BK v Middlemiss
[2018] ACTSC 158
•31 May 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | BK v Middlemiss |
Citation: | [2018] ACTSC 158 |
Hearing Date: | 29 May 2018 |
DecisionDate: | 31 May 2018 |
Before: | Elkaim J |
Decision: | See [28] |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL-GENERAL PRINCIPLES – In General and Right of Appeal – Appeal against sentence – whether the sentences imposed were manifestly excessive in all the circumstances |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 12(3), 31(2), 133C and 133D |
Cases Cited: | McElholum v Hughes [2016] ACTCA 37 Ngatamariki v R [2016] NSWCCA 155 |
Parties: | BK (Appellant) Jude Middlemiss (Respondent) |
Representation: | Counsel Mr D Hoitink (Appellant) Mr P Dixon (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 10 of 2018 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 12 February 2018 Case Title: Laverty v [BK] Court File Number: 810394 |
ELKAIM J:
On 12 February 2018, Chief Magistrate Walker sentenced the appellant for five offences. He has appealed against two of the sentences:
(a)In relation to CH 2017/406 (aggravated robbery), the appellant was convicted and sentenced to 12 months’ imprisonment, commencing on 12 February 2018 and to be served by way of fulltime detention until 11 May 2018, the remainder of the sentence to be suspended on that day upon the appellant signing an undertaking to be of good behaviour for 12 months.
(b)In relation to CH 2017/403 (aggravated robbery), the appellant was convicted and sentenced to 12 months’ imprisonment, commencing on 12 May 2018 and to be served by way of fulltime detention until 11 August 2018, the remainder of the sentence of the sentence to be suspended on that day upon the appellant signing an undertaking to be of good behaviour for a period of 12 months.
As can be seen from the orders set out above, the effect of the sentences is that the appellant was to serve six months of fulltime imprisonment (made up of three consecutive months from each sentence) followed by the suspension of the second sentence taking effect on 11 August 2018, when the appellant is to be released subject to a Good Behaviour Order. However, it is also a part of the first sentence that it would be suspended after three months with a Good Behaviour Order also coming into effect when the suspended part of the sentence began.
It is trite to say that because this appeal is a rehearing it is necessary for me to identify specific error on the part of the Chief Magistrate before I could interfere with her orders.
There was originally only one ground of appeal. The appellant said the sentences were manifestly excessive. However, at the commencement of the appeal, the appellant sought leave to rely on an Amended Notice of Appeal which included a fresh ground of appeal. This ground was that the Chief Magistrate had fallen into error because the structure of the sentences she imposed contravened s 31(2) of the Crimes (Sentencing) Act 2005 (ACT).
The Crown consented to the filing of the Amended Notice of Appeal and initially agreed that the Chief Magistrate had fallen into error. However, after some discussion, and with the benefit of my observation that I did not think the subsection had been contravened, the Crown withdrew its concession.
The interpretation issue, however, came to an abrupt end following the hearing when counsel for the appellant properly informed me that the subsection had not come into effect when the sentences were imposed.
I should say that, before I was informed that the subsection did not apply, I had come to the view that there was no technical error in her Honour’s orders. This was because the start of the Good Behaviour Order was not on the same day as the commencement of the second sentence of imprisonment. The latter commenced on the following day.
Notwithstanding that the subsection was not in force at the relevant time, the point that it addresses does raise this consideration: should a sentence of a fulltime detention be imposed during a period when an offender is subject to a Good Behaviour Order? The concern only arises where the two sentences are imposed at the same time. The position would, for example, be different where a person was subject to a Good Behaviour Order as a result of sentences imposed at an earlier time and then, in respect of different offences at a later time, a sentence of imprisonment was imposed.
A Good Behaviour Order, pursuant to s 12(3) of the Crimes (Sentencing) Act 2005 (ACT), will always accompany a suspended sentence. The obvious and plain intent is that while a person is out of prison as a result of a suspended sentence that person will nevertheless, at least for the balance of the term of the sentence, be subject to supervision.
It is neither in the interests of the community or of an offender that he or she be subject to a Good Behaviour Order while in fulltime custody. As already stated, the justification for, and purpose of, a Good Behaviour Order is to control a person’s conduct when he or she is not in custody.
I appreciate that her Honour’s intent was to have the offender serve a period of six months’ imprisonment in fulltime custody, followed by a period of supervision pursuant to a Good Behaviour Order. However, the manner in which her Honour proceeded was not the only option available to her to achieve her intent.
In my view, and acknowledging her Honour’s well intentioned effort to achieve a specific purpose, the structure of the sentences may nevertheless be categorised as an error. To repeat, and to be specific, I am of the view that it is an erroneous sentencing process to deliberately structure two sentences of imprisonment which have the result that during the course of one of them the offender will both be subject to a Good Behaviour Order and also in fulltime custody.
This identification of error means that the two subject sentences should be set aside and the appellant resentenced. The Crown submitted that I should respect the overall intent of the Chief Magistrate to ensure the appellant serves a period of fulltime imprisonment for six months. It was suggested that the mechanism might be to sentence the appellant to three months’ imprisonment for one of the charges, without more, to be followed by a sentence of 12 months’ imprisonment for the other charge but suspended after three months.
The appellant submitted that, having regard to the subjective features in the case, while the one charge might have a limited sentence of three months’ imprisonment, as suggested by the Crown, the other sentence, even if for an overall period of 12 months including a suspension, should run concurrently so that the appellant spent only three months in fulltime detention.
I pointed out to the parties that distinguishing between the two offences in the way they respectively suggested created an air of artificiality because the two offences were similar but yet being dealt with in a very different manner.
It was also pointed out that, although the two offences were fundamentally the same, one of them involved an act of violence which could justify a longer sentence. The facts in relation to charge 2017/403 involve the victim being placed in a headlock. I am not sure that this added element creates a justification for the suggested large disparity in the two suggested sentences.
The parties, in their respective written submissions, have set out the relevant authorities concerning whether or not a sentence is manifestly excessive. I would highlight the following two cases as illustrating the proper test.
In McElholum v Hughes [2016] ACTCA 37 it was said that at [68]:
…the question to be asked is whether the sentence imposed by the magistrate was so plainly in excess of the mark as to bespeak error of principle and therefore necessitate appellate intervention.
In Ngatamariki v R [2016] NSWCCA 155 the New South Wales Court of Criminal Appeal put the test this way, at [75]:
In order to make out a complaint of manifest excess, the applicant must demonstrate that the sentence imposed was unreasonable or plainly unjust.
The two relevant offences were of aggravated robbery. Each carries a maximum term of imprisonment of 25 years. This alone is an indication of how serious the community regards offences of this type. The Chief Magistrate was very aware of this consideration. She said:
It is clear from a review of the Supreme Court authorities in the ACT that it is inevitable, other than in the most exceptional circumstances, that people who commit aggravated robberies will be sentenced to terms of imprisonment and often lengthy terms of imprisonment.
At the same time, her Honour was also mindful of the appellant’s age when the offences were committed and the necessity to have regard to ss 133C and 133D of the Crimes (Sentencing) Act 2005 (ACT). Her Honour specifically stated the necessity of placing rehabilitation at the centre of the sentencing process.
The Crown submitted that whatever structural defects might exist in the sentences, their result could not be seen as manifestly excessive. I disagree. I am of the view that the duplication of a sentence of fulltime detention with a Good Behaviour order amounts to a manifestly excessive sentence.
This is because, even if only theoretically and not likely to be manifested by any specific conduct on the part of the authorities, the fact remains that the appellant would, at the same time, be subject to two entirely different regimes of punishment.
Turning to the resentencing, there is no reason for me not to take into account many of the same factors that were relied upon by the Chief Magistrate. I think her Honour correctly summarised the seriousness of the offences and the need for the community to be protected from misbehaving youths interfering with the right of citizens to go about their normal daily activities.
Notwithstanding this, I would give greater weight than her Honour to the following subjective considerations: the appellant’s youth, his good prospects of rehabilitation, his being in fulltime employment, the absence of any criminal record and the low to medium risk of reoffending. This greater weight will mostly influence the concurrency of the sentences in the period before a suspension takes effect.
I intend to adopt the following approach. The two aggravated robberies are essentially part of the same criminal enterprise. Like the Chief Magistrate, I think they should each attract a term of imprisonment of twelve months but both these terms should be served concurrently. In addition, I think both sentences should be suspended after four months, the suspension taking effect on 11 June 2018.
Although it might be said that my period of suspension after four months is more severe than the respective sentences of the Chief Magistrate, when looked at on a totality basis, and bearing in mind the concurrency formula I have adopted, the result is a more lenient sentence. This is because the appellant is serving four months in prison rather than six months.
I make the following orders:
(a)The sentences imposed by the Chief Magistrate in respect of CH 2017/406 and CH 2017/403 are set aside.
(b)In lieu of the sentences imposed for the above charges the following sentences are imposed:
(i)In relation to CH 2017/406, the appellant is convicted and sentenced to 12 months’ imprisonment, to commence on 12 February 2018 and end on 11 February 2019.
(ii)In relation to CH 2017/403, the appellant is convicted and sentenced to 12 months’ imprisonment, to commence on 12 February 2018 and end on 11 February 2019.
(iii)The above sentences of imprisonment are suspended on 11 June 2018 on the condition that the appellant enter into a Good Behaviour Order for a period of 12 months and comply with his obligations under the Crimes (Sentence Administration) Act 2005 (ACT) and further that he accept the supervision of ACT Corrective Services and obeys all reasonable directions of the Director-General or her delegate for 12 months or such shorter time as the Director-General decides.
| I certify that the preceding twenty-eight [28] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim. Associate: Date: 31 May 2018 |
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