Skeen v Russell [2007] ACTSC 55 (27 June 2007)

Last Updated: 28 July 2008

FRANK DANIEL SKEEN v TREVOR DOUGLAS RUSSELL

[2007] ACTSC 55 (27 June 2007)

CRIMINAL APPEAL - sentencing - failure by counsel to put information before Magistrate.

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 16 of 2007

Judge: Connolly J

Supreme Court of the ACT

Date: 27 June 2007

IN THE SUPREME COURT OF THE )

) No. SCA 16 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRTES COURT

BETWEEN: FRANK DANIEL SKEEN

Appellant

AND: TREVOR DOUGLAS RUSSELL

Respondent

ORDER

Judge: Connolly J

Date: 27 June 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed insofar as the order of the learned Magistrate increasing the non-parole period be set aside.

1. This is an appeal by Frank Daniel Skeen against a decision of Magistrate Somes, in February this year, when the learned Magistrate sentenced him in relation to offences relating to breaches of a protection order.

2. The sentence was that he be convicted and sentenced to six months imprisonment. The sentence was made fully cumulative on certain other sentences that Mr Skeen was then serving as a result of sentences imposed by Crispin J of this Court and myself in December 2006.

3. The sentence was to commence on 12 June 2008, which was the period when the former head sentences ended. His Honour reset the non-parole period to push that out by three months so that rather than ending in June 2007 it ended in September 2007.

4. On its face there seems to be little wrong with such a disposition, particularly when it emerges from the statement of facts that there were some 1,200 SMS messages involved in this original conviction order. However, earlier this afternoon I accepted the argument that fresh evidence should be admitted on this appeal because it was apparent to me that the sentencing procedure before his Honour was conducted with a woeful lack of competence by the legal practitioner, Mr Elmaraazey, then representing Mr Skeen. Very significant and quite unusual and unique information that had been regarded, particularly by Crispin J, as being highly relevant to his sentencing exercise in relation to domestic violence matters involving the same complainant was not put before the learned Magistrate.

5. Mr Gill, for the appellant, in his submissions today, which are limited to the urging of the Court in re-sentencing to interfere with Magistrate Somes' increase of the non-parole period rather than the head sentence, makes it very clear, quite properly, that he is not critical of, in effect, the way Magistrate Somes determined the matter on the information available to him.

6. Rather, he says, and quite properly it seems to me, the learned Magistrate was so poorly served by counsel for Mr Skeen that he was denied information that he really ought to have had to enable him to properly exercise his sentencing discretion. I should point out that no criticism can be made of counsel for the prosecution, Ms Jones, before the learned Magistrate.

7. Ms Jones offered to make available the sentencing transcripts and, very properly, made the concession that although the SMS messages amounted to more than 1,200 text messages sent during a 30 day period, which amounts to something like 40 text messages a day, the complainant had also been sending text messages. So there was "two-way traffic", she said.

8. Now his Honour, it is clear, was urged by Mr Elmaraazey to make the sentences fully concurrent, but it seems that Mr Elmaraazey did not put any reasonable arguments as to why that should occur.

9. To do that, it would have been necessary to put before the learned Magistrate the material that is now before me by way of the additional evidence, and which was significantly before Crispin J. The history of the matter is that on the morning of 12 December 2006, Mr Skeen was sentenced by me in relation to matters following a conviction by jury in November of that year, relating to assaults that occurred on persons otherwise unknown to him at a Canberra nightclub.

10. Later that day Mr Skeen appeared before Crispin J in relation to offences again flowing from a jury trial in which he had been convicted of certain offences, but acquitted of others, in relation to conduct involving a former de facto partner as in the nature of breaches of protection orders.

11. They are serious matters - there were also some assaults there. They were clearly remote and separate both in time and in subject from the matters for which I sentenced him, being the assaults on otherwise unknown persons at a nightclub. And, prima facie, one would have expected the sentences to be made fully cumulative and the non-parole period itself to be pushed right out.

12. However, it is apparent from the sentencing transcript that his Honour Crispin J took a significantly more lenient view for a number of very particular and specific reasons. These reasons are set out in the material now before me but were denied to Magistrate Somes.

13. One factor which was clearly significant to his Honour was his finding in his sentencing remarks that the offence of breaching the protection order was, largely committed with the consent and connivance of the complainant, who had been exchanging text messages with him and seeing him in breach of the order.

14. His Honour directly pointed out that as the learned Crown Prosecutor there had urged for people to understand that protection orders are orders of the Court and that they cannot be waived simply by consent. And for that reason his Honour appropriately imposed a head sentence.

15. However, it is clear that the fact that Mr Skeen was responding and exchanging messages as opposed to unwontedly harassing his former partner was very significant in the way his Honour disposed of the matter. Although the learned Crown Prosecutor, before the Magistrate, correctly and fairly pointed out that there had been, to use her words, a similar "two- way traffic" here, his Honour was not taken to the remarks of Crispin J.

16. The fact that that was a significant factor which a Supreme Court Judge had referred to in relation to the same defendant and the same complainant only some months before this sentencing exercise, it seems to me, the Magistrate ought to have had those remarks available to him.

17. His Honour Crispin J also had available to him, as did I, material from Dr Lucas and Dr Sutton in relation to psychiatric factors relevant to Mr Skeen. Clearly, factors relating to an accused person's mental health are highly relevant to the sentencing exercise. They were clearly relevant to the domestic violence matters Crispin J dealt with, and they would, it seems to me, have been clearly significant to Magistrate Somes had he had the advantage, which he did not, of receiving that material.

18. In short, what Crispin J did in this Court on the basis of material that he had available to him, was to impose appropriate sentences but make them, to some extent, concurrent and to, in effect, push out the head sentence, but not push out the non-parole period that I had imposed in relation to the other unrelated offences.

19. His Honour set out, with respect, cogent reasons why, on the basis of Mr Skeen's history as it emerged to him and the psychiatric material and the pre-sentence report, the community would be better served and, indeed, safer, if Mr Skeen was subject to appropriate tight parole supervision, but allowed to return to the community at the time that I have already suggested at the end of the non-parole period.

20. He took the view that a head sentence should be imposed to reflect the gravity of the offences but that the non-parole period ought not be pushed out. It seems to me that had that material been available to Magistrate Somes, his Honour would have sentenced in a different manner and I find the submission that I should embark today upon the process of re-sentencing to be compelling.

21. What I propose to do is, in effect, repeat what was done by Crispin J in relation to the sentencing exercise for contravention of protection orders. That is to say, I will not interfere with the head sentence imposed by Magistrate Somes, but I will set aside his increased non-parole period. The non-parole period will remain as it was. It will expire on 11 June 2007.

22. The effect of that is that Mr Skeen will now be eligible for parole. Whether, of course, he will be granted parole will be a matter for the appropriate authority after taking into account at law, all the factors.

23. While the learned Magistrate was properly advised by the Crown that the breach of the protection order involved Mr Skeen responding to SMS messages as well as sending them, it was not for the Crown to make the case for the prisoner.

24. It was not for the Crown to urge upon Magistrate Somes the precise reasoning and the evidence that was available to Crispin J. That was a role that any competent practitioner, who had read his Honour's sentencing disposition, would have put before the Magistrate.

25. On its face, the disposition that was imposed by Crispin J on 12 December 2006 could be characterised as a light or lenient disposition. It can only be understood when the reasons are read and it is clear that his Honour was motivated by, firstly, the fact that the breaches of the protection order occurred with the connivance of the complainant, who had been exchanging text messages, as was the case before Magistrates Somes and, secondly, the pre-sentence report and the reports of Dr Lucas and Mr Sutton - material that Magistrate Somes was not given the benefit of reading. Any practitioner, it seems to me, ought to have realised that in order to achieve a similar form of sentencing outcome or persuade a court of the appropriateness of imposing an additional head sentence would need to place this material before the Court.

26. But not adjusting the non-parole period so as to increase the period under which Mr Skeen would be under close supervision upon his return to the community, that could only be done by putting that material before the sentencing magistrate. That was not done. For that reason I am satisfied that the sentencing discretion miscarried and that the appropriate discretion will be as I have set out.

27. Therefore the appeal is allowed insofar as the order of the learned Magistrate increasing the non-parole period be set aside. I repeat that is in no way a criticism of the way the learned Magistrate went about the task. The error occurred not because of anything Magistrate Somes did but, because of the incompetence of counsel, the learned Magistrate was denied the material that would have allowed him to properly consider this matter.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 27 June 2007

Counsel for the appellant: Mr S Gill

Solicitor for the appellant: Hill & Rummery

Counsel for the respondent: Ms M Caffery

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 27 June 2007

Date of judgment: 27 June 2007