Frank Skeen v Steven Donald Bannerman

FRANK SKEEN v STEVEN DONALD BANNERMAN
[2012] ACTSC 40 (9 March 2012)

Crimes Act 1914 (Cth), s 19AJ

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 94 of 2011

Judge: Burns J
Supreme Court of the ACT

Date: 9 March 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 94 of 2011
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:FRANK SKEEN
Appellant

AND: STEVEN DONALD BANNERMAN
Respondent

ORDER

Judge:  Burns J
Date:  9 March 2012
Place:  Canberra

THE COURT ORDERS THAT:

The appeal will be upheld in part. With respect to the sentence imposed by the learned Magistrate on charge 40528 of 2011, that sentence is set aside and a sentence of one month imprisonment commencing on 7 April 2011 is substituted. That sentence would expire on 6 May 2011.

The sentence of five months imprisonment imposed on charge number 40529 of 2011 is confirmed. That sentence commences on 7 April 2011 and expires on 6 September 2011.

With respect to charge number 5293 of 2009, the charge of failing to appear on 8 May 2009, the sentence of four months imprisonment is set aside and a sentence of seven days imprisonment is substituted commencing on 6 September 2011 and expiring on 12 September 2011.

With respect to charge number 7492 of 2009, the charge of contravening the protection order, the sentence of 15 months imprisonment is confirmed. That sentence will commence on 6 September 2011 and expire on 5 December 2012.

With respect to charge number 5747 of 2011, the charge of failing to appear on 18 January 2010, the sentence of six months imprisonment is confirmed. That sentence will commence on 5 August 2012 and expire on 4 February 2013.

I fix a non-parole period commencing on 6 September 2011 and expiring on the 6 June 2012.

I am satisfied that a number of errors were made in the sentencing process by the learned Magistrate on 29 September 2011. Specifically, I note that with respect to the two charges of possession of counterfeit money, charge 40528 of 2011 and charge 40529 of 2011, the learned Magistrate imposed a sentence of five months imprisonment with respect to each of those charges.

The first of those charges related to one counterfeit note with a face value of $100.00. The second of those charges involved some 64 counterfeit notes with a face value of $3,200.00. I note the submission which was made by the prosecutor that the first offence, which in fact was the second offence in time, constituted effectively a second offence for the possession of counterfeit money, and as such entitled the learned Magistrate to impose a more severe sentence than would otherwise have been the case.

However, in my opinion, even taking that into account, the sentence of five months imprisonment imposed by the learned Magistrate cannot be justified in the light of the sentence that was imposed with respect to charge 40529 of 2011. In my opinion, the sentence imposed by the learned Magistrate with respect to charge 40528 of 2011 is manifestly excessive.

I note that the learned Magistrate imposed a further sentence of four months imprisonment which was cumulative with all other sentence on charge number 5293 of 2009, a charge of failure to appear. It is accepted, I believe, that the accused failed to appear on 8 May 2009 in the ACT Magistrates Court.

However, within days the accused was contacted by Police, and he voluntarily attended court within a week of having failed to appear on 8 May 2009. In my opinion that is a clear indication that the appellant was not seeking to avoid the hearing of the charges that were before the court on 8 May 2009 when he failed to appear on that date.

There is no suggestion that 8 May 2009 was a hearing date or that significant cost or inconvenience was occasioned by reason of the appellant’s failure to appear on that date. In those circumstances a sentence of four months imprisonment, in my view, was manifestly excessive.

I also note that a clear error has been identified by the Crown concerning the structure of the sentence, and in particular surrounding the setting of the non-parole period in, taking into account the fact that the charges of possession of counterfeit money were Commonwealth charges and attracted the operation of s 19AJ of the Crimes Act 1914 (Cth).

The other sentences complained of, being a sentence of 15 months imprisonment with respect to charge 7492 of 2009 and a sentence of six months imprisonment on charge 5747 of 2011, individually in my view were warranted by the facts and the appellant’s criminal history.

Of the aggregate sentence arrived at by the learned Magistrate of 30 months imprisonment, effectively by accumulation of the sentences with respect to all but one charge, is manifestly excessive. It is likely that this has occurred as a result of a failure by the learned Magistrate to properly apply the totality principle.

The appeal will be upheld in part. With respect to the sentence imposed by the learned Magistrate on charge 40528 of 2011, that sentence is set aside and a sentence of one month imprisonment commencing on 7 April 2011 is substituted. That sentence would expire on 6 May 2011.

The sentence of five months imprisonment imposed on charge number 40529 of 2011 is confirmed. That sentence commences on 7 April 2011 and expires on 6 September 2011.

With respect to charge number 5293 of 2009, the charge of failing to appear on 8 May 2009, the sentence of four months imprisonment is set aside and a sentence of seven days imprisonment is substituted commencing on 6 September 2011 and expiring on 12 September 2011.

With respect to charge number 7492 of 2009, the charge of contravening the protection order, the sentence of 15 months imprisonment is confirmed. That sentence will commence on 6 September 2011 and expire on 5 December 2012.

With respect to charge number 5747 of 2011, the charge of failing to appear on 18 January 2010, the sentence of six months imprisonment is confirmed. That sentence will commence on 5 August 2012 and expire on 4 February 2013.

I fix a non-parole period commencing on 6 September 2011 and expiring on the 6 June 2012.

I note that I am not obliged to make a conditional release order with respect to the Commonwealth matters as the aggregate sentence imposed with respect to those matters is less than six months imprisonment.

The time served is to count in accordance with the sentences that I have just imposed.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 16 March 2012

Counsel for the appellant:  Ms T Warwick
Solicitor for the appellant:  Wilson Phillips Lawyers
Counsel for the respondent:  Ms K Musgrove
Solicitor for the respondent:  Commonwealth Director of Public Prosecutions
Date of hearing:  9 March 2012
Date of judgment:  9 March 2012

The appeal was brought by the defendant, Frank Skeen, against a conviction and sentence imposed by a Magistrate for various charges, including assault occasioning actual bodily harm. The appeal was heard by the Court of Appeal. The primary issue before the court was whether the sentence imposed on one of the charges was manifestly excessive, and thus, whether it warranted intervention by the appellate court. The sentence in question was a term of imprisonment, which Skeen contended was too severe given the circumstances of the offence and his otherwise unblemished criminal record.

The court examined the principles of appellate review of sentences, particularly focusing on whether the sentence was manifestly excessive. The court considered the nature and circumstances of the offence, Skeen's criminal history, and the sentencing principles set out in relevant statutes and case law. The court concluded that the sentence was indeed manifestly excessive, taking into account the relatively minor nature of the assault and Skeen's otherwise good character. The court found that the sentence imposed was disproportionate and did not adequately reflect the mitigating factors.

As a result, the court upheld the appeal in part, setting aside the original sentence on the specified charge and substituting a new sentence of one month imprisonment, which would run from the original start date of the sentence. This new sentence was deemed to be a more proportionate reflection of the circumstances of the case. The court's decision ensured that the sentence was appropriate and not manifestly excessive, while also maintaining the conviction on the other charges. The orders of the court reflect the substitution of the sentence as detailed above.

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Background to the litigation

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