should be changed.
The Crown submitted that principles of personal and general deterrence, combined with the offender’s criminal record, lead to a conclusion of manifest inadequacy. Counsel for the respondent countered that the offender’s young age (23), his early introduction to drugs, his deprived background and his mental health issues all combined to render the sentences imposed appropriate to this offender.
I think I can say that, had I been sentencing this offender, the sentences would have been different. The three burglaries would not have attracted the same punishment and there would have been a degree of accumulation. The head sentence and non-parole period would have been greater than what they are.
However, what I would have done is not the test. As Refshauge J states in Law v Ilievski [2016] ACTSC 291 at paragraph [13]:
Sentences are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
The ultimate test is whether or not the sentences imposed by the Magistrate were plainly wrong or unjust. Having regard to the factors identified by the respondent which could justify the degree of leniency that is ultimately reflected in the head sentence and non-parole period, I do not think that I can say that the sentences were plainly wrong or unjust.
The two technical issues that I referred to were not contested by either party. The first concerns the imposition of a Good Behaviour Order operating concurrently with a parole order. The Chief Justice in Peter v Wade [2017] ACTSC 122 stated that such juxtaposition effectively amounts to double punishment. No suggestion was made that I should not follow her Honour’s decision. Accordingly, it is necessary to set aside the Good Behaviour Order.
The second technical issue arises from the imposition of the 24 month licence disqualification for the offence of drive while disqualified. This was imposed as an automatic penalty. It is clear, however, that a 24 month disqualification is only applicable to a repeat offender. Notwithstanding this offender’s history, he should have, for the specific charge of drive while disqualified, been treated as a first offender. For a first offender, the automatic disqualification period is 12 months.
However, it would have been within the Magistrate’s power to increase the disqualification to 24 months. In my view, that would have been a proper exercise of his power in the circumstances of this case. Accordingly, there is no need to interfere with the disqualification period.
Although not the focus of this appeal, I note that the Notice of Appeal refers to the penalty for the drive while disqualified charge as being inadequate. The increase of the disqualification period to 24 months goes some way to addressing this point.
I make the following orders:
(a)Except as stated in Order (b), the appeal is dismissed.
(b)The Good Behaviour Orders imposed by Special Magistrate Mulligan on 18 April 2017 are set aside.
| I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 15 August 2017 |
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