Barron v Laverty

• Jurisdiction: Australian Capital Territory
• Court: Supreme Court of ACT
• Judge: Murrell CJ
• Judgment Date: 31 July 2019
• Date: 31 July 2019
• Docket Number: File Number: SCA 9 of 2019

[2019] ACTSC 198

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Before:

Murrell CJ

File Number: SCA 9 of 2019

Michael Barron

(Appellant)

and

Nigel John Laverty

(Respondent)

Representation:

Counsel

P Edmonds (Appellant)

S Janackovic (Respondent)

Cases Cited:

Achuthun v Coates (1986) 6 NSWLR 472

Baker v The Queen [2004] HCA 45; 223 CLR 513

Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638

Crump v New South Wales [2012] HCA 20; 247 CLR 1

DL v The Queen [2018] HCA 32; 92 ALJR 764

DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402

Elliott v The Queen [2007] HCA 51; 234 CLR 38

Gillard v The Queen [2016] ACTCA 50

Guy v Anderson [2013] ACTSC 5

Gyory v The Queen [2012] ACTCA 28

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24

O'Brien v The Queen [2015] ACTCA 47

Parker v DPP (1992) 28 NSWLR 282

Peverill v Crampton [2010] ACTSC 79

R v Carmody [2016] ACTSC 382

Stevens v McCallum [2006] ACTCA 13

Taylor v Bowden [2009] ACTSC 13

The Queen v Lee [2016] ACTCA 69

Thorn v Laidlaw [2005] ACTCA 49

Wilkins v Hague [2011] ACTSC 189; 258 FLR 355

Legislation Cited:

Crimes Act 1914 (Cth) s 16A

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

Crimes (Sentencing) Act 2005 (ACT) ss 12, 62, 70

Criminal Code 1995 (Cth) s 474.17(1)

Family Violence Act 2016 (ACT) s 43(2)

Human Rights Act 2004 (ACT) ss 24, 25(2), 30

Legislation Act 2001 (ACT) ss 139, 140

Magistrates Court Act 1930 (ACT) ss 208, 218

Sentencing Act 1997 (Tas) s 27(5)

APPEAL — APPEAL AGAINST SENTENCE — When the appellant committed multiple family violence offences — When the sentencing magistrate accumulated the sentence for five of the six offences — Whether the total sentence was manifestly excessive by reason of the accumulation — Whether the non-parole period was manifestly excessive — Whether the sentencing magistrate erred in applying an incorrect maximum penalty

SENTENCING — STATUTORY INTERPRETATION — Suspended Sentence — Where the appellant breached the good behaviour order attached to a suspended sentence — Crimes (Sentence Administration) Act 2005 (ACT) s 110(2) — Difference between “impose the suspended sentence” under s 110(2)(a) and “re-sentence” under s 110(2)(b) — Whether the court may re-sentence an offender to a sentence more severe than the original sentence — Right not to be punished more than once — Human Rights Act 2004 (ACT) s 24 — Whether the sentencing court afforded the appellant procedural fairness

Decision:

Appeal allowed. The appellant is re-sentenced to a total sentence of 2 years' imprisonment with a non-parole period of 13 months.

Murrell CJ

The Appeal

1 On 9 January 2019, following guilty pleas to six charges, the appellant was sentenced by the Chief Magistrate to a total of two years and eight months' imprisonment, commencing on 30 July 2018 and expiring on 29 March 2021. Her Honour set a non-parole period of 18 months (56 per cent of the total term), expiring on 29 January 2020.

2 The charges and related sentences were as follows.

Charge	Offence	Date of Offence	Maximum Penalty	Sentence
1. CC17/9390	Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT)	17 August 2017	5 years' imprisonment	Breach—good behaviour order made on 19 April 2018 revoked—suspended sentence of 8 months' imprisonment imposed 30.07.2018–29.03.2019
2. CC17/9391	Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT)	18 August 2017	5 years' imprisonment	Breach—good behaviour order made on 19 April 2018 revoked—suspended sentence of 9 months' imprisonment imposed 30.03.2019–29.12.2019
3. CC17/9844	Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT)	22 April 2018	5 years' imprisonment	3 months' imprisonment 30.03.20–29.06.20
4. CC17/8246	Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT)	24 June 2018	5 years' imprisonment	3 months' imprisonment 30.12.2019–29.03.2020
5. CC17/8247	Use carriage service to harass/menace pursuant to s 474.17(1) of the Criminal Code 1995 (Cth)	24 June 2018	3 years' imprisonment	3 months' imprisonment 30.12.2019–29.03.2020
6. CC17/9845	Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT)	11 July 2018	5 years' imprisonment	9 months' imprisonment 30.06.2020–29.03.2021

3 Initially, the appellant appealed against the sentence on the grounds that:

• (a) The total sentence was manifestly excessive as a result of the complete accumulation of the sentences for five of the six offences.

• (b) The non-parole period was manifestly excessive as a result of her Honour's failure to have regard to the “principle of parsimony” in setting the non-parole period.

4 In his written submission dated 28 March 2019, the Appellant sought to rely on a further ground of appeal, namely:

• (c) Her Honour erred in applying an incorrect maximum penalty to the offence of using a carriage service to harass (CC18/8247).

5 By leave given at the hearing of the appeal, the appellant appealed on the following ground:

• (d) Her Honour erred in her approach to s 110(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) by ordering that the suspended sentences imposed for the breach offences be served cumulatively, although the original sentences were concurrent.

Principles applicable on a sentence appeal

6 An appeal against sentence under s 208 of the Magistrates Court Act 1930 (ACT) ( Magistrates Court Act) is a rehearing on the evidence before the Magistrate together with any other evidence that the Court permits to be adduced: Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19] ( Luketela). The appeal court must conduct a real and independent review of the evidence, making due allowance for the advantage enjoyed by the lower court in seeing and hearing any witnesses: Peverill v Crampton [2010] ACTSC 79 ( Peverill) per Refshauge J at [24]. The appeal court may intervene if the lower court erred in law or fact, or exercised its discretion on the basis of a wrong principle or in a manner that was clearly wrong: Luketela at [19], Peverill at [24].

7 In this case, the question is whether the Magistrates Court exercise its discretion on the basis of a wrong principle or in a manner that was clearly wrong.

8 Section 218 of the Magistrates Court Act provides:

218 Orders by Supreme Court on appeals

• (1) On an appeal to which this division applies, the Supreme Court may—

  • (a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or

  • (b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or

• …

9 The appellant contended that, where “may” is used in this provision, it does not confer a discretion but is facilitative, i.e. the Supreme Court must intervene if specific error is identified. The High Court noted in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 ( Kentwell) at [35]:

In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.

[emphasis added.]

10 It is unnecessary to determine whether, where it is used in s 218 of the Magistrates Court Act, the word “may” is facilitative because, in this case, a separate specific error was established and, as a result, I will impose the sentence that I consider to be appropriate.

Facts

Count 1—Breach offence

11 In February 2017, the appellant's parents obtained domestic violence orders which prevented him from contacting them or being at their Latham premises.

12 At about 8 PM on 17 August 2017, the appellant entered the backyard of their premises and asked his parents for clothing. Clothing was provided, but the appellant was dissatisfied. He became increasingly agitated and refused to leave. He remained at the property for more than two hours. His parents contacted the police. The appellant left soon after the police arrived.

13 At about 8 AM on 18 August 2017, the appellant re-entered the backyard of the premises and began tapping on the windows. He was asked to leave but refused to do so. The appellant's parents left the premises for about an hour. When they returned, the appellant was still there. They reported the matter to police.

Count 2—Breach offence

14 At about 9 PM on 19 August 2017, the appellant's parents arrived home to find the appellant in the backyard of their premises, tapping on the windows. They asked the appellant to leave but he became increasingly upset when they refused to give him food, cigarettes, and money. He remained there for half an hour before leaving. By this stage, his parents had contacted the police. That night, the appellant left four voicemail messages on his parents' home telephone. In the messages, the appellant requested money, food, clothes, and permission to stay overnight.

Sentences for breach offences

15 On 19 April 2018, the appellant was sentenced on Counts 1 and 2 by Special Magistrate Cush, who imposed and then suspended sentences of eight and nine months' imprisonment respectively. In doing so, his Honour...