Staker v Norman [2010] ACTSC 159 (24 November 2010)

Last Updated: 12 January 2011

SCOTT ANTHONY STAKER v JAMES BOYD NORMAN

[2010] ACTSC 159 (24 November2010)

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 10 of 2010

Judge: Mathews AJ

Supreme Court of the ACT

Date: 24 November 2010

IN THE SUPREME COURT OF THE )

) No. SCA 10 of 2010

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: SCOTT ANTHONY STAKER

Appellant

AND: JAMES BOYD NORMAN

Respondent

ORDER

Judge: Mathews AJ

Date: 24 November 2010

Place: Canberra

THE COURT ORDERS THAT (21 October 2010):

1. In relation to charges 2008/13010, 2009/11458 and 2010/1037:

a. The appeal be upheld;

b. The convictions and sentences imposed by Magistrate Lalor on 28 January 2010 be set aside; and

c. A verdict of acquittal be entered for each charge.

2. In relation to charge 2008/5829:

a. The appeal be upheld;

b. The sentence imposed by Magistrate Lalor on 28 January 2010 be set aside; and

c. In lieu thereof, a sentence of two months and 25 days imprisonment be imposed.

3. In relation to charge 2008/12462, charge 2009/7013 and 2009/7560:

a. The appeal be upheld;

b. The sentences imposed by Magistrate Lalor on 28 January 2010 be set aside;

c. In lieu thereof, a sentence of six weeks imprisonment be imposed for charge 2008/12462 and the sentences in relation to charges 2009/7013 and 2009/7560 each be concurrent terms of six weeks imprisonment, cumulative upon the sentence in charge 2008/12462; and

d. The 12 weeks imprisonment is to be fully suspended upon Mr Staker entering into a Good Behaviour Order for 18 months from today, with the condition that he accept the supervision of the Chef Executive of ACT Corrective Services or his or her delegate and obey all reasonable directions.

THE COURT ORDERS THAT (24 November 2010):

1. In relation to charge 2008/5006:

a. The cross appeal be upheld; and

b. A sentence of three months imprisonment be imposed, to be fully suspended upon Mr Staker entering into a Good Behaviour Order for a period of 18 months from today with the condition that he accept the supervision of the Chef Executive of ACT Corrective Services or his or her delegate and obey all reasonable directions.

1. This is the appeal of Scott Anthony Staker who was convicted and sentenced on 28 January 2010 to a total imprisonment of 11 months one week and three days. This related to seven charges which I shall describe later.

2. The appellant appealed against conviction in relation to two of the matters, namely charges 2009/11458 (failing to appear without reasonable excuse on 5 November 2009) and 2010/1037 (failing to appear without reasonable excuse on 7 January 2010).

3. In relation to a third matter, charge 2008/13010 (unlawful possession of stolen property), the Crown has conceded that there was inadequate material to support the conviction.

4. In regards to the aforementioned charge 2010/1037, the Respondent conceded that in the circumstances the appeal against conviction should be allowed. In addition, having heard the evidence, I have determined that in relation to the aforementioned charge 2009/11458 the appeal should also be allowed. Accordingly I have already reversed the conviction in relation to those three matters. This leaves the outstanding sentencing appeals in relation to the remaining charges.

5. The first sentencing appeal related to an initial charge of driving whilst disqualified, namely charge 2008/5829. The appellant in relation to that matter was sentenced to a term of periodic detention but did not adhere to the conditions of that sentence. Accordingly, it was referred to the sentencing magistrate by the Sentencing Administration Board. His Honour imposed upon the appellant the remainder of the sentence, namely imprisonment for a period of three months, one week and three days.

6. A particular issue arises in relation to the appeals on all the other charges as to the magistrate’s failure to take account of the appellant’s pleas of guilty. It is agreed by counsel that that is not a relevant issue in relation to the drive whilst disqualified.

7. Mr Crispin on behalf of the appellant raised a number of matters in which he submitted that the magistrate was in error in imposing that sentence. They cannot be described as major matters. The appellant has already spent a total of two months and 25 days in custody in relation to all of these matters.

8. What I propose to do in relation to that first matter of drive whilst disqualified (charge 2008/5829) is to allow the appeal and reduce the sentence by 15 days to a period of two months and 25 days, which precisely equals the amount of time already spent in custody by the appellant.

9. Accordingly, in relation to that charge I allow the appeal, quash the sentence imposed by the learned magistrate, and in lieu thereof I sentence the appellant to imprisonment for a period of two months and 25 days to commence on 28 January 2010.

10. The remaining matters consist of charge 2008/12462 (receiving stolen property), for which the appellant was sentenced to imprisonment for two months and charges 2009/7013 and 2009/7560 (failing to answer bail), for which he was sentenced in relation to one to imprisonment for two months and in relation to the second a concurrent term of imprisonment of one month.

11. Mr Crispin has pointed out, correctly, that his Honour fell into error in failing to apparently take into account the appellant’s pleas of guilty in relation to all these matters. This is a statutory requirement and it is an error which in my view requires rectification. Mr Thomas, on behalf of the respondent, did not dispute this proposition.

12. In my view a 25% discount on sentence should have been accorded to the appellant for his pleas of guilty.

13. A number of other matters were raised by Mr Crispin, but in my opinion they go to the nature of the penalty and not the duration of the term of imprisonment. Accordingly, I propose to revise downward by 25% the sentences imposed by the magistrate so that the sentence in relation to charge 2008/12462 (receiving stolen property) be six weeks imprisonment, and the sentences in relation to 2009/7013 and 2009/7560 (failing to answer bail) each be concurrent terms of six weeks imprisonment, cumulative upon the sentence in charge 2008/12462. The total term of imprisonment will therefore be three months.

14. The significant matters raised by Mr Crispin which have not thus far been mentioned include the very significant impact upon the appellant’s family of any term of imprisonment to be served by him. He is now 28 years old. He has had an extremely difficult life. His partner has five young children. It is clear from the whole of the evidence that he is devoted to those children and accepts a significant role in their care and supervision. It goes without saying that it would cause untold disruption to the family group for the appellant to be removed from the family at this stage.

15. The appellant had never had a full time term of imprisonment until he served the two months and 25 days I have already referred to. This, in my opinion, is a significant matter particularly given his difficult background.

16. He clearly has a number of continuing problems. He has difficulties in relation to alcohol and drugs and in my view he would benefit very considerably from a period of conditional release, particularly knowing that any failure to abide by the conditions imposed upon him would result in his going to jail for the full three months period.

17. He has adhered to strict bail conditions during the period leading up to the appeal, and it is therefore to be hoped that with the certainty of a prison sentence hanging over his head for the next 18 months that he will be motivated to not only remain of good behaviour but to take serious steps in an endeavour to meet his drug and alcohol problems.

18. It is clear from everything I have said that I therefore propose to suspend the sentences. I consider that a period of 18 months would be an appropriate period of supervision.

19. Accordingly, I sentence the appellant to imprisonment for a period of three months to be immediately suspended upon him entering into a good behaviour order for a period of 18 months. During that period he is to accept the supervision of the ACT Chief Executive of Corrective Services or his or her delegate and obey all reasonable directions of that person for that period or for such lesser period as may be deemed appropriate by the supervising officer, and particularly any directions relating to drug or alcohol programs.

20. The only remaining matter relates to a cross-appeal lodged by the respondent in the following situation. On 11 August 2008 Mr Staker was convicted and sentenced to three months imprisonment which was suspended upon his entering into an 18 months good behaviour order. That charge was 2008/5006 (driving whilst disqualified).

21. The appellant was convicted by the learned magistrate on 28 January 2010 in relation to the three charges which formed the basis of the severity appeal. The magistrate should have taken action in relation to the breach of the good behaviour order constituted by those offences. He failed to do so and this is the basis of the cross-appeal.

22. It is agreed by counsel that the court in that situation should have either imposed the suspended sentence upon Mr Staker or should have re-sentenced him for that earlier offence. After discussion with counsel I propose to allow the cross-appeal and re-sentence Mr Staker for that offence.

23. In relation to that matter, Mr Staker, you are sentenced to three months imprisonment to be immediately suspended upon you entering into an 18 month good behaviour order upon the same conditions as already specified in relation to the other matters dealt with.

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Acting Justice Mathews.

Associate:

Date: 17 December 2010

Counsel for the Appellant: Mr T Crispin

Solicitor for the Appellant: Capital Lawyers

Counsel for the Respondent: Mr R Thomas

Solicitor for the Respondent: ACT Director of Public Prosecutions

Dates of hearing: 21 October 2010 and 24 November 2010

Date of judgment: 24 November 2010