Reid v Mulino; Reid v Thomas [2009] ACTSC 54 (5 May 2009)

Last Updated: 20 July 2009

SHANE MICHAEL REID v NADIA MARIA MULINO;

SHANE MICHAEL REID v IAN THOMAS

[2009] ACTSC 54 (5 May 2009)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 71 of 2008

No. SCA 50 of 2008

Judge: Higgins CJ

Supreme Court of the ACT

Date: 5 May 2009

IN THE SUPREME COURT OF THE )

) No. SCA 71 of 2008

AUSTRALIAN CAPITAL TERRITORY ) No. SCA 50 of 2008

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SHANE MICHAEL REID

Appellant

AND: NADIA MARIA MULINO

First Respondent

AND: IAN THOMAS

Second Respondent

ORDER

Judge: Higgins CJ

Date: 5 May 2009

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld and the appellant be resentenced.

2. The sentence imposed by Magistrate Lalor be confirmed, to commence on 2 April 2008 and end on 1 December 2009.

3. The sentences imposed by Magistrate Fryer, save for CC2008/4042, be confirmed as to their individual accumulation, to be concurrent as to nine months, to commence on 2 September 2009 and end on 2 September 2010.

4. In respect of CC2008/4042, the appellant be sentenced to six months imprisonment, wholly cumulative on those sentences already imposed expiring on 1 March 2011.

5. The sentence imposed by Magistrate Doogan be confirmed, to commence on 2 June 2009 and to expire on 3 June 2010.

6. The appellant be eligible for parole on 1 October 2009.

1. First of all, may I thank counsel for the work they have put into preparation of this appeal. The documentation provided has been very useful in what is, it must be conceded, a fairly complicated situation, although the offences individually no doubt are not unusual.

2. First, as a general overview of the argument, it does appear that inadvertently Magistrate Fryar was misled into assuming that the offences that had been dealt with by Magistrate Lalor were offences occurring in November of 2007 whereas two of them, the burglary and theft, certainly the more serious offences, were but the other offences were not. For that reason Magistrate Fryar’s approach to the totality of sentencing was flawed. As I say, it was no fault of her Honour, it was simply the fact that the record as given to her was inaccurate.

3. Individually the sentences imposed by Magistrate Lalor, to my mind, seemed quite appropriate. It might even be said that in relation to burglary it could have been greater than it was. Nevertheless there was no complaint made about those sentences. Nor, it seems to me, is there a valid complaint about their accumulation. Most of them were concurrent one with the other, but insofar as they were made cumulative, there can be no complaint about that. Nor is there any complaint made about the commencement of the sentences.

4. What is complained of is the effect of the sentences that Magistrate Fryar then imposed, because as I say, her Honour was labouring under the misapprehension I have mentioned. In consequence the sentences, while individually unexceptionable, became excessive when accumulated as they were.

5. There were two series of matters dealt with by Magistrate Fryar. I call it a series, although there is one matter standing alone. The burglaries and the riding in motor vehicles occurred at much the same time. Indeed at much the same time, the similar offences, apart from the burglary, as the matters in respect of which Magistrate Lalor sentenced the appellant. As I have said that led to an error in the accumulation of those separate series of sentences.

6. The exception to that is obviously the drive without consent on 1 April 2008. As Mr Hiscox has rightly pointed out, it is quite separate from those other offences. It was committed when he was at conditional liberty and validly attracted a separate and cumulated sentence. I would, however, make this comment about that sentence, that it does seem from the sentence imposed and the facts relating to it that her Honour has really imposed a sentence for repetition, rather than a sentence that the objective circumstances of the offence warranted. I certainly make the point that, and Mr Hiscox adverted to this, there are numerous prior offences that Mr Reid has accumulated for taking, riding or driving a motor vehicle without consent.

7. There were, in this particular instance, no particular aggravating circumstances, apart from the fact that he was subject to conditional liberty. It seems to me difficult, therefore, to distinguish it from those previous offences for which he has been given sentences of six months or nine months respectively. Indeed, in terms of the actual seriousness of the offence, it probably is more in the six-month category than the nine-month category of offences.

8. For that reason, I uphold the appeal and would proceed to re-sentence Mr Reid in the following manner. First, in relation to those sentences imposed by Magistrate Lalor, which accumulates to a head sentence of 20 months commencing on 2 April 2008 and ending on 1 December 2009. I confirm those sentences and their accumulation.

9. With respect to the sentences imposed by Magistrate Fryar, with the exception of the one I have mentioned as the offence of 1 April, I confirm those sentences and their individual accumulation, but I would direct that they be concurrent as to nine months, rather than three, on the sentences imposed by Magistrate Lalor. In effect, that reverses the way in which her Honour dealt with it.

10. That leads to a head sentence which commences on 2 September 2009 and ends on 2 September 2010. There is then the sentence in respect of the drive without consent of 1 April. To my mind an appropriate sentence for that offence is six months, which should be wholly cumulative upon the sentences already imposed, therefore expiring on 1 March in the year 2011.

11. I confirm the sentence imposed by Magistrate Doogan and I assume her Honour had in mind to partly accumulate that sentence, rather than to make it fully concurrent as it was expressed. That sentence is confirmed as commencing on 2 June 2009 and ending on 3 June 2010.

12. Which leads to the next question, what should the non-parole period be? The total sentence is from 2 April 2008 for 35 months. It seems to me an appropriate non-parole period in respect of that, having regard to Mr Reid’s youth, circumstances and the fact that he has made some progress in custody, is 18 months. Therefore he will be eligible for parole on 1 October 2009.

13. Now, Mr Reid I just want to address something to you. You made some progress in custody. You have some few months to serve before you will be eligible for parole. Now I make the point that parole is not automatic. It depends on how the Sentence Administration Board assesses your willingness to undertake rehabilitation and the likely effectiveness of that.

14. You have got some time between now and 1 October to show the Parole Board that you are able and willing to turn your life around, so that the board can then have some confidence in releasing you. If they fail to have that confidence they can simply keep you there for the remainder of the sentence. Do you understand that?

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 14 May 2009

Counsel for the Appellant: Mr R Davies

Solicitor for the Appellant: Legal Aid Office (ACT)

Counsel for the 1st and 2nd Respondents: Mr J Hiscox

Solicitor for the 1st and 2nd Respondents: Director of Public Prosecutions for the ACT

Date of hearing: 5 May 2009

Date of judgment: 5 May 2009