Barnes v Lodding
[2020] ACTCA 23
•5 May 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Barnes v Lodding |
Citation: | [2020] ACTCA 23 |
Hearing Date: | 5 May 2020 |
DecisionDate: | 5 May 2020 |
ReasonsDate: | 11 May 2020 |
Before: | Murrell CJ, Mossop J and Crowe AJ |
Decision: | Appeal dismissed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court appeal – Resentence – Whether primary judge erred in finding specific error by Magistrate – Residual discretion |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 10, 33 Criminal Appeal Act 1912 (NSW) s 5D |
Cases Cited: | Barnes v Lodding [2019] ACTMC 24 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v UG [2020] ACTCA 8 |
Parties: | Wayde Barnes (Appellant) Robert John Lodding (Respondent) |
Representation: | Counsel K Lee (Appellant) R Thomas (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Fitzgerald Naylor (Respondent) | |
File Number(s): | ACTCA 54 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Ashford AJ Date of Decision: 26 November 2019 Case Title: Lodding v Barnes Citation: [2019] ACTSC 335 |
THE COURT
Introduction
On 5 May 2020, we dismissed the appellant’s appeal to the Court of Appeal and stated that reasons would be delivered later. These are our reasons.
On 11 December 2018, police executed search warrants at the respondent’s premises. During the search, the respondent admitted to police that there were amphetamines inside the premises. He said that all the drugs on the premises belonged to him, referred to his worsening drug addiction, and said that he sold drugs to support his drug habit. Police located 114.169 grams of 76.5 per cent pure methylamphetamine (worth about $10,000), a set of digital scales, cutting agents, and small clipseal bags.
On the fifth mention in the Magistrates Court, the respondent pleaded guilty to the offence that, on 11 December 2018, he trafficked in a controlled drug other than cannabis (methylamphetamine), contrary to s 603(7) of the Criminal Code 2002 (ACT). The trafficable quantity of methylamphetamine is 6 grams. The maximum penalty for the offence is 10 years’ imprisonment, a fine of $160,000, or both.
On 23 July 2019, Magistrate Stewart (the Magistrate) sentenced the respondent to 15 months’ imprisonment from 23 July 2019 to 21 October 2020, with a nonparole period of 10 months’ imprisonment, expiring on 21 May 2020.
The respondent appealed to the Supreme Court on the grounds that the Magistrate had erred:
(a)in determining that any sentence of imprisonment should not be served by way of an intensive correction order or suspended sentence; and
(b)in finding that the imposition of an intensive correction order or suspended sentence was “inappropriate” or not “warranted”.
On 26 November 2019, Ashford AJ (the primary judge) heard and upheld the appeal. Her Honour found that the Magistrate had erred by failing to properly or fully consider all available sentencing options. Her Honour resentenced the respondent to 14 months’ imprisonment and fixed a nonparole period of seven months’ imprisonment, from 23 July 2019 to 21 February 2020.
The Crown appealed against the decision of the primary judge, alleging that her Honour had erred in finding specific error by the Magistrate.
On 8 April 2020, the respondent was released to parole.
Magistrates Court proceedings
On 9 July 2019, the Magistrate heard submissions on sentence. The Magistrate stated that the “section 10 threshold has been crossed”, a proposition with which the respondent’s counsel did not disagree. Section 10 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) provides that a sentence of imprisonment may be imposed only if no other sentence is appropriate.
His Honour discussed the issue of the way in which any sentence of imprisonment should be served with the parties’ legal representatives, i.e. whether by full-time imprisonment, intensive correction order, or suspended sentence.
The Magistrate stood the matter over to 23 July 2019 for sentence, to enable his further consideration of the material that had been provided and “the appropriateness of all of the sentencing options”. His Honour said:
It is a matter of determining the appropriate disposition …
The Magistrate gave detailed reasons on 23 July 2019: Barnes v Lodding [2019] ACTMC 24.
His Honour observed that:
(a)The respondent had a long-standing drug habit and used a couple of grams of methylamphetamine per day. He sold drugs only for the purpose of covering the cost of his personal use. The value of the drug that was seized was about $10,000. The motive for selling the drug was “commercial, in the sense that the returns from limited sales funded [the respondent’s] then raging drug habit”: at [20].
(b)Police had seized more than 19 times the trafficable quantity of methylamphetamine. His Honour said that the offence was “towards the mid range of objective seriousness for a user-dealer of methylamphetamine”: at [10]. Apart from the larger quantity, the facts were similar to those in R v Brown [2019] ACTSC 59 (Brown), a case that involved the possession of 43.52 grams of methylamphetamine. In Brown at [12], Mossop J said:
The quantity of methylamphetamine was significant both in terms of the potential harm to the community, but also as one of the indicators of his level in the hierarchy of traffickers. Whilst the evidence does not establish that he was more than a user-dealer, it is sufficient to establish that the scale of activity was at the higher rather than lower end of this category of trafficking. The quantity of methylamphetamine is enough to be significant in terms of the harmful effects caused by its distribution. The Crown has not established that the motivation went significantly beyond the maintenance of a significant methylamphetamine habit. Overall, I would assess the objective seriousness of this offence as below the mid range of the objective seriousness for offences of this type.
(c)The respondent had stored the drugs in the bedroom that he shared with his two young children, creating a risk to both “random drug users and his own family”: at [8].
(d)General deterrence was a relevant sentencing purpose.
(e)Having regard to the respondent’s previous convictions for drug matters in 1997 (when he was sentenced to periodic detention in relation to methylamphetamine and cannabis offences) and 2004 (when he was fined for possessing and cultivating cannabis), there was a need for specific deterrence.
(f)The respondent was a 51-year-old father of six children who was in a stable personal relationship, was employed, and had a medium to low risk of reoffending: at [11]–[12].
(g)After decades of drug abuse, since his arrest the respondent had been drug-free: at [13]–[14].
(h)The respondent should be given “full credit” for the utilitarian value of his plea, receiving a discount of 25 per cent on the sentence that would otherwise have been imposed: at [16], [25].
(i)Having regard to the objective seriousness of the offending behaviour, it was inappropriate to extend the leniency of a wholly or partly suspended sentence or intensive correction order. His Honour referred to the decision of R v Major [2016] ACTSC 161 at [32], in which Burns J had observed that the objective seriousness of offending conduct may make it inappropriate for a sentence to be served by way of intensive correction order, as such an order involved significant leniency: at [23]–[24].
The Magistrate imposed the sentence of 15 months’ imprisonment, setting a nonparole period of 10 months’ imprisonment.
Appeal to the primary judge
An appeal from a Magistrate to a single judge of the Supreme Court is governed by the principles in House v The King (1936) 55 CLR 499 at 505: Carpenter v Purcell [2008] ACTSC 34 at [11]. The appeal court cannot disturb a sentence simply because it would have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15], Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 per Kirby J at [57] (Gummow and Gaudron JJ agreeing).
At the hearing of the appeal before the primary judge (Lodding v Barnes [2019] ACTSC 335), the respondent submitted that the Magistrate had made specific errors. The principal submission was that the Magistrate had erred by considering only the objective seriousness of the offence and failing to take into account the respondent’s subjective circumstances and the evidence of rehabilitation when deciding “that it was only an immediate custodial sentence that could be applied”. Further, the Magistrate had failed to give adequate reasons for the decision to proceed in that way.
Counsel for the respondent made two further submissions. First counsel submitted that, in characterising the respondent’s activities as “commercial”, the Magistrate had conflated the concept of selling for profit “per se” and selling to support one’s own drug habit. Second, counsel submitted that, as factors should have been considered beyond the “utilitarian value” of the plea when determining the sentence discount for the plea, the discount should have been greater than 25 per cent.
The primary judge dismissed the first submission and did not clearly engage with the second. Sensibly, neither submission was pursued on appeal to the Court of Appeal
In relation to the principal submission (the only ground of appeal to this Court), the primary judge observed (at [8]–[9]):
8. … It does not appear that the Magistrate considered a suspended or partly suspended sentence. He looked mainly towards the objective seriousness of the offence and found this to be towards mid-range but did not assess that further.
9. It seems from the evidence that the use of methylamphetamine was for personal use. It is suggested by the Crown that selling to defray his own habit was something which the magistrate found was for some financial gain. Even if not for profit, it was submitted that the offender was working as a user/dealer although for his own habit and this is not a mitigation factor.
At [10], the primary judge noted that the respondent been a long-term user of drugs but that many years had passed between previous offences and the current offence, during which the offender had committed no offences.
At [13], her Honour observed that the Magistrate had ignored “the three-step process” that required both an assessment of a sentence and consideration of the appropriate way to serve the sentence. At [14], her Honour continued:
It is my view that the other sentencing options were noted by the magistrate but I do not believe them to have been properly addressed. I agree an [intensive correction order] to be a more lenient sentence than a full-time custodial sentence, but I do not find it to be a lenient sentence. It is a discretionary matter, however, pursuant to s 33 [of the Sentencing Act] I must consider the plea, the effect of a sentence upon the offender, the fact that he has been seeking treatment and has maintained clean urine analysis, that he has expressed some remorse and that the utilitarian value of the plea is only one factor in weighing up the sentencing options.
At [16] and [17], the primary judge concluded that the Magistrate had erred in the exercise of the sentencing discretion “by not considering fully all the available options”.
In relation to resentencing, her Honour stated that an intensive correction order was no longer a sentence that should be considered because eight weeks would be lost while the respondent was assessed for his suitability for such an order and because of “the circumstances of the offending”.
The primary judge resentenced the respondent to 14 months’ imprisonment with a nonparole period of seven months’ imprisonment, expiring on 21 February 2020.
Crown appeals
The appeal is brought pursuant to s 37E(2)(a) of the Supreme Court Act 1933 (ACT) (SCA). Pursuant to s 37O of the SCA, this Court has a broad discretion and may make any order that it considers to be appropriate.
The respondent referred to cases establishing that there are limited circumstances in which the Crown should appeal on the basis that a sentence is alleged to be manifestly inadequate.
However, this is not an appeal alleging manifest inadequacy. Rather, it alleges specific error by the primary judge. The appeal raises the proper approach to an appeal against a sentence imposed by the Magistrates Court and whether it is necessary for sentencing magistrates to give extensive reasons.
Was there a basis for finding specific error by the Magistrate?
The primary judge erred in finding specific error on the part of the Magistrate.
The Magistrate had the relevant evidence in relation to the objective seriousness of the offence and the respondent’s subjective circumstances before him. Neither party disputed his Honour’s view that the only appropriate sentence was one of imprisonment. The parties’ submissions addressed how the sentence of imprisonment should be served. After receiving the evidence and hearing the submissions, his Honour adjourned to consider all the material and to determine the appropriate disposition. In his Honour’s reasons for decision, reference was made to both. Ultimately, his Honour concluded that, because of the objective seriousness of the offence, it was inappropriate that the sentence should be served by way of a suspended sentence or an intensive correction order.
There was no basis for the primary judge’s conclusion that the Magistrate had failed to fully consider the alternatives to full-time imprisonment. The transcript of the Magistrates Court proceedings and the Magistrate’s reasons for sentence make it clear that his Honour did consider whether it was appropriate to order that the sentence be served other than by way of full-time imprisonment.
The Magistrate’s assessment of the objective seriousness of the offence was not a ground of the appeal before the primary judge. A court’s assessment of the objective seriousness of an offence is a discretionary evaluation that is not ordinarily susceptible to interference on appeal: see Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) at [22]. Similarly, the weighing of the importance of various sentencing purposes is a matter within the discretion of the sentencing court: Bugmy per French CJ, Hayne, Crennan, Kiefel, Bell, and Keane JJ at [24]. Nor did the appeal to the primary judge assert that the Magistrate had imposed a manifestly excessive sentence.
In the case of brief sentencing reasons given by a judge of this Court, the failure to expressly refer to some matters and the brief reference to others does not, of itself, permit an inference that relevant matters have been overlooked: R v UG [2020] ACTCA 8 (UG) at [63] (referring to Chin-Charles v The Queen [2019] EWCA Crim 1140) and [64].
Those observations are particularly apposite to reasons given by the Magistrates Court, a court in which experienced magistrates operate under considerable pressure. In Field v Unas [2019] ACTSC 13, an appeal from a sentence of imprisonment imposed by the Magistrates Court, Murrell CJ stated that “the pressure and the nature of the work [in the Magistrates Court] means that a full explanation detailing all aspects of the reasoning process is not usually required, as long as the main matters are addressed”: at [25].
In any event, in this case the Magistrate’s reasons were detailed and substantial.
Residual discretion
The respondent submitted that, if error was established, this Court should decline to intervene because the respondent has served a significant part of the nonparole period ordered by the Magistrate, has been released on parole and is pursuing rehabilitation.
In relation to Crown appeals against sentence, the Crown has conceded that s 37O of the SCA confers a residual discretion where error is established: see UG at [86] and R v Nicholas; R v Palmer [2019] ACTCA 36 (Nicholas) at [115]–[116] and [118], where the Crown’s acceptance of this proposition was noted.
In Nicholas at [115]–[116], this Court pointed to the differences between s 5D of the Criminal Appeal Act 1912 (NSW) (the provision that is relevant to the NSW decisions concerning residual discretion) and the discretion conferred by s 37O of the SCA. At [117], the Court also noted that, on many occasions, appeals have proceeded on the basis that s 37O contained a residual discretion.
In Nicholas at [119], the Court said:
Such a residual discretion may be exercised for any purpose that the appellate court considers appropriate. Matters that may influence an appellate court to exercise its residual discretion include a delay in prosecution of the appeal, the imminent or past occurrence of the respondent’s release on parole, and the likely effect of resentencing on the respondent’s progress towards rehabilitation: Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 per French CJ, Crennan and Kiefel JJ at [43].
This is not a prosecution appeal against the inadequacy of a sentence, but an appeal alleging specific error. Nevertheless, the Crown conceded that, pursuant to s 37O of the SCA, the Court has a broad discretion as to the appropriate outcome following a successful appeal.
The Magistrate imposed a sentence of 15 months’ imprisonment with a nonparole period of 10 months’ imprisonment. The primary judge imposed a sentence of 14 months’ imprisonment with a nonparole period of seven months’ imprisonment. The respondent was released to parole on 8 April 2020, after serving about eight months and two weeks in custody.
As the respondent served most of the nonparole period imposed by the Magistrate before being released from custody about a month ago and as he has good prospects of rehabilitation, we consider that it would be pointless and possibly counter-productive to return him to custody.
Consequently, despite the error made by the primary judge, for discretionary reasons the appeal should be dismissed.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Mossop and Acting Justice Crowe. Associate: Date: |
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