Imbriano v Faram [2007] ACTSC 91 (29 October 2007)

Last Updated: 16 September 2010

MICHAEL JOSEPH IMBRIANO v CRAIG ANTHONY FARAM
[2007] ACTSC 91 (29 October 2007)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 32 of 2006
No. SCA 34 of 2006

Judge: Higgins CJ
Supreme Court of the ACT
Date: 29 October 2007

IN THE SUPREME COURT OF THE )
) No. SCA 32 of 2006
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: MICHAEL IMBRIANO

Appellant

AND: GEOFFREY DAVID HYDE

Respondent

No. SCA 34 of 2006

BETWEEN: MICHAEL IMBRIANO

Appellant

AND: CRAIG ANTHONY FARAM

Respondent

ORDER

Judge: Higgins CJ
Date: 29 October 2007
Place: Canberra

THE COURT ORDERS THAT:

1. Appeal against sentence upheld.
2. Confirm head sentence of 19 months imposed by the learned Magistrates but set commencement date 23 February 2007 for those sentences.
3. Direct Mr Imbriano be released after serving nine months of imprisonment on the terms of the Good Behaviour Order set out herein.

1. In relation to the appeal in respect of Magistrate Fryar’s decision, the actual charges and the sentences imposed are set out in the appeal book. It is not necessary to go over it again except to say that Mr Imbriano had an unenviable record of disobedience to or ignoring the fact of a suspension of driving licence, even when imposed by courts. He did have a record which included other offences which, I suppose, are not directly relevant for present purposes. On the credit side of the ledger, if it be so, is the fact that there are indeed some convictions which he managed to acquire which related to drug use and/or possession. So clearly there was an issue, as Magistrate Fryar recognised, of addressing a drug addiction problem which her Honour noted and indeed addressed.
2. He was facing then a number of driving matters, of driving whilst suspended. There was also potential for a considerable amount in terms of fines. Her Honour convicted him of all those various offences and imposed sentences of imprisonment. One is a sentence of six months cumulative on a previous matter in which he was sentenced to four months, the total of which amounted in essence to 16 months imprisonment. Her Honour then set a non-parole period of eight months, providing therefore eight months on parole during which he could address, if he chose to do so, the drug issues which he had.
3. In essence I do not disagree with that head sentence, but the matter is complicated by the further matters which came before Magistrate Burns. On those matters there was a sentence on five charges before his Honour, of a total of six months imprisonment. His Honour made three months of that cumulative upon the previous sentence imposed by Magistrate Fryar. His Honour was in error in the sense that the sentence imposed by her Honour had been suspended by the lodgement of the notice of appeal in respect of that matter, so his Honour was unable to make such an order.
4. If his Honour had done otherwise then there would have been a sentence of immediate imprisonment backdated to take account of the time when Mr Imbriano was, in respect of the matters in question, taken into custody, which I am assured is roughly about three months. So he would have had to serve three months imprisonment.
5. As I say, the fact that there are two appeals and the sentences are suspended, even if I was to say, as I am in effect saying, that I do not see anything wrong with the sentences the magistrates imposed, there is still a necessity to restructure those sentences in view of the fact that they have been imposed one to be cumulative upon the other, which they could not be, and also on the basis that there needs in any event to be a resetting of the commencement date for those sentences.
6. There has, I suppose to this extent, been a recalculation placed before me of the time Mr Imbriano actually spent in custody, including the time which I would call a discretionary period when he was in fact in police custody, but being part of a day is not a time required to be taken into account by the Crimes (Sentencing) Act 2005. It seems to me as a matter of justice that, having regard to the length of those times, they should be taken into consideration. I do propose to do so. As I indicated, there were three days upon which he was so held and it seems to me that having regard to those times, including the time for the part of the following day which is again not required to be taken into account, there should be an allowance of two days made in respect of all of that.
7. He has spent some time in residential rehabilitation. Again that time is not required to be taken into account because it is not in custody in the sense in which that term is used in the Crimes (Sentencing) Act 2005. Nevertheless, there has been judicial sanction for taking it into account in a general way and I have indicated that I propose, as a matter of rule of thumb to take account of one day for two days thus spent, which roughly is 17 days. That leads me to conclude that the resetting of the sentences imposed by the learned magistrates should be such that their sentences will commence on 23 February 2007.
8. So I am confirming the sentence of Magistrate Fryar of 16 months imprisonment, confirming the sentence of six months imposed by Magistrate Burns and, allowing as his Honour did, three months of that to be accumulated with the sentence already imposed. That creates a sentence of 19 months. The non-parole period imposed by her Honour is set aside because of the second sentence. Therefore, a non-parole period or other disposition must be set. I consider, in the present circumstances, that there ought to be substituted an order that Mr Imbriano be released after serving nine months of that 19 month term of imprisonment upon him entering into Good Behaviour Order in the sum of $1,000 to be of good behaviour for a period of two years from that date, that is the date of his release, and that during that period he be subject to the supervision of the Chief Executive of Corrective Services and obey the reasonable directions of the Chief Executive or his delegate and that may include such directions as may be thought appropriate with respect to drugs, be it rehabilitation, counselling or otherwise. During the course of that good behaviour order he is to abstain from the use of illicit drugs.
9. Just to make it plain, Mr Imbriano, when you are released, which will not be immediately but will be shortly, you will be under an order not to use illicit drugs. If you should do so, and Corrective Services are empowered to impose tests upon you from time to time as random tests to discover whether you are using drugs or not, you will be brought back before the Magistrates Court to be re-sentenced.
10. Otherwise than that I make no further orders on the appeal. The appeal is upheld merely to that extent.

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

Associate:

Date: 29 October 2007

Counsel for the appellant: Mr K Archer
Solicitor for the appellant: Legal Aid Office (ACT)
Counsel for the respondent: Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 29 October 2007
Date of judgment: 29 October 2007