Wickey v McVicar [2011] ACTSC 159 (12 September 2011)

Last Updated: 30 September 2011

ROBERT LACHLAN WICKEY v MATTHEW MCVICAR

[2011] ACTSC 159 (12 September 2011)

House v The King [1936] HCA 40; (1936) 55 CLR 499

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 46 of 2011

Judge: Burns J

Supreme Court of the ACT

Date: 12 September 2011

IN THE SUPREME COURT OF THE )

) No. SCA 46 of 2011

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ROBERT LACHLAN WICKEY

Appellant

AND: MATTHEW MCVICAR

Respondent

ORDER

Judge: Burns J

Date: 12 September 2011

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is upheld with respect to the sentence imposed on charge 3512 of 2010 and in lieu of a sentence of six months imprisonment, I will impose a sentence of one month imprisonment, which will be concurrent with all other sentences.

2. With respect to charges 5624 and 7797 of 2010, the appeals are upheld. The sentences imposed by her Honour are confirmed, but those sentences will commence from 17 April 2011.

3. There will be a non-parole period of three years, commencing from 17 April 2011.

1. On 20 April 2011 the appellant was sentenced by Magistrate Doogan in the Magistrates Court of this territory to a total sentence of five years imprisonment with a non-parole period of three years for a series of offences. I will not, in the course of these reasons, set out in detail those offences. Suffice it to say that there were four series of offences. The first series of offences occurred on 23 January 2010, the second series occurred on 2 January 2010 - in fact, those should be reversed. The third series was 25 February 2010 and finally, the last series was 19 March 2010.

2. It is conceded by the prosecution that her Honour was in error in commencing the sentences imposed from the date that her Honour passed down sentence, that being 20 April 2011. It is conceded that the appellant had been in custody with respect to these matters from 17 April 2011 and as such, 17 April 2011 should have been the commencement date for the sentences imposed by her Honour. I’ll come back to that in due course.

3. The Notice of Appeal as originally filed set out three grounds of appeal and I will not refer to those grounds in any detail because they were abandoned by the appellant at the outset of the hearing of the appeal. Mr Livingston, who appears on behalf of the appellant, was granted leave to amend the Notice of Appeal to insert two further grounds, which were the grounds that were ultimately argued before me. The first ground is that her Honour failed to properly apply the totality principle of sentencing when sentencing the appellant. The second ground is that the sentence imposed in respect of charge 3512 of 2010 was manifestly excessive.

4. I will deal with the second ground of appeal first. The evidence before her Honour was that, with respect to that charge, the appellant was found to be in possession of 0.142 grams of a powder, which was, upon testing, found to contain methylamphetamine. There was no evidence put before her Honour of the proportion of methylamphetamine in that 0.142 grams of powder. Her Honour was denied material, which appears to me to be fundamentally relevant to sentencing for such an offence. If her Honour had been sentencing the accused for possession of 0.142 grams of methylamphetamine, then in my view the sentence imposed by her Honour would have been entirely appropriate.

5. However, in the absence of evidence before her Honour as to the proportion of methylamphetamine in that 0.142 grams of powder, in my view the appropriate course for her Honour to take was to sentence the appellant on the basis that he was in possession of more than a trace of the substance, in this case methylamphetamine, but only in possession of what might be referred to a minimal amount of the substance.

6. Where the prosecution declines to put evidence before the Court of the precise composition of a powder which is found in the possession of an offender, such that the Court cannot know precisely how much of the illicit substance was actually possessed by the accused, then the Court should proceed on the basis that it is a minimal amount. In those circumstances, the sentence imposed by her Honour in my view was manifestly excessive. A sentence of six months imprisonment for possession of a minimal amount of methylamphetamine in my opinion was manifestly excessive.

7. I will uphold the appeal with respect to the sentence imposed on charge 3512 of 2010 and in lieu of a sentence of six months imprisonment, I will impose a sentence of one month imprisonment, which will be concurrent with all other sentences.

8. I turn now to the main ground of appeal, which was that her Honour failed to properly apply the totality principle of sentencing. It is clear from the statements made by her Honour in the course of sentencing the appellant that she did turn her mind to the question of totality. The argument which is put before me is that the total sentence imposed by her Honour was so manifestly excessive as to lead to a conclusion that her Honour misapplied the totality principle.

9. I have given very serious consideration to the sentences imposed by her Honour. However, I must determine this matter in accordance with the principles relevant to sentence appeals and in particular, those which are set out by the High Court in House v The King, which is reported at [1936] HCA 40; (1936) 55 CLR 499. The majority in the High Court in that case said at page 505,

But the judgment complained of, namely, a sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against the exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

10. I am unpersuaded that the total sentence imposed by her Honour was so excessive as to reveal error in the application by her Honour of the totality principle. However, as I have already noted, it has been conceded that the sentence imposed by her Honour is defective in that it should have commenced on 17 April 2011 rather than 20 April 2011. So with regard to the remainder of the appeal, it seems to me that the appropriate way to deal with it is to set aside the date for commencement of the sentences with respect to matters 5624 and 7797 of 2010, reimpose the sentences, but from 17 April 2011.

11. With respect to charges 5624 and 7797 of 2010, the appeals are upheld. The sentences imposed by her Honour are confirmed, but those sentences will commence from 17 April 2011. There will be a non-parole period of three years, commencing from 17 April 2011.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Associate:

Date: 16 September 2011

Counsel for the appellant: Mr R Livingston

Solicitor for the appellant: Craig Lynch & Associates

Counsel for the respondent: Mr J Hiscox

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 12 September 2011

Date of judgment: 12 September 2011