Gray v. Franken

Australia

14.04.2020

Criminal

In a sentencing discretion Court should only intervene, if a material error of fact or law has been made or result is manifestly unreasonable or unjust

In present matter, the Appellant was convicted of six breaches of a family violence restraining order (FVRO) contrary to Section 61(1) of the Restraining Orders Act, 1997. The Respondents submitted that the sentences imposed by the magistrate were within the range of sentences customarily imposed for a breach of Section 61 of Act. The Respondent made detailed submissions regarding the seriousness of the Appellant's offending by comparison with the circumstances of those cases.

An appeal court will not intervene to set aside a sentence merely because it might have exercised the sentencing discretion differently to the sentencing judicial officer. Rather, the court should only intervene if a material error of fact or law has been made or the result is manifestly unreasonable or unjust. Accordingly, the fact that an error has been made in sentencing does not automatically mean that the sentencing discretion should be exercised afresh.

An error in sentencing may be express or implied. A plea that a sentence is manifestly excessive is an allegation of implied error. In determining whether a sentence is manifestly excessive, it is necessary to consider the maximum penalty for the offence, the standard of sentencing customarily observed with respect to the offence, the place that the criminal conduct occupies in the scale of seriousness of offences of the relevant kind and the personal circumstances of the offender.

Where the principle of totality applies, it is of little importance how the ultimate aggregate is made out. Consequently, although there may be instances where it is appropriate to consider whether an individual sentence was tainted by an express error, 'generally speaking where there is a challenge on totality grounds, the severity of a sentence imposed on an individual count will usually fall to be assessed in light of the sentences imposed in respect of the other counts and its contribution to the total effective sentence. However, the severity or leniency of an individual sentence may be relevant to assessing whether the total effective sentence infringed the totality principle.

General and personal deterrence were significant factors in sentencing the Appellant. The Respondent rightly emphasised, the Appellant had breached the FVRO on six occasions, with the last three offences being committed within a period of about two weeks and shortly after the Appellant had been sentenced to the CSIO. It could not be reasonably argued that the magistrate had erred in finding that it was not clearly unjust to cancel the CSIO.

General and personal deterrence and punishment were significant considerations in sentencing the appellant and it was, as the magistrate found, too late for him to contend that he should not be required to immediately serve a term of imprisonment for his offending. However, the fact that he had not breached the FVRO for six months prior to being sentenced, and that he voluntarily taken steps to address the causes of his offending, were also important considerations. Sentence of 5 months' imprisonment cumulative on PE 16723/2019 was not, in itself, manifestly excessive, but it resulted in a total effective sentence that infringed the first limb of the totality principle.

Present Court resentenced the Appellant to 2 months' imprisonment on each of PE 16721/2019; PE 16722/2019; and PE 16723/2019 (the sentences being reduced on grounds of totality). The sentence imposed on PE 16723/2019 be served cumulatively on the sentence of 10 months' imprisonment that the Appellant was required to serve immediately on cancellation of the CSIO so that a total effective sentence of 12 months' imprisonment was imposed.

Tags : Conviction Sentence Quantum

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