Mckie v Chard

[2020] ACTSC 205

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Mckie v Chard
Citation:	[2020] ACTSC 205
Hearing Date:	30 July 2020
Decision Date:	30 July 2020
Before:	Elkaim J
Decision:	See [17]
Catchwords:	APPEAL FROM MAGISTRATES COURT – SENTENCE – Manifest Excess – Failure to give reasons – whether the sentence imposed was cumulative – repetition of violence factor
Parties:	Anthony James Mckie (Appellant) Andrew Chard (Respondent)
Representation:	Counsel S McLaughlin (Appellant) M Smith (Respondent)
Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent)
File Number:	CA 22 of 2020
Decision under appeal:	Court:   Before: Date of Decision: Case Title: Court File Number:	ACT Magistrates Court Chief Magistrate Walker 8 May 2020 Chard v McKie CC13397/2020; CC13399/2020; CC6025/2018; CC6062/2018

ELKAIM J:

1. On 15 May 2020 the appellant filed a Notice of Appeal against the sentences imposed by Chief Magistrate Walker on 8 May 2020. Her Honour imposed a total sentence of 11 months' imprisonment.  There was no need to set a nonparole period.

1. The appeal can be separated into two areas. There is the appeal in relation to a choking offence, for which the appellant received a sentence of eight months' imprisonment. The second area relates to re-sentencing in respect of two breaches of suspended sentence orders, for which the balance of three months' imprisonment was imposed.

1. It is necessary for me to identify error if I am going to interfere in these sentences.

1. The appellant’s grounds of appeal are that:

(a)The sentences for both the breach matters and the choking offence are manifestly excessive. Additionally, in relation to the sentences imposed for the breach matters, the appellant submitted that this effectively created a cumulative sentence from two concurrent sentences. That is, the Chief Magistrate imposed a sentence of 90 days when a sentence of 60 days or perhaps even 46 days (the length of the appellant’s sentence which was suspended) should have been set;

(b)For the breach matters, her Honour failed to properly evaluate the objective circumstances before imposing the sentences; and

(c)The total aggregate sentence was manifestly excessive.

1. The appellant also submitted that the Chief Magistrate failed to give reasons when exercising the Court’s wide discretion in re-sentencing for the breach matters. It is contended that her Honour did not consider the Statement of Facts for the breach matters and appeared to have proceeded on an erroneous understanding of the appellant’s earlier offending.

1. I am not satisfied that a failure to give reasons has been established. The fact that her Honour has not specifically said anything about the Statement of Facts does not indicate she did not take it into account.

1. As to the question of manifest excess, the often‑repeated principles were concisely summarised in Barrett v The Queen [2016] ACTCA 38, at [34]:

It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.

1. I do not think the sentences for the breach matters fall within the above test. Consequently I do not think there is any reason for me to interfere with the three months’ imprisonment imposed.

1. The situation is different in respect of the choking offence. The appellant submitted that there was a specific matter referred to by the Chief Magistrate which was productive of error. Her Honour stated in her sentencing remarks:

Repetition of violence is often used as a means of control, as is putting a person in fear.  Clearly this situation was aggravated because you had been sentenced so recently for an offence involving family violence.

1. It seems to me that when the two sentences in the above passage are read together, the Chief Magistrate is not making a general statement about repetition of violence but is, rather, considering the matter on the basis that the choking offence was a repetition of violence. The Crown accepts that on that basis, her Honour was wrong.  

1. The Crown, however, says just because the Chief Magistrate was wrong does not mean that I should interfere. The sentence might be otherwise appropriate.

1. There are two difficulties with that. The first is that I generally agree with everything the Chief Magistrate has said and agree with the approach that she took, including the basis on which she took it. It must follow, as a matter of logic, that if I do so agree, then the inclusion of the error as one of the factors must have a consequence.

1. The second is that a repetition of violence is a very important element to be taken into account when a person is sentenced for an act of domestic violence. The sentencing factors would no doubt include consideration of previous acts of violence. The appellant submitted that the previous offending did not involve violent conduct against the same complainant, but rather a breach of a protection order committed by the appellant drinking at the complainant’s house.

1. Although her Honour does not say in her remarks that, 'because of the repetition, I am imposing an extra period' or 'because of the repetition, I have come to a particular conclusion'. The only available inference from the reasons is that the fact, being an extremely important fact, has been taken into account.

1. In doing the best I can to follow her Honour's approach with which, as I said, I otherwise agree, I think the sentence for the choking offence must be reduced. The appropriate sentence, again adopting everything the Chief Magistrate has said in relation to subjective factors and other elements, is six months' imprisonment. 

1. The parties agreed that if a new sentence were to be imposed, the relevant commencement date would be 6 January 2020.

1. The orders of the Court are:

(a)    The appeal is allowed.

(b)    The sentences imposed by Chief Magistrate Walker in respect of the two breach matters which contravened the suspended sentences on CC6026/2018 and CC6025/2018 are confirmed.

(c)    In respect of the choking offence (CAN13397/2019), the appellant is re‑sentenced to 6 months’ imprisonment.  

(d)    The total period of imprisonment is 9 months, commencing on 6 January 2020 and expiring on 5 October 2020.

I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 3 August 2020