Glenn Stuart Dalton v The Queen

• Jurisdiction: Australian Capital Territory
• Court: Court of Appeal of ACT
• Judge: Refshauge,Penfold,Wigney JJ
• Judgment Date: 10 September 2015
• Date: 10 September 2015
• Docket Number: File Number: ACTCA 23 of 2014

[2015] ACTCA 48

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Before:

Refshauge, Penfold and Wigney JJ

File Number: ACTCA 23 of 2014

Glenn Stuart Dalton

(Appellant)

and

The Queen

(Respondent)

Representation:

Counsel

Mr J Lawton (Appellant)

Mr J White SC (Respondent)

Cases Cited:

Balthazaar v The Queen [2012] ACTCA 26

Barbaro v The Queen; Zirilli v The Queen (2014) 305 ALR 323

Dinsdale v The Queen (2000) 2002 CLR 321

Frahm v R [2014] NSWCCA 10

House v The King (1936) 55 CLR 499

Markarian v The Queen (2005) 228 CLR 357

Melham v The Queen [2011] NSWCCA 121

R v Abbott (2007) 170 A Crim R 306

R v Catanzariti [2014] ACTSC 333

R v Hatzis (SCC 74 of 2011; 4 September 2012);

R v O'Brien [2014] ACTSC 156

R v Stott [2012] ACTCA 33

Zirilli v The Queen (2014) 305 ALR 323

Legislation Cited:

Crimes Act 1900 (ACT)

Criminal Code 2002 (ACT)

APPEAL — Sentence — forcible confinement — obtaining property by deception — attempting to obtain property by deception — manifestly excessive — comparable cases — no sentencing trend demonstrated

Decision:

1. The appeal is dismissed.

THE COURT:

1 The appellant, Mr Glenn Dalton, appeals to this Court against the sentence imposed on him by Murrell CJ upon his conviction for offences of forcible confinement, obtaining property by deception and attempting to obtain property by deception. The sentence imposed was a head sentence of three years and ten months imprisonment with an effective non-parole period of two years, eight months and two weeks. The sole ground of appeal is that the sentence is manifestly excessive.

Facts

2 The three offences committed by the appellant occurred during a single episode of criminality on 18 and 19 June 2014 involving the appellant, a man named Elliott Fleet and a woman named Saskia Faes. Ms Faes is the appellant's ex-wife and the mother of his two children. She had also been at some stage involved in a relationship with the complainant, Mr Robert Graham. There was apparently some considerable animosity between the appellant and Mr Graham arising from a dispute concerning the custody of the appellant's children.

3 On 18 June 2013 Mr Graham was lured to an apartment in the suburb of Braddon by a text message from Ms Faes. He arrived at the apartment to find that it was occupied not only by Ms Faes, but also by the appellant and Mr Fleet. Upon his arrival, Mr Graham was confined and physically restrained by the appellant, and threatened by the appellant and Mr Fleet. He was then forced into a car with the appellant, Mr Fleet and Ms Faes. The car was driven to Manuka. During the drive Mr Graham was further threatened by Mr Fleet and forced to take some prescription sedatives (Xanax).

4 At Manuka the appellant demanded that Mr Graham tell him the Personal Identification Numbers ( PINs) for his bank cards. In the early hours of 19 June, over a two hour period, the appellant used the PINs to withdraw $1,140 from Mr Graham's bank accounts via automatic teller machines. He also attempted to withdraw a further $1,500.

5 Mr Graham eventually passed out as a result of the tablets he had been forced to take. He ended up back in the apartment. He only woke up when he was found by police in the apartment mid-morning on 19 June. Fortunately for Mr Graham, the police had attended the apartment as a result of their investigation of unrelated traffic offences by Mr Fleet.

6 The total period of effective confinement of Mr Graham was 29 hours.

The charges

7 The appellant was charged and ultimately pleaded guilty to the following three offences:

• 1. One count of forcible confinement contrary to s 34 of the Crimes Act 1900 (ACT) and s 45A of the Criminal Code 2002 (ACT) (as co-offender with Mr Fleet), carrying a maximum penalty of ten years imprisonment.

• 2. One count of obtaining property by deception contrary to s 326 of the Criminal Code, carrying a maximum penalty of ten years imprisonment and one thousand penalty units (a fine of $150,000); and

• 3. One count of attempting to obtain property by deception contrary to ss 326 and 44 of the Criminal Code, carrying a maximum penalty of ten years imprisonment and one thousand penalty units (a fine of $150,000).

The sentences

8 The learned sentencing judge sentenced the appellant to 3 years and ten months imprisonment in relation to the forcible confinement count. The sentence was to commence on the expiry of a term of imprisonment imposed for unrelated offences the subject of separate proceedings. In relation to the obtain property by deception and attempt counts, the appellant was sentenced to twelve months imprisonment. These sentences were to commence on the same day as the forcible confinement sentence. They were, accordingly, wholly concurrent with each other and wholly concurrent with the forcible confinement sentence. Her Honour imposed a non-parole period of two years, eight months and two weeks.

9 The co-offenders, Mr Fleet and Ms Faes, were also convicted and sentenced for various offences. No issue of parity was raised by the appellant on this appeal. It is accordingly unnecessary to say anything more about the sentences imposed on the co-offenders.

Remarks on sentence

10 None of the appellant's submissions turned on the sentencing judge's remarks on sentence. It is accordingly unnecessary to refer to them in any detail. Suffice it to say that her Honour found that the objective seriousness of the forcible confinement count was ‘moderate to high’. The confinement was for a period of twenty nine hours, the complainant was subject to serious threats that would be likely to inspire terror, and was drugged. The motive was one of personal animosity as well as financial gain for purchasing drugs. There was some degree of premeditation and the offence was committed in company.

11 At the time of the commission of the offences the appellant was on bail for unrelated charges. He had a criminal history of ‘minor to moderate seriousness.’ He had been in prison previously.

12 In relation to the appellant's subjective circumstances, the sentencing judge noted that the appellant had a ‘substance abuse problem’ that had contributed to the commission of the offences. He had, however, completed a residential rehabilitation program in mid 2013.

Submissions on appeal

13 The appellant submitted that the sentence imposed on him was manifestly excessive having regard to three matters: first, the objective seriousness of the offences and the appellant's criminal history; second, the appellant's circumstances; and third, sentences in what were said to be comparable decisions.

14 The first and second points were not...