Twerd v Holmes [2010] ACTSC 55

• the Magistrate did not consider the impact on the appellant of a custodial sentence given the appellant's general medical condition.

3. The appellant was convicted of a very serious offence. The appellant unlawfully confined his former partner, in contravention of s34 of the Crimes Act 1900 (A.C.T.), by forcing her into a taxi and compelling her to travel with him, against her will, and causing her to be taken to another person's house where she was prevented from answering her mobile phone. The complainant was held, in effect, captive, against her will by the appellant for approximately two hours. It must have been a terrifying experience for her and it must have seemed to her like a considerable period of time. The seriousness of the offence is not reduced by having occurred within the context of a relationship breakdown and, not being carried out in pursuit of financial gain. The seriousness of the offence is further not diminished by it occurring in the presence of third parties. It was not contended that it was open to any third party to safely intervene.

4. The maximum penalty for the offence is 10 years imprisonment. In the circumstances of the current offence, it cannot be said objectively, that the sentence imposed by the Magistrate was manifestly excessive. The appellant has a long history of offending dating back to 1990. This history includes aggravated burglary, several theft offences, motor vehicle, drug and weapons offences. The appellant has also offended whilst being subject to a good behaviour order.

5. There is no appealable error, on the facts before the Magistrate, discernible from her Honour's reasons, for sentencing the appellant as she did. There is also no error disclosed in her Honour's failure to make a community based sentence order. The appellant had been assessed in the pre-sentence report from ACT Corrective Services as unsuitable for community work as a consequence of a back injury. In any event, a community based order, given the gravity of the offence, would not have been appropriate.

6. The Magistrate can be inferred to have considered that no other sentencing option than imprisonment was reasonably open to her. The pre-sentence report did not consider the appellant appropriate for a fine, a deferred sentence, a rehabilitation program, a community service work condition or even periodic detention. Whilst the report considered that he had the capacity to comply with a good behaviour order, such an order would have been totally disproportionate to the gravity of the offence. In addition, the appellant has offended whilst being subject to a good behaviour order.

7. The Magistrate noted that the appellant's attendance at a cognitive self-change program was poor and inconsistent. She would not have been unaware of the pre-sentence report's reference to the appellant's mental health issues. The pre-sentence report did not say that those issues should stand in the way of a custodial sentence, but rather that the appellant should be assessed by the prison authorities as a prisoner at risk. No appealable error is demonstrated by her Honour's failure to mention the appellant's general medical condition in her sentencing remarks.

8. No appealable error has been demonstrated in the order below. The Court orders that the appeal is dismissed.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Marshall.