Craig Duke Farrell Ledson v Christopher Richard Taylor, Mark Patrick Robison and Luke James Brown (No 2)
[2010] ACTSC 48
•2 JUNE 2010
CRAIG DUKE FARRELL LEDSON v CHRISTOPHER RICHARD TAYLOR, MARK PATRICK ROBISON AND LUKE JAMES BROWN (No 2)
[2010] ACTSC 48 (2 JUNE 2010)
CRIMINAL LAW AND PROCEDURE – Appeal from ACT Magistrates Court - Commencement of appeal – stay of enforcement of sentences and orders – section 216 Magistrates Court Act 1930 (ACT).
CRIMINAL LAW AND PROCEDURE – Appeal - Sentencing an offender who is convicted and sentenced to imprisonment while appealing prior sentences imposed - Sections 70 and 71 Crimes (Sentencing) Act 2005 (ACT) – identification of primary sentence and existing sentence.
CRIMINAL LAW AND PROCEDURE – Section 75 Crimes (Sentencing) Act 2005 (ACT) – concurrency and cumulation of sentences.
CRIMINAL LAW – Sentence - Repeat offender – redeeming features of offender behaviour.
Magistrates Court Act 1930 (ACT) s 216
Crimes (Sentencing) Act 2005 (ACT) ss 70 and 71
Fox R and Freiberg A, Sentencing: State and Federal Law in Victoria (Oxford University Press: Melbourne 1999) 2nd edition, p 739
Shorter Oxford English Dictionary
Macquarie Dictionary
Ledson v Taylor & Ors [2010] ACTSC 42
Southwell v Gallagher (2006) 198 FCR 383
Hadba v The Queen, (2004) 182 FLR 472
Apolevski v Kinnane [2010] ACTSC 43
Mill v The Queen (1988) 60 CLR 39
EX TEMPORE JUDGEMENT
No. SCA 33 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 2 June 2010
IN THE SUPREME COURT OF THE )
) No. SCA 33 of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:CRAIG DUKE FARRELL LEDSON
Appellant
AND:CHRISTOPHER RICHARD TAYLOR, MARK PATRICK ROBISON AND LUKE JAMES BROWN
Respondents
ORDER
Judge: Refshauge J
Date: 20 May 2010
Place: Canberra
THE COURT ORDERS THAT:
It be recorded, under s 75 of the Crimes (Sentencing) Act 2005 (ACT), that Mr Ledson is currently serving a sentence imposed on 13 May 2010 of 3 months’ imprisonment to commence on 29 March 2010.
The sentence of imprisonment imposed on charge CC 07/07062 (CC 09/2037) is confirmed, but directed to commence on 2 May 2010 (to take into account the time already served, the period of custody after the appeal was lodged and before bail was granted and the concurrency of one month with the sentence imposed on 13 May 2010) and on 2 June 2010 to be suspended for 12 months and Mr Ledson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from 2 June 2010 with the condition that he give security in the sum of $1,000 for compliance with the good behaviour order.
The good behaviour order made on charge CC09/12836 is confirmed, including as to the performance of 240 hours of community service work within 18 months from 17 May 2010, with the order itself to commence on 2 May 2010 for 18 months from that date.
The sentence imposed on charge CC09/5055 is confirmed, but directed to commence on 3 June 2010, and on 3 August 2010 be suspended for 12 months and Mr Ledson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from 3 August 2010 with a probation condition for 12 months and, a condition that he give security in the sum of $1,000 for compliance with the good behaviour order.
The sentence imposed on charge CC09/5780 of imprisonment, directed to be served as periodic detention for 3 months is confirmed, but directed to commence on 4 August 2010 and is to be served by periodic detention. The first period of detention commencing on 6 August 2010.
Except as above the convictions and orders of the Magistrates Court given on 22 June 2009 are confirmed.
On 17 May 2010, I dismissed an appeal that Craig Duke Farrell Ledson, the Appellant, had commenced in this Court against sentences imposed in the ACT Magistrates Court.
In the reasons for my decision, Ledson v Taylor & Ors [2010] ACTSC 42 (at 88), I set out the consequential orders that I considered should be made. However, I requested that the parties make submissions as to whether they properly dealt with the issues that the relatively complex sentencing involved.
I was then informed that a further complication had arisen in that Mr Ledson had been convicted of a further similar offence and sentenced to a term of imprisonment since the appeal had been heard.
Accordingly, the matter was adjourned to 19 May 2010 for submissions. On that day, a number of issues arose and I reserved my decision until today.
I also sought details of the further charge of which Mr Ledson had been convicted. I received a copy of the statement of facts, a transcription of notes from Mr Ledson’s lawyer setting out the submissions made by her and counsel for the prosecution, together with the summary of the sentencing remarks of the learned Sentencing Magistrate and the criminal history of Mr Ledson, recording the further sentence imposed.
As noted in my reasons in Ledson v Taylor & Ors, Mr Ledson had been charged with three offences of driving whilst his licence was suspended and the convictions amounted to a breach of a suspended sentence earlier imposed.
The Magistrates Court sentenced him on 22 June 2009 to a range of sentences which consisted of a period of three months’ imprisonment as full-time custody (of which he had, by the time of the appeal, served 12 days in custody under sentence, and 15 days between commencement of the appeal and the consequent stay and the granting of bail), three months’ imprisonment to be served, thereafter, by periodic detention and a series of good behaviour orders that end on 22 June 2010 but which included a community service work condition to perform 240 hours within 18 months. It was these sentences from which the appeal to this court was taken.
Mr Ledson had, it should be noted, already been convicted of five charges of being an unlicensed driver in 1988, (Children’s Court), 2004, 2006 (twice) and 2008.
The commencement of the appeal meant that the enforcement, or execution, of the sentences and orders were stayed by operation of law. That is to say, s 216 of the Magistrates Court Act 1930 (ACT) provides,
216 Stay of execution pending appeal in certain cases
(1) If an appeal to which this division applies has been duly instituted, the enforcement or execution of the decision, conviction, order, sentence or penalty appealed form is stayed until the appeal is concluded or is abandoned or discontinued and, if the appellant is in custody, the appellant may, if not detained for any other cause, be granted bail in accordance with the Bail Act 1992
(2) If the appellant in custody in relation to whom the enforcement or execution of a conviction or sentence is stayed –
(a) is not granted bail under the Bail Act 1992; or
(b) is not detained for any other cause;
The court or a magistrate may order the person be remanded in custody
As noted above (at [7]), Mr Ledson was ultimately granted bail following commencement of his appeal having first been in custody. However, it does not appear that any court did in fact “remand him” after filing of the Notice of Appeal.
As also noted above (at [1]), I dismissed Mr Ledson’s appeal which would have activated the sentences imposed.
However, it was necessary to make consequential orders to give effect to the fact that he had spent some time in custody that did not, absent a court order, constitute service of the term of imprisonment and, also, to adjust the orders made in the Magistrates Court because they referred, in some cases, to dates that had now passed.
To this, however, was added the complication of Mr Ledson’s further offence. The circumstances were that on 10 September 2009 he was observed driving by police. It appears he was driving his partner’s car. From the material given to me on the appeal, she had reported that, “she was refusing him access to her car” in which two of the offences had been committed: Ledson v Taylor & Ors (at 33).
I did not have the full details of this matter but, from the material before me, the hearing of the charges had clearly been adjourned for a period and he was granted bail. On 28 March 2010 he breached his bail and was remanded in custody from 29 March 2010.
A Pre-Sentence Report was apparently ordered by the court and he was then sentenced on 13 May 2010. The learned Sentencing Magistrate imposed a sentence of imprisonment for three months, backdated to 29 March 2010 to take account of the pre-sentence custody: s 63 of the Crimes (Sentencing) Act 2005 (the Sentencing Act).
Later, namely on 17 May 2010, I dismissed the appeal and adjourned for submissions on consequential orders (as noted at [4] above).
The issues became complicated because of the sentence now being served by Mr Ledson. These complications arise because of the provisions of part 5.3 of the Sentencing Act. In particular, ss 70 and 71 provide:
70 Application
(1) This part applies to a sentence of imprisonment (a primary sentence) imposed by a court on an offender if -
(a) any of the following apply in relation to the offender:
(i) when the primary sentence is imposed, the offender is serving another sentence of imprisonment (an existing sentence);
(ii) the offender has been sentenced to another sentence of imprisonment (also an existing sentence) but, when the primary sentence is imposed, the other sentence has not yet started;
(iii) the offender is sentenced to another sentence of imprisonment (also an existing sentence) in the same proceeding; and
(b) the existing sentence is for an offence against a territory
law; and
(c) the primary sentence is not fully suspended
(2) In this section:
sentence of imprisonment does not include any non parole period that has been set for the primary sentence.
71 Concurrent and consecutive sentences – general rule
(1) In the absence of a direction under subsection (2), the primary sentence must be served concurrently with the existing sentence.
(2) The court may direct that the primary sentence be served consecutively (or partly concurrently and partly consecutive) with the existing sentence
The question arose of the interaction between the sentences imposed on 22 June 2009 and on 13 May 2010. The enforcement, or execution, of the earlier sentences were, of course, stayed from the date of filing the Notice of Appeal, namely 30 June 2009 and not re-activated until I made the relevant orders.
Thus, the issues for determination were:
a) which of the sentences on 22 June 2009 (once reactivated by my order) and 13 May 2010 was the primary sentence for the purposes of part 5.3 and which was the existing sentence; and
b) what concurrency or cumulation should or could there be of the sentences.
Mr M O’Brien, who appeared helpfully for Mr Ledson, carefully argued that since the sentence of 22 June 2009 had been imposed first, it must be the existing sentence, and the imposition of the sentence of 13 May 2010 was the primary sentence and had been imposed concurrently with the earlier sentence.
This was so, Mr O’Brien submitted, even though when his Honour imposed it, the learned Sentencing Magistrate could not have known whether the appeal on the earlier sentence would be upheld or dismissed, and if upheld, what sentence would be imposed in lieu.
Ms A Begley, who appeared for the prosecution, provided helpful submissions also, contending that the latter sentence of 13 May 2010 was the existing sentence, for the purposes of part 5.3, and the sentence to be activated by my dismissal of the appeal was the primary sentence, which had then to be determined as to whether it should be concurrent with, or cumulative upon, the sentence of 13 May 2010. She urged the latter.
The matter is, so far as I can determine, free from authority. It is, however, primarily a matter of statutory construction. Nevertheless, it is not an easy provision to construe in these circumstances.
In the first place, the part applies when the primary sentence is imposed by the court. Initially, one would say that it would appear that the sentence of 22 June 2009, (now activated), was imposed on that date, namely 22 June 2009 and the other sentence was imposed on 13 May 2010.
The fact of the stay did not affect that and when the appeal was dismissed, the stay of sentence of 22 June 2009 was simply lifted and the sentence originally imposed became operative.
As a result of the stay however, Mr Ledson was not serving a sentence of imprisonment on 13 May 2010 when the latter sentence was imposed.
I have no doubt that when a sentence of imprisonment is imposed in the Magistrates Court and a Notice of Appeal is filed, thereby staying the enforcement or execution of the sentence, the offender is not thereafter serving a sentence of imprisonment. None of the time between the filing of the notice of appeal and the determination of the appeal will count towards the sentence: see Southwell v Gallagher (2006) 198 FCR 383 (at 387).
Thus, if the sentence of 13 May 2010 was the primary sentence, then the result was that part 5.3 was not operative, because:
a) s 70(1)(a) did not apply as Mr Ledson was not “serving another sentence of
imprisonment” as at 13 May 2010;
b) s 70(1)(a)(ii) did not apply, because although Mr Ledson had been sentenced to another sentence of imprisonment on 22 June 2009, it had started on that date and in fact, he had served some 12 days of it; and
c) s 70(1)(a)(iii) did not apply, for the two sentences were in different proceedings.
On the other hand, it seems to me that when an appeal is determined, the effect of the decision on the appeal is within the meaning of s 70 to impose a sentence. This is, perhaps, clear when the appeal is upheld and a new sentence is ordered on appeal.
The Court, even by replacing the order of the Magistrates Court, is making a new sentence and by force of that, imposing the sentence. Whilst not so obvious, it seems to me that the same applies when the court dismisses an appeal. By lifting the stay, it imposes the sentence. The ordinary meaning of imposed is “to lay on or set, to put in place”: see Shorter Oxford English Dictionary, or “to lay on or set as something to be borne, endured, obeyed, fulfilled”: see Macquarie Dictionary.
I am reinforced in my view because such a construction would best enable the provision to apply to the situation here faced. That seems to me to meet the purpose and intention of the Act. Part 5.3 is clearly intended to permit a court properly to fix sentences when differing courts have imposed sentences of imprisonment so as to ensure that appropriate concurrency or cumulation is achieved. If this were not permitted, there could be excessive or inadequate sentences.
At common law, the commencement of a sentence could not generally be postponed: see Fox R and Freiberg A, Sentencing: State and Federal Law in Victoria (Oxford University Press: Melbourne 1999) 2nd edition, p 739. Thus, absent this provision, an appeal court would be unable to consider appropriate concurrency or cumulation of a sentence, as here, passed before the appeal was determined.
The result is that I consider that the sentence of 13 May 2010 is, as at the date on which I determined the appeal, the existing sentence for the purpose of part 5.3 of the Sentencing Act. The sentence originally imposed on 22 June 2006 but, following the stay, imposed on the lifting of the stay with the determination of the appeal is the primary sentence for the purpose of part 5.3 of the Sentencing Act.
Thus, in dealing with this appeal, I need to comply with s 75 of the Sentencing Act which provides,
75 Previous sentences to be noted in new sentence
(1) If the court imposes the primary sentence consecutively (or partly concurrently and partly consecutively) with an existing sentence, the court must include in the record of the primary sentence details of each existing sentence, including -
(a) the starting day of the existing sentence (or the likely starting day of a sentence that has not yet started); and
(b) the term of the existing sentence
(2) Failure to comply with this section does not invalidate the primary sentence or the existing sentence.
Finally, it may be argued that in dismissing the appeal, I cannot make orders such as required by s 75. This is somewhat the same argument concerning whether I can make the kind of consequential orders I proposed in Ledson v Taylor & Ors (at [88]). I do not agree.
In Hadba v The Queen, (2004) 182 FLR 472, Higgins CJ and Crispin P said in the Court of Appeal;
In our opinion the provisions of s 218 of the Magistrates Court Act 1930 confer ample jurisdiction upon the Supreme Court to vary the sentence appealed from in order to ensure that any periods spent in custody pending the appeal are properly taken into account. Such an appeal involves a rehearing of the matter, though not a rehearing de novo (see s 214 of the Magistrates Court Act). Generally speaking, even on a rehearing a decision will not be reversed, in whole or in part in the absence of appealable error (Warramunda Village Inc v Pryde (2002) 116 FCR 58 at [35]). However, in our opinion, s 218 does provide power for the Supreme Court to vary a sentence appealed from to take into account any periods spent in custody pending the appeal in order to give effect to the sentencing magistrate’s intention and to prevent any injustice that might otherwise arise upon the dismissal of such an appeal.
In my opinion, the power there identified is sufficiently wide to permit me to make the consequential orders I propose and appropriate orders under s 75 of the Sentencing Act.
I have now considered the material tendered in respect of the offences for which he was sentenced on 13 May 2010. It is clear that while the actions of Mr Ledson were extremely foolish, and he must accept that he cannot drive for a considerable period, there were some redeeming features of his behaviour:
a) he had an urgent and not necessarily unreasonable reason for driving, namely that he had to be at work. This may reduce the nature of the contumacy of the behaviour; see Apolevski v Kinnane [2010] ACTSC 43 (at [27]);
b) the Pre‑Sentence Report was positive;
c) he had undertaken a course of Relapse Prevention whilst in custody; and
d) he pleaded guilty at an early stage.
These were factors that led the learned Sentencing Magistrate to impose what must be a quite modest sentence in view of the repetitive nature of the offending and Mr Ledson’s prior history. Of course, Mr Ledson cannot expect that, on release, he will continue to receive the same leniency he has so far received for repeat offending.
Nevertheless, I am of the view that the principle of totality (Mill v The Queen (1988) 66 CLR 39) requires that some concurrency with the sentences on appeal should be permitted.
Accordingly, I now order, in addition to the order on the appeal made on 17 May 2010 as follows:
1. Under s 75 of the Crimes (Sentencing) Act 2005 (ACT), that it be recorded that Mr Ledson is currently serving a sentence imposed on 13 May 2010 of 3 months’ imprisonment to commence on 29 March 2010.
2. The sentence of imprisonment imposed on charge CC 07/07062 (CC 09/2037) is confirmed but directed to commence on 2 May 2010 (to take into account the time already served, the period of custody after the appeal was lodged and before bail was granted and the concurrency of one month with the sentence imposed on 13 May 2010) and on 2 June 2010 to be suspended for 12 months and Mr Ledson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from 2 June 2010 with the condition that he give security in the sum of $1,000 for compliance with the good behaviour order.
3. The good behaviour order made on charge CC09/12836 is confirmed, including as to the performance of 240 hours of community service work within 18 months from 17 May 2010, with the order itself to commence on 2 May 2010 for 18 months from that date.
4. The sentence imposed on charge CC09/5055 is confirmed but directed to commence on 3 June 2010 and on 3 August 2010 be suspended for 12 months and Mr Ledson be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from 3 August 2010 with a probation condition for 12 months and a condition that he give security in the sum of $1,000 for compliance with the good behaviour order.
5. The sentence imposed on charge CC09/5780 of imprisonment, directed to be served as periodic detention for 3 months is confirmed, but directed to commence on 4 August 2010 and is to be served by periodic detention. The first period of detention commencing on 6 August 2010.
6. Except as above the convictions and orders of the Magistrates Court given on 22 June 2009 are confirmed.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2 June 2010
Counsel for the Appellant: Mr M O’Brien
Solicitor for the Appellant: Legal Aid (ACT)
Counsel for the Respondent: Ms A Begley
Solicitor for the Respondent: Director of Public Prosecution (ACT)
Dates of hearing: 17, 19 - 20 May 2010
Date of judgment: 2 June 2010
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