Carr v Ockerby & Parr
[2002] TASSC 46
•10 July 2002
[2002] TASSC 46
CITATION: Carr v Ockerby & Parr [2002] TASSC 46
PARTIES: CARR, Dennis Robert
v
OCKERBY, Steven
PARR, Christopher Paul
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 78/2001
LCA 79/2001
LCA 80/2001
DELIVERED ON: 10 July 2002
DELIVERED AT: Hobart
HEARING DATE/S: 4 July 2002
JUDGMENT OF: Underwood J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Factors to be taken into account - Totality principle.
Mill v R (1988) 166 CLR 59, applied.
R v Grabovac (1997) 92 A Crim R 258, followed.
Aust Dig Criminal Law [838]
REPRESENTATION:
Counsel:
Applicant: C J Gibson
Respondent: F C Neasey
Solicitors:
Applicant: Director of Legal Aid
Respondent: Director of Public Prosecutions
Judgment ID Number: [2002] TASSC 46
Number of paragraphs: 14
Serial No 46/2002
File No LCA 78/2002
LCA 79/2002
LCA 80/2002
DENNIS ROBERT CARR v ACTING SERGEANT STEVEN OCKERBY and ACTING SERGEANT CHRISTOPHER PAUL PARR
REASONS FOR JUDGMENT UNDERWOOD J
10 July 2002
The applicant seeks a review of orders of sentence made on three complaints. The complaints, the charges and the orders appear in the table below.
Complaint No Charge Sentence 32409/01 Burglary (1), stealing (1) 6 months' imprisonment on each charge, concurrent to commence on 11 August 2001 32409/01 Stealing (1) 1 month imprisonment concurrent with the sentence imposed on complaint No 51244/01 32409/01 Use unregistered motor vehicle on a public street (3) Fined $100 upon each charge
32409/01 Dishonestly displaying a plate calculated to deceive (3) Fined $250 on each charge 51244/01 Motor vehicle stealing 6 months' imprisonment cumulative upon the sentences imposed for burglary (1) and stealing (1) 32406/01
Drive while disqualified from holding or obtaining a driver's licence (3)
2 months' imprisonment on each charge, each sentence to be served cumulatively to each other, and cumulatively to the other sentences of imprisonment.
The single ground for the application to review those sentences is that they are manifestly excessive. Ms Gibson, who appeared for the applicant, conceded that the circumstances of the offence and the circumstances of the applicant were such that individually the sentences were within the proper exercise of the learned magistrate's sentencing discretion. However, her submission in support of the motion was that insufficient heed was paid to the "totality principle" resulting in an overall manifestly excessive sentence.
All the criminal conduct occurred within the space of a few hours on the morning of 14 July 2001. On three separate occasions that morning, the applicant was seen driving a small Nissan flat-tray truck. This vehicle had been stolen about a fortnight before the applicant committed these offences. At the time the applicant was driving the vehicle, he was not the holder of a driver's licence as he had earlier been disqualified from holding or obtaining a driver's licence. Although there is no suggestion that the applicant was involved in the theft of the truck, he took it and used it as his own on the morning of 14 July. The front registration plate of the truck had been changed and there was no registration plate on the rear. The registration sticker was torn in half and the vehicle identity plate under the bonnet had been removed.
The applicant used this vehicle to drive around the streets of Launceston. Whilst doing this he pulled up behind a parked motor vehicle which was owned by a medical practitioner. The applicant smashed the window of this vehicle and removed the doctor's medical bag and a jacket from inside.
At the time the applicant committed these offences, he was aged 38 years and had an unenviably long record of prior convictions, mostly for crimes of dishonesty. Although, as Mr Neasey who appeared as counsel for the respondent fairly pointed out, all but six occurred before May 1983. Nonetheless, the applicant's very extensive record of prior convictions disentitled him to any mitigation against the imposition of full penalty. No doubt this was why Ms Gibson, quite properly, conceded that viewed individually, the penalties could not be described as manifestly excessive.
In Mill v R (1988) 166 CLR 59, the High Court approved the following proposition from Thomas, Principles of Sentencing, 2nd edn (1979), at 56 - 57:
"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 principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong('); 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences."
In the same decision, the High Court said that where practicable, the totality principle should be applied by making sentences either wholly or partially concurrent. This course was said to be preferred to lowering individual sentences below what would otherwise be appropriate.
In R v Grabovac (1997) 92 A Crim R 258, Ormiston JA explained the rationale behind this proposition in the following terms at 270 - 271:
"The ordinary principles as to cumulation require that the sentencing judge should as far as practicable identify separate events, 'episodes' or 'transactions' giving rise to specific counts or groups of counts and to recognise them by ordering at least a degree of cumulation. This is to avoid the appearance that an offender may commit a series of crimes after the first such crime with effective impunity, if all sentences for a series of unconnected offences were to be served concurrently. Difficulty arises not so much in providing for a degree of cumulation but in having proper regard to the principle of totality and in avoiding the imposition of an inappropriately crushing sentence."
Mr Neasey submitted that in this case, the learned magistrate paid heed to the totality principle and the need to identify separate transactions when he, in effect:
· imposed a sentence of six months' imprisonment for the burglary and stealing of two items from the motor vehicle;
· imposed a sentence of six months' imprisonment for motor vehicle stealing;
· imposed a sentence of six months' imprisonment for driving whilst disqualified;
· imposed fines with respect to the offences of using an unregistered vehicle and dishonestly displaying a plate in a way calculated to deceive.
I think there is substance in that submission, although it might be noted that the sentence for stealing the jacket from the motor vehicle was made concurrent with the sentence for motor vehicle stealing. I suspect that this was an inadvertent error, and the intention was to make it concurrent with the burglary and stealing of the doctor's bag from the motor vehicle, but no ill consequence flowed to the applicant by reason of this.
With respect to the convictions for driving whilst disqualified, it may be noted that in reality there was only one episode of driving. The complaint alleges that the offences occurred at 8.45am, between 10am and 11am and at approximately 11.30am on the morning of 14 July 2001. These times reflect separate sightings by different witnesses of the applicant driving the motor vehicle in the streets of Launceston. In my view, it was, in substance, a single offence, unlike the case where an offender is apprehended driving whilst disqualified and, notwithstanding that apprehension, drives on a later occasion on the same day. That said, the circumstances of the commission of the offences and the antecedents of the applicant were such that it could not be said that a single sentence of six months' imprisonment was outside the range of penalties open to the learned magistrate.
At the end of the day, the question is whether 18 months' imprisonment, together with the fines and licence disqualification, is a manifestly excessive sentence for the totality of the criminal conduct. It is not for this Court to substitute its own view of what an appropriate sentence might be. It is for the applicant to establish that no magistrate acting reasonably and properly instructed as to the law, would have imposed a total sentence of 18 months' imprisonment, together with the fines and disqualification. This proposition is well stated in Whittle v McIntyre [1967] Tas SR (NC 6) at 263:
"An appellant is not entitled to ask the Supreme Court to substitute its opinion for that of the police magistrate. The appeal against sentence is a limited appeal. The Supreme Court can only properly allow an appeal against sentence if it plainly appears that the police magistrate made some error in the exercise of his discretion or that a sentence imposed is so manifestly excessive that it is only explicable upon the view that the police magistrate did err in some way."
Were I exercising my own sentencing discretion at first instance, I would make the sentences for driving whilst disqualified from holding or obtaining a driver's licence cumulative with each other, thereby reducing the overall sentence from 18 months to 14 months. However, it seems to me that to allow the motion to review to that extent is to do no more than tinker with the total sentence, something that this Court should not do. See Aherne v R [1982] Tas R 302 (NC 4); Farrell v R A36/1996. This Court exercises its jurisdiction under the Justices Act 1959, Pt XI, to correct error, and not to substitute its own view of what is an appropriate sentence in the absence of error being first demonstrated.
After careful reflection upon the matter, although the sentences are at the upper range of sentences appropriate to the totality of the criminal conduct, I am unpersuaded that the total sentence reflects some undefined error in the exercise of the sentencing discretion. The applicant has not established that the orders made by the learned magistrate infringed the totality principle. The motion to review is dismissed.