Barron v Laverty
[2019] ACTSC 198
•30 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barron v Laverty |
Citation: | [2019] ACTSC 198 |
Hearing Dates: | 15 July 2019, 30 July 2019 |
DecisionDate: | 30 July 2019 |
Reasons Date: | 31 July 2019 |
Before: | Murrell CJ |
Decision: | Appeal allowed. The appellant is re-sentenced to a total sentence of 2 years’ imprisonment with a non-parole period of 13 months. |
Catchwords: | APPEAL – APPEAL AGAINST SENTENCE – When the appellant committed multiple family violence offences – When the sentencing magistrate accumulated the sentence for five of the six offences – Whether the total sentence was manifestly excessive by reason of the accumulation – Whether the non-parole period was manifestly excessive – Whether the sentencing magistrate erred in applying an incorrect maximum penalty SENTENCING – STATUTORY INTERPRETATION – Suspended Sentence – Where the appellant breached the good behaviour order attached to a suspended sentence – Crimes (Sentence Administration) Act 2005 (ACT) s 110(2) – Difference between “impose the suspended sentence” under s 110(2)(a) and “re-sentence” under s 110(2)(b) – Whether the court may re-sentence an offender to a sentence more severe than the original sentence – Right not to be punished more than once – Human Rights Act 2004 (ACT) s 24 – Whether the sentencing court afforded the appellant procedural fairness |
Legislation Cited: | Crimes Act 1914 (Cth) s 16A Crimes (Sentence Administration) Act 2005 (ACT) s 110 Sentencing Act 1997 (Tas) s 27(5) |
Cases Cited: | Achuthun v Coates (1986) 6 NSWLR 472 Baker v The Queen [2004] HCA 45; 223 CLR 513 Wilkins v Hague [2011] ACTSC 189; 258 FLR 355 |
Parties: | Michael Barron (Appellant) Nigel John Laverty (Respondent) |
Representation: | Counsel P Edmonds (Appellant) S Janackovic (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 9 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 9 January 2019 Case Title: Laverty v Barron Court File Numbers: CC17/9390; CC17/9391; CC18/8246; CC18/8247; CC18/9844; CC18/9845 |
Murrell CJ
The Appeal
On 9 January 2019, following guilty pleas to six charges, the appellant was sentenced by the Chief Magistrate to a total of two years and eight months’ imprisonment, commencing on 30 July 2018 and expiring on 29 March 2021. Her Honour set a non-parole period of 18 months (56 per cent of the total term), expiring on 29 January 2020.
The charges and related sentences were as follows.
| Charge | Offence | Date of Offence | Maximum Penalty | Sentence |
| 1. CC17/9390 | Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT) | 17 August 2017 | 5 years’ imprisonment | Breach – good behaviour order made on 19 April 2018 revoked – suspended sentence of 8 months’ imprisonment imposed 30.07.2018 – 29.03.2019 |
| 2. CC17/9391 | Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT) | 18 August 2017 | 5 years’ imprisonment | Breach – good behaviour order made on 19 April 2018 revoked – suspended sentence of 9 months’ imprisonment imposed 30.03.2019 – 29.12.2019 |
| 3. CC17/9844 | Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT) | 22 April 2018 | 5 years’ imprisonment | 3 months’ imprisonment 30.03.20 – 29.06.20 |
| 4. CC17/8246 | Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT) | 24 June 2018 | 5 years’ imprisonment | 3 months’ imprisonment 30.12.2019 – 29.03.2020 |
| 5. CC17/8247 | Use carriage service to harass/menace pursuant to s 474.17(1) of the Criminal Code 1995 (Cth) | 24 June 2018 | 3 years’ imprisonment | 3 months’ imprisonment 30.12.2019 – 29.03.2020 |
| 6. CC17/9845 | Contravene family violence order pursuant to s 43(2) of the Family Violence Act 2016 (ACT) | 11 July 2018 | 5 years’ imprisonment | 9 months’ imprisonment 30.06.2020 – 29.03.2021 |
Initially, the appellant appealed against the sentence on the grounds that:
(a)The total sentence was manifestly excessive as a result of the complete accumulation of the sentences for five of the six offences.
(b)The non-parole period was manifestly excessive as a result of her Honour’s failure to have regard to the “principle of parsimony” in setting the non-parole period.
In his written submission dated 28 March 2019, the Appellant sought to rely on a further ground of appeal, namely:
(c)Her Honour erred in applying an incorrect maximum penalty to the offence of using a carriage service to harass (CC18/8247).
By leave given at the hearing of the appeal, the appellant appealed on the following ground:
(d)Her Honour erred in her approach to s 110(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act) by ordering that the suspended sentences imposed for the breach offences be served cumulatively, although the original sentences were concurrent.
Principles applicable on a sentence appeal
An appeal against sentence under s 208 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) is a rehearing on the evidence before the Magistrate together with any other evidence that the Court permits to be adduced: Lukatela v Birch [2008] ACTSC 99; 164 ACTR 24 at [19] (Luketela). The appeal court must conduct a real and independent review of the evidence, making due allowance for the advantage enjoyed by the lower court in seeing and hearing any witnesses: Peverill v Crampton [2010] ACTSC 79 (Peverill) per Refshauge J at [24]. The appeal court may intervene if the lower court erred in law or fact, or exercised its discretion on the basis of a wrong principle or in a manner that was clearly wrong: Luketela at [19], Peverill at [24].
In this case, the question is whether the Magistrates Court exercise its discretion on the basis of a wrong principle or in a manner that was clearly wrong.
Section 218 of the Magistrates Court Act provides:
218 Orders by Supreme Court on appeals
(1)On an appeal to which this division applies, the Supreme Court may—
(a) confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b) give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
…
The appellant contended that, where “may” is used in this provision, it does not confer a discretion but is facilitative, i.e. the Supreme Court must intervene if specific error is identified. The High Court noted in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35]:
In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
[emphasis added.]
It is unnecessary to determine whether, where it is used in s 218 of the MagistratesCourt Act, the word “may” is facilitative because, in this case, a separate specific error was established and, as a result, I will impose the sentence that I consider to be appropriate.
Facts
Count 1 – Breach offence
In February 2017, the appellant’s parents obtained domestic violence orders which prevented him from contacting them or being at their Latham premises.
At about 8 PM on 17 August 2017, the appellant entered the backyard of their premises and asked his parents for clothing. Clothing was provided, but the appellant was dissatisfied. He became increasingly agitated and refused to leave. He remained at the property for more than two hours. His parents contacted the police. The appellant left soon after the police arrived.
At about 8 AM on 18 August 2017, the appellant re-entered the backyard of the premises and began tapping on the windows. He was asked to leave but refused to do so. The appellant’s parents left the premises for about an hour. When they returned, the appellant was still there. They reported the matter to police.
Count 2 – Breach offence
At about 9 PM on 19 August 2017, the appellant’s parents arrived home to find the appellant in the backyard of their premises, tapping on the windows. They asked the appellant to leave but he became increasingly upset when they refused to give him food, cigarettes, and money. He remained there for half an hour before leaving. By this stage, his parents had contacted the police. That night, the appellant left four voicemail messages on his parents’ home telephone. In the messages, the appellant requested money, food, clothes, and permission to stay overnight.
Sentences for breach offences
On 19 April 2018, the appellant was sentenced on Counts 1 and 2 by Special Magistrate Cush, who imposed and then suspended sentences of eight and nine months’ imprisonment respectively. In doing so, his Honour said:
You will clearly understand if you come back this time you’re gone and you’re going to go for a long period of time because cumulatively those two sentences can be cumulative or concurrent. You can go for a sentence of 17 months in gaol.
Despite his Honour’s reference to the alternatives of cumulative or concurrent sentences, in the case of each sentence the appellant entered an associated good behaviour order that was for 12-months from 19 April 2018 to 18 April 2019; the associated good behaviour orders were concurrent.
Count 3
In January 2017, the appellant’s partner obtained a domestic violence order against him. Among other things, it prevented the appellant from harassing, threatening, or intimidating her or her children. The relationship ended in November 2017.
On 22 April 2018 (three days after the appellant was originally sentenced for Counts 1 and 2), the appellant’s partner (by then, former partner) agreed to give him a lift. While she was driving with him and two of her children, the appellant became angry and smashed her mobile telephone against the dashboard. She pulled the car to the side of the road and asked the appellant to get out. After initially refusing to leave the car, he did leave but took his former partner’s telephone with him.
She drove to a nearby shopping centre and exited her vehicle. While she was making a telephone call to her mother from a public telephone, she saw the appellant walking towards her. She ran back to her car. He approached the car and, in the presence of her children, argued with her for several minutes in an aggressive and demanding tone. He then departed, leaving his former partner in tears.
Counts 4 and 5
Two months later, on 24 June 2018, the appellant arranged to meet his ex-partner. She brought her mother to the meeting, no doubt because she was concerned about meeting the appellant alone. The appellant demanded money for accommodation. He became angry when his ex-partner refused to give him money.
Later, the appellant called the mobile telephone of his former partner’s mother about 56 times and also sent text messages to her. After the first call, she told him that he should not call again. In the course of the day, she also sent a text message to him, telling him that he should not communicate with her.
In an attempt to contact his former partner, whose mobile telephone was not charged, the appellant called the mobile telephone of her 14-year-old daughter on many occasions. The appellant’s ex-partner answered some of these calls and told him to stop calling.
Count 6
On 11 July 2018, the appellant’s partner was exiting her vehicle at the Belconnen Mall with her children and a friend when the appellant approached her and asked for money. She had no money in her possession and, because she was fearful of the appellant, she left her children with her friend, went to an ATM and withdrew $100, and handed the money to the appellant.
Criminal history
The appellant had prior convictions of matters of dishonesty, in relation to which he received suspended sentences in 2005 and 2006.
In 2014, the appellant was convicted of contravening a protection order and received a good behaviour order. He breached the good behaviour order, although no action was taken. He was convicted of contravening a protection order on 11 and 17 January 2017. For these offences, on 9 June 2017, the Magistrates Court imposed a sentence of five months’ imprisonment suspended for 12 months and a sentence of 64 days’ imprisonment to be served as fulltime detention from 7 April to 9 June 2017.
Offences 1 and 2 were committed while the offender was subject to these suspended sentences. On 19 April 2018, the good behaviour orders relating to the offences of January 2017 were cancelled and the offender was re-sentenced to 80 days’ imprisonment from 30 January to 19 April 2018.
As noted above, offence 3 was committed three days after his release from prison (for contravening a protection order), and the other offences were committed within a few months.
Consequently, in January 2019, the appellant came before the Court with a history of contravening protection orders (in 2014 and early 2017) and having had the benefit of a number of suspended sentences, dating back to 2005.
Intensive Corrections Order Assessment Report
An Intensive Corrections Order (ICO) assessment report prepared in April 2018 found that the appellant was unsuitable for an ICO due to his illicit substance abuse. At that stage, the appellant had expressed positive intentions but drug testing had shown continuing use of methamphetamines through March 2018.
Pre-Sentence Report
The pre-sentence report prepared for the sentencing hearing on 9 January 2019 assessed the appellant as at medium risk of general reoffending, primarily due to ongoing substance abuse and his history of family violence offences.
The reporters expressed significant concerns in relation to the appellant’s contact with his children and former partner and concerns for the safety of the appellant’s parents, with whom the appellant proposed to reside if he received a community-based sentence.
The report noted that the appellant had minimised his responsibility for the offences, and had maintained that the victim had exaggerated.
Ground 1: Manifest excessive sentence due to accumulation of sentences
The appellant submitted that, as the five family violence offences related to four occasions (as offences 1 and 2 occurred on consecutive days) and referred to the same victim, the Magistrates Court should have structured the sentences so that there was significant concurrency. Conversely, the imposition of almost wholly cumulative sentences resulted in a total sentence that was manifestly excessive, given the total criminality involved.
Prior to the sentencing date, the Chief Magistrate had considered whether it was appropriate to order an assessment for an ICO. When doing so, her Honour had indicated that it was likely that the appellant would be imprisoned for approximately two years.
In submissions during the sentencing hearing in the Magistrates Court, the appellant’s legal representative conceded that a sentence of fulltime imprisonment was unavoidable but asked the Court to consider the totality of the sentences imposed.
When sentencing the appellant, the Chief Magistrate said:
I am to take into account the principle of totality. So whilst I look at each matter individually, I am to look at the overall effect in the proper sentence in light of that.
Looking at the offences as a whole, her Honour observed:
They were nasty examples of harassing behaviour. They were aggravated because they were in the family violence context. They were persistent and they affected a number of family members. Your behaviour clearly attempted to control and manipulate your victims as well as frightening them. This was control to get your own way including money. It was a cowardly example of persistent family violence aggravated by virtue of the fact that you are on conditional liberty having been sentenced so recently.
Her Honour appropriately emphasised the important sentencing purposes of specific and general deterrence, denunciation, and need for protection of the public.
The fact that the Chief Magistrate made two of the sentences concurrent confirms that her Honour was well aware of the principle of totality.
It is trite to say that, where offences are part of a single episode of criminality and share common features, sentencing purposes will usually result in the related sentences being structured so that there is significant concurrency between them: O’Brien v The Queen [2015] ACTCA 47 at [26]. However, the ultimate question is whether the total sentence reflects the total criminality.
In this case, the total sentence may have been relatively heavy. It was certainly open to the sentencing court to structure the sentences by directing greater concurrency and, thereby, achieving a lower total sentence. However, the appellant’s continuing disobedience of court orders called for a significant total sentence. I am not satisfied that, when considering the appropriateness of the total sentence, the Chief Magistrate erred in the exercise of her sentencing discretion.
Ground 2: Manifestly excessive non-parole period
In submissions in the Magistrates Court, the appellant’s legal representative referred to the common range for non-parole periods in the ACT being 50 to 70 per cent of the total term. She pointed out that the sentence would be the appellant’s first significant period of fulltime detention.
The Chief Magistrate correctly observed that the prospect of rehabilitation was an important consideration in determining the length of a non-parole period.
Although the appellant’s criminal history and a pre-sentence report indicated that there were limited prospects for rehabilitation, her Honour imposed a relatively low non-parole period, 56 per cent of the total term.
This relatively short non-parole period recognised that some offenders may be deterred from further offending by a relatively short period of fulltime imprisonment and a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].
Having regard to the total sentence and the appellant’s indifferent prospects for rehabilitation, there can be no valid criticism of the non-parole period.
Ground 3: Consideration of maximum penalty for using a carriage service to harass
In the Magistrates Court, the prosecutor pointed out that the maximum penalty for the offence of using a carriage service to harass was three years’ imprisonment.
However, in her reasons, the Chief Magistrate stated:
Objectively, these are serious offences. First of all, there is the maximum penalty which applies which is five years. It has been said by both the prosecution and defence that the prosecution election forms were filed … [T]hat would limit my powers of punishment on each individual matter to two years but the yardstick is still the five years that the legislature has imposed. So inherently they are serious offences.
At no point did her Honour observe that, in relation to the offence of using a carriage service to harass contrary to s 474.17 (1) of the Criminal Code 1995 (Cth) (offence 5), the maximum penalty was three years’ imprisonment.
As her Honour stated that the maximum penalty for the offences generally was five years’ imprisonment and at no point referred to the correct maximum penalty of three years’ imprisonment when addressing the offence of using a carriage service to harass, it may be that her Honour made a specific error in relation to the maximum sentence that applied to that offence. On the other hand, given her Honour’s experience and the fact that she had been reminded of the correct maximum penalty during submissions, it seems unlikely that her Honour would have made such an error. However, as the position is unclear, for present purposes I am prepared to assume that her Honour did make the asserted error.
Assuming that the Kentwell approach applies (see [9] above) then, if the Chief Magistrate sentenced the appellant by reference to an incorrect maximum penalty, that specific error enlivens this Court’s power to intervene and resentence unless, independently, it concludes that no different sentence should be passed: Kentwell at [35]; DL v The Queen [2018] HCA 32; 92 ALJR 764 at [9]; Gillard v The Queen [2016] ACTCA 50 at [43].
In the independent exercise of my discretion, I would not intervene. The offence in question involved two victims, one of whom was an adolescent girl. There were numerous communications with each victim. The communications occurred in a domestic violence context. The appellant had a very significant history for domestic violence matters and, at the time of the offence, was on conditional liberty in relation to such offences. The prospects for rehabilitation were unclear. The offence strongly invoked the sentencing purposes of general deterrence, personal deterrence and denunciation.
The appellant submitted that, if there was a specific error in relation to one sentence, then the appeal court was required to review the total sentencing picture. I accept that where, because of a specific error affecting one sentence, an appeal court varies that sentence, the appeal court must review the total sentence. However, I do not accept that, where there has been a specific error affecting one sentence but the appeal court does not change that sentence, the total sentence must be reviewed; in such a case, it can be assumed that the specific error has not influenced the total sentence.
If, in the written submissions, the appellant intended to assert that, in relation to all charges, the appropriate penalty was to be assessed against a maximum penalty of two years’ imprisonment, then that submission was wrong. As stated by the Chief Magistrate, the yardstick against which to assess an appropriate penalty is the maximum penalty, regardless of whether the sentencing court is constrained by a jurisdictional limit.
Ground 4: Application of s 110 of the Sentence Administration Act
Leave was granted at the hearing for the appellant to argue this further ground of appeal and for the appellant and respondent to file and serve further written submissions concerning this ground after the hearing.
The appellant argued that, as the original suspended sentences were concurrent, the Chief Magistrate fell into specific error when she made them cumulative.
As noted above at [15]–[16], it appears that, when the suspended sentences were imposed, the Special Magistrate contemplated the possibility that they be served cumulatively in the event of a breach the associated good behaviour orders.
Although the Special Magistrate may have contemplated that possibility, he did not purport to order that the sentences be served cumulatively and the good behaviour orders associated with each sentence were entered on 19 April 2018 for a period of 12 months. Good behaviour orders attaching to suspended sentences commence on the date when the sentence is suspended: The Queen v Lee [2016] ACTCA 69 (Lee) at [32].
In the further written submissions, the respondent conceded that, since both suspended terms of imprisonment commenced together, if the good behaviour orders were cancelled, then it was necessary for the sentences to be served concurrently.
The legislative scheme
Section 62(1)(a) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) provides that, prima facie, a sentence starts on the day when it is imposed. Section 62(2) of the Sentencing Act provides for exceptions, including the imposition of cumulative sentences under Part 5.3 of the Sentencing Act. However, Part 5.3 would appear to have no application where two original sentences are fully suspended: see s 70(1)(c).
Section 12 of the Sentencing Act concerns the suspension of sentences of imprisonment. It does not provide for a different type of penalty; once a sentence of imprisonment has been imposed, it enables the sentencing court to order that the sentence of imprisonment be served in a particular manner. It states:
12 Suspended sentences
(1) This section applies if—
(a)an offender is convicted of an offence; and
(b)the court sentences the offender to imprisonment for the offence.
(2) The court may make an order (a suspended sentence order) suspending all or part of the sentence of imprisonment.
(3) If the court makes a suspended sentence order, the court must also make a good behaviour order for the period during which the sentence is suspended or for any longer period that the court considers appropriate.
…
Consequently, like any other sentence of imprisonment, unless the original sentencing court otherwise orders, a suspended sentence starts on the day when it is imposed. The associated good behaviour order must span the period of the sentence (or a longer period that captures the period of the sentence). It is breach of the associated good behaviour order that brings an offender back before the court for reconsideration of the suspended sentence order.
If it is satisfied that an offender has breached a good behaviour order associated with a suspended sentence, then under s 110(2) of the Sentence Administration Act:
110 Cancellation of good behaviour order with suspended sentence order
…
(2) The court must cancel the good behaviour order and either—
(a) impose the suspended sentence imposed for the offence; or
(b) re-sentence the offender for the offence.
…
(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.
…
(5)To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.
Two options under s 110(2)
It is apparent from the two subparagraphs of s 110(2) that the option to “impose” the sentence that was suspended is distinct to that of the option to “re-sentence”.
Sentencing involves an exercise of judicial power: Crump v New South Wales [2012] HCA 20; 247 CLR 1 (Crump) at [27], [41]–[42]. The judicial power exhausts upon the passing of the sentence: Baker v The Queen [2004] HCA 45; 223 CLR 513 at [29]. If a court decides to proceed under s 110(2)(a), the sentence to be imposed is the same “suspended sentence imposed for the offence”, i.e. the sentence is a product of the original exercise of judicial power and there is no fresh exercise of judicial power; the controversy represented by the original information/indictment has been quelled: Elliott v The Queen [2007] HCA 51; 234 CLR 38 at [5]. When a court acts under s 110(2)(a), it merely gives effect to the suspended sentence of imprisonment that has been imposed: Taylor v Bowden [2009] ACTSC 13 (Taylor) at [33]. There is no scope to alter the original sentence.
However, if a court acts under s 110(2)(b), it undertakes a fresh exercise of judicial power: Crump at [27]. It must consider the circumstances of the offence (including any extenuating circumstances) and subsequent events, knowing that there has been non-compliance with the good behaviour order: Stevens v McCallum [2006] ACTCA 13 at [207]. The Sentencing Act applies in the same way that it applies to an original sentencing exercise: s 110(4) of the Sentence Administration Act.
In this case, the Chief Magistrate made the following observations in relation to the breach offences:
In respect of the breach of the suspended sentences I have no option, it seems to me, in the circumstances but to impose them in light of the way in which they were breached.
[Emphasis added.]
The respondent conceded that:
in this case, it appears that the Chief Magistrate imposed the sentences pursuant to [s 110(2)(a) of the Sentence Administration Act], and, as such, the total sentence … could not have exceeded 9 months imprisonment.
This would amount to a specific error which would re-open the sentencing discretion.
The use of the word “impose” by the Chief Magistrate seems to be misguided given that her Honour imposed a different sentence to that of the original. If her Honour intended to proceed under s 110(2)(a) as conceded by the respondent, she would have fallen into error.
Ex tempore remarks made in a busy magistrates’ court should not be “picked over”: DPP (NSW) v Illawarra Cashmart Pty Ltd [2006] NSWSC 343; 67 NSWLR 402 at [15] per Johnson J. Rather, an appeal court is concerned with the “substance of what the magistrate said”: Achuthun v Coates (1986) 6 NSWLR 472 at 479.
However, the Chief Magistrate’s expression “I have no option … but to impose [the sentences that were suspended]” strongly suggests that her Honour intended to proceed under s 110(2)(a).
Consequently, the respondent’s concession was correctly made. If her Honour intended to activate the original sentences, then (regardless of the cautionary remarks made by the Special Magistrate) the sentences had to be served concurrently. In this regard, there was a specific error.
For completeness I will canvass whether, if her Honour intended to proceed under s 110(2)(b) of the Sentencing Act, such a course would have involved error.
Section 110(2)(b)
In interpreting s 110(2)(b), the Court must have regard to the context, as well as the object and purpose of the Act: Legislation Act 2001 (ACT) ss 139, 140.
As to context, the distinction between ss 110(2)(a) and 110(2)(b) (discussed above at [64]–[66]) is important. This distinction is reinforced by s 110(5) of the Sentence Administration Act and s 208(1)(e) of the Magistrates Court Act: a re-sentenced offender has the same right of appeal as they had when originally sentenced, but an offender who is dealt with under s 110(2)(a) of the Sentencing Act has no such right.
On a limited and literal reading of s 110(2)(b) of the Sentence Administration Act, a resentencing court could elect to grant a fresh right of appeal to an offender by “re-sentencing” him to the original sentence. However, the purpose of s 110(2)(b) is to enable the imposition of a sentence that differs from the original sentence, and a resentencing court would invoke the provision only for that purpose.
The appellant submitted that:
Section 110(2)(a) of the [Sentence Administration Act] … was intended by the legislature in the ordinary case to represent the upper limit of a sentence … following a breach, with the discretion in s 110(2)(b) being available for cases where imposition of the total term would be disproportionate to the nature of the breach.
The respondent disputed that proposition.
Although s 110(2)(b) is most commonly invoked in the case of a minor breach and/or positive post sentence behaviour to resentence an offender to a lower sentence, that does not mean that there is no power to resentence an offender to a higher sentence.
Unlike other suspended sentence legislation, s 110 of the Sentence Administration Act does not expressly limit the meaning of “re-sentence”. The now-repealed NSW and Victorian suspended sentence regimes lacked a resentencing option. Section 27(5) of the Sentencing Act 1997 (Tas) provides that a new sentence must not exceed the original sentence.
In Gyory v The Queen [2012] ACTCA 28 at [11], Rares J said:
it is important in the re-sentencing exercise that proper regard is had to the obligation to apply the principles made applicable by s 110(4). In [Wilkins], Refshauge J considered some of the principles, and I think, correctly, indicated that the second sentencer is free to impose the sentence that appears, on all the material now before the Court, the sentence that was appropriate to be imposed in the first place. That includes, where appropriate, a sentence that is greater than originally imposed …
[emphasis added.]
However, this view must be doubted. In Wilkins v Hague [2011] ACTSC 189; 258 FLR 355 (Wilkins), the case to which Rares J referred, Refshauge J was hesitant to fully accept such a construction. Inter alia, his Honour noted that:
(a)Section 110(4) of the Sentencing Act “was clearly indicative of re-sentencing being the opportunity to impose a lesser sentence”: Wilkins at [115(b)-(c)].
(b)Allowing the sentence to be increased on re-sentencing may conflict with the Human Rights Act 2004 (ACT) (HRA): Wilkins at [115(d)].
As to (a), Refshauge J referred to Taylor, where Gray J had commented at [36] that:
It is plain from the example given in s 110(4) of the [Sentencing Administration Act] that more scope is given to a sentencer under the ACT legislation to not impose the suspended sentence in its full rigour.
In Lee at [29], the Court of Appeal discussed the purpose of the suspended sentence regime, stating:
Under s 12 [of the Sentencing Act], a suspended sentence must be “partnered” with a good behaviour order. The purposes of a s 12(3) good behaviour order include providing support for rehabilitation (for example, by the imposition of conditions requiring counselling or treatment for substance abuse), ensuring proper supervision of an offender who is serving the sentence in the community (by imposing a supervision condition) and providing stern consequences for breaching the privilege of serving a sentence in the community (under s 110 of the Sentence Administration Act, a breach will require the good behaviour order to be cancelled and may well result in the suspended portion of the sentence being served full-time). All these purposes are directly related to the suspended portion of the sentence rather than to any full-time or periodic detention component of the sentence. Similarly, the core conditions of any good behaviour order that are prescribed by s 86 of the Sentence Administration Act are obviously designed for persons who are in the community.
The suspended sentence regime is designed to facilitate rehabilitation through the vehicle of a good behaviour order. It has been described as a “Sword of Damocles” that enables and motivates rehabilitation.
In this jurisdiction, there is no presumption in favour of imposing the original sentence. However, any significant breach will usually result in the resentencing court proceeding under s 110(2)(a) and the offender serving the suspended sentence: Guy v Anderson [2013] ACTSC 5 at [87]; R v Carmody [2016] ACTSC 382 at [135]. Often, this is because the resentencing court is loath to sanction disrespect of the opportunity afforded to the offender to remain in the community, and because a significant breach usually indicates that rehabilitation has been unsuccessful.
The imposition of the original sentence is not designed to be a punishment for the breach conduct. If the breach conduct constitutes an offence, then the offence may be charged and punished by a fresh exercise of sentencing discretion.
As to the point referred to at [82(b)] above, I agree that sections 25(2) and 30 of the Human Rights Act may point to an interpretation of s 110(2)(b) of the Sentence Administration Act that would preclude a resentence exceeding the original sentence. If, under s 110(2)(b) a resentencing court could increase the original sentence by reference to a subsequent breach that amounted to a separate offence, the offender could be punished twice for the same conduct. An interpretation allowing such a result would also be contrary to s 24 of the Human Rights Act, which provides:
24 Right not to be tried or punished more than once
No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.
Such an interpretation would not necessarily be contrary to the ruling in Bui v DPP (Cth) [2012] HCA 1; 244 CLR 638 (Bui), that the “principle” of double jeopardy does not apply on Crown sentence appeals concerning Commonwealth offences: at [18]–[19]. Under s 110(2)(b) the resentence is not a fresh appeal. Further, Bui concerned the operation of s 16A of Crimes Act 1914 (Cth) which provides a statutory context that differs from the Territory context, in part because the HRA has no application.
Consequently, I am inclined to the view that s 110(2)(b) should be interpreted as permitting only a sentence that is more lenient than the original sentence; it should be utilised where, taking into account all relevant considerations relating to the original offending (both objective and subjective), the extent of rehabilitation since the offending, and other circumstances post-dating the original sentence (including, where appropriate, the minor nature of any breach), it is just and appropriate to impose a sentence that is more lenient than the original sentence. However, since I do not have the benefit of submissions concerning the HRA, and it is not necessary to do so in order to dispose of the appeal, I do not express a firm view on the interpretation of s 110(2)(b).
An alternative reason to uphold Ground 4
Regardless of whether s 110 (2)(b) enables the imposition of a sentence that is higher than the original sentence, if the Chief Magistrate intended to proceed under s 110(2)(b) and to impose a higher effective sentence, then her Honour should have afforded procedural fairness to the appellant by informing him that she was considering the imposition of a higher sentence.
In Parker v DPP (1992) 28 NSWLR 282 at 296, Kirby P observed that
[A] fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusion should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is present for contrary argument to persuade the judicial decision-maker to a different view.
In Wilkins at [120], Refshauge J observed that:
in the future, if a judicial officer considers that, despite my reservations, he or she has power on re-sentencing to impose a period of imprisonment more severe than that which was suspended, he or she must indicate that clearly to the parties to give them a fair opportunity to address the issue.
Conclusion on Ground 4
If the Chief Magistrate proceeded under s 110(2)(a) of the Sentence Administration Act, her Honour erred in imposing sentences that differed from the original sentences imposed by Special Magistrate Cush. If the Chief Magistrate instead proceeded under s 110(2)(b), her Honour erred by failing to afford procedural fairness.
In either event, there has been an error.
I will re-exercise the sentencing discretion. In the Chief Magistrate’s reasons, her Honour referred to all relevant sentencing considerations and I will not repeat them here.
In relation to the breach offences, considering the appellant’s criminal history and a strong warning administered by the Special Magistrate, I will proceed under s 110(2)(a) of the Sentence Administration Act.
In relation to the other offences, each was very serious, particularly given the appellant’s criminal history and the fact that, at all relevant times, he was on conditional liberty for similar matters. In those circumstances, I consider that the sentences that were imposed by the Chief Magistrate were lenient, both individually and when considered as a whole. Her Honour fixed a relatively low nonparole period. In the exercise of my independent discretion, I will impose the same sentences and a nonparole period that bears a similar relationship to the total term. Counsel for the appellant did not submit that I should do otherwise.
Re-sentence
The appeal is allowed. The appellant is re-sentenced as follows:
(a) CC2017/9390 (Contravene family violence order): Breach established, the good behaviour order made on 19 April 2018 is revoked. Under s 110(2)(a) of the Sentencing Administration Act, I impose the suspended sentence of 8 months, to commence from 30 July 2018 to 29 March 2019.
(b) CC2017/9391 (Contravene family violence order): Breach established, the good behaviour order made on 19 April 2018 is revoked. Under s 110(2)(a) of the Sentencing Administration Act, I impose the suspended sentence of 9 months, to commence from 30 July 2018 to 29 April 2019.
(c) CC2018/9844 (Contravene family violence order): 3 months’ imprisonment, from 30 July 2019 to 29 October 2019.
(d) CC2018/8246 (Contravene family violence order): 3 months’ imprisonment, from 30 April 2019 to 29 July 2019.
(e) CC2018/8247 (Use carriage service to harass/menace): 3 months’ imprisonment, from 30 April 2019 to 29 July 2019.
(f) CC2018/9845 (Contravene family violence order): 9 months’ imprisonment, from 30 October 2019 to 29 July 2020.
The total sentence is 2 years’ imprisonment, from 30 July 2018 to 29 July 2020. I fix a non-parole period of 13 months, expiring on 29 August 2019.
| I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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