Attorney-General v Burgess-Banks
[2013] TASCCA 13
•14 November 2013
[2013] TASCCA 13
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Attorney-General v Burgess-Banks [2013] TASCCA 13
PARTIES:ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
v
BURGESS-BANKS, Amba Georgina
FILE NO: 1018/2013
DELIVERED ON: 14 November 2013
DELIVERED AT: Hobart
HEARING DATE: 12 November 2013
JUDGMENT OF: Tennent, Estcourt and Pearce JJ
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Generally – Suspended term of imprisonment – Breach of conditions of suspension – Appeal against finding that it would be unjust to activate the whole of a suspended sentence.
Aust Dig Criminal Law [3519]
REPRESENTATION:
Counsel:
Appellant: D G Coates SC
Respondent: G Barns and J White
Solicitors:
Appellant: Director of Public Prosecutions
Respondent:
Judgment Number: [2013] TASCCA 13
Number of paragraphs: 25
Serial No 13/2013
File No 1018/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
AMBA GEORGINA BURGESS-BANKS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
ESTCOURT J
PEARCE J
14 November 2013
Orders of the Court
Appeal allowed.
That the order of Wood J made 25 September 2013 pursuant to which she ordered that the respondent serve a period of 45 days' imprisonment with effect from 19 August 2013 be quashed.
That pursuant to the Sentencing Act 1997, s27(4B), the sentence of imprisonment of three months imposed on the respondent on 20 June 2012 but held in suspension be activated.
Counsel will need to be heard as to the terms of the order as to imprisonment.
Serial No 13/2013
File No 1018/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
AMBA GEORGINA BURGESS-BANKS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
14 November 2013
I have had the opportunity to read the reasons in draft form of both Estcourt and Pearce JJ.
On 20 June 2012, Wood J sentenced the respondent in respect of one count of robbery. She sentenced the respondent to serve a term of six months' imprisonment. The learned judge suspended three months of that sentence on conditions. There were also further orders relating to community service and probation. It was unclear whether they were independent sentencing orders or conditions of the suspension of the term of imprisonment. However, counsel on this appeal and before her Honour, have accepted they were conditions of the suspended sentence and, as a consequence of any order made under the Sentencing Act 1997 ("the Act"), s27, ceased to have effect. Very shortly after that sentence was imposed, the respondent re-offended and she continued to do so. That further offending placed her in breach of, not only the suspended sentence imposed by Wood J, but also other orders suspending terms in custody.
On 1 August 2013, the respondent pleaded guilty to a number of the offences she had committed post 20 June 2012, and was given bail pending sentence. Four days later, she re-offended again. She was subsequently arrested and remanded in custody. The State filed a breach application and it came before her Honour. The magistrate who had carriage of the lower court matters to which the respondent had pleaded guilty had ordered a pre-sentence report. The respondent was due to reappear before him for sentence on 3 October 2013. The learned judge sought a copy of that pre-sentence report, and had it before her when she ultimately made the order, the subject of this appeal, on 25 September 2013.
There was no dispute the respondent had breached the order made by the learned judge in June 2012 by committing fresh offences. Therefore, by reference to the Act, s27(4B), the learned judge was required to activate the suspended sentence from June 2012 unless she was satisfied it would be unjust to do so. The learned judge determined it would be unjust to activate the whole of the suspended portion of the sentence. Instead, she activated one half of it, and backdated the commencement of the period activated to the date upon which the respondent was remanded in custody. The effect of her Honour's order was that the respondent was entitled to release from custody either on or just before 3 October 2013 when she was due to reappear in the Magistrates Court.
Her Honour dealt with the issue of what could be said to render it unjust to activate a suspended sentence in Tanner v Brown [2011] TASSC 59. Her Honour outlined in that case a number of factors to be considered in making such a determination. In her reasons in the present case, her Honour was clearly mindful of those factors. She identified a number of them which were relevant in the case of the respondent.
The factors identified by her Honour would clearly have led to a finding that it would not be unjust to activate the entirety of the suspended sentence. However, her Honour then considered one further matter. Her consideration of that matter resulted in the sole reason given by her for determining it would be unjust to activate the whole of the suspended sentence. That reason related to the possibility the respondent might not be able to participate in the court mandated drug program.
Her Honour considered it would be unjust for the respondent not to have the opportunity to engage in the program. The difficulty with this approach however was that there was no evidence before the learned judge that the activation of the whole of the suspended sentence would prevent the respondent from taking part in the program if indeed she was considered suitable, absent the difficulty created by the suspended sentence order. Were the sentence activated, it might have perhaps delayed the ability of the respondent to be assessed for the program, but there was no evidence at all she would actually have lost any opportunity to participate.
On that basis alone, the learned judge made an error such that ground 2 of the appeal should succeed.
As I have indicated, I have had the benefit of reading the reasons in draft form of Estcourt J. He has dealt also with ground 1, and I agree with his reasons. I also see no need to deal with grounds 3 and 4.
I would allow the appeal. As a consequence, the order made by her Honour on 25 September 2013 should be quashed. As no other basis was put forward as one which could support a finding that it would be unjust to activate the suspended sentence, it must follow that no such finding could be made. The Act, s27(4B), therefore mandates that the sentence held in suspension from 20 June 2012 be activated. The respondent has already served 45 days of the sentence held in suspension. Activation should therefore result in her serving a further 45 days.
File No 1018/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
AMBA GEORGINA BURGESS-BANKS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
ESTCOURT J
14 November 2013
The appellant appeals against a sentencing order made by Wood J on 25 September 2013. Her Honour found that the respondent was in breach of a suspended sentence of three months' imprisonment but formed the opinion that it would be unjust to activate the entire period of that sentence and, on that basis, made an order pursuant to the Sentencing Act 1997 ("the Act"), s27(4C)(a), activating a period of only 45 days of the sentence. That order, for reasons that will be seen, was designed to result in the respondent's release from custody on about 3 October 2013.
The grounds of appeal are as follows:
"1The learned Judge erred in law in failing to apply Section 27(4B) of the Sentencing Act 1997;
2The learned Judge erred in fact by finding a likelihood existed that if the respondent served all of the suspended sentence of imprisonment she would be ineligible for a drug treatment order when there was no factual basis for making such a finding;
3The learned Judge erred in fact and/or in law in finding that the respondent's ineligibility for a drug treatment order while serving all of the suspended sentence of imprisonment would be unjust within the meaning of s27(4C) of Sentencing Act 1997;
4The learned Judge erred in law by imposing a sentence which was manifestly inadequate in all the circumstances of the case."
Section 27(4B) of the Act provides as follows:
"(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."
However, s27(4C)(a) provides that if the court is of opinion that an order under s27(4B) would be "unjust", it may instead activate "part of the sentence that is held in suspense".
The learned sentencing judge had found that the respondent's offending in breach of the suspended sentence was a "blatant" breach of that sentence and that it commenced soon after the suspended sentence was imposed. Her Honour had also observed that the suspended sentence had not been effective in achieving the respondent's rehabilitation.
The sole basis on which her Honour considered it would be "unjust" to activate the full three months of the suspended sentence was that she concluded that the "likelihood" was that to do so would deprive the respondent of the "opportunity" to participate in a court mandated drug treatment program in the Magistrates Court, where the respondent was awaiting sentence on other offences, and was due to re-appear on 3 October 2013.
The effect of the Act, s27B(1)(e)(i), is that a drug treatment order may only be made by a magistrate if the offender is not subject to "a sentencing order of the Supreme Court", and her Honour had that consideration in the forefront of her mind as to a just outcome for the respondent, whose offending was linked to her dependence on illicit drugs.
There were, however, no facts before the learned sentencing judge that suggested that the sentencing magistrate would not refrain from sentencing the respondent when she next appeared before him on 3 October 2013, and would not wait to make a drug treatment order after the respondent had served the full three months of the activated suspended sentence which would see her released on about 13 November 2013.
The respondent had been assessed on 16 August 2013 as ineligible for participation in the drug diversion program "at this time", because of the suspended sentence, but it was not submitted on her behalf that she would lose altogether the opportunity of another assessment or of a treatment order, if her release date extended beyond her next appearance in the Magistrates Court. On the contrary, the learned sentencing judge had been told by the respondent's counsel that the assessment report accepted that the respondent's offending was drug related, and it would therefore, in my view, have been entirely reasonable to expect that a magistrate would wait a further short period in order to be able to make a drug treatment order.
The learned sentencing judge had been informed by counsel for the respondent only that the assessment of the respondent as to suitability for a drug treatment order had not been completed because she was deemed ineligible whilst action for a breach of a suspended sentence imposed by this Court was being considered, and that on the last occasion the respondent had appeared before a magistrate he had adjourned the proceedings before him to give the learned sentencing judge an "opportunity" to "consider the matter". Her Honour was not told that the magistrate would not wait beyond 3 October 2013 to order further assessment of the respondent or to make a treatment order, nor was it, to my mind, necessarily to be implied from what counsel for the respondent had conveyed to her Honour.
Whatever impression such limited information as she was given may have had on the learned sentencing judge's reasoning on the question of injustice, it quite simply did not, in my opinion, provide an adequate foundation from which to draw an inference that the "likelihood" was that the activation of the whole of the respondent's suspended sentence would result in her losing the "opportunity" to be eligible for a drug treatment order.
In my view, the learned sentencing judge erred by "giving weight to [an] extraneous or irrelevant matter" or by "failing to give weight to some material considerations", or by making "a mistake as to the facts": Dinsdale v R (2000) 202 CLR 321, per Kirby J (with whom Gummow and Gaudron JJ agreed) at [58].
As a result, her Honour incorrectly failed to activate the whole of the three months' sentence held in suspense, as was mandated, absent injustice, by the Sentencing Act, s27(4B). Her Honour therefore imposed a sentence that was contrary to law, and in that limited sense only, one that might be characterised as manifestly inadequate.
I would allow grounds 1 and 2 of the notice of appeal. I find it unnecessary to consider grounds 3 and 4. I would quash the sentencing order and substitute an order activating the suspended sentence of three months' imprisonment.
File No 1018/2013
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v
AMBA GEORGINA BURGESS-BANKS
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
14 November 2013
I have had the opportunity to read the reasons of Tennent and Estcourt JJ in draft form. I agree with their Honours' reasons and, subject to the following comment, with the orders proposed.
On 20 June 2012, Wood J imposed a term of six months' imprisonment. Her Honour suspended three months of that term for 18 months with additional conditions that the respondent perform community service and be subject to the supervision of a probation officer. On the breach application, her Honour ordered that 45 days of the suspended part of the sentence be activated from 19 August 2013. The appellant accepts that, whether as a result of her Honour's order or the order of this Court, the conditions for community service and supervision are discharged. The term of 45 days' imprisonment has now been served. As a result of the order of this Court the whole sentence originally suspended is to be activated, but only the balance of the term remains to be served. For that reason the commencement of the sentence should be backdated to a date fixed by this Court after hearing from the parties.
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