Seckold v Trembath [2001] ACTSC 45 (1 May 2001)

Last Updated: 11 June 2002

John Andrew Seckold v Justin Trembath

[2001] ACTSC 45 (1 May 2001)

CATCHWORDS

Ex Tempore Judgment

Crimes Act 1900 (ACT), ss 451(1), 477(10)

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 20 of 2001

Judge: Justice J.E.J. Spender

Supreme Court of the ACT

Date: 1 May 2001

IN THE SUPREME COURT OF THE )

) No. SCA 20 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JOHN ANDREW SECKOLD

Appellant

AND: JUSTIN TREMBATH

Respondent

ORDER

Judge: Justice J.E.J. Spender

Date: 1 May 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed in respect of sentences imposed in respect of charge 7578/00 and charge 41502.

2. In respect of charge 7578/00, Mr Seckold be sentenced to 24 months imprisonment to date from 5 October 2000.

3. In respect of charge 41502, Mr Seckold be sentenced to 25 weeks' imprisonment to be served cumulatively upon the sentence in respect of charge 7578/00.

4. A non-parole period of 24 months be fixed, to date from 5 October 2000.

5. On completion of term of imprisonment pursuant to these orders, the defendant be released upon entering into a recognizance self in the sum of $2000 to be of good behaviour for a period of 2 years and be subject to the supervision of the Director of Adult Corrective Services for a period of 12 months, and to obey all directions and instructions from the Director regarding drug or alcohol counselling.

1. On 23 February 2001, John Andrew Seckold was convicted in the Magistrates Court for the Australian Capital Territory and sentenced in respect of a total of 27 offences. This is an appeal concerning those sentences.

2. The offences occurred from 2 February 2000 until 22 September 2000, and involved three separate burglaries. The total amount of property that was involved in the various thefts and damage to property was in excess of $14,000. And the possibility of recovery of any of that sum is non-existent. One of the counts of theft involved property of $7,196.75.

3. In my assessment the Magistrate dealt in a very compassionate way with Mr Seckold and a head sentence of 24 months and 25 weeks could be viewed as extremely lenient, given the range of the offences and the amount of property involved. The depredations of this order of magnitude were fuelled by the drug problem from which Mr Seckold suffers. But that hardly is an excuse when homes are broken into and property of this magnitude taken. One ordinarily would expect a condign punishment.

4. The magistrate imposed a sentence of 24 months of imprisonment in respect of one of the counts of burglary. In respect of the other offences, either terms of imprisonment or fines or no penalty were imposed, the sentences of imprisonment to be served concurrently with the sentence of imprisonment for 24 months on the burglary count number 7578/00.

5. On charge 41502, which was an application to cancel an order for periodic detention, the magistrate granted that application and sentenced Mr Seckold to 25 weeks' imprisonment and ordered that sentence to be cumulative upon the 24-month sentence of imprisonment imposed in respect of the burglary count 7578/00. Her Worship fixed a non-parole period of 24 months. The magistrate ordered that upon completion of that sentence of imprisonment (which is the 24-month period) the defendant was to be released upon entering into a recognizance self in the sum of $2,000 to be of good behaviour for a period of 2 years.

6. He was to be subject to the supervision by the Director of Adult Corrective Services for a period of 12 months and is to obey all directions and instructions regarding alcohol and drug and alcohol counselling. The magistrate then continued:

"And as I say the sentences commence today but the period taken because the defendant has been in custody, was taken into account."

It is in respect of that observation that the present difficulty arises.

7. It seems to me that the sentence that was imposed by the learned magistrate was meant to give effect to section 451(1) of the Crimes Act 1900 (ACT) but the sentence as pronounced did not give effect to that intention. Section 451(1) provides:

"If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence, or proceedings arising from those proceedings, shall be reckoned as a period of imprisonment already served under the sentence."

And subsection (3) provides:

"If a person charged with a series of offences committed on different occasions has been in custody continuously since arrest, the period of custody for the purposes of subsection (1) shall be reckoned from the time of his or her arrest, even if he or she is not convicted of the offence with respect to which he or she was first arrested for other offences in a series."

8. It seems to me that certainty is a necessary objective of a sentencing process. And one is unable to say, with precision, (from reading the sentencing observations of the learned magistrate) when the total term of imprisonment of 2 years and 25 weeks is to commence.

9. It was submitted on behalf of Mr Seckold by Mr Alyn Doig of counsel that there was no power in the Magistrate's Court to impose cumulative sentences, or a term of imprisonment which exceeded the term of 2 years, having regard to s 477(10) of the Crimes Act 1900, which provides:

"Where the court disposes of a case summarily pursuant to the section and convicts the defendant of the offence then, subject to subsections (11) and (12) but notwithstanding any other law of the Territory, the court may not impose a sentence of imprisonment exceeding 2 years nor impose a fine exceeding $5,000."

10. That subsection imposes a cap on the term that may be imposed in respect of "the offence". It does not, in my judgment, prevent a Magistrate's Court from imposing cumulative sentences.

11. So as to give certainty to the sentencing process, I propose to allow the appeal. I think it right to be constrained, in the sentences that are imposed by this court for the offences for which the learned magistrate sentenced Mr Seckold, by the intention of the magistrate, with regard to the totality of imprisonment and the terms on which he should be released on parole.

12. I therefore allow the appeal in respect of the sentences imposed in respect of charge 7578/00 and charge 41502. In respect of the charge 7578/00, I sentence Mr Seckold to a term of imprisonment for 24 months. That term of imprisonment to date from 5 October 2000. In respect of the charge 41502, being the application to cancel a periodic detention order, the application to cancel that periodic detention order was granted by the magistrate and I sentence Mr Seckold in respect of that matter to 25 weeks' imprisonment to be served cumulatively upon the sentence in respect of 7578/00.

13. In respect of the total term of imprisonment of 2 years and 25 weeks' imprisonment dating from 5 October 2000, I fix a non-parole period of 24 months to date from 5 October 2000. On completion of the term of imprisonment pursuant to these orders, which is 24 months from 5 October 2000, I order the defendant to be released upon entering into a recognizance self in the sum of $2,000 to be of good behaviour for a period of 2 years, to be subject to the supervision of the Director of Adult Corrective Services for a period of 12 months, and to obey all directions and instructions from the Director regarding drug or alcohol counselling.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice J.E.J. Spender

Associate:

Date: 1 May 2001

Counsel for the Appellant: Mr A Doig

Solicitor for the Appellant: pappas, j. - attorney

Counsel for the Respondent: Mr Sahu Khan

Solicitor for the Respondent: Director of Public Prosecutions

Date of hearing: 1 May 2001

Date of judgment: 1 May 2001