Charles v The Queen

[2021] ACTCA 23

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title: 

Charles v The Queen

Citation: 

[2021] ACTCA 23

Hearing Date: 

10 August 2021

Decision Date: 

10 August 2021

Reasons Date: 

13 September 2021

Before: 

Mossop, Loukas-Karlsson and Thawley JJ

Decision: 

The appeal is dismissed

Catchwords: 

APPEAL – criminal law – sentence appeal – whether sentence manifestly excessive – sentence of imprisonment imposed after cancellation of Drug and Alcohol Treatment Order – aggravated burglary – common assault – obtain property by deception – ride/drive motor vehicle without consent – error not established

Legislation Cited: 

Crimes Act 1900 (ACT) s 26
Criminal Code 2002 (ACT) ss 312, 318(2), 326
Crimes (Sentencing) Act 2005 (ACT) pt 5.4A.5, ss 12A(2), 80W,
80V, 80ZE

Cases Cited: 

Betts v The Queen [2016] HCA 25; 258 CLR 420
Cramp v The Queen [2016] NSWCCA 305
Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
Heard v The Queen [2015] ACTCA 6
House v The King (1936) 55 CLR 499
Hudson v The Queen [2010] VSCA 332; 30 VR 610
Kelly v The Queen [2021] ACTCA 15
Lowndes v The Queen [1999] HCA 29; 195 CLR 665
Markarian v The Queen [2005] HCA 25; 228 CLR 357
R v Charles [2020] ACTSC 39
R v Charles (No 2) [2020] ACTSC 366
R v Tonna (No 2) [2020] ACTSC 362

Re Attorney-General’s Application [No 1] under s 26 of the

Criminal Procedure Act; R v Ponfield [1999] NSWCCA 435; 48
NSWLR 327
Taylor v R [2014] ACTCA 9
Tracey v The Queen [2020] ACTCA 51

Parties: 

Delphine Maree Charles (Appellant)
The Queen (Respondent)

Representation: 

Counsel

Self-represented (Appellant)
K McCann (Respondent)

Solicitors

Self-represented (Appellant)
ACT Director of Public Prosecutions (Respondent)

File Number: 

ACTCA 3 of 2021

Decision under appeal: 

Court/Tribunal:	ACT Supreme Court
Before:	Refshauge AJ
Date of Decision:	21 December 2020
Case Title:	R v Charles (No 2)
Citation:	[2020] ACTSC 366

THE COURT: 

Introduction 

1.       The appellant appeals against orders made by Refshauge AJ (the primary judge) on 21 December 2020 cancelling a Drug and Alcohol Treatment Order (DATO) and imposing a sentence of full-time imprisonment; that sentence being of 1 year, 11 months and 4 days commencing on 11 September 2020 and expiring on 14 August 2022. A non-parole period of 13 months was imposed: R v Charles (No 2) [2020] ACTSC 366 (R v Charles (No 2)).

2.       On 10 August 2021 the Court made an order dismissing the appeal.

3.       The Court indicated at that time that reasons would be published at a later date. The reasons follow.

4.       The appellant appeals against the sentence on the basis that it was manifestly excessive. The appellant is self-represented and has provided a letter to the court. The appellant does not challenge the cancellation of the DATO, but rather the term of imprisonment imposed.

5.       The appellant has attached various support letters and certificates of programs completed after her sentence was imposed including: certificates of attendance from

the “Kicking the Urge”, “Understanding Stress, Anxiety and Depression”, “Safety Boxes for Relapse Prevention”, and “Problem Solving” modules from the Pathways

from Prison Program; a certificate of achievement of an Anger Management Program; certificates of attendance for weeks one and two of the Understanding Domestic Violence Program; and a letter from Ms Keed from the Elders Healing Program.

6.       The respondent submitted the additional material was not admissible and should not be treated as further evidence on the appeal. Nevertheless, that material would, however, be admissible on the "usual contingent" if the appeal was allowed, and a re- sentence occurred: Betts v The Queen [2016] HCA 25; 258 CLR 420.

Background

7.       The appellant was sentenced by Walker AJ on 7 February 2020: R v Charles [2020] ACTSC 39 (R v Charles). The appellant was sentenced with respect to the following offences:

(a) Offences committed on 30 June 2019:

(1)	Ride/drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code 2002 (ACT) (Criminal Code). This offence carries a maximum penalty of 5 years imprisonment, a fine of $80,000.00 (500 PU) or both; and
(2)	Obtain property by deception, contrary to s 326 of the Criminal Code. This offence carries a maximum penalty of 10 years imprisonment, a fine of $160,000.00 (1,000 PU) or both.

(b) Offences committed on 10 July 2019:

(1)	Aggravated burglary, contrary to s 312 of the Criminal Code. This offence carries a maximum penalty of 20 years imprisonment, a fine of $320,000.00 (2,000 PU) or both; and
(2)	Two charges of common assault, contrary to s 26 of the Crimes Act 1900 (ACT) (Crimes Act). This offence carries a maximum penalty of 2 years imprisonment.

(c) Offences committed on 8 September 2019:

(1) Ride/drive motor vehicle without consent contrary to s 318(2) of the Criminal Code. This offence carries a maximum penalty of 5 years imprisonment, a fine of $80,000.00 (500 PU) or both.

8. Pursuant to s 12A(2) of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the appellant was sentenced to a term of imprisonment with the imposition of a DATO. The custodial portion of the sentence was a total term of 25 months imprisonment which was comprised of a number of matters set out in the following table:

Offence Maximum Penalty Sentence Imposed

Offences on 30 June 2019

Ride/drive motor vehicle

without consent, contrary 5 years imprisonment

3 months imprisonment

to s 318(2) of the Criminal	and/or fine of $80,000
Code
Obtain property by	3 months imprisonment,

10 years imprisonment

deception, contrary to s concurrent as to 1 month (total

and/or fine of $160,000

326 of the Criminal Code of 4 months)

Offences on 10 July 2019

Aggravated burglary,

20 years imprisonment

contrary to s 312 of the 18 months imprisonment

and/or fine of $320,000

Criminal Code

Common Assault,

contrary to s 26 of the	2 years imprisonment	3 months imprisonment
Crimes Act
Common Assault,	2 years imprisonment	3 months imprisonment
Ride/drive motor vehicle
without consent, contrary	5 years imprisonment	3 months imprisonment, to be
to s 318(2) of the Criminal	and/or fine of $80,000	served consecutively
Code

9.       The term of imprisonment commenced on 29 October 2019 to be completed on 28 November 2021. The sentence was suspended from 7 February 2020, upon the appellant having agreed to enter into a treatment program. The total sentence was backdated by 101 days to reflect the appellant's period of pre-sentence custody: R v Charles at [30]. The treatment and supervision component of the sentence was for a period of 12 months, with a good behaviour order imposed for the remaining 13 months: s 80V Sentencing Act; R v Charles at [30]-[32].

10.     Following the appellant's unsatisfactory compliance with the conditions of the DATO, the Crown made an application for its cancellation: R v Charles (No 2) at [30]-[32]. On 21 December 2020, the primary judge cancelled the DATO and imposed the sentence of imprisonment: pt 5.4A.5; s 80W; s 80ZE Sentencing Act. That period was reduced by 57 days to account for the periods the appellant spent in custody: R v Charles (No 2) at [7]-[29]. The appellant did not oppose the cancellation of the DATO: R v Charles (No 2) at [46]; T4.16ff (21 December 2020). The primary judge imposed a total sentence of 1 year, 11 months and 4 days commencing on 11 September 2020 and ending on 14 August 2022. A non-parole period of 13 months was set, commencing 11 September 2020 and ending on 10 October 2021.

Appellant’s Letter

11.     As stated above, the appellant provided a letter to the court prior to the hearing, which included the following:

I Miss Delphine Charles am writing in support of my appeal against the judges sentencing decision and I am seeking a reduction of this sentence.

I am an Aboriginal woman and a mother of seven children.

I’ve been stuck with the disease of addiction which I’ve been trying to keep under control

for a number of years now. I [was] recently sent to a rehab centre, the Weigelli Centre in

Cowra NSW. I feel that I had made progress whilst I was there.

…

I feel that the sentence handed down to me should’ve been reduced as the time I was in rehab wasn’t taken into account and I believe that I have [been] harshly dealt with by Justice Refshauge as I haven’t reoffended for over 12 months.

I just need help with my addiction, because it’s not something you can just stop it takes time to change. I was asking for help but it wasn’t quick enough for Justice Refshauge and

I feel I was unfairly judged by him.

I’m asking the Court today to look at this in a cultural view as I have come from a broken

home. Both my parents were alcoholics and I grew up watching them drink and my mother

get bashed all the time on the mission we lived on.

…

My time at the AMC has been proactive doing courses and programs to help with my addiction, and domestic violence. I also have a job in the baker 2 days a week which I have

enjoyed as I’ve never had a job before it feels great to be productive and competent within

myself.

Oral Submissions

12.     At the hearing of the appeal, the appellant handed up a further letter to the Court, which was treated by the Court as being further written submissions and has been read and taken into account. In summary, the further letter contained the following submissions:

(a)	The appellant is a proud Aboriginal woman who has experienced significant hardship and struggles with addiction since she was a child. The appellant wants to break the cycle of addiction.
(b)	The appellant has been in custody at the AMC for the past 8 months, and is becoming a better person every day, and a stronger person for her children.
(c)	The appellant was proud of the progress that she made while in rehabilitation and felt that it was not properly taken into consideration by the primary judge.
(d)	The appellant wishes to have her sentence reduced due to the time that she spent in rehabilitation while she was subject to her DATO.

13.     The appellant submitted that she wished to be recognised for the time that she had spent at the Weigelli rehabilitation facility, which she believed should have been accounted for when her time in custody was calculated at her resentence by the primary judge (T3.8-30).

14. In response to this discrete issue, counsel for the respondent submitted that this had been dealt with by the primary judge in his reasons at [40]. It was submitted that the

primary judge had taken the appellant’s attempt at rehabilitation into account by

reducing the length of the non-parole period which was to be imposed. Counsel for the respondent submitted that this was an appropriate course for the primary judge to take (T4.20-40). It was submitted that the non-parole period which the primary judge imposed was approximately 50 per cent, whereas a non-parole period of 65 to 70 per cent may have been warranted for the appellant in light of her criminal history (T5.19- 45; 6.1-14).

Consideration

15.     The single ground on this appeal asserts error in the nature of an “unreasonable or plainly unjust” sentence see: House v The King (1936) 55 CLR 499 (House v The

King); Kelly v The Queen [2021] ACTCA 15 (Kelly v The Queen) at [42]-[43]. Manifest excess is of course, a conclusion which does not depend upon attribution of identified specific error in the reasoning of the primary judge: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale v The Queen). The principles relating to a claim of manifest excess are well known, and recently summarised by the Court of Appeal in Tracey v The Queen [2020] ACTCA 51 at [37]-[38]:

The principles in relation to assessing whether a sentence is manifestly excessive are well- established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the

appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and

how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili
at [58]–[59], [75]–[76].

To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

(emphasis added)

16.    This Court’s task is not to decide whether it would have exercised its discretion

differently: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Dinsdale v
The Queen at [57]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28].

17.     The process of instinctive synthesis will produce outcomes upon which reasonable minds will differ: Hudson v The Queen [2010] VSCA 332; 30 VR 610 at [27]. As the High Court has on many occasions stated, consideration of such a ground is undertaken in the context of there being no single correct sentence, and that sentencing is not a mathematical exercise. Accordingly, sentencing judges are allowed as much flexibility as is consonant with consistency of approach and applicable sentencing principle: Cramp v The Queen [2016] NSWCCA 305 at [41]; Kelly v The Queen at [42].

18.     The appellant does not appeal against the cancellation of the DATO. The primary judge was satisfied the appellant was "unwilling or unlikely to comply with a condition" of her DATO. The primary judge therefore cancelled the order. Section 80ZE(2) of the Sentencing Act then required the primary judge to either impose the sentence of imprisonment, or re-sentence the appellant. Section 80ZE(2) and (3) relevantly provide:

80ZE Cancellation of treatment order—unsatisfactory circumstances

…

(2) If the court decides to cancel a treatment order under subsection (1) the court must make an order cancelling the treatment order and, taking into account the extent to which the offender has complied with the treatment and supervision

part of the order, either —

(a) impose the sentence of imprisonment that was suspended under the

custodial part of the treatment order; or

(b) if the court considers it appropriate in the circumstances—resentence the offender for each offence in relation to which the treatment order was made and in any way in which the court could deal with the offender if it had convicted the offender of each offence at the time of resentencing, other than by making an order under section 12A (Drug and alcohol treatment orders).

(3) If the court orders the imposition of a sentence of imprisonment under this

section, the court—

(a) must order whether the offender is to serve all or part of the sentence by

full-time detention at a correctional centre; and

(b) may reduce the sentence by any period served in custody under the treatment and supervision part of the treatment order, taking into account the extent to which the offender complied with that part of the order.

(emphasis added)

19.     There was a further period of 57 days that the appellant spent in custody, which was taken into account. The primary judge proceeded in accordance with s 80ZE(2)(a) and imposed the term of imprisonment. This approach on the part of the primary judge was entirely appropriate.

20.     In our view, neither the individual nor total sentence can be said to be manifestly excessive having regard to the nature and circumstances of the offending, the appellant's criminal history and the purposes of sentencing.

21.     It is appropriate to deal with objective seriousness. The most serious offence was the aggravated burglary. There were associated offences of common assault. The offence of aggravated burglary is regarded as serious which is reflected in the applicable maximum penalty. The nature of the offending in this case was not only the violation of a person's privacy and security of their home, but also of physical wellbeing and safety: Re Attorney-General 's Application [No 1] under s 26 of the Criminal Procedure Act; R v Ponfield [1999] NSWCCA 435; 48 NSWLR 327 at [45]- [47]. The offences involved the infliction of violence. This included a kick to the back of the head of one person, and a closed fist punch to another. Whilst the offences would not be regarded as the most serious example of offending of this type, it was nonetheless objectively serious.

22.     It was noted by the primary judge that the appellant's criminal history was extensive and included similar offending: R v Charles (No 2) at [10] referencing the comments of Walker AJ in R v Charles at [17]. That history extended back to 1996 in both the ACT and NSW and included an extensive history of dishonesty offences involving stolen motor vehicles, theft, and obtaining property or financial advantage by deception. The appellant's history also included numerous offences of violence including common assault and stalking, as well as numerous drug and alcohol related offences.

23.     Importantly, the primary judge noted the appellant's criminal history and failure to

comply with the DATO needed to be considered in the context of the appellant’s

significantly disadvantaged upbringing and early involvement in the criminal justice system, as well as her early drug use. The mitigating effect however, of the appellant's background, needed to be balanced against the need for adequate punishment, denunciation, protection of the community, and deterrence.

24.     In terms of determining whether to impose the sentence, or re-sentence pursuant to s 80ZE of the Sentencing Act, the primary judge was required to take into account "... the extent to which the offender has complied with the treatment and supervision part of the order": s 80ZE(2) Sentencing Act. Further, in determining whether to re- sentence it was relevant to consider the length of time between the imposition of the order and the cancellation, the extent of the appellant's efforts towards her rehabilitation, and whether there was any significant and relevant change in circumstances which might justify re-sentencing: R v Tonna (No 2) [2020] ACTSC 362 at [77]-[79].

25.    The primary judge noted, the appellant's compliance with her DATO was limited through her use of illicit substances and failure to comply with treatment options made available to her.

26.    Taking into account the objective seriousness of the offending, the appellant's criminal history, and the applicable purposes of sentencing, it cannot be said the imposition of the sentence, and the length of the sentence was beyond the range available on proper application of principle.

Non-parole period

27.     In relation to the non-parole period, the primary judge set a period of 13 months, representing approximately 56 per cent of the head sentence. It is accepted that the setting of the non-parole period is the minimum that the judge considers appropriate for the offender to serve for the offences, and there should be an appropriate relationship between the head sentence and the non-parole period, which is to be determined within a broad discretion. As stated in Heard v The Queen [2015] ACTCA 6 at [51], a non-parole period is not to be reduced to some mathematical formula or assessed by reference to a norm or usual ratio to the head sentence. A sentencing judge takes into account all of the considerations which are relevant to the setting of the head sentence. Nevertheless, the weight attached to these factors and the way in which they are relevant will differ. An offender's prospects of rehabilitation is given significant weight in the determination of a non-parole period.

28.     The non-parole period of 13 months cannot be said to be manifestly excessive. It was justified having regard to the principles expressed in Taylor v R [2014] ACTCA 9 at [18]-[19]. The primary judge took into account the appellant's subjective circumstances. Notwithstanding her guarded prospects for rehabilitation, the primary judge expressly gave the appellant credit for her expressions of willingness and attempts to rehabilitate herself and reflected this by reducing the non-parole period: R

v Charles (No 2) at [51]. Having regard to the primary judge’s careful consideration of

the relevant principles and facts in setting the non-parole period, it cannot be said the
sentence imposed was manifestly excessive in all the circumstances.

29.     Relevantly, the primary judge stated at [49]-[51]:

It was submitted that her period in Weigelli might justify a re-sentencing. However, in my view, the period that she spent there, the results from when she returned to the community that showed it was not effective to protect her from relapsing, means that it would not justify a change in the original sentence. Despite the progress made at Weigelli, I do not

consider that it justifies a change in the sentence, particularly as it was apparently so ineffective in achieving a lasting change, as shown by the subsequent conduct of Ms Charles. It does seem to me, however, that it justifies a moderation of the non- parole period.

Accordingly, I will impose the same sentence. That sentence, however, may, under s 80ZE(3)(b) of the Sentencing Act, be reduced by any period in custody that Ms Charles has served under the treatment and supervision part of the Treatment Order. Ms Charles has now served 57 days in custody. There is no reason why I should not reduce the sentence accordingly. Since the sentence is one of more than 12 months' imprisonment, I am obliged, under s 65 of the Sentencing Act, to consider setting a non-parole period. I do not know of any reason not to do so and will set such a period.

Indeed, as noted above, while I have considerable reservations about the ability or willingness of Ms Charles to actually comply with her continued assertion of a desire to rehabilitate, I am satisfied that she is to be given some credit for the success she had

made in the Weigelli program. I consider that it can be addressed by reduction of

the non-parole period.

(emphasis added)

30.     In conclusion, on a sentence appeal on the basis of manifest excess of sentence, the task of an appellant is difficult. This is because a sentence will not be disturbed only for the reason that members of the Court of Appeal may have taken a more lenient view of the case than the primary judge. As House v The King makes clear, something more must be demonstrated that warrants appellate intervention.

31.    In our view, no error has been demonstrated. The sentence is not manifestly excessive.

Conclusion

32.    For those reasons, the appeal was dismissed and the sentence imposed by the primary judge confirmed.

Orders

33.     The appeal is dismissed.

I certify that the preceding thirty-three [33] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Loukas-Karlsson and Justice Thawley.

Associate:

Date: 13 September 2021