Jose Maria Canizares v The Queen

[2013] ACTCA 19

JOSE MARIA CANIZARES v THE QUEEN
[2013] ACTCA 19 (7 May 2013)

Crimes Act1900 (ACT)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 47 - 2012
No. SCC 307 of 2011

Judges:        Higgins CJ, Burns, Gilmour JJ
Court of Appeal of the Australian Capital Territory
Date:           7 May 2013

IN THE SUPREME COURT OF THE     )          No. ACTCA 47 - 2012
  )          No. SCC 307 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:   JOSE MARIA   CANIZARES

Applicant

AND:   THE QUEEN

Respondent

ORDER

Judges:   Higgins CJ, Burns, Gilmour JJ           
Date:  7 May 2013 
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 47 - 2012
  )          No. SCC 307 of 2011
AUSTRALIAN CAPITAL TERRITORY           )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:    JOSE MARIA   CANIZARES

Applicant

AND:   THE QUEEN

Respondent

Judges:  Higgins CJ, Burns, Gilmour JJ
Date:  7 May 2013
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. Mr Canizares was charged and then sentenced in respect of two matters. The first of which is a demand with a threat contrary to s 32(2) of the Crimes Act1900 (ACT). He was also sentenced in respect of a burglary and theft by reason of breach of a good behaviour order in respect of which he had been released. That is also relevant to the sentence which was imposed.

1. For that unrelated matter, burglary and theft, his Honour gave him a sentence of 12          months of imprisonment, but it is important to note this added but three months to the          total sentence, for two reasons.  One is he had served part of it, and the second was that his Honour accumulated the remaining part of the sentence only by three months.

2. For the second matter he was sentenced to three years of imprisonment as a head   sentence.  That is, to my mind at least, at the top of the range for the objective          circumstance of the offending behaviour. However, I cannot say that it is excessive.           Nor in the context is the two year non-parole period which was related to the overall            sentence, given not only the appellant’s poor prospects for rehabilitation, and that would have called for a considerable period on non-parole to enable him to be ready    for parole without being at risk in the community.

3. Nor could the sentence, including the non-parole period, be regarded as excessive in         the context of the prior matter for which he was at conditional liberty at the time of    his offending and his criminal history.  The result therefore, in my view, it should be     that the appeal should be dismissed.
              BURNS J: 

4. I agree with the orders proposed by the Chief Justice.
              GILMOUR J: 

5. I too agree with his Honour’s reasons.

   I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:     31  May 2013

Counsel for the Applicant:  Mr Sabharwal
Solicitor for the Applicant:  Rachel Bird & Co
Counsel for the Respondent:  Ms Jones
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  7 May 2013 
Date of judgment:  7 May 2013