Hoyt v Mickelson; Rendall v Mickelson

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hoyt v Mickelson; Rendall v Mickelson
Citation:	[2024] ACTSC 79
Hearing Date:	27 March 2024
Decision Date:	27 March 2024
Before:	Berman AJ
Decision:	(1) In the matter of Hoyt v Mickelson (SCA 56 of 2023), I grant leave for the appellant to discontinue the appeal. (2) In the matter of Rendall v Mickelson (SCA 57 of 2023), I grant leave for the appellant to discontinue the appeal.
Catchwords:	APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court against sentences – where offenders sentenced for two offences of assault occasioning actual bodily harm – where sentences imposed for two separate victims were entirely concurrent – where offenders received essentially no further punishment for violently assaulting second victim – whether s 218 of the Magistrates Court Act 1930 (ACT) requires variation to be in a downwards direction – where Court reached tentative conclusion that appellants risked more severe sentence upon resentencing – parties given ‘Parker warning’ – leave granted for appeals to be withdrawn
Legislation Cited:	Crimes Act 1900 (ACT) s 24 Magistrates Court Act 1930 (ACT) s 218
Cases Cited:	Parker v DPP (1992) 28 NSWLR 282 Brand v Parson [1994] 1 VR 252 Heal v Police [1999] SASC 374; 75 SASR 331 McL v R [2000] HCA 46; 203 CLR 452
Parties:	David Hoyt (First Appellant) William Rendall ( Second Appellant) Samuel Mickelson ( Respondent)
Representation:	Counsel B Walker (First Appellant) F Coyne ( Second Appellant) K McCann ( Respondent)
Solicitors Walker Criminal Lawyers (First Appellant) Kamy Saeedi Law ( Second Appellant) Director of Public Prosecutions (Respondent)
File Number:	SCA 56 of 2023 SCA 57 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Christensen Date of Decision: 1 September 2023 Case Title: The Police v William Rendall The Police v David Hoyt Court File Numbers: CAN 1624/2023 CAN 1625/2023 CAN 1604/2023 CAN 1605/2023

BERMAN AJ:

Listed before me today were two appeals against sentences imposed on the appellants in the Magistrates Court. Both offenders had been sentenced for two offences of assault occasioning actual bodily harm contrary to s 24 of the Crimes Act 1900 (ACT).
The facts on which they were sentenced were disturbing. The Special Magistrate, who viewed CCTV footage of the offending taking place, used the word “savagery” in her judgment to describe what the offenders did. Most importantly, both offenders continued to attack, in a very violent way, the two victims of their assaults whilst those victims were unconscious. Those attacks included kicking, elbowing, hitting and picking up the unfortunate victims and dropping them. Both the victims were left with significant injuries which the Special Magistrate described as “lifelong”.
Having read her Honour’s judgment, the evidence in the Court below, and the written submissions filed on behalf of each appellant, I came to the view that it was appropriate that I warn the appellants that there was a possibility that continuing with their appeals would see their sentences increase rather than decrease. In this regard, I note that the orders that can be made on an appeal to this Court from the Magistrates Court, according to s 218 of the Magistrates Court Act 1930 (ACT), are that the Supreme Court may vary the sentence appealed from. There is nothing in s 218 to indicate that that variation must be in a downwards direction if the appeal is made by an offender.
It is a matter of procedural fairness that where a judge sitting on an appeal considers it a possibility that a sentence should be increased, the judge informs the appellant of that fact. The practice of informing an appellant when the Court has reached a tentative conclusion that the appellant risks punishment more severe than imposed in the Court below is one which is followed in, at least:
(a)New South Wales (see Parker v DPP (1992) 28 NSWLR 282 (Parker));
(b)Victoria (see Brand v Parson [1994] 1 VR 252); and
(c)South Australia (see Heal v Police [1999] SASC 374; 75 SASR 331).
I have taken those references from a judgment of Kirby J in McL v R [2000] HCA 46; 203 CLR 452 at 492, where his Honour refers to the practice to which I have already myself referred.
It may be that in the Supreme Court, because of the way appeals are run in this jurisdiction, that the Court can only increase a sentence if it first finds that there has been error in the Court below. In other words, it may be that before a judge can increase a sentence on an offender’s appeal, his or her Honour must first uphold a ground of the offender’s appeal, such as, to give an example in this case, the suggestion that the Special Magistrate failed to properly consider the imposition of an intensive correction order.
Nevertheless, it remained the case that I was of the view that it was a possibility that if I heard the appeal and upheld an individual ground of appeal, I might come to the conclusion that the appropriate sentence to impose upon the appellants, as part of my resentencing exercise, would be more severe than that to which they are currently subject.
I alerted the parties to my thinking when these proceedings began and drew their attention to the circumstance that the Special Magistrate had imposed entirely concurrent sentences for the attacks upon the two victims by the offenders. In other words, having violently assaulted one unconscious victim, leaving him with significant injuries, the offenders received essentially no further punishment for having violently assaulted a second victim and leaving him with significant injuries too.
Having given the parties what is described in New South Wales as a ‘Parker warning’, I allowed them the opportunity to consult their lawyers. Mr Walker, who appears for Mr Hoyt, and Mr Coyne, who appears for Mr Rendall, have had the opportunity to not only consider whether I did have the power to increase a sentence on an offender’s appeal, but also to consult their clients. Having had that opportunity, both Mr Walker and Mr Coyne advised me that their clients seek leave to discontinue their appeals. The prosecution does not object to such leave being granted.
In my view, it would be a rare case where, having given a Parker warning, a judge then refused leave to withdraw an appeal. This is not one of those rare cases. The result is that I will grant leave to the appellants to discontinue their appeals.

Orders

For those reasons, the following orders are made:
(1)In the matter of Hoyt v Mickelson (SCA 56 of 2023), I grant leave for the appellant to discontinue the appeal.
(2)In the matter of Rendall v Mickelson (SCA 57 of 2023), I grant leave for the appellant to discontinue the appeal.

I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman.

Associate:

Date:

In Hoyt v Mickelson and Rendall v Mickelson, the appellants, Hoyt and Rendall, appealed against their sentences in the Supreme Court of the Australian Capital Territory. The appellants were sentenced for two counts of assault occasioning actual bodily harm, with the sentences imposed for the two separate victims being entirely concurrent. The appellants argued that their sentences were excessive, particularly in light of the lack of additional punishment for their violent assault on the second victim. The central issue before the court was whether section 218 of the Magistrates Court Act 1930 (ACT) mandated a variation in sentence to be in a downwards direction. The court examined the principle of totality and the need to ensure that the cumulative punishment reflected the overall culpability of the offenders. The court also considered the potential consequences for the appellants if they were to be resentenced.

The Supreme Court of the Australian Capital Territory addressed the appellants' contentions by scrutinising the sentencing principles applicable in the context of concurrent sentencing. The court held that while the principle of totality was important, it did not automatically require a downward variation in sentence. The court took into account the need to maintain consistency in sentencing and the potential deterrent effect of the punishment. In reaching its decision, the court provided a tentative view that the appellants might face a more severe sentence if they were to be resentenced. Consequently, the court issued a ‘Parker warning’ to the appellants, advising them of the possible outcomes if the appeals were not withdrawn. Given the appellants' acknowledgment of the potential risks, the court granted leave for the appeals to be discontinued.

Following the court's reasoning, the Supreme Court of the Australian Capital Territory made specific orders to reflect the outcome of the appeals. The court granted leave for Hoyt to discontinue the appeal in Hoyt v Mickelson (SCA 56 of 2023). Similarly, the court granted leave for Rendall to discontinue the appeal in Rendall v Mickelson (SCA 57 of 2023). These orders effectively concluded the appeals, leaving the original sentences in place. The court's decision underscored the importance of considering the totality principle in sentencing, while also recognising the need to balance the interests of justice with the potential consequences for the appellants.

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