Adam Beniamini(Appellant) v Felicity Storman

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Refshauge J
• Judgment Date: 23 February 2017
• Docket Number: File Number: SCA 65 of 2013
• Date: 23 February 2017

[2017] ACTSC 31

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Refshauge J

File Number: SCA 65 of 2013

Adam Beniamini

(Appellant)

and

Felicity Storman

(Respondent)

Representation:

Counsel

Mr R Davies (Appellant)

Mr R Reardon (Respondent)

Cases Cited:

Achurch v The Queen [2014] HCA 10 ; 253 CLR 141

Beniamini v Craig [2017] ACTSC 30

Beniamini v Storman [2014] ACTSC 2

R v Beniamini (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 9 December 2010)

R v Beniamini [2014] ACTSC 40

R v Gorman [2009] ACTSC 7

R v JJ [2014] ACTCA 23 ; 242 A Crim R 363

R v Pumpa [2015] ACTSC 177

R v TW (No 2) [2014] ACTCA 37

Legislation Cited:

Crimes (Sentencing) Act 2005 (ACT), ss 12, 61

Crimes (Sentence Administration) Act 2005 (ACT), s 110

Court Procedures Rules 2006 (ACT), r 6906

PRACTICE AND PROCEDURE — JUDGMENTS AND ORDERS — Sentences imposed contrary to law — not possible to suspend a sentence which has expired — reopening of proceedings to correct penalty errors — clerical error — slip rule — sentences amended and remade — s 61 of the Crimes (Sentencing) Act 2005 (ACT) — r 6906 of the Court Procedures Rules 2006 (ACT)

Decision:

The sentences imposed on 22 January 2014 be varied, so that:

• a) For the charge of damage property, the sentence of three months imprisonment commenced on 1 August 2013; and

• b) For the charge of common assault, the sentence of 12 months imprisonment commenced on 1 September 2013.

Refshauge J

1 On 22 January 2014, I upheld an appeal from the ACT Magistrates Court instituted by Adam Beniamini who had been convicted of offences of intentionally causing damage to property and assault. See Beniamini v Storman [2014] ACTSC 2.

2 The upholding of the appeal required me to re-sentence Mr Beniamini. At the same time, I had to sentence him for the breach of a Good Behaviour Order. I had made the Good Behaviour Order when I had sentenced Mr Beniamini for committing an assault occasioning actual bodily harm. I had sentenced him to nine months imprisonment but suspended that sentence and, as required by s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good Behaviour Order for two years: R v Beniamini (Unreported, Supreme Court of the Australian Capital Territory, Refshauge J, 9 December 2010).

3 The convictions for the offences the subject of the appeal constituted a breach of the Good Behaviour Order. Under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), I was required, once satisfied that Mr Beniamini had breached a Good Behaviour Order made when a sentence of imprisonment is suspended, as was the case here, to cancel the Good Behaviour Order.

4 I did so and, as entitled under the legislation, re-sentenced Mr Beniamini, requiring him then to serve four months and two weeks of imprisonment as periodic detention to end on 13 June 2014. See R v Beniamini [2014] ACTSC 40 ( R v Beniamini (2014)) at [35]–[37].

5 In doing so, I also re-sentenced Mr Beniamini for the offences the subject of the appeal, the sentences for which I had set aside. For those offences, I made the following orders:

• • On the charge of damage property, Adam Beniamini is sentenced to three months imprisonment to commence on 1 August 2012.

• • On the charge of common assault, Adam Beniamini is sentenced to 12 months imprisonment to commence on 1 September 2012.

• • The sentence is suspended on 1 February 2014 for two years.

• • Adam Beniamini is required to sign an undertaking to comply with the offender's Good Behaviour Obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for two years.

6 As was pointed out when considering another matter involving Mr Beniamini, namely Beniamini v Craig [2017] ACTSC 30, that sentence was clearly a sentence contrary to law since it is not possible to suspend a sentence which has expired. It was clear enough, and confirmed by the orders the subject of the appeal set out in Beniamini v Storman at [11], that the first two dates should have been 1 August 2013 and 1 September 2013.

7 In the Magistrates Court, the sentences had been specified to commence on 1 August 2013 and 1 September 2013 respectively. There was no basis for...