Craft v Diebert
[2004] ACTCA 15
•12 August 2004
DAVID LEE CRAFT v NEVILLE WILLIAM DIEBERT [2004] ACTCA 15 (12 August 2004)
CRIMINAL LAW – sentencing – discretion provide by s 4 of the Periodic Detention Act –whether constrained by direction in s 345 of the Crimes Act not to pass sentence of imprisonment unless no other penalty is appropriate – relevance of other statutory provisions concerning sentencing – general principles.
Crimes Act 1900 (ACT), ss 341, 342, 343, 344, 345, 375, 403
Periodic Detention Act 1995 (ACT), ss 3, 4
Rehabilitation of Offenders (Interim) Act 2001 (ACT), s 6
Drugs of Dependence Act 1989 (ACT), ss 162(3), 169(1)
Magistrates Court Act 1930 (ACT), ss 207, 208, 214, 218
Supreme Court Act 1933 (ACT), ss 37E, 37O
Federal Court of Australia Act 1976 (Cth), s 24
Family Law Act 1975 (Cth)
R v Sinclair (1990) 51 A Crim R 418
R v Tilley (1991) 53 A Crim R 1
Dinsdale v R (2000) 202 CLR 321
House v R (1936) 55 CLR 499
R v Tait (1979) 46 FLR 386
Western Australia v Ward (2002) 191 ALR 1
Petreski v Cargill (1987) 18 FCR 68
Duralla Pty Ltd v Plant (1984) 2 FCR 342
CDJ v VAJ (1998) 197 CLR 172
Allesch v Maunz (2000) 203 CLR 172
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 56-2003
No. SCA 69 of 2003
Judges: Crispin P, Connolly and French JJ
Court of Appeal of the Australian Capital Territory
Date: 12 August 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 56-2003
) No. SCA 69 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID LEE CRAFT
Appellant
AND:NEVILLE WILLIAM DIEBERT
Respondent
ORDER
Judges: Crispin P, Connolly and French JJ
Date: 12 August 2004
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed.
The periodic detention order imposed by the Supreme Court on 12 December 2003 be set aside with effect from today.
The respondent serve the balance of the term of imprisonment imposed upon him by the learned magistrate after allowing credit for:
(i) the time actually served prior to the Supreme Court’s periodic detention order made on 12 December 2003;
(ii) the number of weeks in which the respondent has served periodic detention pursuant to the order of the Supreme Court made on 12 December 2003.
The parties have liberty to apply for any supplementary orders necessary to clarify or give effect to the preceding orders.
IN THE SUPREME COURT OF THE ) No. ACTCA 56-2003
) No. SCA 69 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID LEE CRAFT
Appellant
AND:NEVILLE WILLIAM DIEBERT
Respondent
Judges:Crispin P, Connolly and French JJ
Date: 12 August 2004
Place: Canberra
REASONS FOR JUDGMENT
CRISPIN P and CONNOLLY J:
We agree with French J that the appeal should be allowed and with the orders proposed. We are also in broad agreement with his Honour’s reasons for judgment. However, we have taken a somewhat different view of the manner in which the relevant statutory provisions should guide the exercise of sentencing discretion.
The more general provisions are contained in Pt 15 of the Crimes Act 1900 (ACT) (the “Crimes Act”). Section 341 defines the purposes of sentencing, s 342 stipulates the matters to which a court must have regard, s 343 deals with victim impact statements and s 344 provides that certain matters should not be taken into account. These sections are followed by s 345, subs (1) of which is in the following terms:
1. A court shall not pass a sentence of imprisonment on any person for an offence against a Territory law unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.
The power to impose a sentence of periodic detention is not derived from the Crimes Act but from s 4 of the Periodic Detention Act 1995 (ACT) (the “Periodic Detention Act”), the relevant portions of which are as follows:
(1) A court—
(a)which convicts a person of an offence against a law of the Territory; and
(b)which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months;
may, instead of sentencing the person to imprisonment, by order—
(c)sentence the person to complete such number of detention periods at a detention centre, as the court specifies; and
(d)direct that the person be released from custody subject to any order that may be made under section 10 (2).
(2) The number of detention periods that a person may be required to serve under an order shall be calculated at the rate of 1 detention period for each week of the term of imprisonment to which the person would otherwise have been sentenced.
It is not easy to deduce a coherent legislative scheme from these provisions, however a number of principles seem clear.
First, the sentencing judge or magistrate must begin by determining the appropriate sentence for the offence, having regard to the purposes for which sentences may be imposed as specified in s 341 and the matters which must be taken into account by virtue of ss 342, 343, and 345 of the Crimes Act but without taking into account the possibility of a sentence of periodic detention pursuant to s 4 of the Periodic Detention Act, or a sentence of home detention pursuant to s 6 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT).
Second, if the proper application of sentencing discretion has led the judge or magistrate to conclude that, in the absence of any option of sentencing the offender to periodic detention, a sentence of a term of imprisonment of not less than 3 months nor more than 24 months would be the only appropriate penalty, he or she must then consider the option provided by s 4 of the Periodic Detention Act. The fact that a judge or magistrate has formed a prima facie view that a term of imprisonment of this magnitude is required enables, rather than precludes, the exercise of the discretion so provided. Although a different threshold applies, being imprisonment for a period of no more than 18 months, the same can be said of the discretion for home detention.
Third, the discretion is constrained by the provision in s 345 of the Crimes Act prohibiting courts from passing sentences of imprisonment unless the Court “after having considered all other available penalties” is satisfied that “no other penalty” is appropriate in all the circumstances of the case. The fact that the judge or magistrate has already concluded that, absent any consideration of the alternative of periodic detention, no other penalty would be appropriate, does not absolve him or her from the further duty of reconsidering the application of s 345 in the context of the discretion provided by s 4 of the Periodic Detention Act, or the relevant discretion in relation to home detention.
Fourth, in exercising that second discretion, the judge or magistrate is not constrained by the provisions of s 342 but may have regard to such matters as it considers appropriate: see s 6(2) of the Periodic Detention Act.
In this case, as his Honour observed, the respondent suffered from clinical depression and was the primary carer of a teenage son with attention deficit hyperactivity disorder. Mr Refshauge SC argued that issues of this kind should be considered only in exceptional cases. Whilst acknowledging that s 342(1)(j) of the Crimes Act required sentencing judges or magistrates to have regard to “the probable effect that any sentence or order under consideration would have on any of the person’s family or dependents”, he submitted that it would be appropriate for this Court to follow the decision of the Western Australia Court of Criminal Appeal in R vSinclair (1990) 51 A Crim R 418 at 430. This decision suggested that a similar provision in the Commonwealth Crimes Act was not intended to change the common law principle that the effect on dependents would not be taken into account save in exceptional circumstances. With very great respect to their Honours, we must say that we are quite unable to accept that a legislative requirement to take such a factor into account can be transliterated into a prima facie requirement to ignore it merely because that would reflect the approach previously recognised at common law. A similar issue arose for consideration by the Queensland Court of Criminal Appeal in the subsequent case of R vTilley (1991) 53 A Crim R 1 at 3 where, after referring to the aspects of retribution, deterrence and rehabilitation, Thomas J referred to the hardship that would result if the respondent were to be parted from her two and a half year old daughter and explained:
Courts, of course, take account of such matters in a number of ways but are not overwhelmed by them. It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may mean the temporary loss of a mother. It is common that hardship and stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. . . .
If we may say so, with respect, his Honour’s remarks reflect the sad but not uncommon experience of sentencing judges and magistrates. All too often the need to adequately punish the offender and to deter other like minded people from committing similar offences leaves little, if any, scope for leniency based upon the adverse effect of the sentence upon the offender’s children and/or other dependents. In that sense it might, perhaps, be said that this factor will have a significant impact upon sentencing for very serious offences only in exceptional cases. However, such an observation should not be misconstrued as a legal principle which, in our opinion, could not be accommodated within the language of s 342 of the Crimes Act, let alone the perhaps more broad discretion provided by s 6 of the Periodic Detention Act.
In the present case, Gray J was left with the impression that the learned magistrate had approached the matter by concluding that a sentence of imprisonment was warranted and assuming that this conclusion had made it unnecessary to consider whether it might be appropriate to exercise the further discretion provided by s 4 of the Periodic Detention Act. We agree with his Honour that such an approach would have been wholly inadequate. However, having had the benefit of further argument on this point, we would not construe her Worship’s remarks in this manner. We agree with French J that appealable error was not demonstrated.
I certify that the preceding paragraphs numbered one (1) to eleven (11) are a true copy of the Reasons for Judgment herein of their Honours President Crispin and Justice Connolly.
Associate:
Date: 12 August 2004
IN THE SUPREME COURT OF THE ) No. ACTCA 56-2003
) No. SCA 69 of 2003
AUSTRALIAN CAPITAL TERRITORY )
)
COURT OF APPEAL )
ON APPEAL FROM A JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID LEE CRAFT
Appellant
AND:NEVILLE WILLIAM DIEBERT
Respondent
Judges:Crispin P, Connolly and French JJ
Date: 12 August 2004
Place: Canberra
REASONS FOR JUDGMENT
FRENCH J:
Introduction
Neville William Diebert was sentenced in the Australian Capital Territory Magistrates Court on 15 October 2003 for a term of 18 months imprisonment with a direction that he be released after he had served 12 months of that sentence upon his own recognisance to be of good behaviour and to comply with other specified conditions. The sentence was imposed in respect of his conviction for cultivating cannabis for the purpose of its sale or supply to another person. He was also sentenced to a concurrent term of one month’s imprisonment for the offence of being in possession of methamphetamine.
On appeal to the Supreme Court, Mr Diebert’s sentence was set aside and an order made instead that he serve 64 weeks periodic detention at 2 days per week. The Crown has appealed against the decision of the Supreme Court.
For the reasons set out below, in my opinion, it was not shown that the Magistrates Court erred. The appeal should be allowed, the periodic detention order set aside with effect from today and the sentence imposed by the Magistrates Court served out allowing credit for time served before the periodic detention order and for the number of weeks in which periodic detention has been served to date as though they were full weeks served.
Factual and Procedural History - Arrest, Conviction and Sentence
Neville William Diebert is a motor mechanic who was born on 12 October 1962 in Barallan in New South Wales. He was married for 14 years until 2000 when he and his wife separated. They had been in a relationship for ten years before they were married. There are four children of their union.
On 25 August 2003, Mr Diebert was convicted in the Australian Capital Territory Magistrates Court of the following offences:
1.‘That he in the Australian Capital Territory on 5 January 2003 did cultivate a prohibited plant, to wit, 114 cannabis plants, for the purpose of sale/supply to another person.’ (In contravention of s 162(3) of the Drugs of Dependence Act 1989 (ACT).
2.‘That he in the Australian Capital Territory on 5 January 2003 did possess a drug of dependence, to wit, methamphetamine’ (In contravention of s 169(1) of the Drugs of Dependence Act 1989 (ACT)).
The magistrate’s reasons for convicting Mr Diebert focussed upon her findings of fact which included references to the evidence that had been led before her but did not outline or summarise that evidence. It appears, however, that on 5 January 2003 police executed a search warrant on a warehouse located at 26 Raws Crescent, Hume. Inside the warehouse they discovered a crop of cannabis which comprised 48 semi-mature plants being grown hydroponically and 66 seedlings individually placed in small foam blocks. The infrastructure for the hydroponic system included lights, fans, transformers, pots, wiring, plastic lining, a deodorising fan and an ozone generator. The weight of the cannabis plants seized was later found to be about 69 kilograms.
Mr Diebert, having been cautioned at the scene, made admissions that he owned and had cultivated the plants. He was arrested and taken into custody. When searched at the City Watchhouse he was found to be in possession of a small quantity of methamphetamine.
The learned magistrate described the arrangements at the warehouse as ‘a large scale hydroponic set up’. She rejected Mr Diebert’s evidence that all of the cannabis was for his own use. She also rejected his evidence that on average he would consume 50 to 60 or more water pipes or bongs of cannabis a day apparently unnoticed by family and work associates.
At the close of the hearing, and having convicted Mr Diebert, her Worship sought a pre-sentence report. She released Mr Diebert on bail.
Mr Diebert had a number of criminal convictions to his name. Most of those related to traffic offences. However, in January 1987 he had been convicted of cultivating a prohibited plant, namely Indian hemp in Canberra. He was also convicted of a similar offence in the same month in a New South Wales court in respect of an offence committed in New South Wales.
A pre-sentence report was prepared by an officer of the ACT Corrective Services on 3 October 2003. The report was broken up into a number of sections each with its own heading. Under the heading ‘Social History and Background’ it noted that since the offence Mr Diebert had taken responsibility as the primary carer for his youngest child, a 15-year-old boy who, it was said, suffers from Attention Deficit Hyperactivity Disorder (ADHD) and attends special needs classes at a local college. The report stated that the college had reported that there had been a dramatic improvement to the son’s attendance and that this had been attributed to Mr Diebert’s attention to and influence on his son.
The pre-sentence report disclosed that Mr Diebert, at the time, was in receipt of a sole parent benefit of $443.00 per fortnight. He owned a car, motorcycle, household and personal belongings. He reported savings of about $2,000 and had no outstanding debts or fines.
Referring to Mr Diebert’s drug and alcohol history the report stated that he had used cannabis since age 12 and alcohol from age 16. He appeared to have used cannabis extensively over an extended period of time and had reported smoking large quantities seven days a week for 25 years. He admitted to infrequent use of other drugs. He claimed to have abstained from cannabis or other drug use for the seven months pre-dating the report. He had successfully completed the Effective Weed Control Program in September 2003 and was described as an enthusiastic participant and an advocate to younger participants about the shortcomings of the long-term use of cannabis. He had also undertaken group therapy sessions with a drug and alcohol counsellor.
The pre-sentence report indicated an extensive history of mental health concerns. Mr Diebert had said he had been assessed several times by mental health professionals. He said he was a chronic sufferer of anxiety, depression, tearfulness and sleep problems. He also reported that he had had one stress breakdown. He began consulting a psychiatrist in July 2002 who confirmed that he had a long history of clinical depression which initially responded well to medication. Mr Diebert ceased to consult the psychiatrist from August 2002 until July 2003. He last consulted him on 1 September 2003. The psychiatrist confirmed that he is currently prescribed Lithium and Avenzia for depression.
The reporting officer said that Mr Diebert had accepted responsibility for his offence but he still maintained that the crop was for his own use. He claimed that although he knew it was wrong it was a more economically feasible means of supplying his own needs rather than buying cannabis. He also claimed to have periodically grown large quantities which had lasted him for years. These claims had been rejected by the learned magistrate. She had found that the cannabis under cultivation was prepared for sale. The authorised officer reported Mr Diebert as representing a low/medium risk of re-offending. It was said to be of concern that Mr Diebert had two prior convictions for cultivation of cannabis and one prior conviction for possession of a prohibited plant.
Also presented to the Court in connection with Mr Diebert’s sentencing was a reference from his employer. The employer confirmed that Mr Diebert had been working in his business for a little over five months. Initially he started working for one day a week and by the date of the reference, 7 August 2003, he was working three days a week. His employer described him as ‘... a great asset to the everyday running of my business’. He was said to have shown more and more enthusiasm for his position as a team player. Since his son had come into his care he had ‘shown great responsibility’. His employer expressed the hope that Mr Diebert’s ongoing employment with his company would result in a long term working relationship. He wrote:
‘I have no hesitation in recommending Neville Diebert personally and work wise. I was saddened greatly when Neville informed me of the charges against him as this was a total surprise to myself. But still taking this into consideration and from what I have seen of Neville’s working performance and personal attitude he would be a great asset to any organisation.’ (sic)
The learned magistrate sentenced Mr Diebert, on 15 October 2003. In respect of the charge of cultivation of cannabis she imposed a term of 18 months imprisonment but directed that Mr Diebert be released after he had served 12 months of that sentence provided he gave a personal recognisance in the sum of $2,000:
‘1. That he would be of good behaviour for a period of 18 months from that date.
2. That he would, during the period of 12 months, be subject to the supervision on probation by the Director of ACT Corrective Services or his delegate and obey all reasonable directions of each of those persons.
3. That he attend, participate in and complete any programs, therapy and counselling that he is directed to.
4. That he provide random urine samples as directed.’
On the offence of possession of methamphetamine, he was sentenced to one month’s imprisonment concurrent with the sentence imposed in respect of the cultivation charge.
At the sentencing hearing, evidence was led for the Director of Public Prosecutions from a Detective Sergeant of Police who offered various estimates of the street value of the plants. These varied from $600,000 on the assumption that the plants had grown to maturity, were harvested and the proceeds sold by the gram, to $253,000 had the harvested heads been sold in ounce lots and $120,000 had the cannabis grown to maturity and been sold in kilogram lots. He put a figure of $96,000 for the wholesale value of the 48 semi-mature plants had they matured.
The Reasons for Decision of the ACT Magistrates Court
In her sentencing remarks the learned magistrate referred to evidence, which she evidently accepted, that the cultivation infrastructure used by Mr Diebert was ‘the largest hydroponics system’ which had ever been encountered by the police witnesses. She described it as ‘... a large system that consumed considerable amounts of electricity and would provide far more cannabis than one would ordinarily imagine that any one individual could consume’. She also observed that an offence of such a nature called for a deterrent penalty and a term of imprisonment. The evidence established that Mr Diebert was involved in a significant operation of a commercial character. She referred to the pre-sentence report and the fact that Mr Diebert maintained the claim that he was cultivating the cannabis purely for his own use. Her Worship said:
‘Because of his unwillingness to be totally frank, it is difficult for me to say that there were any mitigating circumstances revolving around his involvement.’
She regarded his prior record as not so significant, although he had two offences ‘for possession of cannabis’, presumably for personal use.
Her Worship referred to ‘mental health issues’ which Mr Diebert faced. She said she took them into account ‘very much’. She referred to his part time employment and the likely effect upon that employment of his imprisonment. She took into account, she said, ‘very much’ that Mr Diebert had been a very positive influence in his son’s life. She acknowledged that the pre-sentence report made it clear that his involvement in his son’s education and background had been an important factor. She hoped that his son would not be left to fend for himself without parental supervision or support. Mr Diebert’s counsel had mentioned the existence of an older sister. The case law again made it clear that such factors were generally not to be given ‘much weight’. Her Worship said:
‘Part of the price to pay when committing an offence, is that imprisonment does involve hardship on the defendant’s family and generally cannot be one of the factors which can affect what would otherwise be the just and appropriate penalty.’
Her Worship acknowledged that Mr Diebert had, over the previous six or seven months, attempted to rehabilitate himself from his drug addiction but that was only part of his problem because, in her opinion, the crop had been grown for much more than simply his own use. She said:
‘The difficulty I have, of course is that deterrent and particularly general deterrence, is by far the overwhelming aspect of punishment in cases of this kind. I do not ignore the others, clearly denunciation of the crime and an indication that the community does not condone them in any way is also relevant.’
Her Worship treated with some scepticism the evidence which had been led about the expected profit to be made. She said it depended very much upon whether the plants were sold immediately, or sold later and whether they were actually harvested and the plant head used. She referred again to the sophistication of the operation. She referred also to the maximum penalty on conviction of ten years and the limit of two years on her sentencing authority as a magistrate. She then said in a passage which was the focus of some attention at the appeal hearing:
I have pondered long and hard as to whether it would be appropriate to impose a term of imprisonment and then fully to suspend it. And in my view, that is not an appropriate deterrent penalty. The question then was, bearing in mind all the other factors, whether it would be possible to impose a term by way of periodic detention and while one feels considerable sympathy and empathy, it is not for me to allow emotional sympathy to overtake the role that I must perform and the fact that I must be true to the oath of office that I have taken.
This is a serious offence, and the message must be given to other like-minded members of the community, this is not an easy way of making a quick buck. The law indeed does not condone cultivation of cannabis for the purpose of sale or supply.’
Her Worship then said it was not appropriate that she impose the maximum penalty of two years which she could impose. She took into account the positive factors in relation to Mr Diebert and his personal circumstances. In her view a term of imprisonment of 18 months to be suspended after 12 months was overall a just and appropriate penalty. In so saying she took into account the recommendations made in the pre-sentence report to encourage Mr Diebert into assisting and continuing with the self-rehabilitation process which he had commenced and to ensure that his connection with his son could continue.
The Grounds of the Appeal to the Supreme Court
Mr Diebert appealed against the sentences. The only ground of appeal stated in the notice of appeal was that the sentences imposed were, in the circumstances, manifestly excessive.
In very brief written submissions filed in the Supreme Court in support of the appeal it was argued that her Worship had failed to take into account adequately or at all Mr Diebert’s employment and background and the effects of his imprisonment upon his son and his son’s education. Her Worship was said to have placed undue emphasis on the uncontested evidence relating to possible values of the cannabis. She was said to have failed to take into account the amount of cannabis which Mr Diebert would have used from the cultivation and to have failed to give proper consideration to comparable verdicts in the ACT Supreme Court.
The written submissions embodied grounds of error which should have been incorporated in the notice of appeal. There was no suggestion in either the notice of appeal or in the appellant’s submissions that the learned magistrate had failed in the way that she dealt with the option of periodic detention. Understandably, in the circumstances, the issue was not dealt with either in the prosecution’s submissions.
The Orders of the Supreme Court on Appeal from the ACT Magistrates Court
On 12 December 2003, a judge of the Supreme Court heard the appeal against the decision of the Magistrates Court. On the same day his Honour made the following orders:
‘1. That Magistrates Court sentence of 15 October 2003 be set aside.
2. In lieu thereof, the appellant, Neville William Diebert, be sentenced to 64 week periods of periodic detention on the offence of cultivating a prohibited plant (CC03/492).
3. The appellant, Neville William Diebert, be sentenced to four periods of periodic detention on the offence of possession of a drug of dependence (CC03/494) to be served concurrently with the offence of cultivation.
4. Mr Neville William Diebert is to report to Symonston Periodic Detention Centre at 7pm on 12 December 2003.’
The Reasons for Judgment of the Supreme Court
The reasons for the orders made at the conclusion of the hearing of the appeal in the Supreme Court emerged, in part, in the course of argument on the hearing of the appeal. His Honour began by observing to counsel for Mr Diebert that on the face of it the term of imprisonment imposed by Her Worship was within the range of an appropriate sentence. So much was conceded. His Honour went on to say:
‘But I am a little concerned, given the subjective factors and given your client’s previous history, to think that consideration, or perhaps greater consideration should have been given to a sentence of periodic detention.’
Counsel for Mr Diebert responded:
‘Yes, and that is the submission.’
The full transcript was not included in the appeal book to the Court of Appeal but there was no such ground in the notice of appeal and no such submission in the written submissions filed prior to the hearing of the appeal. His Honour said however:
‘I would not think that anything less was appropriate in these sorts of circumstances. And I would have thought that if you formed the view that eighteen months imprisonment is an appropriate sentence for this sort of offence, that you would impose periodic detention, which reflects in effect that eighteen months.’
Counsel for Mr Diebert referred, at the appeal hearing before his Honour, to a letter from a special school attended by Mr Diebert’s son. He sought to put the letter before the Court on the basis that the letter reported on post-sentencing events. His Honour does not appear to have made a determination about whether to receive the letter in evidence. Instead he embarked upon a discussion with crown counsel about periodic detention. Counsel for the crown referred his Honour to the passage in Her Worship’s sentencing remarks which referred to periodic detention. His Honour expressed a doubt that that passage reflected an appropriate way of considering the question of periodic detention. He said:
‘I know her Honour was referring to the question of deterrence and indeed those aspects of the process. But it seems to me that they don’t overcome the requirement that there may be circumstances where, even though a sentence of imprisonment of not less than three months nor more than 21 months is to be imposed, that one turns to looking at the periodic detention.
And in one sense it is to put things the other way round to say ‘well I have made up my mind. I think that this is something which calls for a sentence of imprisonment and I think that that sentence is 18 months’, in this particular case. To then say that having done that doesn’t really permit me to move to the question of whether or not this might be an appropriate case for the imposition of periodic detention.’
His Honour said that these were matters which, in some respects, should have at least been discussed or the question of periodic detention discussed in that context. Crown counsel said to his Honour that the issue was whether an order that a sentence be served by way of periodic detention would be a sufficient deterrent sentence. His Honour said:
‘Well I think ... I am satisfied that it is in this context. At this stage Mr Diebert has served two months of imprisonment. I consider that the fact that he has to serve that imprisonment again further by way of periodic detention is not sending any wrong signals to other members of the community. Members of the community may expect if they cultivate cannabis to the extent of Mr Diebert that they will inevitably go to prison. I am sorry, ‘inevitably’ is the wrong word, but in the vast majority of cases they can expect to go to prison.
There may be in some cases special circumstances peculiar and particular to a particular offender that will mean that they may not serve that imprisonment by way of full time custody. But they indeed also may well be quite unusual and exceptional.’
Counsel referred him to the scale of the offence and its seriousness. At the conclusion of the submissions his Honour said:
‘In all the circumstances I will set aside the magistrate’s decision in this matter, really for the reasons that I have given in the course of argument in relation to this matter.
As I said in the course of argument, I do not consider that the magistrate could be said to have erred in the amount of the sentence of imprisonment that she was prepared to impose in relation to this. But I do have concerns about whether the magistrate considered the application of the Periodic Detention Act, having regard to the sentence of imprisonment that she was proposing to impose with respect to those matters very particular to this particular offence. And I have referred to those matters in the course of argument, they being the offender’s mental health concerns, his employment and employment history and the concerns about his son who suffers from ADHD and attends special needs classes.
Accordingly, I propose a period of periodic detention of the number of weeks that would equal 18 months, less 2 months. So that is really 16 months periodic detention, equivalent to 16 months imprisonment. Can someone tell me what that is.’
It was put by counsel for Mr Diebert in response to his Honour’s inquiry that the remaining sentence to be served represented 64 weeks of periodic detention. Crown counsel agreed. Mr Diebert was asked if he consented to undertake 64 periods of periodic detention and he said he did. There was some discussion about whether there had been an assessment conducted in connection with the preparation of the pre-sentence report specific to the disposition of periodic detention. His Honour said he assumed that the assessment had been made. The report did not say whether Mr Diebert was suitable for periodic detention.
The Grounds of Appeal to the Court of Appeal
On 31 December 2003, a notice of appeal against his Honour’s judgment was filed by the Director of Public Prosecutions on behalf of the police complainant. The grounds of appeal were that his Honour erred in that:
‘(a)The judgment of the Learned Sentencing Magistrate did not contain an error of law and in accordance with the principles governing sentence appeals should not have been varied on appeal;
(b)His Honour should not have proceeded with the appeal as a hearing de novo in the absence of admissible fresh evidence or an identified error of law in the judgment the subject of the appeal to his Honour;
(c)The sentence imposed by the Learned Sentencing Magistrate should not have been varied on account of the Mental Health, Employment and family issues disclosed in the pre-sentence report and addressed by counsel for the respondent in submissions;
(d)The sentence imposed by his Honour gave insufficient weight to general deterrence;
(e)The sentence imposed by his Honour gave insufficient weight to specific deterrence;
(f)His Honour failed to give proper consideration to the written submissions prepared by the prosecution; and
(g)The sentence imposed by his Honour was manifestly inadequate.’
The orders sought on the appeal, as set out in the notice of appeal, are that it be upheld, that the appeal from the sentence of the learned sentencing magistrate be dismissed and such further and other orders be made as the Court sees fit.
Statutory Framework – The Drugs of Dependence Act 1989 (ACT)
The offences for which Mr Diebert was convicted were created by the Drugs of Dependence Act 1989. The prohibition on the cultivation of prohibited plants appears in s 162(3) of the Act which provides:
‘(3) A person shall not cultivate, or participate in the cultivation of, a prohibited plant for the purpose of sale of supply.
Maximum penalty:
(a) if more than 1000 prohibited plants are cultivated – imprisonment for life; or
(b) if more than 20 but not more than 1000 prohibited plants are cultivated –
(i)for cannabis plants – 200 penalty units, imprisonment for 10 years or both; or
(ii)in any other case – 1000 penalty units, imprisonment for 25 years or both; or
(c) if more than 5 but not more than 20 prohibited plants are cultivated –
(i)for cannabis plants – 100 penalty points, imprisonment for 5 years or both; or
(ii)in any other case – 200 penalty units, imprisonment for 10 years or both; or
(d) if not more than 5 prohibited plants are cultivated –
(i)for cannabis plants – 50 penalty units, imprisonment for 2 years or both; or
(ii)in any other case – 100 penalty units, imprisonment for 5 years or both.’
The possession offence is created by s 169(1) of the Act which provides:
‘(1) A person shall not possess a drug of dependence.
Maximum penalty: 50 penalty units, imprisonment for 2 years or both.
(2) A person shall not administer, or cause or permit to be administered, to himself or herself a drug of dependence.
Maximum penalty: 50 penalty units, imprisonment for 2 years or both.
(3) A medical practitioner, intern or dentist shall not –
(a) for a medical practitioner or intern – prescribe; or
(b) for a dentist – direct the supply of;
a drug of dependence for administration to himself or herself.
Maximum penalty: 50 penalty units, imprisonment for 2 years or both.
(4) A person shall not administer, or cause to be administered, a drug of dependence to another person.
Maximum penalty: 50 penalty units, imprisonment for 2 years or both.’
The learned magistrate dealt with the offence in the exercise of a summary jurisdiction conferred upon the Magistrates Court by s 375 of the Crimes Act 1900 (ACT) which is referred to below.
Statutory Framework - The Crimes Act 1900 (ACT)
The Crimes Act 1900 (ACT) sets out in s 341 the purposes for which a sentence may be imposed, and in s 342 a non-exhaustive list of matters to which, where relevant, the Court must have regard in seeking to achieve those purposes. Section 341 provides:
‘The only purposes for which a sentence may be imposed are –
(a)to punish the offender to an extent and in a way that is just and appropriate in all the circumstances; or
(b)to deter the offender or other persons from committing the same or a similar offence; or
(c)to rehabilitate the offender; or
(d)to make it clear that the community, acting through the court, denounces the type of conduct in which the offender engaged; or
(e)to protect the community from the offender; or
(f)a combination of 2 or more of the purposes referred to in paragraphs (a) to (e).
Section 342 provides, inter alia:
‘(1) In determining the sentence to be imposed on a person, the matters to which a court shall have regard include, but are not limited to, such of the following matters as are relevant and known to the court:
(a) the nature and circumstances of the offence;
...
(i)the cultural background, character, antecedents, age, means and physical or mental condition of the person;
(j)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants;
...
(o)whether the person is voluntarily seeking treatment for any physical or mental condition that may have contributed to the commission of the offence;
...
(q)current sentencing practice;
(r)whether the person has pleaded guilty and, if so, the stage of the proceedings at which the person did so or indicated an intention to do so;
(s)whether the person has demonstrated remorse;
(t)the reason or reasons why the person committed the offence;
...
(2) Without limiting subsection (1), in determining whether a sentence or order under section 402(1) or 403(1) is appropriate in respect of an offence against a Territory law, the court shall have regard to the nature and severity of the conditions that may be imposed on, or may apply to, the person, under that sentence or order.’
Section 345 creates restrictions upon the imposition of sentences of imprisonment. It provides, inter alia:
‘(1) A court shall not pass a sentence of imprisonment on any person for an offence against a Territory law unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.
(2) If a court passes a sentence of imprisonment on a person for an offence against a Territory law, the court shall –
(a)state the reasons for its decision that no other sentence is appropriate; and
(b)cause those reasons to be entered in the records of the court.
(3) The failure of a court to comply with the provisions of this section does not invalidate any sentence.
(4) This section applies subject to any contrary intention in the law creating the offence.’
The Crimes Act also provides for the summary disposal of certain cases. Section 375 applies in relation to any offence against a Territory law which is a common law offence or an offence punishable by imprisonment for a term not exceeding, in the case of a money offence, 14 years, or in any other case, 10 years (s 375(1)). Subject to criteria and conditions which are not presently relevant and which are set out in s 375(2) a magistrate may dispose summarily of such cases. Relevantly, s 375(10) provides:
‘If the Court disposes of a case summarily under this section and convicts the defendant of the offence, then subject to subsections (11) and (12), but notwithstanding any other Territory law, the Court may not impose a sentence of imprisonment exceeding 2 years nor impose a fine exceeding $5,000.’
Section 403 relating to conditional release of offenders authorises the court to sentence a person to a term of imprisonment but direct that the person be released, on him or her giving a recognisance to be of good behaviour and to comply with other conditions specified in s 403(1)(a). The release may be either forthwith or after the person has served a specified part of the sentence imposed on him or her (s 403(1)(b)).
Statutory Framework – The Periodic Detention Act 1995 (ACT)
The power of the courts of the ACT to order periodic detention is derived from s 4 of the Periodic Detention Act which provides, inter alia:
‘(1) A court –
(a)which convicts a person of an offence against a law of the Territory; and
(b)which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months;
may, instead of sentencing the person to imprisonment, by order –
(c)sentence the person to complete such number of detention periods at a detention centre, as the court specifies; and
(d)direct that the person be released from custody subject to any order that may be made under section 10(2).
(2) The number of detention periods that a person may be required to serve under an order shall be calculated at the rate of 1 detention period for each week of the term of imprisonment to which the person would otherwise have been sentenced.
(3) An order for periodic detention remains in force until –
(a)the relevant detention periods required to be served under the order, or any detention periods by which the order has been extended under section 25, have been served; or
(b) the order has been cancelled.’
Section 5 sets out what are called ‘core conditions’ of orders for periodic detention. It is not necessary for present purposes to refer to that provision.
Section 6 provides:
‘6. Circumstances in which the periodic detention order may be made:
(1) a court shall not make an order under section 4 unless –
(a) the court is satisfied that it is appropriate for the offender to undertake such an order; and
(b) the court is satisfied that there are appropriate facilities available at the relevant detention centre for the offender to undertake such an order; and
(c) the offender submits himself or herself to a medical examination by a medical practitioner, if so required by the court; and
(d) the court has received a pre-sentence report in respect of the offender pursuant to the Crimes Act 1900, division 15.2; and
(e) the court has explained to the offender –
(i) the effect the proposed order would have; and
(ii)the consequences of noncompliance with the order and the circumstances in which the offender would be taken to have breached the order; and
(iii)that the court has power under this Act to review the order on the application of the director or the offender; and
(f) the court is satisfied that the offender consents to undertaking such an order.
(2) For subsection (1)(a) and (b), the court may have regard to such matters as it considers appropriate, including –
(a) the pre-sentence report referred to in subsection (1)(b); and
(b)where a person has submitted to a medical examination by a medical practitioner, as required by the court – the report of that medical practitioner in respect of that examination; and
(c) a report by an officer, as required by the court.’
The term ‘detention period’ is defined in s 3 of the Act and in substance refers to periods of two days commencing at 7pm on the day of the week specified in the order of the court and ending at 4.30pm on the second day after the commencing day.
Statutory Framework – The Magistrates Court Act 1930 (ACT)
Part 11 of the Magistrates Court Act 1930 (ACT) deals with appeals to the Supreme Court. The appellate jurisdiction of the Supreme Court is defined in Div 11.1 which comprises s 207. That jurisdiction extends to the hearing and determination of appeals to which Div 11.2 applies. Section 208 lists the classes of appeal to which Div 11.2 applies. One of those classes of appeal is an appeal from a sentence imposed by the Magistrates Court by a person convicted of an offence dealt with by that court under the Magistrates Act 1930 or under the Crimes Act, s 375, whether or not that person appeals against the conviction in respect of which the sentence of penalty was imposed (s 208(1)(c)). The sentence imposed in the present case was imposed under the Crimes Act s 375.
Section 214 of the Magistrates Court Act applies, inter alia, to appeals of the kind referred to in s 208(1)(a). In such appeals the Supreme Court is required to have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact (s 214(2)). The Court has power in such appeals, if it thinks it necessary or expedient to do so in the interests of justice, to receive further evidence and may otherwise receive evidence with the consent of the parties to the appeal (s 214(3)). The orders that the Supreme Court may make on appeals are specified in s 218 of the Magistrates Court Act:
‘(1) On an appeal to which this division applies, the Supreme Court may –
(a)affirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)give such judgment, or make such order, as, in all the circumstances, it thinks fit, or refuse to make an order; or
(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceedings to the Magistrates Court for further hearing and determination, subject to the directions the Supreme Court thinks fit.
(2) A judgment or order of the Supreme Court under subsection (1)(a) or (b) shall have effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.’
Statutory Framework – The Supreme Court Act 1933 (ACT)
The jurisdiction of the Court of Appeal is set out in s 37E of the Supreme Court Act 1933 (ACT) and includes jurisdiction to hear appeals in relation to judgments of the Master and other judgments of the Court save for certain exceptions which are not material for present purposes. The powers of the Court on appeal are set out in s 37O which provides, in subs (1):
‘The Court of Appeal has the following powers in relation to the judgment appealed from:
(a) to confirm, reverse or vary the judgment;
(b)to give any judgment it considers appropriate, or refuse to give an order applied for;
(c)to set aside the judgment (completely or in part) and remit the proceeding to the court constituted by a single judge for further hearing and decision, subject to any directions the Court of Appeal considers appropriate.’
Subparagraphs (d) to (f) are not material for present purposes.
The Function of the Supreme Court on Appeal from the Magistrates Court
The parties were in substantial agreement about the basis upon which the Supreme Court should interfere with the sentencing discretion of a magistrate. The exercise of the sentencing discretion must be shown to have been vitiated or to have miscarried. This may result from an error of law, which could be substantive or procedural, or from an error of fact.
As Kirby J said in Dinsdale v The Queen (2000) 202 CLR 321 at 339 (Gummow and Gaudron JJ agreeing):
‘The necessity to show error ... is fully accepted by courts deciding appeals against sentence ... Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts.’
Although a particular error may not be identified it may be inferred where the sentence imposed is so manifestly excessive or inadequate that it must have been affected by error of some kind – House v R (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386 at 388.
The principles enunciated in those cases, subject to statutory modification, apply to appeals against sentence generally. They were reflected in the judgment of the Full Court of the Federal Court in Petreski v Cargill (1987) 18 FCR 68 which concerned appeals against magistrates’ sentencing decisions in the Australian Capital Territory. That case must however be regarded with some caution. It was overruled in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward (2002) 191 ALR 1 at 34. The basis of the overruling was that, in Petreski v Cargill as in Duralla Pty Ltd v Plant (1984) 2 FCR 342, the Federal Court held that appeals to the Full Court under s 24 of the Federal Court of Australia Act 1976 were appeals in the strict sense and not by way of rehearing. On that basis the Full Court of the Federal Court in Western Australia v Ward had held that it could only deal with the appeal before it under the law as it stood at the date of the hearing and not as it stood at the date of the appeal. In decisions relating to similar provisions of the Family Law Act 1975 (Cth) the High Court had held that the Full Court of the Family Court was bound, on an appeal to that court, to ‘decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal – CDJ v VAJ (1998) 197 CLR 172 at 202; Allesch v Maunz (2000) 203 CLR 172 at 179-90. The overruling of Petreski and Cargill in Western Australia v Ward did not, however, affect the general principles governing the exercise of appellate jurisdiction in relation to sentencing appeals imported from R v House and the other authorities earlier mentioned.
Whether the Learned Magistrate Erred in the Exercise of her Sentencing Discretion
The Supreme Court, on appeal from the Magistrates Court evidently proceeded on the basis that the sentencing magistrate had not had proper regard to the possible application of periodic detention in the light of factors particular to Mr Diebert. Those factors were his mental health, his employment and employment history and the special needs of his son.
Section 4 of the Periodic Detention Act empowers a court to make a periodic detention order where:
1. A person is convicted of an offence against the law of the Territory.
2. But for the option of a periodic detention order the court would sentence the person to a term of imprisonment of not less than three months but not more than two years.
The power is constrained by the conditions specified in s 6. In particular a court shall not make an order under s 4 unless it is satisfied that it is appropriate for the offender to undertake such an order.
The conditions and constraints upon the exercise of a power to make a periodic detention order affect the way in which a sentencing court must approach its exercise.
The condition that, but for the option of a periodic detention order, the court would sentence the person to a term of imprisonment means that the court must first have satisfied the requirements of s 345 of the Crimes Act. That is to say, after having considered all other available penalties, it is satisfied that no other penalty but imprisonment is appropriate in all the circumstances of the case. In order that s 345 of the Crimes Act and s 4 of the Periodic Detention Act can stand together, it seems that periodic detention is not to be regarded as one of the ‘other available penalties’ mentioned in s 345. That is consistent with the character of a periodic detention order as a custodial disposition, albeit under the operation of the Periodic Detention Act. The time actually served in prison will be two sevenths of the term of imprisonment that would otherwise be imposed.
While s 345 of the Crimes Act mandates the consideration by the sentencing court of non-custodial options before a determination of a term of imprisonment it does not mandate the prior consideration of periodic detention. The Periodic Detention Act itself does not in terms require the court to give consideration to that option. Nevertheless the legislature has provided it as an option when a term of imprisonment of between three and 24 months is contemplated. It is consistent with its availability in those circumstances that the legislature intends that it should be considered. The making of such an order however requires a positive justification. That is so because the court is not to make such an order unless it is satisfied that it is appropriate for the offender to undertake it.
Absent a submission made by counsel or material before the sentencing court which would arguably justify the making of such an order, it may not necessarily follow that a judge who did not expressly advert to periodic detention could be said to have erred in principle for failing to do so. But that is not this case.
In this case the learned magistrate expressly referred to periodic detention and impliedly to the factors, evocative of her sympathy, which were personal to the accused and which might have been relevant to the exercise of the discretion to make such an order. It is evident from her reasons that she was not persuaded that it would have been appropriate for Mr Diebert to undertake periodic detention. In so concluding, she had regard and gave great weight to general deterrence being the necessity to send a ‘message’ to ‘other like minded members of the community’. She did so against the background of an offence which involved a large and sophisticated commercial drug production operation. In my opinion it cannot be said that she erred in the approach which she took having regard to the provisions of the Periodic Detention Act.
It would, no doubt, have been preferable had the learned magistrate, in dealing with the question of periodic detention, expressly referred to the relevant provisions of the Periodic Detention Act and the individual factors which led her to the conclusion that it was not an appropriate disposition. The rolled up way in which she dealt with the question may have been less than satisfactory. It did not, however, indicate error to justify appellate intervention.
The learned judge on appeal evidently formed the view that there should have been a more extensive consideration of the matters relevant to the issue of periodic detention. His Honour gave weight to the mental health, employment and family concerns in deciding that such an order should be made. He did not in terms advert to the requirement that such an order should not be made unless appropriate and the associated need to justify it.
In my opinion, and with respect to his Honour, the judgment he made was, in the end, substitutive rather than corrective of error. For this reason the appeal against his Honour’s decision should be allowed.
The Disposition
The question which then arises is what is the appropriate disposition of the appeal in this case? Mr Diebert had served two months of the original term of imprisonment imposed by the Magistrates Court when the order for periodic detention was made. Since that time he has served the equivalent of about seven months of periodic detention.
The reimposition of the original term of imprisonment without credit for the time which Mr Diebert has served in periodic detention would be unfair and oppressive. The question is whether, in the circumstances, the credit for the time served should be calculated by reference to the days actually spent in custody under the periodic detention order or by reference to the number of weeks in which he has been subjected to periodic detention as though those full weeks had been served. The latter option would reflect the equivalence between periodic detention and the alternative term of imprisonment which is specified in s 4(2) of the Periodic Detention Act.
In this case the appellant accepts that it would be appropriate to give credit on the latter basis and requires only that he serve the balance of the term imposed by the learned magistrate after such credit has been taken into account along with the two months originally served.
This would be a disposition within the power of this Court under s 37O(1)(b) of the Supreme Court Act.
It is an appropriate disposition having regard to the Crown’s acceptance of it and to the fact that Mr Diebert has continued in employment during his periodic detention and that he has continued to play an important role in the life of his son.
The orders on the appeal to this Court should therefore be:
1. The appeal is allowed.
2. The periodic detention order imposed by the Supreme Court on 12 December 2003 is set aside with effect from today.
3. The respondent is to serve the balance of the term of imprisonment imposed upon him by the learned magistrate after allowing credit for:
(i) the time actually served prior to the Supreme Court’s periodic detention order made on 12 December 2003;
(ii) the number of weeks in which the respondent has served periodic detention pursuant to the order of the Supreme Court made on 12 December 2003.
4. There is liberty to apply for any supplementary orders necessary to clarify or give effect to the preceding orders.
I certify that the preceding paragraphs numbered twelve (12) to seventy-nine (79) are a true copy of the Reasons for Judgment herein of his Honour Justice French.
Associate:
Date: 12 August 2004
Counsel for the Appellant: Mr R Refshauge SC
Solicitor for the Appellant: ACT Director of Public Prosecutions
Counsel for the Respondent: Mr I Bradfield
Solicitor for the Respondent: Legal Aid Office (ACT)
Date of hearing: 2 August 2004
Date of judgment: 12 August 2004
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