Brown v Smorhun
[2015] ACTSC 334
•30 October 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brown v Smorhun |
Citation: | [2015] ACTSC 334 |
Hearing Date(s): | 6 October 2015 |
DecisionDate: | 30 October 2015 |
Before: | Refshauge ACJ |
Decision: | 1. The appeal be upheld. 2. Corey Brown be re-sentenced. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against sentence – justice and punishment – sentencing – misapprehensions of fact and principle – admission of fresh evidence – totality – delay in sentencing – inter-jurisdictional sentencing – failure to re-set a non-parole period – re-sentence CRIMINAL LAW – Traffic offences – disqualified from holding or obtaining a driver licence in NSW – disqualification applicable in ACT – driving while he was disqualified from holding or obtaining a driver licence – first offender – driving with a prescribed drug in his oral fluid – repeat offender – possession of a drug of dependence – significant criminal history – efforts at rehabilitation |
Legislation Cited: | Bail Act 1992 (ACT), s 56A Crimes (Sentence Administration) Act 2005 (ACT), s 168 |
Cases Cited: | AB v The Queen [1999] 198 CLR 111 Arman v Wall [2008] ACTSC 61 |
Texts Cited: | Matusiewicz, Alexis K; Hopwood, Christopher J; Banducci, Annie N; Lejuez, CW (2010), “The Effectiveness of Cognitive Behavioral Therapy for Personality Disorders”, Psychiatric Clinics of North America, 33(3), 657-85 D A Thomas, Principles of Sentencing (Heinemann: London, 1979) 2nd ed |
Parties: | Corey Adam Brown (Plaintiff) Luke Smorhun, Andrew McKellar and Jason Craig (Respondents) |
Representation: | Counsel Mr T Sharman (Appellant) Mr T Hickey (Respondents) |
| Solicitors Sharman Lynch Solicitors (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number(s): | SCA 76 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Special Magistrate Doogan Date of Decision: 1 September 2015 Case Title: Smorhun, McKellar and Craig v Brown Court File Number(s): CC13/10746, CC14/8676, CC14/8677, CC15/1923 |
REFSHAUGE ACJ:
The appellant, Corey Brown, has a bad criminal record for traffic offences.
On 6 October 2013, he was intercepted by police while he was driving and, after investigation of his licence status, was charged with, being a first offender, driving while he was disqualified from holding or obtaining a driver licence.
On 15 August 2014, he was again intercepted by police. Again, his licence status was investigated and he was charged with being a first offender, driving while he was disqualified from holding or obtaining a driver licence. He was also tested for drugs in his oral fluid and charged with, being a repeat offender, driving with a prescribed drug in his oral fluid.
On 19 February 2015, he was charged with possessing methylamphetamine.
For reasons set out below, Mr Brown was not sentenced for any of these four offences until 1 September 2015, when he was sentenced to a total period of imprisonment for six months and was fined a total of $1,456.
He has now appealed from the sentences imposed.
Jurisdiction
Jurisdiction to hear and determine appeals in criminal matters by this Court from the Magistrates Court is conferred by Pt 3.10 of the Magistrates Court Act 1930 (ACT) and Div 3.10.2 regulates appeals from sentences imposed by the Magistrates Court, as in this case.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.
Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error, but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong. I note that I shall apply these principles in this case.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
The facts
On 6 October 2013, Mr Brown was driving a white Holden Commodore sedan north on Vernon Circle, Civic. He was stationary at the intersection with London Circuit with a red traffic light facing him.
When the traffic light turned to green, Mr Brown revved his car and accelerated through the intersection onto Northbourne Avenue so that the tyres of the car “chirped”, the rear of the vehicle swayed slightly and the wheels partially lost traction.
This drew the attention of a police officer, the informant, who was, at the same time, travelling in the same direction and he caused Mr Brown to pull his car over and stop. Mr Brown was asked to produce his driver licence and he handed over a current ACT licence.
The informant investigated and ascertained that Mr Brown was currently disqualified from holding or obtaining a driver licence. When asked, Mr Brown said that he thought that he had only been disqualified in New South Wales.
It appears that, on 24 October 2010, he had driven a motor vehicle in New South Wales with the prescribed concentration of alcohol in his blood and, on 30 March 2011, had been convicted in the Griffith (NSW) Local Court and disqualified from holding or obtaining a driver licence until 27 March 2013.
On 12 July 2012, he had, despite the disqualification, driven a motor vehicle, again in New South Wales, and was convicted in the Queanbeyan Local Court of driving while disqualified on 8 October 2012 and again disqualified from holding or obtaining a driver licence for a further two years to 29 March 2015.
Under s 66(3) of the Road Transport (General) Act 1999 (ACT), these disqualifications applied to Mr Brown’s ACT driver licence as if the disqualifications had been made in this Territory. He was, thus, disqualified from holding or obtaining a licence in this Territory until 29 March 2015. I had no information as to whether he was required to return his ACT licence, which was then of no effect.
He appeared in the Magistrates Court on 7 February 2014, in answer to a summons, and the proceedings were adjourned. Thereafter, they were adjourned again from time to time until Mr Brown was convicted and sentenced on 1 September 2015.
On 15 August 2014, Mr Brown was driving a Mitsubishi Lancer sedan south along Springvale Drive, Weetangera, when police saw the car and suspected it was speeding. The police vehicle followed the car and its speed was checked at 68 km/h in a part of the road sign posted for 60 km/h. Mr Brown stopped his car at the direction of the police.
He produced his ACT licence and said he was not “disqualified, suspended or anything like that”. He underwent an alcohol screening test which proved negative.
A check of police records showed that he remained disqualified. When asked why he was driving whilst disqualified, he said, “I’m disqualified in NSW not in ACT”. The police officer said, “You can’t drive anywhere when you are disqualified” and, in the circumstances, perhaps a little disingenuously, Mr Brown replied, “I didn’t know that”.
Mr Brown was then requested to supply a sample of his oral fluid, which he did. A test showed the presence of a prescribed drug and the sample was later analysed to show that the drug was methylamphetamine.
Mr Brown was summonsed for driving whilst disqualified and, being a repeat offender, driving with a prescribed drug in his oral fluid. He appeared in the Magistrates Court on 25 September 2014 to answer both charges and, after fifteen adjournments, was sentenced on 1 September 2015.
Finally, Mr Brown, when he appeared in court on 9 February 2015 in answer to the above charges, he was granted bail with a condition that he reside at an address in Calwell, ACT and that he report to Tuggeranong Police Station at specified times. A resident of that address informed police, on 18 February 2015, that Mr Brown had not lived there since December 2014.
When Mr Brown reported to the Officer-in-Charge of Tuggeranong Police Station on 19 February 2015, he was arrested under s 56A of the Bail Act 1992 (ACT) on suspicion that he had breached a condition of his bail. He was searched and police discovered a clip seal bag in his left hand. It contained a white crystalline substance which, in an interview with police, Mr Brown described as “meth”, namely methylamphetamine, which he said that he had purchased about four hours earlier and which he planned to use for his own personal use.
He was charged with possessing a drug of dependence and appeared in court later that day when he was again granted bail.
The offences
Driving whilst disqualified from holding or obtaining a licence is an offence contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) and attracts a maximum penalty for a first offender of fifty penalty units (that is a fine, at the time, of $7,000) and imprisonment for six months.
Driving with a prescribed drug in the driver’s oral fluid is prohibited by s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) which provides for a maximum penalty of twenty-five penalty units (that is, at the time, a fine of $3,500) and imprisonment for three months.
Possession of a drug of dependence is an offence under s 169 of the Drugs of Dependence Act 1989 (ACT) and rendered Mr Brown liable to a maximum penalty of fifty penalty units (that is a fine, at the time, of $7,500) and imprisonment for two years.
Subjective circumstances
The learned Magistrate did not express any particular findings about Mr Brown’s personal circumstances, although she did say that she accepted what was in the Pre-Sentence Reports.
Having regard to the Pre-Sentence Reports, some references and a letter from Mr Brown himself, which were tendered to the learned Magistrate, and the submissions his counsel made in the Magistrates Court, I can make the following findings about the personal circumstances of Mr Brown. Mr Brown appears, however, not to be a good historian and some inconsistency appears between some of this material.
Mr Brown was born thirty years ago in New Zealand. His father appears to have been involved in serious criminal activity and his home life was marred by domestic abuse, drug abuse and neglect.
As a result, his mother left New Zealand with her children in 1990, when Mr Brown was fifteen years old, and they relocated to Australia.
Mr Brown completed high school in Australia and also an apprenticeship as a Boilermaker. He has been employed since leaving school except, of course, while incarcerated. Officers of his current employer provided very supportive character references for him. The Managing Director described him as showing “great determination and work ethic”. He is said to bring “a positive attitude to work” and that he has built “excellent rapport with other employees”.
He discussed the issues of his offending with one of his employers who was satisfied that “he was going to make a change to his life” by undertaking a drug and alcohol program and seeing a counsellor.
The Chief Executive Officer described how impressed he was with Mr Brown’s “professionalism, his attention to detail and his excellent trade skills”. He said that he found him “honest and trustworthy”. He referred to his particular contributions, such as training junior members of the company, including some with disabilities.
One of his fellow employees wrote a reference which explained how he was also satisfied after conversations with Mr Brown that he was “defiantly [sic] looking to make some serious changes in his life”. He notes Mr Brown’s “positive motivation” for his children. He also stated that he had helped Mr Brown to deal with his disqualification. In an amazing act of generosity, he drove each working day from Bungendore where he lived, to Richardson, where Mr Brown lived, to collect him and to drive both back to Queanbeyan where they work. This is an important factor likely to reduce recidivism.
Mr Brown was in a relationship for about five years and it appears there were children of the union.
The evidence was very unhelpful, however, as to the number of children there were from the relationship. The author of the Pre-Sentence Report referred to one child. His counsel referred in sentencing submissions to two children, a boy aged six and a girl aged seven, and his current partner referred in her letter to the court to Mr Brown “re-establishing a relationship with his three children to a previous relationship”.
The ending of that earlier relationship, however, appears to have been acrimonious, with Mr Brown becoming the respondent to a Domestic Violence Order, which prevents him seeing his child or children and his former partner.
He is now in a relationship and his current partner, according to the Pre-Sentence Report, is expecting a child in February 2016, though his partner said that the baby was expected in April 2016. I assume she is more likely to be accurate. The relationship was said to have been of eighteen months, but other evidence of an offence committed by Mr Brown in September 2014 was said to have been committed in the company of a person, not his current partner, but described as “his then girlfriend”.
His partner also wrote a reference which was, unsurprisingly, supportive, but also informative. She referred to the steps he has taken towards rehabilitation, attending an alcohol and driving program and attending counselling at Directions ACT. His attendance at these programs was confirmed by a Pre-Sentence Report. She referred to Mr Brown having an Attention Deficit Disorder, which had not been mentioned elsewhere, and the mental health assistance he has sought for this.
Mr Brown has also enrolled in a Cognitive Self Change Program through Directions ACT. This is designed to change behaviour and, therefore, reduce offending, using Cognitive Behavioural Therapy. Regrettably, the learned Sentencing Magistrate was dismissive of this course, saying:
... the fact that you now think that maybe behavioural – some sort of behavioural therapy might help you, it’s a joke.
It seems to me inappropriately dismissive of a program a kind that is regularly and appropriately provided by ACT Corrective Services. Studies seem to have shown it to have some effectiveness: Matusiewicz, Alexis K; Hopwood, Christopher J; Banducci, Annie N; Lejuez, CW (2010), “The Effectiveness of Cognitive Behavioral Therapy for Personality Disorders”, Psychiatric Clinics of North America 33(3): 657-85.
Mr Brown’s partner also wrote of the assistance he provided to her parents, despite his long working hours and his regular attendance on his parole officer. She attested to his remorse and expressed confidence that he was making an effort to be accountable for his actions.
Mr Brown has consistently denied a history of drug use, despite his childhood environment. His evidence was a little unclear. He said that the first and only time he had tried methylamphetamine was on the day he was tested for the presence of drugs in his oral fluid while driving. When arrested for possession of the same drug on 19 February 2015, however, he made admissions to having purchased the drug for $200 about four hours before attending the police station and that the “amount of drugs would last him three months”. He also said that he “consumed the drugs by applying them directly to his mouth”.
Further, on 3 August 2015, he was screened for drug use which resulted in a positive result for methylamphetamine. It seems to me that the learned Sentencing Magistrate was correct to find that Mr Brown had not been entirely honest in his description of his drug use.
Given his admissions to police, it is at least odd that he told the author of the Pre-Sentencing Report that he found the drug when he was wearing someone else’s pants and that the drug was not his. He repeated that in the letter to the Court when he said, “it was in my short pants that; [sic] lent from [sic] a friend in my truthful opinion i [sic] was set up but take full responsibility”.
I am satisfied, however, that he undertook a drug driving program at Karralika for two sessions on 18 and 25 August 2015.
Strangely, neither the Pre-Sentence Report nor Mr Brown’s partner referred to his alcohol use, which seems to have played at least a part in his offending behaviour.
Mr Brown has played rugby league very successfully but broke his ankle in a charity game which meant he had to give up playing the sport.
Mr Brown has a relevant criminal record. He has been found guilty of sixteen offences. The majority are traffic offences, of which three are for driving with the prescribed concentration of alcohol, and, up to the date of the offences the subject of this appeal, four for driving whilst his driver licence was suspended and four for driving whilst disqualified from having or obtaining a driver licence, or equivalent offences.
One matter of significance is that, after he was charged with the first three offences, he was charged in New South Wales with breaking and entering with intention to steal and with driving while disqualified.
I had the Statements of Fact for these offences which involved a serious home invasion by a co-offender. The offence to which Mr Brown pleaded guilty was somewhat different from that mentioned in the Statement of Facts, but it gave me the relevant background. The victims were seventy-six and seventy-four years old and Mr Brown’s co-offender threatened them with weapons and, in fact, knocked the male victim unconscious. Mr Brown and his then partner did not enter the premises but, despite his disqualification, drove to the site and waited nearby in a car. He then collected the items that the primary offender had taken from the property.
On 10 April 2015, Mr Brown was sentenced for the offence of breaking and entering with intent to steal to eight months imprisonment commencing on 27 February 2015, presumably the date of his arrest, and for driving whilst disqualified, to three months imprisonment to be served concurrently. A non-parole period of four months, ending on 26 June 2015, was ordered.
Mr Brown was released on parole on 26 June 2015. The parole order was then transferred to the ACT to be administered in this Territory. Under s 168 of the Crimes (Sentence Administration) Act 2005 (ACT), the registration in the ACT of a parole order made interstate means that the ACT law applies to that order as if it had been made by an ACT court. This is a matter to which I will return.
Mr Brown was assessed by the author of the Pre-Sentence Report as at a moderate risk of re-offending. The author expressed some concern of Mr Brown’s lack of acceptance of responsibility.
The sentence
The learned Sentencing Magistrate set out the facts of the offences briefly. Her Honour suggested that Mr Brown “gets out of gaol, gets in a car and drives”. Her Honour was interrupted to correct that, as it was not accurate, and she acknowledged the error as she was, inappropriately, referring to the sentence for the recent NSW offences which were committed after these offences.
Her Honour also referred to his history of offending, especially of driving whilst disqualified, suggesting that he had eight prior convictions for driving whilst disqualified or whilst suspended. Again, counsel interrupted to correct that error, though there seemed uncertainty between counsel as to what the correct number was.
Her Honour referred to what I had said in Cotter v Corvisy (2008) 1 ACTLR 299, where I considered the offence of driving whilst disqualified and the appropriate sentencing response to it, especially where I cited with approval the comments of King CJ in Coombe v Douris (1987) 47 SASR 324 at 325, when his Honour pointed to the seriousness of the offence “in the defiance of the law which it manifests” and how it undermines the original order for disqualification.
Her Honour referred to Mr Brown’s criminal history which, in my view, quite correctly, was to be regarded as significant.
Neither of these matters, however, justify a sentence that is disproportionate to the actual offending and, of course, an offender cannot be punished twice for offences for which he has already been punished: Veen v The Queen (No 2) (1988) 164 CLR 465 at 477.
Her Honour then referred to the failure by Mr Brown to complete a community service work condition of a Good Behaviour Order made in 2006, and counsel for Mr Brown was required again to interrupt her Honour to correct her as Mr Brown had been excused because of medical incapacity. Her Honour, however, seemed to hold that against Mr Brown without any evidence to justify that. Indeed, her Honour suggested that he should have stated, when being assessed for community service conditions that he was medically unfit for it, when there was no evidence to suggest that he was, at that time, unfit for he was apparently assessed as suitable, which assessment would have included a consideration of his health. Mr Brown appears to have satisfactorily completed a community service order made in 2012, but her Honour made no reference to that, even though it was inconsistent with her Honour’s earlier comment.
Her Honour then rejected the assessment of the author of the Pre-Sentence Report that Mr Brown was at a moderate risk of re-offending which appeared to have been based on a result of his lack of acceptance of responsibility for the offences and his denial of illicit drug use and a lack of motivation to change his behaviour.
It may be said that these assessments had to be somewhat modified by the evidence; for example, the evidence was unchallenged and clear that Mr Brown had taken positive and appropriate steps to change his behaviour.
Her Honour expressly accepted “what the Pre-Sentence Report says” but, when rejecting the assessment of a moderate risk of reoffending and assessing the risk as high, then mentioned only matters already taken into account by the author of the Pre-Sentence Report in his assessment: lack of acceptance of responsibility and the lack of motivation to change his behaviour. It was entirely unexplained as to what was different from the unchallenged assessment in the Pre-Sentence Report.
Her Honour referred to the principles and objects of sentencing, regarding general deterrence as significant, but not personal deterrence, for the odd reason that “this man is not deterred personally”. That failed to take into account that, for offences of driving whilst disqualified, Mr Brown had never previously been sentenced to serve an immediate term of imprisonment until 2015, made after these offences had been committed.
Her Honour concluded that a sentence of imprisonment was the only appropriate sentence. Her Honour then imposed a sentence of five months imprisonment for the first offence of driving whilst disqualified, reduced from six months to take into account the plea of guilty.
Her Honour imposed a sentence of seven months imprisonment for the second offence of driving whilst disqualified. Both counsel then interrupted and pointed out that the maximum penalty of imprisonment for the offences was only six months imprisonment.
Regrettably, her Honour, even as an experienced Magistrate, was not the first, and probably will not be the last, sentencer who imposed a sentence based on a mistake as to the maximum penalty. It happens to even experienced judges on occasion: Jovanovic v The Queen (1999) 92 FCR 580 at 582; Thomson v The Queen [2015] ACTCA 16 at [49].
Her Honour then imposed six months imprisonment instead and, curiously, stated “no discount” with no reasons.
Her Honour also imposed fines for the other offences and allowed twelve months to pay them.
The Appeal
The Notice of Appeal pleaded two grounds as follows:
(i)Her Honour failed to have proper regard to the principles in Mill v The Queen (1988) 166 CLR 59;
(ii)Her Honour’s discretion on sentence miscarried on misapprehensions of fact and principle.
Mr T Sharman, who appeared for Mr Brown, was granted leave to amend the grounds of appeal to add:
(iii)Her Honour failed to comply with the obligations imposed by s 66 of the Crimes (Sentencing) Act 2005 (ACT).
Further evidence
Mr Sharman also sought to adduce on the appeal further evidence that had not been before the learned Sentencing Magistrate. Such evidence may be admitted under s 214 of the Magistrates Court Act.
The admission of such evidence is discussed in Grooms v Toohey (2012) 7 ACTLR 1 at 8-12; [35]-[52]. One of the grounds on which such evidence is to be admitted is if it is in the interest of justice. I then set out at 12; [52] the effect of doing so, saying
[if further evidence is admitted] the court must then consider whether a different sentence should, in the light of this further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened. On those proceedings, still further evidence may then be admitted, though often it is not. Some or all of that additional evidence may not have been admissible under s 214(3) or s 214(4), but should have, of course, to be admissible in sentencing proceedings. If, having considered all this evidence and, of course, the evidence before the magistrate, the appellate court considers in the exercise of its independent discretion that no other sentence than that of the Magistrates Court should be imposed, the appeal should be dismissed. If that is not the case, then the appellate court should either remit the proceedings back to the Magistrates Court to be dealt with according to law or should sentence the appellant.
The further evidence in this case consisted of two documents from the Sentence Administration Board which related to alleged breaches of parole orders made in New South Wales but transferred to this jurisdiction.
Mr T Hickey, who appeared for the respondents in the appeal, accepted that it was in the interests of justice to receive these documents and they became exhibits in the appeal hearing.
It was said that the documents present a true picture of Mr Brown’s situation, especially having regard to the NSW sentence recently served by Mr Brown, which the learned Sentencing Magistrate had not been fully aware.
I shall take this evidence into account when considering disposition of the appeal.
Contentions
The first ground of appeal relates to the interaction between the proceedings in NSW involving Mr Brown and the proceedings in the ACT. The following chronology is helpful to make the point:
6 October 2013 Driving whilst disqualified in Civic, ACT.
4 August 2013 After other adjournments, matter adjourned to 15 October 2014.
15 August 2014 Driving whilst disqualified and driving with a prescribed drug in oral fluid in Weetangera, ACT.
14 September 2014 Break and enter with intent to steal in NSW.
25 September 2014 Second ACT offence adjourned to 15 October 2014. Extradited to NSW bail refused.
22 December 2014 Bail granted by Supreme Court, NSW.
23 December 2014 Appeared in ACT Magistrates Court. All charges adjourned to 25 January 2015. Bail granted.
19 February 2015 Possession of a drug of dependence.
10 April 2015 Sentenced in NSW to eight months imprisonment with a non-parole period of four months.
26 June 2015 Released from prison. Parole order transferred to ACT.
13 July 2015 Commenced employment.
18, 25 August 2015 Completed Reversed Drink Driving Program at Karralika.
Unspecified Commenced counselling at Directions ACT.
It was submitted that the intervention of the NSW sentences, which inevitably delayed the sentencing for the earlier committed ACT offences, brought into play the principles about delayed and inter-jurisdictional sentencing as expressed in cases such as Mill v The Queen (1988) 166 CLR 59 at 62-7. That is to say, in the ordinary course of events, Mr Brown would have been sentenced for the ACT 2013 and 2014 offences and the NSW offences at the same time.
In that case, the High Court accepted that the principle of totality it should apply even in the case of interjurisdictional sentencing. The principle, as approved by the High Court was outlined in the seminal text of D A Thomas, Principles of Sentencing (Heinemann: London, 1979) 2nd ed at 56:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate’.
The High Court, after referring to that passage, continued that the principle applied in the situation where an offender commits a number of offences in a short space of time in a number of different jurisdictions but pointed out that its application was then somewhat more complicated. The Court concluded, at 66:
In our opinion, the proper approach which his Honour should have taken was to ask what would be likely to have been the effective head sentence imposed if the applicant had committed all three offences of armed robbery in one jurisdiction and had been sentenced at one time.
Though in that case the offences were all the same offence, armed robbery, the principle is not confined to sentencing for identical offences or even offences occurring with a short space of time or against the one victim. See, for example, Director of Public Prosecutions v Grabovac [1998] 1 VR 664.
The preferable approach to respecting the principle of totality when a court is sentencing an offender for multiple offences is not to reduce individual sentences below what is appropriate, but to partially accumulate the sentences so that the concurrency reduces the total sentence from what would otherwise be beyond appropriate proportionality, as that would afford the principle of totality.
That clearly cannot be achieved in inter-jurisdictional sentences, for there can be no concurrency and, in Mill v The Queen at 67, the High Court accepted that the court would be required to impose a sentence for the offences sentenced later in time which, of itself, failed to reflect the criminality of the offence or offences. Although unfortunate, this is, the Court held, a preferred result to the injustice otherwise caused by the later sentence.
The delay occasioned by the intervening NSW sentence had another consequence. Mr Brown was released from custody for some months on parole before being returned to custody by the current sentence. In the meantime, however, he had undertaken some rehabilitation. Despite the dismissive attitude her Honour took to those efforts, there is no basis in fact or law to discount them and, very properly, counsel for the respondent did not do so in the submissions to me.
As Wood CJ at CL pointed out in Blanco (1999) 106 A Crim R 303 at 306; [16], sentencing following a delay, such as caused by intervening imprisonment, is to take into account, “any demonstrated progress of the offender towards rehabilitation”.
The respondent submitted that the learned Sentencing Magistrate, although not referring to totality or explaining how it was intended to apply, had regard to it.
In this Court, it has been held that the failure of the sentencing court to show, through absence of any reference to the court having taken “a last look at the total just to see whether it looks wrong”, is an error. See Moutrage v Haines [2008] ACTSC 36 at [41]; Arman v Wall [2008] ACTSC 61 at [34]; Rogers v Green [2008] ACTSC 78 at [36]. There does not, of course, need to be an express reference to the term, “totality”: King v Mainey [2008] ACTSC 108 at [24]; Scrivener v Papantaniou [2009] ACTSC 41 at [88].
While making the sentences concurrent is clearly an indication that the learned Sentencing Magistrate adverted to that issue, it is not clear at all that her Honour adverted to any interaction with the NSW sentence. This is particularly relevant for that sentence included a term of imprisonment of three months for driving whilst disqualified which was made wholly concurrent on the sentence for the offence of breaking and entering with intent to steal.
The respondent further submitted that the sentences imposed by the learned Sentencing Magistrate were “rather lenient” when considering that the sentences were made concurrent. That, I apprehend, was submitted with the intention of inviting me to infer that, even if totality in the context of the NSW sentences was not considered, I should not interfere, for no other sentence would be appropriate. See AB v The Queen [1999] 198 CLR 111 at 160.
The sentences themselves show a certain severity. No doubt the record of Mr Brown shows that severity was warranted, given the high number of prior convictions for the same offence. Nevertheless, given that no sentence of imprisonment had previously been imposed (that is until for the NSW offence which, in any event, had been committed after these offences) to impose a sentence that imposed the maximum imprisonment – not the maximum penalty, for that would have included a substantial fine – in both cases (in the first case reduced by one month for the plea of guilty), seems severe.
It is unclear whether the learned Sentencing Magistrate was simply applying the principle of totality when making the sentences concurrent. There seems to be a case for some amelioration of the sentence for the first offence, given the unchallenged explanation he gave for it, and, following Mill v The Queen, that is better done by an appropriate sentence with some accumulation to show that the second offence was additionally culpable.
Turning then to the second ground of appeal, the misapplication of fact and principle to which Mr Brown referred seemed to have two aspects. Both related to the errors made in the course of sentencing.
The first issue was the reference by the learned Sentencing Magistrate to the sequence of offending, as mentioned above (at [59]). Her Honour initially stated that the ACT offence had been committed after Mr Brown had been released from prison for the NSW offences. That, of course, was incorrect, but, had it been the fact, would reasonably have suggested that a greater deterrent sentence was warranted, since imprisonment for an equivalent offence could not be said to have deterred Mr Brown.
That the statement was not accurate, though corrected, also meant that her Honour seems not to have appreciated the fact of delay, the inter-jurisdictional issue and the post-offending steps taken to rehabilitation.
The second matter was the maximum penalty for the offence, also mentioned above (at [70]). This appeared to be based on her Honour’s view that the second ACT offence was being prosecuted as if Mr Brown was a repeat offender. Whether he was or not, he was only charged as a first offender and, of course, a circumstance of aggravation, such as being a repeat offender, must be pleaded in the charge: R v De Simoni (1981) 147 CLR 383 at 389-90.
Mr Sharman submitted that those errors, corrected “on the run”, could lead me to infer that the learned Sentencing Magistrate had proceeded from some false premise when sentencing and that the changes accepted by her, without further thought, would lead me to conclude that the sentences were imposed on a wrong basis.
There is some support for that submission. For example, while the learned Sentencing Magistrate gave a discount for the plea of guilty in the first sentence, no such discount was given for the second sentence and no explanation was given. Further, the sentence initially was one appropriate for a repeat offence which suggests that the sentence to be imposed was affected by the incorrect chronology.
There were competing inferences available. If her Honour considered that it was necessary to increase the sentence for the second offence, then the maximum term of imprisonment left little room to do that, though, of course, the maximum included a significant fine.
Further, there was some basis for leniency in respect of the first offence of driving whilst disqualified, for Mr Brown had told police that he thought his disqualification only applied to NSW. That is a not unreasonable belief, though wrong. His plea meant an acceptance of responsibility for what he had reasonably thought was no offence. That did not apply to the second offence where, having already been charged, he tried to use the same excuse. It is also relevant that, by that time, he had obtained legal representation. Indeed, he had, by the time of the second offence of driving whilst disqualified, pleaded guilty to the first offence.
The final matter represented by the amended appeal ground was the failure of the learned Sentencing Magistrate to have regard to the need to re-set a non-parole period, required under s 66 of the Crimes (Sentencing) Act 2005 (ACT). Indeed, her Honour appeared unaware that there was, because of the transfer, a parole order in the ACT, even though it was mentioned in the Pre-Sentence Report.
This ground was conceded by the respondent. The ground was further related to the totality argument in ground (i) pleaded in the Notice of Appeal, for, despite references to the earlier sentence in the Pre-Sentence Report, and, of course, in the criminal record of Mr Brown, there was no mention of the NSW sentence or its relevance in the sentencing remarks.
Consideration
The further evidence is significant. The material, however, showed that Mr Brown was generally compliant with his parole obligations, though he did continue to use drugs, a not insignificant breach of them. He had attended on his parole officer as required and was compliant with supervision.
It shows also, however, that Mr Brown has not come to terms with the need to confront his drug taking. On the appeal, Mr Sharman suggested that this position had now changed and that, despite his earlier denials referred to above (at [47]), Mr Brown now recognised that his drug use, though he said it was episodic, was an issue for him.
Having regard to the evidence taken as a whole and my analysis above, I do not consider that the same sentence should be imposed. In my view, the whole of the evidence supports a different sentence and a differently structured sentence. That is not a finding that the sentence was manifestly excessive. I do note, however, that in a recent decision I had to consider on appeal, the same learned Sentencing Magistrate had imposed shorter or similar sentences for offences where the offender was a repeat offender and where the offending was arguably more serious. See Bedford v Earle (No 2) [2015] ACTSC 309. There was no pleading of manifest excess in the Notice of Appeal and I do not so find. Certainly there was an error in the failure to set a non-parole period for the sentences and this must be rectified.
It was urged to me that no non-parole period should be set. I am not so persuaded because of the structure of the sentence that I consider should be imposed.
Accordingly, Mr Brown should be re-sentenced.
Re-sentencing
I do not need to repeat the comments I have made about the facts of the offences, Mr Brown’s personal circumstances or the seriousness of the offences.
In my view, some weight needs to be given to the fact that Mr Brown he believed that, while he had been disqualified from holding or obtaining a licence in NSW, this did not apply in this Territory. That is incorrect and he has committed the offence, which is not dependent on his belief. See Richardson v Pullen (1998) 28 MVR 488 at 491. Nevertheless, this belief removes the offence from the contumacious offending that I described in Cotter v Corvisy.
The same, however, cannot be said of the second offence, which was contumacious. Mr Brown had already been charged with the first offence, he had been represented by a lawyer and had pleaded guilty. The inescapable inference is that he knew he had no licence to drive, yet he drove.
I accept that Mr Brown is remorseful. I accept, too, that he had made efforts to address his behaviour and to progress his rehabilitation.
As to the drug offences, I accept that he was, at least, an episodic user of drugs.
I consider that his pleas of guilty to all offences have facilitated the course of justice and entitle Mr Brown to an appropriate discount.
It seems to me that Mr Brown’s employment is an important part of his rehabilitation and, therefore, the protection of the community.
I take into account that, after committing these offences, Mr Brown was sentenced for a serious offence in NSW and also for an offence of driving whilst disqualified in that State. The fact of that sentence must be taken into account though, ultimately it is not enough to avoid a period of imprisonment. How that would be served were I to be sentencing him at first instance and not on appeal is not a matter on which I should speculate.
That there are two serious offences to punish Mr Brown for committing means that I must, and I have, considered the issue of totality. There are no overlapping elements of culpability, but I must ensure that the total of the sentences is appropriate to the total culpability of Mr Brown for them.
I also consider that period of supervision is required to assist Mr Brown to continue with his rehabilitation.
I do not consider that the fines should be altered. They seem to me to be entirely appropriate for the offending.
I have structured the sentence to recognise, in its totality, the seriousness of the total offending in a way that complies with the legislation and recognises the rehabilitation proposed by Mr Brown.
The sentence I propose is that for the first offence of driving whilst disqualified he should be sentenced to two months imprisonment to be served by full-time custody. That is reduced from three months for the plea of guilty.
For the second offence of driving whilst disqualified, he should be sentenced to four months imprisonment to be cumulative on the sentence for the first offence. That is reduced from five months for the plea of guilty. I will direct that the sentence be served by periodic detention for the first three months and then suspended for nine months with a Good Behaviour Order including supervision and, in particular, the capacity for his supervisor to direct him to attend counselling and drug rehabilitation.
I shall confirm the fines. I will direct that, in the light of his employment, which will mean that a licence disqualification will bear more heavily on him that other people not so dependent on their licence, he be disqualified from holding or obtaining a driver licence for three years.
I shall re-set the non-parole period to expire on 30 October 2015.
| I certify that the preceding one hundred and twenty-seven [127] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Chief Justice Refshauge. Associate: Date: 30 October 2015 |
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