Craft v Kinnane [2008] ACTSC 86 (25 August 2008)

Last Updated: 24 October 2008

DANIEL JAMES CRAFT v DAMIEN KINNANE

[2008] ACTSC 86 (25 August 2008)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 32 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 25 August 2008

IN THE SUPREME COURT OF THE )

) No. SCA 32 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: DANIEL JAMES CRAFT

Appellant

AND: DAMIEN KINNANE

Respondent

ORDER

Judge: Higgins CJ

Date: 25 August 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld to the following extent.

2. The sentences imposed by her Honour be re-imposed as from the same commencement date of 8 December 2007, but the second sentence will commence 12 months after that date on 8 December 2008.

3. The non-parole period be recalculated accordingly for a period, and expressed as a period, of 18 months from 8 December 2007.

1. This is an appeal by Mr Daniel James Craft against sentences imposed by her Honour, Magistrate Doogan. Those sentences were imposed in respect of two matters which bore some similarity each with the other, driving and/or riding, as the case may be, in an illegally taken motor vehicle. There were some remarks addressed to whether her Honour erred in the sentences individually, that is to say, whether the sentence in the first matter was manifestly excessive or did not take account of a plea of guilty, or whether the second one did or did not.

2. The circumstances in respect of the first matter were that there was no plea of guilty, there was no admissions, there was no remorse. So her Honour was, in my view, justified in imposing a sentence, as she did, of two years’ imprisonment.

3. In relation to the second matter, whilst there was a plea of guilty, it was, as her Honour noted, at a relevantly late stage and after a plea of not guilty had originally been entered. However, her Honour did take account of it.

4. It was an offence which was aggravated by the fact that the offender was, at the time, not only on the good behaviour order which I had imposed, which was an act aggravating the first offence, but also on bail. Having regard to all the circumstances, even allowing for the circumstances of the offender, it seems to me that her Honour did not err in imposing the same sentence for the second matter as for the first.

5. Although what sentence would have been imposed but for those factors should, perhaps, have been noted, I do not believe that her Honour's error could be significant. Failing to note what discount was given for the plea, given the lateness of it it being obvious that it would have been minimal, does not disturb the validity of the sentence itself.

6. However, it does seem to me that in the circumstances given the commonality of the issues between the two offences and certainly the circumstances of the offender, it would have been appropriate to have accumulated only part of the second sentence upon the first. To that extent, and the consequent effect that will have on the non-parole period, it seems to me the appeal should be upheld. I would make the comment that the structure of the sentence, that is, of a non-parole period rather than release on a good behaviour order, does seem to me to be appropriate.

7. That is because this offender has already been given the opportunity to conform to a good behaviour order in the past and has failed to do so. Therefore, it would certainly be an appropriate response to say that he did not seem to be ready for assistance at this time though he might become so in the future, but that that should be a matter for the Sentence Administration Board to determine. That is the view that I take.

8. Consequently, whilst the appeal is upheld, the sentences imposed by her Honour are re-imposed as from the same commencement date, that is, 8 December 2007, but the second sentence will commence 12 months after that date on 8 December 2008. The non-parole period will be recalculated accordingly for a period, and expressed as a period, of 18 months from 8 December 2007.

9. Mr Craft, the non-parole period has been significantly reduced as you have seen but do not imagine for one minute that parole is automatic. It is not. You have to persuade the Sentence Administration Board to grant you parole and I have no doubt that part of that would be an insistence upon you undertaking drug rehabilitation courses. If you do not do that, and you have already spent a considerable amount of your young life in detention or prison already, I hate to see what you would be like at the age of 30. You might well find that you have spent about 20 years of that time in

prison or some figure approximating that. It is up to you what you make of the parole period, but I warn you that if you continue to offend, you will just spend more and more time in gaol.

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

Associate:

Date: 25 August 2008

Counsel for the appellant: Ms T Warwick

Solicitor for the appellant: Perkins and Saunders

Counsel for the respondent: Ms K Mackenzie

Solicitor for the respondent: Director of Public Prosecution for the ACT

Date of hearing: 25 August 2008

Date of judgment: 25 August 2008