SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title: / Fleury v Symon
Citation: / [2016] ACTSC 201
Hearing Date: / 18 July 2016
Decision Date: / 18 July 2016
Before: / Murrell CJ
Decision: / Appeal dismissed.
Catchwords: / APPEALS – CRIMINAL LAW – Nonparole period – whether nonparole period was manifestly excessive – when nonparole period should commence
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Crimes (Sentencing) Act 2005 (ACT) s 61 – orders made in chambers – parties not given opportunity to be heard
Legislation Cited: / Crimes (Sentencing) Act 2005 (ACT) ss 61, 65, 66
Criminal Code 2002 (ACT) s 308
Magistrates Court Act 1930 (ACT) ss 207, 208, 218
Cases Cited: / House v The King (1936) 55 CLR 499
Kelly v Ashby [2015] ACTSC 345
R v Ellis (1993) A Crim R 449
R v Steen [2015] ACTSC 259
Parties: / Jayke Fleury (Appellant)
Wahyu Nanang Symon (Respondent)
Representation: / Counsel
Mr P Smith (Appellant)
Ms S Gul (Respondent)
Solicitors
Legal Aid ACT (Appellant)
ACT Director of Public Prosecutions (Respondent)
File Number: / SCA 29 of 2016
Decision under appeal: / Court/Tribunal: Magistrates Court of the ACT
Before: Special Magistrate Doogan
Date of Decision: 18 March; 14 April 2016
Case Title: The Queen v Jayke Fleury
Court File Number: CC 442 of 2016

MURRELL CJ:

Sentencing history

1.  The appellant appealed against a nonparole period imposed by Special Magistrate Doogan for firearms offences.

2.  The Supreme Court sentenced the appellant to a total sentence of 23 months' imprisonment from 18 March 2013 with a nonparole period of 12 months. On 15 April 2014 the appellant was released on parole until 4March 2016.

3.  While on parole, on 2November 2014, the appellant committed the subject offence of theft, contrary to s308 of the Criminal Code 2002 (ACT). He took 12 handbags with a total value of $2,248 from a retail outlet.

4.  The offence of theft carries a maximum penalty of 10 years' imprisonment if prosecuted in the Supreme Court.

5.  As a result of the theft offence, the Sentence Administration Board issued a warrant for the appellant's appearance, but the appellant moved interstate.

6.  In May, and again in September 2015, the appellant was convicted of retail theft in Victoria.

7.  The ACT warrant was not executed until September 2015. In September 2015 the appellant's parole was cancelled and he became liable to serve the balance of parole. This meant that the appellant's sentence expired on 19 July 2017 and he was eligible to apply for parole at any time from September 2015.

The sentencing hearing on 18 March 2016

8.  When sentencing the appellant, the Special Magistrate had regard to various factors relevant to sentencing, including that:

(a)  the appellant had a very lengthy criminal history for offences of dishonesty extending over 15 years;

(b)  the appellant was on conditional liberty (parole) at the time of the offence;

(c)  the appellant had squandered past rehabilitation opportunities; and

(d)  the plea of guilty.

9.  In the past, the appellant had received sentences of two months and four months' imprisonment for offences of theft involving less than $2,000 and six months' imprisonment for theft associated with burglaries.

10.  The Special Magistrate sentenced the appellant to nine months' imprisonment, from 19April 2017 to 18 January 2018, discounted from 12months for the plea of guilty. The result of the sentence imposed on 18 March 2016 was that the appellant was imprisoned for two years, three months and two weeks from 3 September 2015 to 18January 2018.

11.  There is no complaint about the length of the sentence or the degree or concurrency between the sentence imposed on 18 March and the sentence for the firearms matters.

Fixing the nonparole period

12.  On 18 March the Special Magistrate imposed a nonparole period of six months without designating the start and end dates.

13.  Later, in chambers, in the absence of the parties, her Honour specified that the nonparole period ran from 18 March 2016 to 17 September 2016, i.e. the non-parole period was one year and two weeks of a total period of two years, three months and two weeks’ imprisonment.

14.  The Special Magistrate erred in clarifying the nonparole period in chambers without affording the parties an opportunity to be heard.

15.  However, as the appellant conceded on the appeal, the breach of procedural fairness was corrected when, on 14 April 2016, her Honour reopened the proceedings pursuant to s61 of the Crimes (Sentencing) Act 2005 (Sentencing Act) and afforded the parties an opportunity to be heard before confirming that the nonparole period commenced on 18March 2016 and ended on 17 September 2016.

16.  On 14 April 2016 the Special Magistrate stated:

[T]he sentence that I impose, six months of the nine months' sentence is to be added onto that date to extend the head sentence by six months and likewise the nonparole period six months to be added onto the nonparole period.

It was explained to the Special Magistrate that there was no existing nonparole period relating to the firearms matters. It appeared that her Honour did not appreciate the explanation because herHonour went on to state:

Whenever his nonparole period expired, or whenever he was eligible for parole, six months was to be added onto that period, as it was onto the head sentence. That was always my intention, and that to this day is still my intention.

17.  The Special Magistrate's attention was then drawn to the decisions in Kelly v Ashby [2015] ACTSC 345 and R v Steen [2015] ACTSC 259. It was suggested that, if it was herHonour's intention to extend the nonparole period by a period of six months, then herHonour should impose a nonparole period of six months from September 2015 to 8March 2016.

18.  However, herHonour said that that would not give effect to her order and it had never been her intention. HerHonour made it abundantly clear that the nonparole period would be from 18 March to 17 September 2016.

19.  The appeal was pursued on two grounds:

(a)  the Special Magistrate erred by not resetting the nonparole period pursuit to s66(3) of the Sentencing Act to commence on 3 September 2015; and

(b)  the nonparole period was manifestly excessive.

Appeals to the Supreme Court

20.  The appeal to the Supreme Court is pursuant to ss 207 and 208 of the Magistrates Court Act 1930 (ACT) (MCA). On many occasions it has been held that such an appeal is of the type discussed in House v The King (1936) 55 CLR 499. The appellant must identify an express or implied error of fact or law. If a sentence is unreasonable or plainly unjust (outside the available sentencing range) the appellate court may conclude that there has been an error. However, sentencing is a quintessentially discretionary exercise and the appellate court must not interfere simply because it would have imposed a more lenient sentence: R v Ellis (1993) A Crim R 449 at 461.

21.  Pursuant to s218 of the MCA, the Supreme Court may make a variety of orders in connection with an appeal. The Supreme Court has discretion whether to interfere, and will only do so where an error affects the result.

22.  Sections 65 and 66 of the Sentencing Act relevantly provide:

65 Nonparole periods—court to set

(1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.

(2) The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.

(3) When the court sets the nonparole period, the court must state when the nonparole period starts and ends.

66 Nonparole periods—setting if sentence currently being served

(1) This section applies if—

(a) the offender is serving a sentence of imprisonment (the existing sentence); and

(b) the offender is sentenced to a further term of imprisonment (the primary sentence).

Note Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence.

(2) Section 65 (Nonparole periods—court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.

(3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.

(4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.

23.  It is usual that the starting date for a nonparole period is the starting date for the total or continuous sentence period in question, including any period relating to previously imposed sentences and any backdated period relating to the sentence that brings the matter before the Court: Kelly v Ashby [2015] ACTSC 345 at [120]–[122]. Inferentially, the commencement date for a nonparole period should be no later than the date when the sentence is imposed. However, while it is usual practice to state when a non-parole period commences, there is no statutory requirement to do so.

24.  The Special Magistrate misunderstood the effect of the parole revocation. She did not appreciate that the appellant could apply for release to parole at any time from September 2015. This was an error of law.

25.  However, the error did not affect the result. The matter was debated at length and the Special Magistrate made it very clear that the appellant was not to be eligible for parole before 17September 2016.

Was the nonparole period manifestly excessive?

26.  Consideration of the available sentencing range (or whether a sentence is manifestly excessive) demands reference to the maximum available penalty, relevant objective and subjective features and other sentencing considerations. The Court is entitled to look at the usual sentencing pattern and to treat comparable cases as a “yardstick”. Generally, an offender’s prospects of rehabilitation strongly inform the appropriate nonparole period.

27.  In this jurisdiction it is usual for a nonparole period to be in the range of 50–70% of the total sentence. Where an offender is serving part of an old sentence, it is not necessarily appropriate for the nonparole period to fall within the 50–70% range. For example, persistent reoffending may suggest that a higher nonparole period is appropriate.

28.  The Special Magistrate emphasised that the appellant had squandered past opportunities for rehabilitation. Despite the offender’s protestations to the contrary, her Honour was not satisfied that he had changed his attitude or was capable of rehabilitation. Nevertheless, she fixed a nonparole period that was, in the circumstances, very lenient; it was less than 50% of the total new period of imprisonment.

29.  I can see no error in herHonour's approach.

30.  The appeal is dismissed.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.
Associate:
Date: 4 August 2016

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