Biddle v Hayward
[2014] TASSC 65
•15 December 2014
[2014] TASSC 65
COURT: SUPREME COURT OF TASMANIA
CITATION: Biddle v Hayward [2014] TASSC 65
PARTIES: BIDDLE, Constable Shane Alan
v
HAYWARD, Mark Andrew
FILE NO: 530/2014
DELIVERED ON: 15 December 2014
DELIVERED AT: Burnie
HEARING DATE: 18 November 2014
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentence.
Sentencing Act 1997 (Tas), s 27.
Tanner v Brown [2011] TASSC 59; Cannell v Hughes [2014] TASSC 41, followed.
Aust Dig Criminal Law [3388]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: N Street
Solicitors:
Applicant: Acting Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2014] TASSC 65
Number of paragraphs: 52
Serial No 65/2014
File No 530/2014
CONSTABLE SHANE ALAN BIDDLE v MARK ANDREW HAYWARD
REASONS FOR JUDGMENT TENNENT J
15 December 2014
These reasons relate to a notice to review a decision by a magistrate by which the learned magistrate made a finding that it would be unjust to activate suspended sentences imposed on Mark Andrew Hayward ("the respondent") in 2011.
Relevant legislation
The Sentencing Act 1997 ("the Act"), s 27, deals with applications to review suspended sentences consequent upon a breach. In particular, where the breach is occasioned by the commission of a new offence, it relevantly provides:
"…
(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.
(4D) If the court decides not to exercise the power referred to in subsection (4B) it must state the reasons for so deciding.
...
(5) A substituted sentence may be any sentence that the court could have imposed on the offender had it just found the offender guilty of the offence in respect of which the suspended sentence was imposed, but no greater term of imprisonment is to be imposed by the substituted sentence than was imposed by the suspended sentence.
(6) If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served –
(a) immediately; and
(b)cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court.
…"
The consequence of these provisions is that, where an order suspending a sentence is breached by the commission of a new offence, the court dealing with a breach application must activate the suspended sentence unless it determines it would be unjust to do so.
The suspended sentences sought to be activated
On 3 October 2011, the respondent was convicted by a magistrate of one count of burglary on complaint number 52238/11. He was sentenced to a term of imprisonment of four months which was wholly suspended on condition he not commit any offence punishable by imprisonment for a period of two years. On 24 October 2011, the respondent was convicted of one count of breaching a police family violence order on complaint number 54449/11, and a second count of the same offence on complaint number 54450/11. On a global basis in respect of complaints numbered 54449/11 and 54450/11, the respondent was sentenced to six weeks' imprisonment wholly suspended for two years on the same condition as that imposed on complaint 52238/11.
The periods of two years' suspension commenced in October 2011 and ended in October 2013.
The new offence
On 16 June 2014, on his plea of guilty, the respondent was convicted by a magistrate on complaint number 52928/12 of one count of being a driver holding a learner licence, a provisional licence or an equivalent licence with alcohol in body contrary to the Road Safety (Alcohol and Drugs) Act 1970, s 6(2) ("the drink driving offence"), and one count of being an unaccompanied learner driver. The offences were committed on 15 June 2012. The sentence imposed required the respondent to pay a fine of $800, made him subject to a probation order for a period of 12 months, and included an order that he be disqualified from driving for a period of nine months with effect from 26 March 2014.
The drink driving offence was an offence punishable by imprisonment and was committed within the two year period of suspension. It was therefore a new offence for the purpose of each of the identified suspended sentences, which was conceded by the respondent. The State, in the circumstances, made an application pursuant to the Act, s 27, to have the respondent dealt with for a breach of the suspended sentences imposed on 3 and 24 October 2011. On 16 June 2014, the magistrate who sentenced the respondent in respect of the drink driving offence dealt with the application.
The learned magistrate was required to activate the suspended sentences imposed on 3 and 24 October 2011 unless he determined that it would be unjust to do so. He did so determine, and in respect of each of the orders suspending terms of imprisonment, made an order re-suspending the periods of imprisonment for a period of 12 months from 16 June 2014.
On 2 July 2014, the State filed a notice to review the orders made by the learned magistrate on 16 June 2014. The grounds of review were as follows:
"1The learned Magistrate imposed a sentence that was manifestly inadequate in all the circumstances of the case;
2The learned Magistrate erred in law in finding that it would be unjust to activate the periods of suspended imprisonment imposed upon the respondent previously on complaints 54449/11, 54450/11 and 52238/11."
At the commencement of the hearing of the review, the State abandoned ground 1.
The offending in respect of which the suspended sentences were imposed
Complaint number 52238/11 - burglary
On the count of burglary, the facts were stated to a magistrate on 17 May 2011. The respondent was unrepresented. In summary, those facts were that, on 10 April 2011, the respondent and a friend entered the site of a paper mill in the Wesley Vale area as trespassers. It was a Sunday afternoon. They began looking around but were interrupted by a security guard and fled. They were intercepted by police nearby. After initially denying they were the offenders who had entered the mill site, they admitted their involvement. They told police that their car, parked nearby, was running low on fuel, and they had come up with the idea to enter the mill site to try to find some fuel.
During the course of the appearance on 17 May, the magistrate raised with the prosecutor whether there was to be a breach application in relation to a suspended sentence imposed on the respondent on 4 June 2010. The prosecutor had not realised there was such a possible breach, and the proceedings were adjourned to enable him to look into the matter. The magistrate proceeded to explain to the respondent why the matter was being adjourned. It was clear that the respondent had an understanding of the system relating to suspended sentences because he told the magistrate that the conditions of the suspended sentence referred to were that he commit no further traffic related offences, and that the burglary matter was therefore not relevant. The magistrate explained that that was not the law, and that the law provided that it was a condition of any suspended sentence that an offender commit no offence punishable by imprisonment.
The respondent then provided an explanation to the magistrate about the reasons for the burglary. The exchange between the respondent and the magistrate was as follows:
"DEFENDANT HAYWARD: Oh well, all it really was, your Honour. We was out at Moreland's Beach, like, a bit of recreational four wheel driving along the tracks about there and actually hit a tree root or something along the track and rupture our fuel line and during the process of, like, fixing, well, patching it up with what we had at the time, I actually made attempts to call friends and sent a few text messages, but the people I rung the phones were off or out of service and I got no reply to text messages. Being a furniture remover, I know Kurt Jergenson quite well, the coastal removals that's just out on the – just at Moreland's Beach there. Went to see him to see if he had – well, get a bit of petrol from him and he wasn't home. Yeah, it was, just sort of through being stuck really, your Honour, yeah.
HIS HONOUR: Well, given your record, though -.
DEFENDANT HAYWARD: Yes, I know, it's not very -.
HIS HONOUR: - you're not really in a position to take –
DEFENDANT HAYWARD: - it's not pretty at all, I'm well aware of that. Not pretty whatsoever. I mean, my life has turned around for the better over the last few years. I've now currently holding, like, on a casual basis but working hours as a full time person. You know, like, Pickfords have been now for about fifteen months. Stable relationship."
The proceedings were adjourned to 20 July for the purpose of having the police advise whether or not a breach application was to be filed. When the respondent appeared that day, he was represented. It appears there was a breach application. The matter was adjourned again at the request of the respondent's counsel to allow consideration of amendments to the Act relating to suspended sentences. On 6 September, the matter was adjourned again to 3 October 2011. On that date, the prosecutor restated the facts in relation to the burglary. He also stated the facts in relation to the offending in respect of which a suspended sentence had been imposed on 4 June 2010. That was a drink driving matter which occurred in October 2009.
On 3 October 2011, the learned magistrate found that it would be unjust to activate the suspended sentence. His reasons for so doing were stated as follows:
"The real problem here is the breach of the suspended sentence. The law certainly was after 1st of January, that if you commit an imprisonable offence, any imprisonable offence, then I have to activate the sentence, unless I can be persuaded it would be unjust to do so. In this case, on reflection, and after quite a degree of consideration that I've already given to this matter, I am persuaded it would be unjust to impose that sentence. The sole reason for that is that I accept that by making sentences subject to a specific condition about the commission of a particular offence, Courts did actually mislead people. Because the law was, at the time, and currently is, you're not allowed to commit any imprisonable offence at all. In other words, you've got to obey the law. If you don't you breached your suspended sentence."
His Honour then proceeded to sentence the respondent in respect of the burglary, and in respect of the suspended sentence imposed in June 2010, he re-suspended it.
Complaint numbers 54449/11 and 54450/11 - breaches of police family violence orders x 2
On 15 September 2011, the respondent pleaded guilty to two counts of breaching a police family violence order. The matters were adjourned to 24 October 2011, at which time the facts were stated. In summary, the respondent was served with a police family violence order on 16 April 2011 for the protection of a lady. On two separate occasions on 8 September 2011, the respondent was found in that lady's home by police. There was no suggestion of any untoward behaviour by the respondent, and I infer from the facts he was in the lady's house with her consent. The respondent was sentenced to a suspended term of imprisonment in respect of the breaches.
The new offending in June 2012
Complaint number 52928/12
The respondent committed the drink driving offence and a related offence on 15 June 2012. He first appeared before a court in relation to the offences on 14 August 2012. The matter was adjourned to 20 September, and then again to 26 November 2012. On that last date, the respondent failed to appear and a warrant was issued for his arrest. He did not appear again before a court in relation to the drink driving matter until 26 March 2014, that is 16 months later. On that date, the respondent pleaded guilty to the drink driving offence, but not guilty to the related matter. He next appeared on 29 April 2014, at which time he changed his plea on the second charge to one of guilty and the facts were stated. A pre-sentence report was ordered and the matter was adjourned to 16 June 2014 for sentence.
In summary, the facts were that on 15 June 2012, police intercepted the respondent driving a car. He produced a current learner driver licence. He was required as a consequence to have a licensed driver as a passenger and to have no alcohol in his body. The passenger in the car was unlicensed and highly intoxicated. The respondent was breathalysed and returned a reading of .041. He told police his decision to drive was a stupid one. The respondent was then sentenced in relation to the drink driving matter.
By the respondent's own actions in failing to appear on 26 November 2012, he delayed finalisation of the drink driving matter for two years from the date it was committed.
The respondent's offending history
The respondent was born in May 1978, and was therefore aged 36 when dealt with in June 2014. His offending history was a lengthy one, having commenced with his first court appearance on 29 May 1997. He reappeared regularly between then and 2003. There was then a break and his record reveals further court appearances in 2008, 2009, 2010, 2011 and 2012. His record over the whole period includes 13 convictions for driving while disqualified and three convictions for drink driving offences which pre-dated the offending on 15 June 2012. There were over 20 convictions for burglary and 20 for stealing. There were numerous convictions for trespass.
On nine occasions between 23 April 1998 and 24 October 2011, the respondent was given the benefit of suspended terms of imprisonment for a variety of offending. These occasions were on 23 April 1998, 20 April 1999, 21 February 2000, 18 March 2002, 7 January 2003, 21 January 2003, 4 June 2010, 3 October 2011 and 24 October 2011. On some of those occasions more than one suspended sentence was imposed. Six of those sentences were breached.
On 2 May 2011, the respondent was also dealt with for four counts of breaching a police family violence order. Convictions were recorded. However, the matters were adjourned for a period of 12 months upon the respondent's undertaking not to commit a similar offence. That undertaking was breached by the commission of the two further family violence offences on 8 September 2011, which resulted in a suspended sentence on 24 October 2011, itself the subject of breach proceedings.
It is clear from the above that, over a long period, the respondent had demonstrated a disregard for the law and had also failed to take the numerous opportunities offered to him in the form of suspended sentences to rehabilitate himself. He then committed the drink driving offence on 15 June 2012 (his fourth) and absconded for nearly two years.
Respondent's circumstances as at 16 June 2014
The respondent was 36 years old. On 29 April 2014, the respondent provided the learned magistrate with some personal details. He was unrepresented at the time. He told the learned magistrate that he worked as a furniture removalist for Allied Pickfords and had done so for about four and a half to five years, I infer, on what appears to have been a permanent but casual arrangement. When he committed the drink driving offence (ie June 2012) he was in an unsettled relationship and an unstable period of his life. He had been diagnosed with Hodgkin's (clarified in a pre-sentence report as being Non-Hodgkin's) Lymphoma early in 2012 and had thereafter endured ten and half months of chemotherapy. He said that he had failed to appear in November 2012 because he was stressed about the prospect of going to prison. He went to Wagga Wagga in New South Wales for treatment and re-formed a relationship with his father. The respondent said he returned to Tasmania in April 2013 and handed himself into police about March 2014. He was now in a stable relationship with a new partner and that partner was 22 weeks pregnant. That had given a new meaning to his life. The matter was adjourned to await the production of a pre-sentence report.
The report indicated the circumstances in which the drink driving offence occurred. The decision to drive was certainly not justified, and, given the respondent's history, was a stupid one. The reporter described the respondent's alcohol use as problematic during his previous relationship which appears to have ended about the time of the drink driving offence. I infer that at the time the respondent was undergoing chemotherapy. The respondent also described his current alcohol use as being on average a carton of beer over a weekend. The reporter commented that according to national guidelines, the respondent was at risk drinking at that level. The respondent said he used cannabis on a daily basis.
The respondent claimed to have regretted his past offending and said his life and circumstances had changed now that he was in a positive relationship with a baby due shortly. He and his partner were dependent on Centrelink benefits, which supplemented the income he earned as a removalist, and lived in rented accommodation. He was concerned that he might lose his employment and not be around for the birth of his baby were he imprisoned. I note that the respondent also told a magistrate in May 2011 that he was in a stable relationship, he had work and that his life had turned around for the better.
The reasons of Magistrate Brett for finding it would be unjust to activate the suspended sentences
His Honour's reasons on 16 June 2014 do not actually contain a finding that it would be unjust to activate any suspended sentence. The relevant part of the transcript of the proceedings provides:
"SENTENCE - HIS HONOUR: All right well, Mr Hayward, I am going to give you one further chance. The law does require me to activate that suspended sentence unless I can be persuaded it would be unjust to do so.
The case of Tanner v Brown, makes it clear that responding to the effect of a suspended sentence, in particular by making lifestyle changes and being serious about moving forward on a path of rehabilitation is an important factor in that consideration.
The thing that tells against you is you have been offered suspended sentences many times, you've breached them on a number of occasions. From time to time you have served sentences of imprisonment.
This particular offence was not of a similar nature to the offences for which you were given the suspended sentence but that doesn't make a lot of difference to me because I am not entirely sure whether I imposed the original sentence but if I do I make it very clear that it relates to all offences.
And on this occasion I accept that it was a one off matter, it was drink, driving matter, you only had one prior conviction for drink, driving but it was still a silly decision and a decision that was – had the effect of breaching the suspended sentence.
It occurred almost two years ago. So it's largely your fault that the matter hasn't come before the court before now. But I suppose the – so you see you don't get any benefit from that point of view of delay but I suppose the indirect benefit you receive is that you have been able to demonstrate that you – in my view you have been able to demonstrate that you are serious about reform.
DEFENDANT: (Inaudible)
HIS HONOUR: And provided you continue to be so then you can expect to not generally have to come back to court and not have to go to prison. What I am going to do is I think it's appropriate to in view of the contents of the pre-sentence report to still leave that sentence hanging over your head. So I am going to re-suspend the sentence for a further period of 12 months, which is the maximum period I'm allowed to do by law. So that original sentence will remain suspended for that period."
It is apparent that what his Honour did was re-suspend the periods of imprisonment held in suspension for a period of 12 months. It is unfortunate that the record of proceedings sheets on the complaints record that the learned magistrate extended the periods of suspension, because he did not, and that this phraseology was picked up in submissions before me.
While it was not raised in the course of submissions, it is clear that his Honour has proceeded on certainly one incorrect factual basis. He said that the respondent had, as at June 2014, only one prior drink driving matter. In fact there were three prior matters (leaving aside counts of drive while disqualified under the Road Safety (Alcohol and Drugs) Act). These convictions were on 4 January 2000, 1 September 2009 and 4 June 2010.
The meaning of the term "unjust" in s 27(4C)
The term "unjust" in the Act is not defined. It has largely been left to individual judicial officers to determine what is and what is not unjust in particular cases. However, there has been guidance in the form of an analysis of the provision by Wood J in Tanner v Brown [2011] TASSC 59 at [84] to [99]. With respect, I adopt her Honour's analysis as did Pearce J in Cannell v Hughes [2014] TASSC 41. At [14], his Honour said:
"The operation of s27 was considered by Wood J in Tanner v Brown (above). I would respectfully adopt her Honour's analysis. There is no need to repeat all of it, although I will refer to some parts of it. Her Honour's decision was followed by Crawford CJ in Jones v Clarke [2012] TASSC 21, and has been considered in other cases including by Porter J in Chatwin v Godfrey [2013] TASSC 70. Introduction of s27 on 1 January 2011 was intended to result in a hardening of the approach to suspended sentences. It has long been the case that, generally speaking, if an offender wastes an opportunity offered by the court by re-offending, then a suspended sentence should be activated. Ordinarily, suspended sentences are meant to be a last chance. Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and the extent to which they may deter future offenders. As Wood J pointed out in Tanner v Brown at [91], s27 now enshrines that policy in a legislative form and creates a presumption that the suspended sentence will be activated unless the court is of the opinion that it is unjust. The clear starting point is that the sentence should be activated. The court is not considering the original sentence afresh but determining whether activation of the sentence is unjust. In the words used by Wood J in Tanner v Brown (above) at [103], 'the exercise of the sentencing function is not at large, and is limited to an evaluation of whether it would be unjust to activate the sentence'. In considering an application under s27 there may be sentencing considerations which properly incline a sentencing court against activation of a suspended sentence, but which fall short of justifying a conclusion that it would be unjust to do so. The meaning of 'unjust' is not prescribed by the Sentencing Act. Its ordinary meaning, according to the Macquarie Dictionary online, is 'not in accordance with justice or fairness'. It is for the sentencing court to consider and weigh the circumstances of each case. In the circumstances of this case, the most important factors seem to me to be:
·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."
Appellate review of decisions pursuant to the Act, s 27(4C)
There is no doubt that an applicant for a review of a decision by a magistrate to activate or not activate a suspended sentence must demonstrate error. The question which arises is whether the threshold is higher when it is a review sought by the Crown. Pearce J also dealt with this issue at [15] – [19] in Cannell v Hughes. His Honour said:
"15 In Tanner v Brown (above), Wood J at [104], said that the role of deciding whether it would be unjust to activate a suspended sentence was a sentencing exercise upon which minds can differ, involving judgment and evaluation: see also Kirby J in Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321 at 339. Thus, as was pointed out by Porter J in Chatwin v Godfrey (above) at [6], the well-known principles of appellate review as set out in House v R [1936] HCA 40; (1936) 55 CLR 499 at 505, apply and the appeal court must be satisfied of 'clear error'. A distinction is to be drawn between a review of the exercise of a sentencing discretion at first instance and review of the determination of an application under s27. In the former case the function of the sentencing court is at large and, in the absence of specific error, an appellate court may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. To succeed in such an appeal it must be established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Lowndes v R [1992] TASSC 55; (1992) 1 Tas R 234 at [13]; Lusted v Kenway [2008] TASSC 47 at [38]; VisservSmart [1998] TASSC 151. When reviewing the determination of an application under s27 the appeal court again must not substitute its own opinion and must be satisfied of 'clear error'. However the task of the appeal court is qualified by the terms of the sentencing function imposed by the legislation, that is whether clear error occurred in the determination of whether activation of the suspended sentence is unjust.
16 In Tanner v Brown Wood J also made reference at [49] – [53] and at [103] – [109] to principles applying to Crown appeals. Absent legislative intervention, Crown appeals against sentence were less readily allowed than defence appeals against sentence. There was a higher threshold for error. The concept of what has been referred to as double jeopardy was central to this approach: Director of Public Prosecutions v Chatters (2011) 21 Tas R 26; (2011) 218 A Crim R 156; [2011] TASCCA 8 at [11]. It was seen as unfair to put the liberty of a defendant in jeopardy before a sentencing court and again, for a second time, before an appellate court. In addition, this exposed a defendant to additional anxiety and stress: R v Hayes (1987) 29 A Crim R 452 at 469, Kirby J. There are two aspects to the notion of double jeopardy. The first arises when considering whether to allow or reject an appeal. The second arises, if an appeal succeeds, in re-sentencing. I see no reason, in principle, that these principles would not apply to appeals against determinations under s27 of the Sentencing Act.
17 In this case the respondent was released after having served the sentence imposed by the magistrate on the day before the motion to review was heard on 6 August 2014. She appeared in court and was given bail until this decision was due to be published on 14 August 2014. Although there is no evidence on the question, I would infer from those circumstances that she has been subject to uncertainty and some anxiety and stress as a result of the Crown appeal.
18 On 1 September 2013, the Justices Act was amended to insert s110(2AA) and (2AB) in the following terms:
'(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.
(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate.'
19 Those provisions are of a similar character, but are not the same as s402 of the Criminal Code in the form considered by the Court of Criminal Appeal in Director of Public Prosecutions v Chatters (above). At the same time that the recent amendments to the Justices Act were made, the Code was also amended. Again, the provisions in the Justices Act and the amended Code provisions are similar but not the same. Section 110(2AA) permits proof and recognition of double jeopardy type considerations in a decision whether to allow or reject an appeal. Moreover, the terms of the restriction in s110(2AB) on taking into account 'any element of double jeopardy' appear to me to have no application other than where a person is being 'sentenced again', and thus have no application in this case. Counsel for the applicant did not submit to the contrary. In light of the conclusion I have reached, it is unnecessary for me to decide. Even taking into account a higher threshold for Crown appeals and the unfortunate circumstance whereby the respondent's liberty is in jeopardy for a second time after a short period of release, this is a very clear case where establishment and maintenance of adequate standards of punishment for crime and maintenance of the integrity of the system of suspended sentences, compel the conclusion that the motion be allowed."
In the present case, the respondent has been at liberty since 16 June 2014 as a consequence of the learned magistrate's decision. If this review succeeds, and the learned magistrate's finding that it would be unjust to activate the suspended sentences is quashed, the respondent faces an immediate term of imprisonment as a consequence of the operation of the Act, s 27(4B). As in Cannell v Hughes, there is no evidence the respondent has suffered any stress or anxiety as a consequence of the possible outcome of this review. However, that can be inferred given what he told the learned magistrate in April and June 2014 about his circumstances.
Ground 2 – submissions of counsel for the applicant
Counsel for the applicant made submissions about the manner in which the learned magistrate had dealt with the issue of delay and also referred to the respondent's record. As to delay, the learned magistrate noted it was largely the respondent's fault and that the respondent did not get any benefit from that. The learned magistrate however noted that the respondent got an indirect benefit from delay because he had, during the period of delay, been able to demonstrate he was serious about reform. Counsel submitted that, while rehabilitation during the period the respondent absconded was important, it should have been given little weight. Counsel referred to some remarks of Green CJ in Mitchell v The Queen 21/1990 at 5 and continuing. With respect, those remarks, in my view, do not support the contention of counsel for the applicant. Green CJ said at 6:
"I agree with respect that ensuring that an accused person does not gain an advantage or does appear to have gained an advantage as a result of the fact that he has absconded is a policy consideration which is capable of being relevant to the exercise of the sentence discretion. However if in a particular case the question of the likelihood of the accused re-offending is relevant to the exercise of the sentencing discretion, I am not aware of any principle which would justify the Court refusing to have regard to the highly relevant fact that the accused has rehabilitated himself since the commission of the crime merely because that rehabilitation took place during a period when he had absconded. The fact that an accused person has rehabilitated himself remains a relevant fact regardless of the circumstances of the rehabilitation."
His Honour went on to say, also at 6:
"However in this case I do not think that the learned trial judge was required to give much weight to this consideration when one bears in mind the need for a sentence of general deterrence and the fact that the appellant committed another crime whilst he was at large."
No discernible error is established, in my view, relating to the manner in which the learned magistrate dealt with delay.
As to the respondent's record, I have previously referred to a summary of the respondent's record which was, with respect, worse than either counsel for the applicant or the learned magistrate appeared to believe. Counsel referred to remarks in the pre-sentence report about the respondent's response to community based orders.
Counsel for the applicant then submitted:
· specific deterrence ought to have played a prominent role in dealing with the respondent;
· the respondent had a bad record for breaching suspended sentences and breached such sentences relatively soon after their imposition;
· Parliament had legislated to require suspended sentences to be served unless it would be unjust; and
· no good reason had been given by the respondent for his act of drink driving on 15 June 2012 which constituted the most recent breach.
Ground 2 – submissions of counsel for the respondent
Counsel for the respondent in written submissions extracted a number of passages from the decision of Wood J in Tanner v Brown. With respect, many of them were remarks pertinent to the case with which her Honour was dealing and were not statements of binding principle. They needed to be read in the context of the facts of that case.
Counsel referred to some remarks of the learned magistrate prior to the making of his determination. The exchange at 40 and 41 of the transcript between the learned magistrate and the respondent was as follows:
"HIS HONOUR: The report suggests – it supports in large part what you have put to me, that you are making real efforts to improve your attitude to compliance with the law and you are probably supported in that by your current partner, and your family responsibilities and it seems that you are taking those seriously. However, it also indicates that you have got a little to go in terms of insight and to some of the lifestyle choices you make.
DEFENDANT: Yes.
HIS HONOUR: For example, drinking alcohol.
DEFENDANT: Yes.
HIS HONOUR: Do you want to say anything about that?
DEFENDANT: Well that actually is – yeah has minimised dramatically to what it was in the past.
HIS HONOUR: Well it might be but that mightn't be the full answer, might it?
DEFENDANT: No.
HIS HONOUR: Well the choice I have to make here is – I mean you've had the benefit of suspended sentences many times before. You breached another one. It was directly related to your use of alcohol. The choice obviously law acquires me to activate the sentence unless I am persuaded be unjust to do so and the only basis I could be persuaded of that is if I thought that you were serious enough to respond to a probation order during the next 12 months or so.
DEFENDANT: Mm Mm.
HIS HONOUR: And make some real choices and solidify your rehabilitation. Is there anything you want to say to me to convince me that you are serious about that?
DEFENDANT: I am totally, your Honour, especially with the new life – the new life that I am leading now. Yeah just – life in general now is just looking a lot brighter than it has been for a long time, your Honour, and I'm, yeah – I am just so happy and I want to keep moving forward with the way it is going at the moment. And I'll do anything to avoid – well obviously walking out the side door today, your Honour. Yeah, I'd be more than happy to abide by anything.
HIS HONOUR: Yes but the thing that concerns me if it was – you've probably said that on many occasions before.
DEFENDANT: Yes.
HIS HONOUR: And not lived up to it have you?
DEFENDANT: Mm."
Counsel further submitted that the sentence imposed by the learned magistrate for the drink driving offence, which sentence in itself had not been challenged, would act as a deterrent and would allow the respondent to demonstrate ongoing reform and give him assistance in doing so. Had the suspended sentence been activated, that order would have been a disproportionate response to the breaching act, particularly as there was no distinct nexus between the original and breaching offending. Counsel relied on remarks by Wood J in Tanner v Brown at [114] – [115] which were in the following terms:
"114 Another significant factor in the magistrate's conclusion that it would be unjust to activate the suspended sentences of imprisonment was that it would have the consequence of undermining the effect of and purpose behind the sentence her Honour had imposed for the Syrup Nightclub offending. The conclusion reached by the magistrate that it was not in Mr Brown's interests or the community's interests to have him 'incarcerated when he should have, ... one last chance to rehabilitate and to show the community ... that he can become a valuable citizen. There are very good prospects that he will.', and that a period of incarceration may 'do a lot in my view to hinder the effects of the sentence that the Court is trying to achieve'. The magistrate saw an immediate custodial sentence as threatening the respondent's rehabilitation. That view was open to the magistrate. I observe that it would not be in the community's interests that his progress in this regard be undermined or worse, that after exposure to corrupting influences in a prison environment he be set on a path of criminal behaviour.
115 If an order activating a suspended sentence would have the effect of counteracting a sentence that was imposed after careful consideration and which, in the judicial officer's view, met the justice of the case, that consequence is a relevant factor in determining whether the order would be unjust. "
The notice to review
I have considered the submissions of both counsel made in writing and orally. I have come to the conclusion that clear error has been established in relation to the determination of the learned magistrate that it would be unjust to activate the relevant sentences.
In making that determination, I appreciate that the learned magistrate, in sentencing the respondent for the drink driving offence, imposed a sentence which did not see the respondent committed to custody, that that sentence is unchallenged, and that the consequence of my decision is that the benefit of the learned magistrate's leniency in that sentence will be lost
I am also mindful that:
· the learned magistrate considered issues of rehabilitation and delay and imposed what might be perceived as a merciful outcome for the respondent;
· the burglary committed in April 2011 was one at the low end of the scale;
· The breaches of the police family violence order which occurred on 8 September 2011 were also at the low end of the scale;
· the breaching offence was a different type of offence from either of the original offences;
· the breaching offence occurred in June 2012, that is some eight months into a two year period of suspension.
I have also considered whether it could be said that there was any, and if so what, indication of reform and rehabilitation on the part of the respondent, and hence whether it could be said the suspended sentences imposed in 2011 were having the desired effect. As to those issues, there was no evidence of any particular rehabilitation between the date the suspended sentences were imposed and June 2012. The respondent, I infer, retained the employment he had already had for some time. He was diagnosed with a serious illness and underwent chemotherapy. While that is unfortunate for anyone, it is not indicative in any way of rehabilitation. He then re-offended in June 2012 in circumstances where he had three prior convictions for the same type of offence, he had no explanation of any reasonable nature as to why he drove with alcohol in his body, and he had to have known the likely outcome if caught because of the discussion he had with a magistrate in 2011 about suspended sentences. As at June 2012, the respondent had already had the benefit on nine occasions of suspended sentences and he had been dealt with for breaches of four of those with the offending in June 2012 constituting breaches of two more.
As to the period between June 2012 and June 2014:
· The respondent absconded to New South Wales breaching his bail in November 2012 in the process.
· The respondent returned to Tasmania in about April 2013 but took no step to surrender himself to authorities.
· The respondent surrendered himself to authorities in about March 2014, by which time he had entered into a new domestic relationship and his partner was pregnant.
· The respondent professed to have changed his life because of this new relationship and impending fatherhood. He had made similar protestations on an earlier occasion.
· There was no evidence of any further offending since June 2012, save the breach of bail.
While therefore the respondent's circumstances had changed in some aspects, a potential problem with alcohol still appeared to exist on his own report to Community Corrections.
The learned magistrate referred to all these matters to a degree. However, he incorrectly stated that the respondent had only one prior drink driving offence, when he had three. His Honour also noted that the respondent had had suspended sentences "many times before" and had breached more than one. Having said that, his Honour did not appear to consider that in fact the respondent had not only had several previous suspended sentences, but also had breached four of those. These were those imposed on 24 April 1999, 21 February 2000, 18 March 2002 and 4 June 2010.
Parliament clearly intended by the Act, s 27(4C), that the prima facie position with suspended sentences was that, if breached, they were to be activated. It then gave judicial officers a means of ameliorating what may be perceived as a harsh outcome occasioned by activation in circumstances in which it would be unjust to activate. In the present case, not only did deterrence have to play a significant role given the respondent's lengthy offending history and his repeated breaches of court orders, but also Parliament's intention in relation to suspended sentences had to be given effect to. His Honour does not appear to have considered the significance that deterrence needed to play, considering only that leaving a suspended sentence in place might act as a deterrent if the respondent were given the support which could be offered by probation and the continued existence of a suspended sentence. That was not consistent with the respondent's history although of course his Honour's view may have been brought about by a mistaken appreciation of that history.
Orders
In the circumstances, the determination of the learned magistrate made 16 June 2014 to the effect that it would be unjust to activate suspended sentences imposed on 3 and 24 October 2011 is quashed, as is the consequential order to re-suspend the periods of imprisonment held in suspension for a period of 12 months from 16 June 2014.
Both counsel at the hearing appreciated that, if that were the outcome of the proceedings, the only orders which could be made would be to activate the suspended sentences, and that, in those circumstances, this Court should finalise the matter.
In respect of complaint number 52238/11, pursuant to the Act, s 27(4B), it is ordered that the sentence of imprisonment of four months imposed on 3 October 2011, but held in suspension, be activated and that the respondent be ordered to serve that term of imprisonment.
In respect of complaint numbers 54449/11 and 54450/11, pursuant to the Act, s 27(4B), it is ordered that the global sentence of imprisonment of six weeks imposed on 24 October 2011, but held in suspension, be activated and that the respondent be ordered to serve that term of imprisonment.
I am minded to make the terms of imprisonment to be served concurrent. However, the original orders were that they be cumulative. I will hear from counsel as to that and the implementation of these orders.
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