Richards v The Queen

[2012] ACTCA 10

DANIEL LEE RICHARDS v THE QUEEN
[2012] ACTCA 10 (7 February 2012)

EX TEMPORE JUDGMENT

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

No. ACTCA 31 - 2011
No. SCC 30 of 2011
No. SCC 32 of 2011

Judges:        Higgins CJ, Penfold and North JJ
Court of Appeal of the Australian Capital Territory
Date:           7 February 2012

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 - 2011
  )          No. SCC 30 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 32 of 2011
  )

COURT OF APPEAL  )

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

BETWEEN:DANIEL LEE RICHARDS

Appellant

AND:THE QUEEN

Respondent

ORDER

Judges:  Higgins CJ, Penfold and North JJ
Date:  7 February 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be partly upheld.

1. The sentence imposed by Nield AJ be varied as follows:

(i)         with respect to the offence of burglary, the period of imprisonment be reduced from three years and two months to two years;

(ii)        with respect to the offence of theft, the period of imprisonment be reduced from one year to six months, and served concurrently with the above sentence;

(iii)       with respect to the offence of driving a motor vehicle without consent, the period of imprisonment remain at one year and seven months, but be served concurrently with the sentence for burglary;

(iv)       a non-parole period of one year and six months dating from 29 October 2010 be imposed.

IN THE SUPREME COURT OF THE     )          No. ACTCA 31 - 2011
  )          No. SCC 30 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 32 of 2011
  )

COURT OF APPEAL  )

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

BETWEEN: DANIEL LEE RICHARDS

Appellant

AND:THE QUEEN

Respondent

Judges:  Higgins CJ, Penfold and North JJ
Date:  7 February 2012
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. Mr Richards appeals against sentences which were imposed upon him by Nield AJ on 30 May 2011.  On one count of driving a motor vehicle without the authority of the owner, he was sentenced to one year and seven months’ imprisonment, commencing from 29 October 2010.  In respect of a count of burglary, he was sentenced to three years and two months from 29 August 2011.  He was also given a sentence of one year for the offence of theft, to commence on 29 November 2011. That sentence was to be served wholly concurrently with the sentence for the burglary, while nine months of the sentence for taking the motor vehicle was to be served concurrently with the sentence for burglary. 

1. The total head sentence, then, was four years, and a non-parole period of two years and nine months was fixed.  That commenced on 29 October 2010 and concludes on 28 July 2013. 

1. It is our view that the sentences imposed were, with one exception, excessive. The one exception is the count for driving a motor vehicle without consent.  We would have imposed a sentence of one year and six months, but one year and seven months is certainly within range, and to reduce it simply by one month would, we think, be tinkering with that sentence. 

1. We take it that Mr Doig does acknowledge that the sentences for burglary and theft were at variance with the sentences we thought appropriate yesterday in the matter of Edward Aldridge v The Queen ACTCA 49 of 2010, allowing, of course, for the difference in circumstances. 

1. The other matter that troubles us is the accident involving Mr Richards that took place 10 days before the offences. It clearly had a serious effect upon him physically.  He discharged himself from hospital a week after the accident and was found by police at Canberra Airport, after the burglary and the taking of the motor vehicle, apparently in severe pain and intoxicated to such an extent that the police regarded it as a matter where he should be taken to hospital rather than taken into custody.  Technically, of course, he would have been in custody. 

1. However, it seems to us that such a state of affairs leads to a conclusion that Mr Richards’ judgment at the time of the burglary and theft and taking of the motor vehicle was clearly impaired.  This is not a matter that his Honour seems to have taken into account. 

1. In any event, for those reasons we would uphold the appeal, at least in part.  We would vary the sentences imposed as follows: in respect of the count of burglary, we would reduce the sentence from three years and two months to two years; in respect of the appropriation of property, having regard to the fact that, if taken by itself, it was indeed a minor theft, we would reduce the sentence to six months, to be served concurrently with the sentence imposed for the burglary; and with respect to the driving of the vehicle without consent, we would re-impose the sentence of one year and seven months, but make it concurrent as to all but six months with the sentence previously imposed, that is, the two years. 

1. That would make what we would regard as an appropriate total sentence of two years and six months, dating from 29 October 2010.  We would allow for a non-parole period of one year and six months from that date as well. 

   I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

   Associate:

   Date:      16 March 2012

Counsel for the Appellant:  Self-represented
Counsel for the Respondent:  Mr A Doig
Solicitor for the Respondent:  Director of Public Prosecution for the ACT
Date of hearing:  7 February 2012
Date of judgment:  7 February 2012