Adams v White

[2006] TASSC 50

[2006] TASSC 50

CITATION:              Adams v White [2006] TASSC 50

PARTIES:  ADAMS, Peter Gerard
  v

WHITE, Sergeant Graham Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 3/2006
DELIVERED ON:  22 June 2006
DELIVERED AT:  Launceston
HEARING DATE:  14 June 2006
JUDGMENT OF:  Crawford J

CATCHWORDS:

Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Recognizances, probation and other non-custodial orders – Probation orders and suspension of sentence – Practice – Breach of standard condition of probation order not to commit an offence punishable by imprisonment – Also a breach of condition of suspended sentence not to commit an offence of violence – Both breached by an assault – Whether appropriate to both activate suspended sentence and punish for breach of probation order.

Pearce v R (1998) 194 CLR 610, considered.

Aust Dig Criminal Law [889]

Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Sentencing – Relevant factors – Other matters – Maximum penalty dependent on aggravating factor – Complaint did not refer to the aggravating factor – Whether factor may be taken into account – Trespass to land – Dwelling house.

Police Offences Act 1935 (Tas), s14B.

Kingswell v R (1985) 159 CLR 264, distinguished.

Aust Dig Magistrates [140]

REPRESENTATION:

Counsel:
             Applicant:  J E Higgins
             Respondent:  J P Ransom
Solicitors:
             Applicant:  Bishops
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2006] TASSC 50
Number of paragraphs:  24

Serial No 50/2006
File No LCA 3/2006

PETER GERARD ADAMS v SERGEANT GRAHAM ROSS WHITE

REASONS FOR JUDGMENT  CRAWFORD J
  22 June 2006

1. The applicant seeks a review of two sentences imposed by a magistrate, Mr P H Wilson, on 1 March 2006, on a single ground that they were manifestly excessive.  The sentences were imposed on separate complaints that were heard at the same time.

1. Complaint 40827/05 charged a trespass committed on 2 November 2005 against the Police Offences Act 1935, s14B(1). The sentence was three months' imprisonment. Complaint 64835/05 charged a failure to comply with a condition of a probation order on 5 November 2005 against the Sentencing Act 1997, s42(1)(a). The sentence was one month's imprisonment cumulative upon the other sentence. He pleaded guilty to both charges.

1. The facts of the trespass charge were as follows.  On 2 November 2005 at about 10.15pm, Ian Kidd and his partner, Ms Whiting, were in the living room of their home at Trent Street, Beaconsfield, when they heard the applicant swearing and cursing outside.  He started to bang on their front door.  He was yelling something they could not understand.  Mr Kidd went out the back door and round to the front.  He asked the applicant several times to leave, but he would not do so.  He was intoxicated.  He continued to yell, unintelligibly in the main.  Mr Kidd said that he would call the police and returned inside his unit through the back door.  The applicant followed him inside.  In the dining room he started to abuse Mr Kidd.  Ms Whiting was frightened.  The applicant tried to start a fight with Mr Kidd by taunting him.  He was constantly asked to leave.  After about five minutes, Ms Whiting pushed him out the back door and called the police.  Both occupants were extremely fearful that he would return and on the arrival of the police, a request was made for a restraint order for their protection.  Ms Whiting's daughter was married to the applicant's brother, but there appeared to be no explanation for the offence.  Police arrested the applicant later that night to facilitate the making of a restraint order.  Shortly afterwards he was bailed. 

1. The facts of the breach of the probation order were as follows.  On 8 January 2005, the applicant committed four offences namely an assault, a threatening of a police officer, a resisting of a police officer and a breaching of a restraint order.  On 9 March 2005 he was sentenced for those four offences to three months' imprisonment but all of it was suspended on a condition that for 18 months he commit no offence of violence or breach of a restraint order or like order.  A probation order was also made for 18 months.  One of the standard conditions of the probation order, because of the Sentencing Act, s37(1)(a), was that during that period of 18 months from 9 March 2005 he not commit an offence punishable by imprisonment. On 5 November 2005 he breached the condition of suspension of the imprisonment and also the condition of the probation order I have mentioned, by committing a common assault contrary to the Police Offences Act 1935, s35. Four days later on 9 November 2005, he was sentenced for that common assault to two months' imprisonment commencing on 6 November 2005. In addition, the court dealt with him for breaching the suspended sentence of three months' imprisonment imposed on 9 March 2005 (but not for breaching the probation order made at the same time), by ordering that the sentence take effect cumulatively upon the sentence of two months' imprisonment imposed the same day for the common assault. Four orders each of six months' imprisonment, all suspended, were also made at that time for failures to pay fines in the respective amounts of $598.40, $498.40, $208.40 and $248.40. He was entitled to a remission for good behaviour of one third of the total of five months' imprisonment and was released on 15 February 2006. In the meantime, on 7 December 2005, complaint 64835/05 was made charging him with breaching the probation order that was made on 9 March 2005, by committing the common assault on 5 November 2005 and thereby breaching the condition that he not commit an offence punishable by imprisonment.

1. The prosecutor explained to the learned magistrate, at the sentencing hearing on 1 March 2006, that the applicant had generally reported as required throughout the period of the probation order and had initially appeared willing to address factors relating to his offending behaviour, in particular by attending several alcohol and drug counselling sessions.  However, for several months prior to being imprisoned in November 2005 he refused to continue with the counselling despite it being evident that substance abuse by him was an ongoing concern. 

1. At the time of the sentences sought to be reviewed, the applicant was 39 years old.  He had a substantial record for alcohol related offences that commenced when he was 16 years old.  His record included drunk and incapable (eight offences), offences against the Road Safety (Alcohol and Drugs) Act 1970 (13 offences), other offences involving the misuse of alcohol (five offences), assault police, resist police (two offences), threaten police, common assault (three offences), breach of a restraint order and unlicensed driving (seven offences). Particularly significant was that since July 2004 he had committed the following offences:

06.07.04	Unlicensed driving
12.07.04	Unlicensed driving
15.07.04	Unlicensed driving
15.07.04	Unlicensed driving
19.07.04	Unlicensed driving Unlicensed driver with alcohol in body (.04) Common assault
08.09.04	Fail to appear
08.01.05	Common assault Breach of restraint order Threaten police officer Resist police officer
02.11.05	Trespass (a subject of this review)
05.11.05	Common assault

1. In a plea in mitigation, the applicant's counsel said that the applicant was single and as a result of his recent time in prison, he had lost the full-time care of his three young children.  Prior to that they had always been in his care.  He claimed to be working with the Department of Child and Family Services, participating in alcohol and drug screening twice a week and attending an anger management course.  He accepted that he had a poor history with alcohol and that while he had a problem with it his children would not be returned to his care.  Alcohol had been involved in his offending on 2 November 2005, when he was highly intoxicated, and again when he offended three days later.  Two days after being released from prison on 15 February 2006, he had obtained casual employment at the Beaconsfield goldmine. 

1. In comments on passing sentence the learned magistrate said:

"You have been given sufficient opportunities in the past on your various court appearances to consider your behaviour and the Court has extended some flexibility towards you and demonstrated some leniency and given you a chance to recover yourself.  It's perfectly clear that you've failed to take full advantage of the opportunities offered you by various orders made by the Courts.  I note and take into account what is said.  You are convicted upon both complaints.  That trespass in my view is a bad example of its type, and clearly given your record and given the circumstances of that offence, deserving of imprisonment.  In regard to that matter you are convicted and sentenced to a term of three months' imprisonment.  In regard to the breach of the probation order, constituted by the assault offence of which you were convicted last year, you are convicted and sentenced to a term of one month's imprisonment, cumulative to that term just imposed here today.  That is a total of four months' imprisonment.  I don't extend the current order, I am not asked to by the Probation Service, but you will pay any costs involved of $69 in all.  I direct that that be paid as directed by your probation officer, but prior to the expiration of the current probation order in any event. 

1. One issue that has arisen concerns the maximum penalty that applied to the charge of trespass.  The offence was created by the Police Offences Act, s14B(1). The heading to the section is "Unlawful entry on land" but by virtue of the Acts Interpretation Act 1931, s6(4), the heading is not to be taken to be part of the Act. Subsections (1) and (2) of s14B are in these terms:

   "(1)    A person, without reasonable or lawful excuse (proof of which lies on the person), must not enter into, or remain on, any land, building, structure, premises, aircraft, vehicle or vessel without the consent of the owner, occupier or person in charge of the land, building, structure, premises, aircraft, vehicle or vessel.

   (2)     A person who is convicted of an offence under this section is liable to a penalty not exceeding –

   (a)   10 penalty units or to imprisonment for a term not exceeding 12 months, in respect of entering or remaining in a dwelling-house; or

   (b)   5 penalty units or to imprisonment for a term not exceeding 6 months, in respect of entering into, or remaining on, any other land, building, structure, premises, aircraft, vehicle or vessel."

2. The question that arises is which of the penalties in pars(a) and (b) applied here.  There is no doubt that the applicant entered and remained in a dwelling house and on the face of the facts the higher penalties of par(a) applied.  However, the complaint made no reference to a dwelling-house, charging merely a trespass "on land" in these terms"

"Charge:          Trespass – (Land).

Breach of: Section 14B(1) Police Offences Act, 1935.

Particulars:      You are charged with, on the 2^nd November, 2005 at Beaconsfield in Tasmania, without reasonable or lawful excuse, entering on land situated at 1/2 Trent Street without the consent of the owner, occupier or the person in charge of the said land."

1. Counsel for the applicant submitted that because the complaint charged only a trespass to land, and not a trespass to a dwelling-house, the maximum penalty for the offence was governed by subs(2)(b) and not subs(2)(a). 

1. No reference to authority was made in support of the submission and it is to be noted that subsection (1) does not make it an offence to trespass in a dwelling-house as such.

1. Applying the logic of Gibbs CJ, Wilson and Dawson JJ in Kingswell v R (1985) 159 CLR 264 at 273, it is clear that only one offence of trespass was created by s14B and it and all of its elements are to be found in subs(1). Subsection (2) merely prescribes two alternative maximum penalties for the one offence depending on the occurrence or otherwise of the aggravating factor of a dwelling-house. Nevertheless, at 279 – 280, their Honours approved of the rule of practice in R v Bright [1916] 2 KB 441 at 444 – 445 that a judge "must not ... assume that the prisoner is guilty of some statutory aggravation of the offence which might, and should, have been charged in the indictment if it had been intended that the prisoner was to be dealt with on the footing that he had been guilty of that statutory aggravation". However, their Honours were plainly influenced by the circumstance that they were dealing with a case that had been tried on an indictment by a jury. At 280, they said: "The rule of practice laid down in R v Bright is consistent with the fundamental principle that questions of fact affecting the liability of the accused to punishment should be decided by the jury when the trial is on indictment.  The position is different when the circumstances said to aggravate the offence are relevant only to the exercise of the sentencing discretion of the judge."  Their Honours were also influenced by the fact that they were concerned with a Commonwealth offence and that in Queensland and Western Australia the law required that indictments contain an allegation of circumstances of aggravation if the prosecution wished to rely on those circumstances, thinking that it was desirable that such a practice should be followed consistently in all States. 

1. The position here is altogether different.  The offence was created by a State Act, and not a Commonwealth one, and there is no law that the complaint has to assert circumstances of aggravation relevant only to penalty, and not to the offence itself.  It is worth noting that the Justices Act 1959, s30(1)(a), makes it clear that a complaint need not state all the essential elements of the matter of complaint. Further, a significant difference between the circumstances of this case and those in Kingswell is that no jury was involved here.  The magistrate was the sole fact finder and could make findings of fact in the event of dispute, both before a finding that the complaint was proved, on a plea of not guilty, and after such a finding or a plea of guilty.  In any event, the rule in R v Bright is a rule of practice only and it is clear that no miscarriage of justice occurred here.  That the applicant trespassed in a dwelling-house was not in dispute. 

1. For all these reasons, I hold that the maximum penalty for the applicant's offence was the one prescribed by the Police Offences Act, s14B(2)(a), that is to say 10 penalty units or imprisonment for a term not exceeding 12 months.

1. Counsel for the applicant referred to the range of sentences imposed in magistrates courts for trespass in 1999 and 2000, as recorded by Professor Warner in Sentencing in Tasmania 2^nd ed at 388.  Out of 122 cases of single counts of trespass, in only nine of them was a sentence of imprisonment imposed and the length of the imprisonment varied from a minimum of seven days to a maximum of one month.  In her first edition, Professor Warner documented six out of 85 trespass cases in 1988 resulting in sentences of imprisonment that varied from two days to two months.  Noted was that between 1981 and 1989 there were three motions to review sentences of imprisonment for one week, two months and nine months for unlawful entry on land and in each case the sentences was upheld. 

1. Notwithstanding the range of actual sentences that are recorded by Professor Warner, the Act's prescription of a maximum of 12 months' imprisonment must not be ignored.  In an appropriate case it will be open to a magistrate to impose it, although it ought to be regarded as reserved for bad cases or for those where the offender has been previously convicted of similar offences.  Bounds v Robertson unreported 60/1969 at 2.  To that last consideration should be added an offender who has a bad record for offending generally, provided of course that it is a serious example of a trespass. 

1. In this case, the learned magistrate thought the trespass was a bad example of its type.  I have no reason to doubt that conclusion and I am sure that his Worship has dealt with many cases of trespass in his long experience as a magistrate.  The applicant's conduct made the occupants of the dwelling-house extremely fearful and having regard in particular to the fact that he had committed two assaults over the preceding 16 months (and another only three days later) I conclude that the sentence was not manifestly excessive, that is to say it was not so excessive as to be erroneous.  It is not enough that a sentence of one or two months' imprisonment may have been appropriate.  What must be established is that the sentence was so unreasonable or plainly unjust to the extent that justice requires it to be set aside.  I am left unpersuaded of that.

1. I deal next with the sentence of one month's imprisonment for breaching the probation order.  It is a common law principle that a person should not be punished twice for the same act or omission.  The principle was expressed by McHugh, Hayne and Callinan JJ in Pearce v R (1998) 194 CLR 610 at 623 in the following terms:

"To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common.  No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.  Often those boundaries will be drawn in a way that means that offences overlap.  To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts."

1. The sentence of three months' imprisonment that was activated by the order of 9 November 2005 was imposed on 9 March 2005 for offences committed on 8 January 2005.  The sentence of one month's imprisonment that was imposed on 1 March 2006 was for an offence committed on 5 November 2005, that being that by committing a common assault on that day the applicant breached a condition of a probation order without reasonable excuse, contrary to the Sentencing Act, s42(1)(a). Therefore, strictly speaking, it may not be open to say that the applicant has been punished twice for the commission of elements common to two offences, as those terms are used in the passage just cited. Nevertheless, there were common aspects surrounding the order of 9 November 2005 that activated the sentence of three months' imprisonment and the order of 1 March 2006 that sentenced the applicant to one month's imprisonment. The effect of both orders was to send him to prison because, by committing an assault on 5 November 2005, he breached conditions of the sentencing orders that were made on 9 March 2005 for the offences committed on 8 January 2005. There were common elements. In a sense he was punished twice for conduct that fell in an area of overlap and the respective punishments were imposed on different dates, not because of accidents of legislative history but because of accidents of bureaucratic processes. It appears that the application to have the suspended sentence activated was made by either the police or the Director of Public Prosecutions, whereas the later complaint for breach of the probation order was made by a probation officer.

1. The applicant has a justifiable sentence of grievance concerning the activation of the three months' sentence for his breach of one of the orders of 9 March 2005 and his service of that sentence and, after his release, having to serve a further term of imprisonment for his breach of another of the orders of 9 March 2005, in circumstances where the same conduct was the subject of each breach, and further it should not be overlooked that for the breaching conduct, the common assault of 5 November 2005, he was sentenced separately to two months' imprisonment. 

1. The most significant aspect of a probation order is its requirement for supervision by a probation officer.  Most commonly, the main purpose of such an order is rehabilitation.  The direction and supervision of a probation officer is provided with that end in mind.  Frequently it is not imposed as a punishment at all and that is particularly so in most cases when it is combined with a suspended sentence of imprisonment.  In this case it is obvious that the purposes of the two orders made on 9 March 2005 were not exactly the same, the suspended sentence being designed to both punish and rehabilitate, the probation order being designed to rehabilitate only and particularly, to provide the applicant with assistance in controlling the scourge of his alcoholism. 

1. In these circumstances, I conclude that the learned magistrate erred in sentencing the applicant to a term of imprisonment for breaching the probation order.  All that was necessary was for a conviction to be recorded.  It was unfair to order him to serve a further period in prison taking into account the period of three months' imprisonment already served by him because he had breached the other order made on 9 March 2005.  In this sense, the sentence of one month's imprisonment was manifestly excessive and it will be set aside. 

1. For the above reasons, the motion to review succeeds in part.  There will be an order setting aside the sentence of one month's imprisonment imposed on 1 March 2006 on Complaint 64835/05 for failing to comply with the conditions of a probation order.