Allie v Wilkie
[2019] TASSC 27
•28 June 2019
[2019] TASSC 27
COURT: SUPREME COURT OF TASMANIA
CITATION: Allie v Wilkie [2019] TASSC 27
PARTIES: ALLIE, Aaron Joshua
v
Senior Constable Scott Wilkie and Ors
FILE NO: LCA 159/2019
DELIVERED ON: 28 June 2019
DELIVERED AT: Hobart
HEARING DATE: 18 and 28 June 2019
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment for driving offences – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentence – Period of non-offending – Sound prospects of rehabilitation – Youthful offender.
Sentencing Act 1997 (Tas), s 27.
Tanner v Brown [2011] TASSC 59; Cannell v Hughes [2014] TASSC 41; Garcie v Lusted [2014] TASSC 27, referred to.
Aust Dig Criminal Law [3388]
REPRESENTATION:
Counsel:
Appellant: K Dolbey
Respondent: S Nicholson
Solicitors:
Appellant: Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2019] TASSC 27
Number of paragraphs: 62
Serial No 27/2019
File No LCA 159/2019
AARON JOSHUA ALLIE v SENIOR CONSTABLE SCOTT WILKIE AND ORS
REASONS FOR JUDGMENT WOOD J
28 June 2019
On 17 January 2019, Aaron Joshua Allie was sentenced in the Magistrates Court for a number of summary offences including an offence of drive while disqualified committed on 2 March 2018. The learned sentencing magistrate, Mr C Webster, also heard an application with respect to a suspended sentence of four months' imprisonment which had been breached by the new offences. The suspended sentence had been imposed on 3 November 2015 for offences including drive while disqualified and drive while not the holder of a driver licence. It was in force for a period of three years with the condition that, during the period of the order, he not commit another offence punishable by imprisonment.
The learned magistrate activated the suspended sentence of four months. In relation to the new offence of drive while disqualified, he imposed a term of three months' imprisonment wholly suspended for a period of two years on condition the applicant be of good behaviour for that period, as well as a cumulative period of disqualification of one year. Referring to the activated sentence he stated: "hopefully that prison term will indicate to you that when a suspended sentence is given we expect it to be obeyed and if you do drive again or commit other offences you're likely to go to prison."
The applicant seeks to review the activation of the suspended sentence. Section 27, subs (4B) and (4C) of the Sentencing Act 1997, obliges the court to activate the sentence unless it would be unjust to do so.
In considering whether it would be unjust to activate the sentence, it is necessary for the sentencing court to examine the circumstances of the individual case. In Cannell v Hughes [2014] TASSC 41 at [14], Pearce J referred to the authorities on point and identified the following factors as important: "the nature and circumstances of the offences for which the sentence was originally imposed; the nature and gravity of the breach in comparison to the original offences and whether activation of the suspended sentence may represent a disproportionate response; the lapse of time between the imposition of the suspended sentence and the breach; whether there is any, and if so what, indication of reform and rehabilitation. That is, whether the suspended sentence may be having its desired effect." See also Tanner v Brown [2011] TASSC 59 at [94].
The original offences
The details of the offences, including the dates of offending, which attracted the suspended term of imprisonment of four months, are as follows:
8 November 2014 (charges 1-4 on Complaint 9121/2014)
· Drive while disqualified
· Drive a motor vehicle while exceeding prescribed alcohol limit (0.134 grams of alcohol per 210 litres of breath)
· Driver not holding an Australian or foreign driver licence with alcohol in body (0.134 grams of alcohol per 210 litres of breath)
· Evade police
7 January 2015 (Complaint 737/2015)
· Drive while disqualified
· Exceed speed limit in built up area
25 February 2015 (Complaint 1902/2015)
· Drive while disqualified
26 February 2015 (Complaint 2367/2015)
· Drive while disqualified
16 July 2015 (Complaint 6062/2015)
· Drive while not the holder of a driver licence
· Use unregistered motor vehicle
· Using a motor vehicle with no premium cover
17 July 2015 (Complaint 6675/2015)
· Drive while not the holder of a driver licence
· Use unregistered motor vehicle
· Using a motor vehicle with no premium cover
19 July 2015 (Complaint 6755/2015)
· Person mentioned in s 6(3) of the Road Safety(Alcohol and Drugs) Act 1970 (.028 grams of alcohol in 210 litres of breath)
· Operate a vehicle in a public place in unnecessary execution of speed, acceleration or loss of traction
· Drive while not the holder of a driver licence
· Use unregistered motor vehicle
· Using a motor vehicle with no premium cover
28 August 2015 (Complaint 7760/2015)
· Drive while not the holder of a driver licence
· Use unregistered motor vehicle
· Using a motor vehicle with no premium cover
6 September 2015 (Complaint 7843/2015)
· Drive while not the holder of a driver licence
· Use unregistered motor vehicle
· Using a motor vehicle with no premium cover
8 September 2015 (Complaint 7714/2015)
· Drive while not the holder of a driver licence
· Use unregistered motor vehicle
· Using a motor vehicle with no premium cover
It can be seen that the applicant engaged in a course of offending from November 2014 to September 2015. He committed four offences of drive while disqualified in less than four months between November 2014 and February 2015, and after that committed six offences of drive while not the holder of a driver licence from July to September 2015.
On each of the four occasions that he drove while disqualified, the disqualification was as a consequence of an infringement notice. The reasons he gave to police for driving while disqualified did not mitigate the seriousness of his conduct and included "he was driving the car back to mum's place", and "I went to the shops to get bread and milk for breakfast". Before being disqualified he had held a novice learner licence which had expired.
On the same date the applicant was sentenced for these matters, he was sentenced in relation to other offending involving offences of dishonesty. He received a second global suspended sentence of imprisonment. The length of the term of imprisonment was six months and it was wholly suspended for the same period of three years and combined with a community service order and probation order. The offending included the following:
8 November 2014 (Charges 5, 6, 7 and 8 on Complaint 9121/2014)
· Burglary
· Burglary
· Stealing (approximate value of $1,900)
· Stealing (approximate value of $2,400)
According to his prior convictions this global penalty was also imposed for stealing and possess an implement or instrument with intent to commit a crime/offence on 26 January 2015, as well as unlawful possession of property relating to 26 July 2015.
In the written application for breach of the suspended sentence and the oral submissions before the learned magistrate, it was only the sentence of four months that was said to have been breached. The application specified the complaints that were the subject of the suspended sentence, referring to complaint 9121/14, rather than charges 1-4 on that complaint. Further, the prosecutor did not identify that it was only charges 1-4 on that complaint that were subject to that suspended sentence, and not charges 5, 6, 7 and 8. In stating the facts for the purpose of the breach proceedings, the facts of the two burglaries and the two offences of stealing were mentioned as if they had also attracted the suspended sentence of four months' imprisonment. This error was not corrected before the learned magistrate and at [32] I consider the implications of this error.
The new offending
The details of the new offences and the dates are:
8 February 2016 (Complaint 5373/2016)
· Possess a dangerous article in a public place
26 March 2016 (Complaint 6619/2016)
· Possess a controlled drug
· Use a controlled drug
· Possess a controlled drug
2 March 2018 (Complaint 2936/2018)
·Drive whilst disqualified
19 July 2018 (Complaint 6918/2018)
·Breach of bail
The offence involving a dangerous article involved a knife which the applicant had in a backpack and he said he was carrying for "protection". The drug offences involve two snaplock bags of methylampthetamine and a snaplock bag of cannabis which he told police was for his personal use.
The court was informed that the facts of the driving offence were that he had been intercepted with three passengers. He told police he had been disqualified by a court and he made full admissions.
The circumstances of his new offence of drive while disqualified was referred to by Ms Monk, the applicant's counsel at the sentencing hearing:
"Your Honour, in relation to the single count of driving whilst disqualified that occurred in March of 2018. He had been with some friends the night before. At this time he was living in the Warrane area. His friends said that they wanted to go and see someone they'd had some issues with and they put pressure on Mr Allie to drive them. It wasn't his car, he didn't have a car, but he essentially succumbed to that pressure and drove his friends a short period."
The applicant's personal circumstances
The applicant was 22 years of age at the time of sentencing for the new offences and the activation of the suspended sentence. He was born in July 1996 and at the time of the original offences he was 18 to 19 years of age. His original offences were his first convictions as an adult. [deleted from the published version].
[deleted from the published version] As an 18 year old he received a number of infringement notices for driving offences, including three for learner driver without accompanying person. These were committed in a period of less than a month. Two of those attracted a three month period of disqualification and the most recent additionally attracted a fine of $200. It was this period of disqualification which applied at the time of his offending the subject of the suspended sentence.
The activation of the suspended term in January 2019 was the first actual term of imprisonment imposed on the applicant. Also, as a youth he had not served a term of detention.
After the offences dealt with by the court on 3 November 2015 resulting in two global terms of suspended imprisonment, the applicant did not commit further offences until his new offending, referred to above. The gap between the original offences of drive while disqualified to his new offence of drive while disqualified was a substantial period from February 2015 to March 2018. His most recent offence of driving while unlicensed was in September 2015. Given his past rate of offending, this represents a significant reduction in his offending.
It is apparent from the plea in mitigation that the applicant had a disadvantaged background. He attended school sporadically until grade 6, with no formal education beyond grade 6. His counsel noted his upbringing involved conflict, alcohol and drug issues in the family, as well as family violence.
The plea in mitigation identified his circumstances at the time of sentencing, and the steps he had taken towards his reform. The applicant had completed a significant number of different courses and certificates. He had been employed at Japanese Auto Wreckers as a car wrecker from 2014-2018. After a work injury and a period of recovery he was looking for work.
In the past he had issues with drugs and alcohol. Indicative of that was said to be his new offending in 2016 involving possession of cannabis and methylamphetamine. It was said that he had overcome his issues with drugs and alcohol. He was on the Suboxone Program and had been for nine months. He was engaging with Alcohol and Drug Services. He was subject to weekly testing and all his tests had been clear.
At the relevant time, his child was 15 months old child and his partner was pregnant. The child had been in the care of Child Protection Services since March 2018. Both the applicant and his partner were engaging with Child Protection, visiting their child and doing all that was required of them. The applicant had completed a parenting course, he had really enjoyed it and found it "extremely helpful".
His counsel spoke about the steps he had taken since the new offence of drive while disqualified:
"He also, or he and his partner move away from the Warrane area after that driving disqualified matter. They are now living in New Norfolk and are very settled there, but he recognised that there were some bad influences in Warrane and he didn't want to be put under the type of pressure that he was put under again. He recognised that driving on that occasion was a bad decision and didn't want to put himself in a position where he was with those friends again. So the move to New Norfolk has been extremely positive for Mr Allie and his partner and they've very much enjoying living in that community and intend to still live there."
The applicant's counsel submitted that it would be unjust in all the circumstances to impose a term of imprisonment, highlighting the following matters:
·The significant gap in his offending since his spate of offending in 2014-2015 which resulted in the suspended sentence.
·It could be seen that he had changed his ways in relation to driving offences.
·The new offence did not suggest a return to the type of offending he was committing in 2014-2015.
·He had not reoffended since the new offence in March 2018.
·He had taken significant steps that were important for his reform.
·He was still a young man at 22 years of age.
·Sending him to gaol would undo all the good work he had done.
His counsel1` urged the learned magistrate to consider a deferred sentence, if he was against her submissions, so that he applicant could demonstrate his continued compliance with the suspended sentence.
The magistrate's comments on passing sentence
The learned magistrate's sentencing comments were as follows:
"SENTENCE - HIS HONOUR: Yes, okay. Well Mr Allie, I heard the eloquent submissions of your counsel, however I'm not convinced that it would be unjust to give effect to the suspended sentences and in fact I'm also not convinced that you should be placed on a deferred sentence.
On the 3rd November 2015 you were sentenced to a number of driving matters. Fortunately for you, you didn't go to prison. I think on any reading of the matter you were facing prison and a significant term of imprisonment. The Court on that occasion gave you a chance, they disqualified you and gave you a suspended gaol sentence for four months. A basic condition of that gaol sentence that was suspended was to make sure that you didn't drive during the three years, you only had to not drive, and probably you've never – and that probably would've been the end of it and not back in front of me facing a breach of suspended sentence, but on the 2 March 2018 you drove. Now there was no compelling reason for you to drive. I'm told that it's pressure but I'm not told that there was a gun held to your head, in fact I don't accept there was or anything like that because your counsel would have argued – that would have been the defence and your counsel would've raised it. So basically you chose to drive. It wasn't even your car, you could've walked about, you had no obligation to drive, so in all the circumstances in relation to the suspended sentence matters, 737/2015, 1902/2015, 2367/2015, 6062/2015, 6673/2015, 7714/2015, 7843/2015 and I think it's 7760/2015 I record convictions – sorry, I'm not recording convictions, I'm simply giving effect to the suspended sentence and I'm sentencing you to four months' imprisonment.
In relation to the new matters, – 6918/2018, 5373/2018, 6619/2016, that's the possession of drugs, the possessing of dangerous article and breach of bail I record convictions. There'll be an in-globo penalty, there'll be a three hundred dollar fine, sixty six dollars thirty six court costs, sixty dollars victims of crime, and in relation to the serious matter, driving whilst disqualified at 2936/2018 I've just given you a prison term, hopefully that prison term will indicate to you that when a suspended sentence is given we expect it to be obeyed and if you do drive again or commit other offences you're likely to go to prison. So in relation to that matter I'm going to record a conviction, it'll be one year disqualification accumulative upon the period of disqualification imposed in relation to 1902/2015, there'll be three months' imprisonment but that'll be wholly suspended for a period of two years on condition you're of good behaviour, and twenty dollars victims of crime levies. Take him down. Go with the security guard."
The grounds of review
The applicant seeks a review of the order made in activating the suspended sentence of four months' imprisonment on the primary ground that the sentence imposed was manifestly excessive in all the circumstances.
The argument for the applicant was that the activation of the suspended sentence was unjust. It was acknowledged that while there were considerations of general and specific deterrence which required consideration, in the circumstances of this case, particularly given the applicant's youth and the substantial reduction in his offending, and given that it was demonstrated that he had embarked on a path of reform, his rehabilitation was a significant factor. It was submitted that the learned magistrate placed excessive emphasis on specific and general deterrence, while ignoring the competing considerations of rehabilitation and proportionality. It is implicit in the applicant's arguments that a reason the sentence was manifestly excessive was because it was unjust in the circumstances of the case to activate the term of four months' imprisonment. The central question on review is whether there was error in the learned magistrate reaching the conclusion that it would not be unjust to activate the term of imprisonment.
A secondary submission was that the sentencing discretion miscarried, and that the totality of the sentences imposed for the new offending, when coupled with the activation of the suspended sentence, resulted in a sentencing order that was manifestly excessive in its totality: Mill v The Queen (1988) 166 CLR 59 at 63.
The respondents’ counsel, Mr Nicholson, emphasised the importance of general deterrence and the role of the courts in reinforcing court imposed disqualification orders. It was a usual case, and the usual consequence envisaged by the statutory scheme, namely that suspended sentences should be activated in the event of a breach, ought prevail: Biddle v Hayward [2014] TASSC 65 at [48].
The power of this Court to intervene is confined. It will only be engaged if there is clear error: Tanner v Brown at [104]; Cannell v Hughes at [15].The question of whether it would be unjust to activate a suspended sentence is a matter involving judgment and evaluation and is a matter upon which reasonable minds can differ. On appeal the question is whether there was error in that evaluation that justifies appellate intervention. In this appeal involving an assertion of non-specific error, it needs to be shown that the result is manifestly unreasonable or plainly wrong: House v the King (1936) 55 CLR 499 at 505. A sentence will not be disturbed merely because the appellate court would have reached a different result; the applicant ought only succeed if clear error has been demonstrated: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321, per Kirby J at 339, Whittle v McIntyre [1967] Tas SR (NC 6) 263; Visser v Smart [1998] TASSC 151 at 5; Tanner v Brown at [49].
As a consequence of the error, mentioned above at [10], in the proceedings before the learned magistrate with respect to the offences that were the subject of the suspended sentence, an amendment to the notice to review was sought to add a ground identifying specific error in that regard. The ground was in terms that: "the learned magistrate erred when deciding an application for breach of a suspended sentence of four months' imprisonment imposed on 3 November 2015 by taking into consideration and including 9121/2014 counts 5, 6, 7 and 8 in the sentencing order, those being sentences which did not form part of the original suspended sentence."
Specific error
As noted, the learned magistrate proceeded on an erroneous basis. In essence, the original offending was not as extensive as his Honour was led to believe. It is conceded by the respondents that this misstatement of the facts by the prosecution gives rise to a specific error. It was argued for the respondents that the mistake by the learned prosecutor did not give rise to a material error, noting that the focus of the learned magistrate's comments were the driving offences, and not the offences of dishonesty. It was argued for the applicant that the misstatement referred to serious conduct and it was impossible to know what the impact of that error may have been upon the magistrate's determination of the application. The importance of accuracy in hearings of this kind, and more particularly the importance of accuracy in stating the facts of the original offending in accordance with the facts presented at the original proceedings, has been emphasised by me: Young v Wilson [2015] TASSC 16 at [24] and [27]. Whether or not this is a case where there was no substantial miscarriage of justice resulting from that error justifying the dismissal of the motion (Justices Act 1959, s 110(2)(ab)), need not be resolved in light of the outcome of the principal ground of appeal considered below.
Was there error in determining whether it was unjust to activate the suspended sentence?
As noted the primary question raised on this review is whether it was plainly wrong for the learned magistrate to reach the conclusion that it would not be unjust to activate the term of four months' imprisonment.
Section 27(4B) of the Sentencing Act obliges the court to make an order activating the sentence of imprisonment, unless the exception in subs (4C) applies, and the order would be "unjust". Only if the exception applies, does the court have discretion to consider the various options in s 27(4C). These options include activation of part of the sentence, order new conditions, order a substituted sentence or make no order. It is worth setting out s 27(4B) and (4C):
"(4B) If, on the hearing of an application under this section, the court is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it.
(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead –
(a) activate part of the sentence that is held in suspense and order the offender to serve it; or
(b) order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or
(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or
(d) make no order in respect of the suspended sentence."
It can be seen that the question for the learned magistrate was whether it would be "unjust" to activate the sentence of imprisonment in its entirety, not whether it would be unjust to activate in part or whole.
The legislative policy underpinning these provisions is that generally in the event of a breach, suspended sentences are to be served, and that the only exception is if it would be unjust to activate the sentence. By providing for this exception, Parliament has recognised that there are circumstances in which it is proper to refrain from revoking the suspension of the sentence: Tanner v Brown at [91] and [92].
It was said by Neasey J in Greaves v Smith [1986] Tas R 120 at 125 that the objective of the suspended sentence option is reformative as well as penal, and the matters that need to be weighed require a careful exercise of judgment.
The factors that are taken into account in evaluating the threshold question of whether it is unjust to activate the sentence have been considered in a number of authorities: R v Buckman (1988) 47 SASR 303; R v Marston (1993) 60 SASR 320; R v Moylan [1970] 1 QB 143; Greaves v Smith (above); Tanner v Brown at [91]- [96]. Drawing on those authorities the relevant factors are dictated by the circumstances of each case, of the offending and the offender, but include: the nature and circumstances of the original offending; the nature and gravity of the breach offence/s; the breach in light of the penalty for the original offending (whether activation is a disproportionate response to the breach offence, lapse of time between imposition and breach and whether the breach represents a relapse into the way of life or criminal conduct comparable to the offence for which the suspended sentence was imposed), and finally, any progress towards reform (whether the suspended sentence may be having its desired effect and the extent to which there has otherwise been observance of the conditions of the suspended sentence). These factors, are considered below.
The course of original offending, dealt with on 3 November 2015, giving rise to the suspended sentence, represented a course of repeated offending and a disregard for his obligations not to drive without a licence, and not to drive in contravention of a period of disqualification. Mr Nicholson's description of the applicant's "indifference" is apt for this course of driving offences. He was dealt with on a single date for all his original offending. By contrast with some cases, it was not a situation where, in relation to his original offending, he was sentenced for some occasions, the seriousness of his offending reinforced by the court, and then he repeated his conduct.
It is worth noting that on the same date he was dealt with for offences of dishonesty. For those offences he received a term of six months' imprisonment wholly suspended for three years, combined with a community service order and a probation order. It seems that the suspended sentence for the crimes of dishonesty has been effective, noting he has not committed another offence of dishonesty since.
The sentences imposed on 3 November 2015, in combination, clearly signalled that the applicant was on the cusp of an actual term of imprisonment.
The new offending was a clear breach concerning an offence of drive while disqualified involving a court order (imposed on 3 November 2015) disqualifying him for two years and six months. The seriousness of driving while disqualified is well established and was considered by Pearce J in Cannellv Hughes at [22]:
"The seriousness of driving while disqualified by virtue of a court order, particularly with a history of similar offending, is well established: see Porter J in Chatwin v Godfrey (above) at [16] and the cases there referred to. The power to order disqualification from driving is an important road safety tool: Jarvis v Brown and McDonald [1998] TASSC 120; Parker v Whiteman (above) at [14]. The penalties prescribed by the Parliament make it clear that offenders, even first offenders, are liable to grave penalties."
The penalties for subsequent offenders are a fine not exceeding 80 penalty units ($11,200), or imprisonment for a term not exceeding 12 months or both and disqualification for a period not exceeding five years: Vehicle and Traffic Act, 1999, s13(1)(b).
The new offence was the very kind of offence the suspended sentence was directed at. It was not a case where the applicant had an excuse or considerations which mitigated his offending conduct. On the other hand, the breach was not blatant in that it occurred towards the end of his period of disqualification, with two months remaining of a period of two years and six months. Also, it occurred in the latter third of the period of suspension, noting the applicant received the maximum period of suspension of three years. Further, it was a singular occasion, and his explanation at least suggested that his offence had arisen out of a new situation of peer pressure rather than reverting to a previous pattern of offending.
The learned magistrate was correct in stating that the applicant had no excuse for the new offence, the applicant did not have to succumb to peer pressure, and he had other options available to him. While that speaks of his culpability with regard to that offence, it has less to say about his prospects of rehabilitation. The new offending is to be contrasted with his earlier wanton driving. The peer pressure he was subject to, and the fact that it was a singular occasion, at least left open the real prospect that he had made an isolated mistake, rather than having returned to his previous offending and attitude of indifference. This view of his conduct as an isolated mistake was reinforced by the fact that in other respects, the applicant seemed to have left his offending ways behind. Another suspended sentence, imposed at the same time as this suspended sentence for his dishonesty offending had evidently been successful, and no further offences of dishonesty had been committed since.
As noted above, the applicant's counsel referred to matters in mitigation regarding his period of non-offending and the steps he had taken towards his rehabilitation. These were unchallenged facts, they were not merely the "eloquence" of counsel that could be put to one side. The learned magistrate was required to take them into account, although the weight he gave to these facts was a matter for careful evaluation and a matter of discretion.
It was significant that the applicant had not committed a driving offence for two years and three months. As noted the applicant was aged 19 at the end of the course of original offending and 22 years of age when he committed the breach offence. Given his age, and the formative years in which that period of non-offending occurred, the length of this period solidly demonstrated a change in his behaviour.
His positive response to intervention from Alcohol and Drug Services after his offending in 2016, and his engagement with parenting courses, could not be other than a sound indication of reform. These should not be seen as small and insignificant steps given his history of disadvantage, poor role models and impoverished educational background. It appeared that the suspended sentence had been having its desired effect.
The applicant did not reoffend at all in the period between his new offending and the sentencing date, another period of nine months (his suspended sentence expiring in that period). More tellingly, the additional steps he had taken since his new offending were responsive to the situation he was in and the factors that placed him at risk of reoffending. His move to a semi-rural area spoke of someone who was trying to distance themselves from past adverse influences.
The only conclusion reasonably open to the learned magistrate was that the applicant was making genuine attempts to rehabilitate and had made good progress and had sound prospects of rehabilitation. The learned magistrate was required to take those prospects into account; they could not be ignored or placed at nought in the evaluation he was required to make. They needed to be evaluated with the penal nature of suspended sentences which had to be given weight. Ordinarily a suspended sentence is meant to operate as a last chance and there are sound general reasons for activating the sanction in the event the person breaches it: Tanner v Brown at [96], R v Marston (1993) 60 SASR 320. On the other hand, a moderating principle is the courts' desire, as in all cases, not to take a more severe course than is warranted by all the relevant considerations, including the public interest: Tanner v Brown at [96], DPP v Newman [1998] 1 VR 715 at 718.
The weight to be given to factors that weigh in an offender's favour, such as considerations indicative of his reform, will vary from case to case depending on the circumstances. A relevant consideration in this case is the applicant's age and that at the time of the original offences and the new offence of drive while disqualified he was still a youthful offender, aged 18-19 and 22 years respectively. In Garcie v Lusted [2014] TASSC 27, Pearce J stated at [10]:
"Youth takes a prominent place during the sentencing process. There is a high public interest that young offenders be rehabilitated. It does not necessarily dominate all other relevant matters and does not of itself provide immunity from custodial sentences: Spaulding v Lowe (above). It is not a principle of universal application that imprisonment is always inappropriate for young first offenders: Goold v McKenna A4/1980. However, the importance of youth as a sentencing consideration has been emphasised by this Court for more than 50 years. The Courts have long recognised that, generally speaking, the youthfulness of an offender is always a ground for extending leniency. Imposition of an actual prison sentence on a young offender is likely to expose him to the influence of confirmed criminals and increase, rather than decrease, the chance of re-offending."
In that case his Honour was concerned with a young first offender. The applicant is not a first offender, but the principles still have application, albeit with less force. It is not always a straight and short path to reform and there can be missteps along the way. In Lahey v Sanderson [1959] Tas SR 17 at 21, Burbury CJ stated:
"It is because the public interest is best served if an offender is induced to turn from criminal ways to an honest living that a court rarely sends a youth to gaol except in the case of crime of considerable gravity (such as a crime involving violence), or in the case of a persistent offender who has shown himself not amenable to disciplinary methods short of gaol. The courts have recognised that imprisonment is likely to expose a youth to corrupting influences and to confirm him in criminal ways, thus defeating the very purpose of the punishment imposed. There has accordingly been a universal acceptance by the courts in England, Australia, and elsewhere of the view that in the case of a youthful offender his reformation is always an important consideration and in the ordinary run of crime the dominant consideration in determining the appropriate punishment to be imposed. It has been said by Lord Goddard, the former Lord Chief Justice of England, that a judge or magistrate who sends a young man to prison for the first time takes upon himself a grave responsibility."
Here the applicant is not facing a crime of considerable gravity, and is not a persistent offender. He has shown himself amenable to reform. The detrimental impact of prison and the corrupting influence of prisoners upon young people is a factor telling against the order made.
In terms of the public interest, the following passage from the Court of Criminal Appeal in England in Smith's Case [1964] Crim LR 70, endorsed by Nettlefold J in Gray v Strickland A44/1978, approved by the Court of Criminal Appeal, see DPP v R,K D [2018] TASCCA 10 at [37], has particular application.
"In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the court is to determine what treatment gives the best chance of realising that object. That realisation is the first and by far the most important consideration."
Here, the sound indications were that a non-custodial outcome provided the best chance of the applicant becoming a good citizen.
Factors weighing in favour of activating the sentence may be the goals of general and specific deterrence. However, general deterrence and the public interest in the integrity of orders are not to be applied as blunt instruments, their application depends on the individual circumstances of each case. Similarly, while society expects the courts to be generally intolerant of breaches of orders, such expectations are informed by the individual circumstances of the case: Garcie v Lusted at [13]. In relation to the goal of specific deterrence, it does not point to a single sentencing outcome of a term of actual imprisonment. For some individuals a suspended sentence is an effective deterrent from further offending. Here, the threat of imprisonment was largely working well and was shown to be having a deterrent effect.
Sometimes a court may be concerned that to resuspend a sentence, especially in conjunction with the imposition of another suspended sentence, may seem a weak response and may encourage the individual to flout the conditions of suspension or encourage others to do so. In some cases, particularly less serious cases, that concern may appropriately be addressed by combining a suspended sentence with a community service order or some other sentencing order (examples of this approach of adding conditions to create a package of sentencing orders are: Director of Public Prosecutions v Chatters [2011] TASCCA 8, 21 Tas R 26; Director of Public Prosecutions v Hawkins [2015] TASCCA 8; Director of Public Prosecutions v Morgan [2015] TASCCA 11). The sentencing court has a discretion to impose a community service order or supervision by a probation officer as conditions of a suspended sentence both at first instance or when re-sentencing in the event of a breach pursuant to s 27(4C) of the Sentencing Act. When sentencing, another option available to the court is to defer a sentence to give the applicant the opportunity to demonstrate more fully his reform (see Director of Public Prosecutions v R [2018] TASCCA 10 at [46]). The latter course means the individual remains in jeopardy of sentencing options such as an actual term of imprisonment for the duration of the deferral period, and the court retains discretion to impose such an outcome, having regard to the defendant's response to this opportunity and any further offending.
The question of the justice of the case demands a consideration of the reformative objective, as well as punitive aspects of the original sentence. Allowing for the discretionary nature of the evaluation involved, the applicant's youth, the lengthy period of compliance and the productive steps taken towards his reform were prominent factors in this case. A four month term of imprisonment was particularly harsh and failed to give weight to the reformative aspects of the original sentence and the substantial gains made.
There will be other more stark cases of an activation being unjust, but that does not resolve the matter of whether there was clear error in this particular case. In the circumstances of this case the activation was plainly unjust. The ground of review relating to the activation of the suspended sentence of four months' imprisonment succeeds.
As for the applicant's second argument as to totality, I am unpersuaded that aside from the activation of the four month suspended sentence, the sentencing outcomes imposed for his original and new offending is in some other way excessive and disproportionate to the totality of his offending.
For the reasons I have given, the motion to review is allowed. I will hear from counsel before re-sentencing the applicant.
Orders (3 July 2019)
These reasons were published on 28 June 2019. Having heard from counsel, I sought a report from Community Corrections and the matter was adjourned until 3 July 2019.
The following orders were made having regard to further positive steps taken by the applicant since 17 January 2019, the fact that he has not reoffended and that a community corrections order is recommended (due to a back injury the applicant is not suitable for community service).
1The order of the learned magistrate on 17 January 2019 activating the suspended sentence of four months’ imprisonment imposed on 3 November 2015 is set aside.
2Pursuant to s 27(4E)(b) of the Sentencing Act, a substituted sentence of a community corrections order with special conditions is imposed for 18 months from today.
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