Snowden v Clark

[2012] ACTSC 90

SIMON MILNE SNOWDEN v JENNIFER MARY CLARK                
[2012] ACTSC 90 (28 May 2012)

Crimes (Sentencing) Act 2005 (ACT), s 17

House v The King (1936) 55 CLR 499
Talukder v Dunbar [2009] ACTSC 42

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 125 of 2011

Judge:             Burns J
Supreme Court of the ACT

Date:              28 May 2012

IN THE SUPREME COURT OF THE     )
  )          No. SCA 125 of 2011
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:SIMON MILNE SNOWDEN

Appellant

AND:             JENNIFER MARY CLARK
  Respondent

ORDER

Judge:  Burns J
Date:  28 May 2012
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal will be dismissed.  The conviction and sentence imposed by the learned magistrate are confirmed.

1. The appellant in this matter was originally charged with one offence of assault occasioning actual bodily harm and two offences of common assault arising out of an incident that occurred on 3 May 2010.  Ultimately, the prosecution did not proceed with the charge of assault occasioning actual bodily harm and effectively rolled all of the allegations in relation to the two assaults into the one charge of assault, to which the appellant entered a plea of guilty on 26 October 2011.  The matter came before the learned sentencing magistrate on that date and was subsequently adjourned to 7 December 2011, at which time a sentence was passed. 

1. The appellant was convicted of the one count of common assault and sentenced to eight months imprisonment which was to commence on 7 December 2011 and expire on 6 August 2012.  The appellant appealed from the sentence imposed upon him by the learned magistrate.

1. The one ground of appeal which is pursued by the appellant is that the sentence was manifestly excessive.  I have had an opportunity to read the sentencing comments that were made by the learned magistrate.  It is not suggested that the learned magistrate made any error such as to invoke the principles in House v The King (1936) 55 CLR 499. Rather, it is submitted that error may be inferred on the part of the learned magistrate by the sentence which was ultimately imposed.

1. I note that the sentence of eight months imprisonment is less than half of the maximum penalty applicable with respect to the offence.  The offence of common assault carries a maximum penalty of two years imprisonment.  In my opinion, the learned magistrate was entitled to come to the conclusion that this was a relatively serious example of the types of offences that are dealt with as common assaults in the Courts in this territory.

1. I note that her Honour gave the appellant a 20 per cent discount on the sentence that she would otherwise have imposed, in order to reflect his plea of guilty, so that the sentence she would have imposed but for his plea of guilty was one of 10 months imprisonment.

1. I find myself quite unable to say that the sentence of 10 months imprisonment was manifestly excessive with respect to the allegations that were before her Honour at that time.  The sentence of eight months imprisonment, taking into account the 20 per cent discount, was in my opinion entirely appropriate. 

1. I note that her Honour very generously indicated that some leniency may be extended to the appellant based upon the fact that it had been 10 years before the matter before her that the appellant had last been sentenced to a term of imprisonment.  As I have indicated, that was a very generous suggestion by her Honour.  The criminal history demonstrates that whilst the appellant may not have been sentenced to imprisonment in that 10-year period, he certainly committed a number of offences during that time, including serious criminal offences relating to the possession of drugs.

1. I note that the case which was referred to by counsel for the appellant, Talukder v Dunbar [2009] ACTSC 42 (Talukder) is of little assistance in determining whether the sentence imposed by her Honour is outside the appropriate range with respect to offences of this nature. Whilst a non-conviction order pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) was ultimately imposed on appeal by Refshauge J, the two cases in reality are not comparable. I note that the appellant in the matter of Talukder had no previous convictions.  That in itself is a matter which would indicate that one cannot compare the two cases.

1. I am not to interfere with the sentence which was imposed by the

   
   

   learned magistrate unless I am satisfied that the sentence was such that I can infer error on the part of the learned magistrate in the exercise of her sentencing discretion.  In my opinion, no such error can be inferred.

1. The appeal will be dismissed.  The conviction and sentence imposed by the learned magistrate are confirmed.

   I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

   Associate:

   Date:   6 June 2012

Counsel for the appellant:  Mr M Hassall
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent:  Mr K Lee
Solicitor for the respondent:  ACT Director of Public Prosecutions
Date of hearing:  28 May 2012
Date of judgment:  28 May 2012