Brown v Lusted and Parker - [2015] TASSC 45

[2015] TASSC 45

COURT: SUPREME COURT OF TASMANIA

CITATION: Brown v Lusted and Parker [2015] TASSC 45

PARTIES:  BROWN, Shane
  v
  LUSTED, Gary (Sergeant)
  PARKER, John Martin (Senior Sergeant)

FILE NO:  388/2015
DELIVERED ON:  2 October 2015
DELIVERED AT:  Launceston
HEARING DATE:  9 September 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Driving in manner dangerous to public – Penalty – Persistent offender – Whether sentence manifestly excessive.

Traffic Act 1925 (Tas), s 32(1).
Aust Dig Traffic Law [1114]

Magistrates – Appeal and review – Tasmania – Motion to review – Procedure and evidence – No denial of natural justice in determining factual basis for sentence – Remorse as a mitigating factor.

W v Tasmania [2007] TASSC 24, followed.
Aust Dig Magistrates [1348]

REPRESENTATION:

Counsel:
             Applicant:  M Doyle
             Respondents:  S Nicholson
Solicitors:
             Applicant:  Clarke & Gee
             Respondents:  Acting Director of Public Prosecutions

Judgment Number: [2015] TASSC 45
Number of paragraphs: 45

Serial No 45/2015
File No 388/2015

SHANE BROWN v SERGEANT GARY LUSTED
and SENIOR SERGEANT JOHN MARTIN PARKER

REASONS FOR JUDGMENT PEARCE J

2 October 2015

The applicant, Shane Brown, moves this Court to review a sentence imposed by Magistrate Brett on 9 April 2015. On 12 March 2015 the applicant pleaded guilty to 11 summary offences, all committed on 3 December 2014:
·     dangerous driving (Traffic Act 1925, s 32(1));
·     evading police (Police Powers (Vehicle Interception) Act 2000, s 11A(1));
·     two counts of driving while disqualified (Vehicle and Traffic Act 1999, s 13(1));
·     driving a motor vehicle while a prescribed illicit drug, methylamphetamine, was present in his blood (Road Safety (Alcohol and Drugs) Act 1970, s 6A(1));
·     driving a motor vehicle which was unregistered (Vehicle and Traffic Act, s 27(1)) and uninsured (Motor Accidents (Liabilities and Compensation) Act 1973, s 29(1));
·     failing to stop at the scene of a crash (Traffic Act, s 32(2));
·     secreting himself within the curtilage of a dwelling (Police Offences Act 1935, s 14A(1)(b));
·     possessing a controlled drug, methylamphetamine (Misuse of Drugs Act 2001, s 24); and
·     failing to use all reasonable care and precautions in respect to a syringe (HIV/AIDS Preventative Measures Act 1993, s 36).
The learned magistrate imposed one sentence. He sentenced the applicant to imprisonment for 2½ years, to be served cumulatively to a sentence of imprisonment the applicant was then serving. His Honour made no order for parole. He made a probation order for a period of 18 months to commence on the applicant's release from prison, and disqualified the applicant from driving for five years. There are two grounds for the motion:
"(a)that the sentence is manifestly excessive;
(b)that the learned magistrate failed to provide procedural fairness to the applicant on the issue of the applicant's claim to remorse."

The circumstances of the offending

The conduct which is the subject of the charges commenced when the applicant drove on the Bass Highway near Latrobe at 9.40am on Wednesday, 3 December 2014. By driving at all he breached the law because was a disqualified driver. At about 2pm he was seen in Launceston by a police motor cyclist. The applicant was driving slowly along Opossum Road at Norwood, alone in the car, swerving back and forth within his own lane and bouncing around in his seat. He waved a drink container out the window and yelled at the police officer. The police officer activated his emergency lights and the applicant stopped. However when the police officer left his motor cycle to approach him, the applicant drove off, thereby evading police. The police officer followed the applicant's car but did not attempt to intercept him. The applicant drove slowly along Hobart Road heading south, but suddenly swerved across the centre line onto the incorrect side of the roadway, directly at a car travelling in the opposite direction. He returned to the correct side of the road and continued to the traffic lights at Quarantine Road, where he performed a U-turn from the left lane, travelling as he did so across the path of the traffic in two lanes to his right. He then drove back in the opposite direction, waving and yelling at the police officer as he passed. He accelerated heavily on Hobart Road to 90km/h before the police officer lost sight of him. He was seen shortly afterwards, still in Kings Meadows, again yelling and waving at the police.
About half an hour or so later the applicant was found in central Launceston. By this time the police were attempting to use road spikes to stop him but he drove off. He drove through the streets of inner Launceston before ending up in Bathurst Street. There he drove north, weaving through traffic, going through red lights at the intersections with York Street and Brisbane Street. He was steering erratically and weaving from lane to lane to pass other cars. He sped through the streets at Invermay, overtaking other cars on the left, disregarding lane markings and intersection controls. On Invermay Road, near a school, he drove onto the incorrect side of the road and collided with the side of a vehicle being properly driven by a woman with three young children in the car. The applicant reversed away, spinning his wheels and performing a turn in reverse before driving off at high speed. Because it was the middle of the afternoon on a school day there were children and other people and vehicles in the vicinity and the 40km/h school speed limit was in operation. While still on Invermay Road the applicant realised that the police were watching him. He suddenly turned left into Dry Street, accelerating hard as he did so, causing the car to lose traction and the tyres to smoke. He drove north at about 100km/h. The police stepped out to deploy road spikes at Forster Street. The applicant swerved toward them and accelerated. Realising they had road spikes he unsuccessfully attempted to avoid them. By this time it was after 3pm. He accelerated away at about 120km/h. In that area the speed limit is 60km/h. He drove through another intersection at high speed narrowly missing a car with a female driver and young children inside. He drove back past the school and turned right while travelling on the wrong side of the road with his car drifting sideways and with rubber flying from the punctured rear tyre. He then stopped, left his car and ran off.
The applicant was found not long afterwards attempting to conceal himself in the yard of a house in Mayne Street. He had with him 0.4g of methylamphetamine in a snap lock bag. Later analysis of a blood sample taken from him disclosed the presence of methylamphetamine. Uncapped syringes were found in his car. The car was unregistered and uninsured.
The car with which he collided in Invermay was badly damaged. The magistrate was told that the children inside the car were thrown around by the impact and hit their heads, and the female driver suffered back pain which continues. No further details about this were given.

The applicant's record and personal circumstances

When sentenced the applicant was aged 25. As a youth he was sentenced to periods of detention, mostly for offences of dishonesty including many instances of motor vehicle stealing. On 30 October 2007, just after he turned 18, he was sentenced to detention for 22 months for 55 offences committed as a youth. He was disqualified from driving for two years. The offences included 10 counts of driving while disqualified and one count of dangerous driving. He was made subject to a probation order on release but quickly re-offended. On 19 September 2008 he was sentenced to imprisonment for 16 months, eight months of which were suspended, for 23 offences including 12 counts of driving while disqualified and one count of dangerous driving. On 25 August 2010 a magistrate made a drug treatment order pursuant to the Sentencing Act 1997, s 27B, with a custodial part of 16 months' imprisonment. The order was made in respect to 58 offences including 16 counts of driving while disqualified, two counts of dangerous driving and one count of evading police. He breached the order by continuing to offend. The new offences included three counts of driving while disqualified and three counts of evading police. The new offending breached not only the drug treatment order but also the earlier suspended sentence, and on 23 March 2011 the applicant was sentenced to a total of 32 months' imprisonment commencing 28 October 2010, eight months of which were suspended for three years. On 5 October 2011 he was sentenced to a further six months' imprisonment, wholly suspended, for a robbery committed in 2010. He breached that sentence by continuing to offend. He was sentenced on 2 August 2013 to imprisonment for a total of 33 months for 38 new offences, including four counts of dangerous driving (on three separate days), four counts of driving without a licence and one count of driving with a controlled drug in his blood. He was released on parole on 18 August 2014. The offences which are the subject of this motion were committed about 3½ months later, on 3 December 2014.
In addition to the driving offences, the applicant has been sentenced for many offences of dishonesty and violence, including violence towards the police. The dishonesty offences include numerous counts of motor vehicle stealing, stealing and burglary. I have described the applicant's record in some detail to demonstrate how bad it is, most relevantly for driving offences. In summary, there are, on my count, 41 prior convictions for driving while disqualified, eight for dangerous driving, four for evading police and one for driving with a controlled drug in his blood.
Before sentencing the applicant, the magistrate obtained a pre-sentence report pursuant to the Sentencing Act, s 82. The author of the report had access to a pre-parole report dated 1 July 2014. I summarise the applicant's personal circumstances from undisputed parts of the pre-sentence report. The applicant did not know his father. His mother was an alcoholic and from an early age he lived with his aunt. His upbringing was unstable and characterised by substance abuse and violence. He was placed into State care. Placement in group homes was interrupted by periods of detention. His education did not progress beyond grade 7 when he was expelled from the education system. He is largely illiterate. He began drinking alcohol daily at age 12. At about the same time he began using cannabis. By age 18 he was using methylamphetamine, amphetamine, morphine and oxycontin. He used methylamphetamine in its more potent crystalline form. He has never been employed nor involved in a stable relationship. For a period he benefitted from participating in boxing at a gym, where he felt accepted and from which he learned discipline, stamina and goal setting. However he generally finds it difficult to manage outside prison and tends to revert to criminal associates.
The applicant told the author of the pre-sentence report that after his release on parole on 18 August 2014 he wanted to change, cease offending and live a normal life. He contacted the counsellor who had assisted him while in prison and attended two sessions to work on drug and alcohol issues. However he did not attend further appointments. He again fell in with the "wrong crowd", reverted to drug use and breached his parole by absconding from his nominated address on 17 September 2014. He had used methylamphetamine prior to these offences on 3 December 2014.

Was the sentence manifestly excessive?

The principles to be applied in determining a motion to review on this ground have been stated in many cases: see for example Visser v Smart [1998] TASSC 151 and Lusted v Kenway (2008) 50 MVR 533 at [38]. I recently summarised the principles in Barrett v Wilson [2015] TASSC 3. A ground contending that the sentence was manifestly excessive can only succeed if it is 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. Clear error must be shown and a sentencing court is to be allowed a wide measure of latitude.
In this case, the applicant's principal contention is that the sentence is manifestly excessive when the issues of totality and parole are taken into account. In other words, it is contended that a sentence of 2½ years' imprisonment is manifestly excessive when the applicant is also required to serve another sentence and will not be eligible for parole. Although totality and parole are referred to, no specific error is asserted. The applicant must show that the sentence is unreasonable or plainly unjust, and thus demonstrative of error, when all matters relevant to sentence are to be taken into account: Hili v The Queen (2010) 242 CLR 520 at 539.
The totality principle "requires a sentencing judge to impose a sentence or sentences which reflect the overall criminality of the offending for which the offender has been convicted": Contin v The Queen [2012] VSCA 247 at [38]. The sentencing court is to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved: Postiglioni v The Queen (1997) 189 CLR 295 per McHugh J at 307–308. The principle has application in this case in two ways. It applies to the multiple offences for which the applicant was to be sentenced. It also applies because the applicant was sentenced at a time when he was required to serve another sentence of imprisonment: Hall v Tasmania [2015] TASCCA 6 at [56].
The applicant was sentenced on multiple counts. The legislative penalty provisions are relevant to assessment of the sentence. Because it was not the applicant's first offence of driving while disqualified, each count for that offence was punishable by a fine not exceeding 80 penalty units, imprisonment for a term not exceeding 12 months (or both), and disqualification from driving for a period not exceeding five years: Vehicle and Traffic Act 1999, s 13(1). Because it was not the applicant's first offence for dangerous driving, that offence was punishable by a fine not exceeding 40 penalty units, or to imprisonment for a term not exceeding four years, or both. Because the offence of driving whilst a prescribed illicit drug was present in his blood was a subsequent offence it was punishable by a fine of up to 20 penalty units or imprisonment for a term not exceeding six months: Road Safety (Alcohol and Drugs) Act, s 17. For the offence of evading police, the Police Powers (Vehicle Interception) Act, s 11A(1), provided for imposition of a fine of 50 penalty units or imprisonment for a period not exceeding 12 months, or both. Legislation providing for higher penalties for second or subsequent offences is based on a legislative intention that where the punishment imposed for a first offence has not operated as a sufficient warning or deterrent to an offender, a higher penalty is then to be imposed for a further offence.
The sentencing magistrate could have imposed separate sentences for each offence, decide whether they were to be served cumulatively or concurrently and then, if appropriate, adjusted the sentences to allow for totality. Had his Honour taken that course, the fact that the offences for which the applicant was to be sentenced were committed on the same day, largely during one course of criminal conduct, suggests a degree of concurrency in sentences. Conversely, there was also a need to ensure that the total sentence adequately reflected the criminality of each important feature of the conduct under consideration. The sentencing magistrate did not impose separate sentences. Instead, he imposed one sentence for all of the offences he was dealing with: Sentencing Act, s 11(1)(a). In imposing one sentence, his Honour was not to impose a sentence that exceeded the aggregate of the proper sentences for each of the crimes. When a court imposes a single sentence a similar notional totality exercise is involved. The applicant was not to be punished more than once for the same criminal conduct. In my view, the offences for which the applicant was to be sentenced involved some common elements but also separate criminality. The offences of dangerous driving and evading police related to different aspects of the driving even though both occurred on the same day, and over the same extended period of driving. The counts of disqualified driving were not relevant to whether he drove in a manner or at a speed that was dangerous, and his culpability for those counts was to be assessed separately. The charge of driving with an illicit drug in his blood involved elements which were not common to the other charges.
This was a most serious example of dangerous driving. The applicant's driving was over a period of about 1½ hours, in locations and at times where vehicular and pedestrian traffic would be, and was, present. It involved many separate incidents of danger. He drove on city and suburban streets, some of them main streets, at terrifying speeds through speed limits of 40, 50 and 60 km/h. He overtook other cars at speed. Other road users were required to take evasive action because of his driving. He drove dangerously through a school zone on a school day in the middle of the afternoon with children nearby. He drove through red lights narrowly missing other cars. He collided with another vehicle causing property damage and injury to the occupants, fortunately not serious injury. No doubt the experience was frightening for them. The driving put at risk police officers as well as other members of the public. The level of danger posed by the manner and speed of his driving in all of these circumstances was very high. He had ample opportunity to desist but did not do so. He flouted the authority of the police and their attempts to stop him.
I have little material which would indicate a range of sentences for dangerous driving. That is so because it is an offence dealt with, for the most part, by magistrates. It is clear, however, that punishment for the offence requires the imposition of a sentence which serves as a strong general deterrent not only to the individual involved but to other potential offenders: Sheldrick v The Queen 41/1960; Wise v The Queen [1965] Tas SR 196; R v O'Brien [1987] TASSC 47. From my own experience this is a heavy sentence. Most appellate decisions involve imposition of much lesser sentences. Consistency in sentencing is important but care must be taken not to resort to "the tariff" at the expense of the circumstances of the particular offence and the individual offender. It is also the case that since the decisions to which I have referred there has been a general increase in the severity of the penalties which can be expected in serious driving cases. The applicant submitted that the sentence imposed by the learned magistrate was akin to sentences imposed for the crimes of dangerous driving causing death or grievous bodily harm: Criminal Code, ss 167A and 167B. In Moyle v Tasmania [2010] TASCCA 2 the Court of Criminal Appeal upheld a sentence of two years and six months' imprisonment with parole eligibility after half the sentence for one count of causing grievous bodily harm by dangerous driving, contrary to the Criminal Code, s 167B, and two counts of perverting justice, contrary to s 105. The Court referred to the increase in sentences for serious cases of dangerous driving causing death reflected in Shipton v The Queen [2003] TASSC 23; Director of Public Prosecutions v Watson [2004] TASSC 54 and GallaghervState of Tasmania (2009) 54 MVR 6. In my opinion that general increase should extend to this offence. In Wahl v State of Tasmania [2012] TASCCA 5, the Court of Criminal Appeal re-sentenced an appellant to four years' imprisonment, with a non-parole period of three years, for aggravated burglary, causing grievous bodily harm by dangerous driving, and perverting justice. Evans J, with whom Tennent and Wood JJ agreed, said at [37]:
"With regard to the penalty that the appellant's conviction for causing grievous bodily harm by dangerous driving should attract, her counsel quite properly points out that the highest sentence that has been imposed for this crime and related, but subsidiary, offences, is a global sentence of two years and six months' imprisonment; Moyle v Tasmania (supra). Moreover, the highest penalty that has been imposed for the analogous but more serious offence of causing death by dangerous driving and related, but subsidiary, offences, is a global sentence of four years' imprisonment; Gallagher v State of Tasmania [2009] TASSC 84."

Whilst bearing in mind that the applicant was not to be sentenced for crimes he did not commit, comparisons with other cases are to be treated with caution. The level of actual harm caused by an offence or offences is most important in the sentencing process. However this case is notable for the high degree of danger which the applicant's driving posed and the applicant's appalling record for committing this offence. His behaviour was chaotic and unpredictable. Personal injury and property damage was caused and it is only extreme good fortune that greater harm did not result. Given the nature of the driving and his record, if greater harm had been caused, then a considerably higher sentence would not have disclosed error.
It is important also that the Court not lose sight of the overall criminality involved in his offending. To drive at all involved considerable criminality. In Barrett v Wilson, at [11], I explained the seriousness of driving while disqualified by virtue of a court order, especially by offenders with a history of similar offending. There is no need to repeat those comments here. By driving while disqualified the applicant continued to display the same contempt for court orders that he not drive which he has shown throughout his adult life. Increasingly heavy sentences and the prospect of breaching his parole did not deter him. Moreover, this driving took place when amphetamine was present in his blood. He left the scene of the crash and continued to drive dangerously, apparently more concerned about himself than the fate of his victims. He was not to be punished for his record, but given so many prior convictions for disqualified driving and dangerous driving, there could hardly be a stronger demonstration of the need for specific deterrence and protection of the public. He presents as a risk to society.
The sentencing magistrate was told that, as a result of this offending, the applicant's parole was revoked from 3 December 2014. Consequently, he was required to serve the period of just over 13 months remaining to be served on the sentence imposed on 2 August 2013. The applicant was sentenced for offences committed while on parole. Consequently, the sentencing magistrate was correct to order that the sentence he imposed be served cumulatively on the remainder of the sentence in respect of which the applicant was released on parole: Corrections Act 1997, s 76. His Honour was also correct to take the effect of the earlier sentence into account in considering the sentence he was to impose. The revocation of parole is relevant in considering the totality and proportionality of the aggregation of the sentences: Wright v Tasmania [2010] TASCCA 7 at [60]; Young v Wilson [2015] TASSC 16. In this context, in considering whether the sentence is manifestly excessive, the proper question for this Court is whether the sentence imposed took the total of the two sentences imposed on the applicant beyond a just and appropriate measure of his total criminality to the point of error. I am not satisfied that it did. The sentences imposed on 2 August 2013 were for multiple offences involving considerable criminality, and included activation of a suspended sentence. The total effective head sentence was not, in my view, crushing, in the sense that it was "so long as to risk provoking within the applicant a feeling of helplessness and the destruction of any reasonable expectation of a useful life after release": R v Beck [2005] VSCA 11 at [22]; R v MK (2005) 155 A Crim R 367 at [125]. It was not a "crushing sentence", not in keeping with his record and prospects: Postiglione v The Queen (1997) 189 CLR 295 at 304. The applicant will have every opportunity for a useful life after his release. Even if it is the case that he is presently experiencing a feeling of helplessness at the prospect of the sentence, I would still not regard the sentence as manifestly excessive because of the seriousness of his offending.
The applicant also pointed to the punitive effects of the disqualification order and the probation order. Those orders are also to be taken into account but do not lead me to conclude that, taken as a whole, his Honour erred. I am not persuaded that a head sentence of imprisonment for 2½ years is a sentence which, even in combination with the other orders made, goes beyond a proper measure of the applicant's overall criminality, and does not constitute error justifying the intervention of an appeal court.
It remains for me to consider whether the failure to allow for the possibility of parole made the sentence manifestly excessive. The Sentencing Act, s 17(2)(b), provides that a court, when imposing a sentence, may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. Where a court imposes a sentence of imprisonment and does not make an order under subs (2), the offender is not eligible for parole in respect of that sentence, s 17(3A). Section 17(4) provides that, in exercising its discretion to allow parole, a court "may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
(a)the nature and circumstances of the offence;
(b)the offender's antecedents or character;
(c)any other sentence to which the offender is subject."
I respectfully agree with the comments of Porter J in Groenewege v Tasmania [2013] TASCCA 7 at [56]-[57]:
"Under the Sentencing Act 1997 s17, there is no parole eligibility unless it ordered that the offender is not eligible for parole before the expiration of a specified period. That period must be not less than one half of the head sentence. A non-parole period should be the minimum period that the sentencing judge determines that justice requires the prisoner must serve in prison, having regard to all the circumstances. The fixing of a parole eligibility period gives a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom once the prisoner has served the minimum period the judge determines: Power v R (1974) 131 CLR 623 at 629; Carr v R (2002) 11 Tas R 362 at 389 [96]; Richman v Tasmania [2011] TASCCA 18 at [47].
57 Obviously, whether a non-parole period is appropriate has to be assessed not only on the basis of the whole of the circumstances of the case, but in the light of the length of the head sentence."
In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was), with whom Neasey J agreed, said at 7-8:
"The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by sentencing judges before making an order removing eligibility for parole or extending the non-parole period."
In his sentencing remarks his Honour correctly noted that, in this case, protection of the community and general and personal deterrence were the most important sentencing considerations. He said that he did not provide for the applicant's early release on parole because it "is inappropriate to do so, given the commission of these offences so soon after your release on parole for similar offending, and the ineffectiveness of other early community based sentencing options". The strong need to protect the community, the applicant's bad criminal record and previous parole history, and the applicant's repeated failure to take advantage of opportunities for rehabilitation extended to him in the past all militated against allowing eligibility for parole: Groenewege v Tasmania at [59]. Factors which generally favour the grant of parole, including an offender's general good character and lack of prior convictions, were singularly absent in this case. Although he is still a relatively young man, the factors which may apply to a youthful offender with a better record and higher prospects of rehabilitation had little application to him. The factors in the Sentencing Act, s 17(4)(a) and (b), did not favour the grant of parole, although the other sentence to which he became subject on the revocation of his existing parole became relevant pursuant to s 17(4)(c). As Crawford J pointed out in Gill, at [27], it is often the case that the Parole Board is better placed than the sentencing court, after a prisoner has served part of a sentence, to assess matters of public interest, the prisoner's interests and the prospects of rehabilitation. See also the comments of Evans J in Devine v The Queen [2002] TASSC 52 at [28]. In this case, however, there was sufficient material for the magistrate to make his own assessment. The order he made had the effect of making the sentence he imposed more severe. However I have concluded that it did not do so to the point of error. The sentencing magistrate's exercise of the sentencing discretion did not miscarry by not ordering eligibility for parole.
Taking into account all of the factors relevant to sentence, whether or not I would have made the same order myself, the course his Honour took was within the range of sentences reasonably open to him. This ground is not made out.

Ground 2 – Remorse and procedural fairness

This ground was not strongly pressed by counsel for the applicant. He suggested that if the first ground alleging that the sentence was manifestly excessive was not made out, then this ground could not succeed because there would be no substantial miscarriage of justice: Justices Act 1959, s 110(2)(ab). With respect to him, I am not satisfied that the concession is properly made. If error of the type asserted by this ground is made out then application of the proviso is not appropriate because it may be that the applicant would be sentenced on a different factual basis.
Remorse is a mitigating factor: Neal v The Queen (1982) 149 CLR 305 per Murphy J at 314. That is so because it indicates realistic prospects of rehabilitation and a reduced need for specific deterrence: Cameron v The Queen (2002) 209 CLR 339 at [65]; Phillips v The Queen (2012) 37 VR 594, (2012) 222 A Crim R 149; C D v The Queen [2013] VSCA 95. Care must be taken to distinguish between genuine remorse and expediency or self-pity: Whyte (2004) 7 VR 397 at 403. I agree with the remarks of Winneke P in that case, that it is rare to find convincing evidence of genuine remorse. In Phillips, Harper J pointed out that it is a factor frequently raised in sentencing hearings but, "it is not putting it too starkly to say that there is very often no substantive justification for its use. Although they too often masquerade as remorse, self pity or regret at being caught do not, or at least should not, qualify". Harper J described remorse as being shown by an offender with "an accurate appreciation of the wrongfulness of his or her offending, and of its impact upon its victim or victims, and who desires to do what reasonably can be done to repair the damage and to clear his or her conscience". A plea of guilty can provide some indication of remorse, but as was said by Redlich JA and Curtain AJA in Phillips, "the conduct and statements of the offender over time provide a more informative and precise guide than the plea alone as to whether genuine and deep contrition exists". Nevertheless, when demonstrated, genuine remorse is a factor which may have an impact on the ultimate sentence.
By this ground the applicant asserts that the learned magistrate failed to provide procedural fairness to the applicant in that:
"(a)he failed to provide an opportunity for the applicant to give or produce evidence either as to the applicant's comments made to the author of the pre-sentence report as they pertained to the issue of remorse; or
(b)as to the issue of the applicant's remorse generally."
The Sentencing Act, Pt 11, provides for sentencing procedures to the following effect:
·counsel for an offender is entitled to address the court on sentence: s 80;
·before a court passes sentence, it may receive such information, in oral or documentary form, as it thinks fit and in so doing it is not bound by the rules of evidence: s 81(1);
·if the offender challenges the truth of any information received by the court under s 81(1), the court may require that information to be proved in like manner as if it were to be received at a trial: s 81(4);
·the author of a pre-sentence report may conduct any investigation that he or she thinks necessary or appropriate for the purposes of the report: s 82(4)(a).
Section 88 provides for disputes about the contents of pre-sentence reports:
"(1) The prosecution or the defence may dispute the whole or any part of a pre-sentence report or mediation report.
(2) If the whole or any part of a pre-sentence report or mediation report is disputed, the court must not take the report or the part in dispute into consideration in determining sentence unless the party disputing the report or the part has had the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on the disputed matters."
In this case the applicant was given the right to address the court on sentence and he had ample notice of the pre-sentence report obtained by the court. It was prepared and distributed to counsel for the applicant before the sentencing hearing on 12 March 2015. Except as explained in these reasons, there was no challenge to the truth of any of the information in it. The probation officer who prepared the report had interviewed the applicant. Under the heading "Attitude and responses toward offending behaviour" she reported the applicant as having said to her that in his opinion the current offending was "not as bad as before; this time it was just driving stuff and not doing burgs and that type of stuff. It's not as bad." The report concluded:
"The defendant was assessed using the LS/CMI assessment tool endorsed by Community Corrections as requiring a very high level of intervention from this service. The writer has concerns regarding recommending the defendant for a Probation Order due to the defendant's apparent lack of motivation to address criminogenic risks/needs post release, namely the long standing drug and alcohol problem, anger management and impulsivity issues. Past non-compliance with Community Based Orders and lack of pro social supports also raise concerns as to the successful completion of future orders."
When addressing the magistrate about sentence, counsel for the applicant commenced by submitting that he was instructed by the applicant to apologise for the damage and actual and potential danger he caused. He submitted:
"In particular, the incident near the school weighs heavily upon him because in his own words 'injury to a child would be his worst nightmare'. And he's deeply remorseful and apologetic for his behaviour, of course evidenced by his plea of guilty your Honour and on my instructions it was him being overwhelmed about the conduct that led to him being in such an emotionally distressed state when ultimately apprehended by the police."
Counsel made submissions to the sentencing magistrate that although a sentence of imprisonment was inevitable, rehabilitation of the applicant in prison and following his release was important. He made submissions in response to the comments made by the author of the pre-sentence report about her reluctance to recommend a probation order, and pointed out the difficulty that the applicant had experienced of accessing services in prison. The following exchange then occurred between counsel and the magistrate:
"HIS HONOUR: … He still seems to be lacking in some insight, and I will refer you to page 4 of the report, where he explained to the reporter that in his opinion the current offending was 'Not as bad as before this time it was just driving stuff and not doing burgs and that type of stuff. It's not as bad'. I mean how does that sit with what you're saying to me about remorse and apologies and wanting to get on with his life.
COUNSEL: In my respectful submission it really reflects a lack of eloquence on his behalf because–
HIS HONOUR: Eloquence or insight.
COUNSEL: Look on my instructions my submission to you is it's eloquence not insight. The reason is because when you look at his prior convictions you will see that he's offended in multiple different ways over multiple different days that have resulted in his periods of imprisonment. So what he's expressing to the author of the report there, is 'I am not committing the variety and number of offences I have historically committed'. He expressly identifies burglary, stealing, dishonesty offences, which are littered throughout his prior convictions, so he's correct on that. He's also been sentenced for serious driving matters before, so the reference to 'not as bad' is in reference to the range of types of offences, and the number of offences which echoes my submission to your Honour earlier that we're talking about a day in which he's committed these very serious matters but he's not going out on a prolonged and prolific spree of offending behaviour on multiple dates which has been his history.
HIS HONOUR: I understand that that's what he's saying, but it just doesn't accord with reality does it?
COUNSEL: The reality for his behaviours and his criminal conduct can never be reconciled on a rational level. If there was rational thought and rational input into it we don't have the commission of these offences quite clearly. So I'm not asserting to your Honour that there is a level of sophistication in his thought processes at all–
HIS HONOUR: I suppose I'm just expressing scepticism that anything's changed." [Emphasis added.]
It was then submitted on behalf of the applicant that he had a desire to change because he had "reached the stage, really because of a culmination of the times he's spent in prison, the effect upon him it's having, how unhappy he is about his own behaviours, and recognising how serious those behaviours are …".
The magistrate sentenced the applicant about a month later. In his sentencing remarks he said this:
"Whilst your counsel made much of your asserted remorse and desire to rehabilitate, I find it difficult to reconcile these assertions with your constant offending, with the nature of the offending on this occasion and with the fact that you committed the serious offences whilst subject to parole and driving disqualification."
His Honour then commented on what he considered to be the applicant's apparent lack of insight into his offending and referred to the passage in the pre-sentence report which I set out earlier in these reasons. The applicant submits that if the magistrate was contemplating that he would not accept the applicant's statements of remorse or the explanation he gave of the statements he made to the author of the pre-sentence report, then he should have indicated that to the parties. He submits that "by refusing this explanation and without identifying that such a refusal was a possibility, no opportunity was provided to adduce evidence as to that point".
The law to be applied to this ground is authoritatively determined by the Court of Criminal Appeal in W v Tasmania [2007] TASSC 24. In that case the appellant was sentenced for maintaining a sexual relationship with a young person under 17 years. The judge commented on passing sentence that, "I detect no remorse for your wicked conduct". Before the appellant was sentenced his counsel had urged the sentencing judge to find there was remorse, referred to statements made by the appellant to the police and others after his offending was discovered and presented documentary material, including two references and a psychologist's report, to evidence it. Crawford CJ, with whom Evans and Tennent JJ agreed, said at [20]:
"Remorse is a mitigating factor. Pavlic v R (1995) 5 Tas R 186; Ferguson v R [2001] TASSC 20 at par16. It is not necessarily shown by a plea of guilty and in any event, if its presence is contested, and its presence would be material to the sentence, it must be established on the balance of probabilities because it is a matter that would favour the accused person. R v Olbrich (1999) 199 CLR 270 at 286. It must, of course, be genuine, but assertions that it exists must not be rejected upon the basis that it is not genuine, unless the accused person is given the opportunity of proving the contrary provided, as I have said, the resolution of the issue would be material to the determination of the sentence. Nash v Haas [1972] Tas SR 1; R v Olbrich at 286. With respect to the learned judge, I feel that the appellant's grievance is soundly based. Although it is impossible to know the extent to which, if any, the sentence of imprisonment would have been reduced if the learned judge had accepted the late expressions of remorse as genuine, I think in all the circumstances of the case, it would be unjust not to uphold the first ground of appeal. It was erroneous to reject the assertion of remorse without giving the appellant a further opportunity to prove it."

The first part of this ground is directed to the applicant's comments to the author of the pre-sentence report "as they pertained to the issue of remorse". It has no merit. The report says nothing about any comment made by the applicant about remorse except reporting the applicant's statement that this offending was "not as bad as before …". There was no challenge of the contents of the pre-sentence report as contemplated by s 88. There was no dispute that the words attributed to the applicant by the author of the pre-sentence report were said by him. His counsel's submissions were directed to what was to be drawn from the words once the magistrate asked how the statement sat with the submissions made about "remorse and apologies and wanting to get on with his life". The submission is set out earlier in these reasons. The subsequent passage makes it clear that the magistrate's question was directed to the level of the applicant's insight into the seriousness of his offending and the prospect of rehabilitation. Otherwise, nothing was said in or about the pre-sentence report concerning the genuineness of the applicant's claim to remorse. The opinion expressed by the author at the conclusion of the report indicated her concern about the apparent lack of motivation to address what she assessed as factors contributing to his offending. This part of the ground adds nothing to other limb of the ground, to which I now turn.
The second part of this ground concerns the "applicant's remorse generally". The effect of W v Tasmania is that a sentencing court must not reject assertions of remorse on the basis that they are not genuine without allowing the accused person an opportunity to prove them on the balance of probabilities, if resolution of the issue is material to sentence. Beyond the provisions of the Sentencing Act, the obligation to extend procedural fairness to the parties in the sentencing process is well established. In the circumstances of this case, whether the court has proceeded in breach of that obligation, is much less clear than it was in W. Here, although there was no prosecution challenge to the submissions made on behalf of the applicant, the learned magistrate made his own reservations about the applicant's claim to genuine remorse abundantly clear. Because it was a factor to be taken into account in the applicant's favour, the applicant bore the onus to prove it on the balance of probabilities. Where an offender asserts a fact favourable to the offender and the prosecution contests it, or the court is not otherwise disposed to accept it, it is incumbent on the offender to establish the fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at 281 [25]; Filippou v The Queen [2015] HCA 29 at [64]. In Olbrich the court said at [25]:
"Similarly, it will be for the offender who seeks to bring a matter to the attention of the judge to do so and, again, if necessary, call evidence about it. (We say 'if necessary' because the calling of evidence would be required only if the asserted fact was controverted or if the judge was not prepared to act on the assertion)."
It seems to me that determination of this ground distils to two things:
· whether the magistrate rejected the applicants assertion of genuine remorse; and,
· if so, whether he erred by not unequivocally stating to counsel for the applicant that he was not prepared to act on the applicant's expression of remorse without being persuaded by evidence to that effect, and expressly inviting evidence to be called.
As to the first issue, the position is not entirely clear. It seems to me that his Honour's comments may be read in two ways. He said that he found the applicant's claim to remorse "difficult to reconcile" with his constant offending. On one view, the magistrate was asserting only that the current expression of remorse, even if genuinely held, provided little reliable indication in light of his record of his prospects of rehabilitation and the need for specific deterrence. The other view is that his Honour's comment was another way of saying that the applicant's purported remorse was not genuine, and that he was not prepared to act on it. For the purposes of this appeal I will proceed on the basis that his Honour's words carried the latter meaning.
In those circumstances should the learned magistrate have stated his position expressly and invited the giving of evidence? In my respectful opinion, it would have been preferable if his Honour had done so. Of course, the applicant could not have been forced to give evidence. What his Honour was obliged to offer was the opportunity to give evidence. And in this respect, in this case, I am not satisfied that the magistrate erred. It is a question of fact and degree. In the highlighted sections of the part of the transcript of the sentencing hearing set out above, his Honour questioned the assertions which were being put and suggested that they did not "accord with reality". His Honour's comment could only be read as a direct reference to the applicant's expressions of remorse and insight and desire to change. He expressed doubt that the applicant had changed. The applicant made no request to adduce sworn evidence despite these expressions of view. The assertion of remorse was confined to the apology offered to the Court and the submission that his distressed condition when found by the police was explained by his being "overwhelmed" by his conduct. The magistrate did not lull the applicant into a false sense of security that his expression of remorse would be accepted. He did not passively and unquestioningly accept the applicant's mitigatory account. He made his position sufficiently clear. There was ample opportunity to respond, and counsel for the applicant did so, albeit by submissions rather than by calling evidence. It is to be noted again that in the sentencing process, the magistrate was not bound by the rules of evidence, and there is a degree of flexibility in sentencing proceedings as to the manner in which evidence may be given. I think that it is also relevant that, at the hearing of this motion, no indication was given about what, if any, evidence beyond repetition of the submissions made at the sentencing hearing, could or would have been adduced.
For those reasons I am not satisfied his Honour erred. This ground is not made out.

Conclusion and orders

Neither ground is made out. The motion to review is dismissed.