Mills v Lewis & Anor [2008] ACTSC 63 (27 May 2008)

Last Updated: 28 July 2008

FRANCIS EDMUND MILLS v MATTHEW JAMES LEWIS & ANOR

[2008] ACTSC 63 (27 May 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 30 of 2008

No. SCA 5 of 2007

Judge: Higgins CJ

Supreme Court of the ACT

Date: 27 May 2008

IN THE SUPREME COURT OF THE )

) No. SCA 30 of 2008

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 5 of 2007

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: FRANCIS EDMUND MILLS

Appellant

AND: MATTHEW JAMES LEWIS and CONSTANTINOS BOBOLAS

Respondent

ORDER

Judge: Higgins CJ

Date: 27 May 2008

Place: Canberra

THE COURT ORDERS THAT:

1. In respect of the first appeal (SCA 5 of 2007), that appeal being withdrawn, is dismissed. In respect of the unexpired remainder of the sentence, the suspension of that sentence is lifted, and the Court directs that sentence commence to be served on 2 February 2008 and it expired on 17 March 2008.

2. In relation to the second appeal (SCA 30 of 2008), the appeal is upheld, and the penalties and sentences imposed are set aside. In respect of CC07/11780, CC07/11781, CC07/11782, a conviction is recorded and no further penalty imposed. In respect of the attempt to escape (CCO7/11783), in substitution for the penalties imposed, Mr Mills is convicted to a sentence of 14 days' imprisonment. In respect of the fail to appear (CC08/2056), Mr Mills is convicted and sentenced to 60 days' imprisonment. Those sentences will be cumulative, making a total of 74 days. Mr Mills is to be released forthwith and there be no action taken in respect of any recognizance which may, or may not, be still extant.

1. HIS HONOUR: In respect of the first appeal (SCA 5 of 2007), that appeal being withdrawn, is dismissed. In respect of the unexpired remainder of that sentence, the suspension is lifted, and I direct that sentence commence to be served on 2 February 2008 and it will expire, 44 days you say?

2. MR SHARMAN: Yes.

3. HIS HONOUR: It will therefore expire on 17 March 2008.

4. If that is right, then the period between 17 March and now is 75 days. It seems to me that an appropriate course then is, in relation to the second appeal (SCA 30 of 2008), to uphold the appeal, and set aside the penalties and sentences imposed.

5. Check and make sure that we have got an appeal in respect of all those matters, again, we may not have. Sentence could not have been imposed in respect of the summary matters could it, on any view. The sentence could only have been imposed in respect of the non summary matters, even allowing for the imprecision.

6. MR SHARMAN: I was going to suggest that in relation to the other matters and in light of Mr Mills financial circumstances, the fact that he had been in custody for this time, your Honour just simply records convictions on those matters with no penalty to follow.

7. HIS HONOUR: Yes, well, unfortunately it is expressed as if there is a term of imprisonment with respect of those, so, my order will have to encompass those just to be sure, and, in respect of those matters (CC07/11780, CC07/11781, CC07/11782), I simply record a conviction and otherwise, due to time served, impose no further penalty.

8. MR SHARMAN: Yes, your Honour.

9. HIS HONOUR: In respect of the attempt to escape (CCO7/11783), Mr Mills, in substitution for the penalties imposed, is convicted to a sentence of 14 days' imprisonment. In respect of the fail to appear (CC08/2056), he is again convicted and sentenced to 60 days' imprisonment. Those sentences will be cumulative, making a total of 74 days. It is now 75 days since he was taken into custody, so he is due to be released. Mr Mills is to be released forthwith and, furthermore, there be no action taken in respect of any recognizance which may, or may not, be still extant.

I certify that the preceding twelve (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 27 June 2008

Counsel for the appellant: Mr T Sharman

Solicitor for the appellant: Rachel Bird & Co

Counsel for the respondent: Mr S Drumgold

Solicitor for the respondent: The Director of Public Prosecutions for the ACT

Date of hearing: 27 May 2008

Date of judgment: 27 May 2008