Darren Douglas Powell v Darren Andrew Fitzroy, Ben David Waller and Shaun Pine
[2012] ACTSC 149
•14 August 2012
DARREN DOUGLAS POWELL v DARREN ANDREW FITZROY, BEN DAVID WALLER and SHAUN PINE [2012] ACTSC 149 (14 August 2012)
APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – manifest excess – consideration of offender’s criminal history – held: neither any individual sentence nor degree of accumulation was manifestly excessive.
APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – plea of guilty discount – legislation requires consideration of plea, not giving of sentencing discount for plea – Magistrate’s explanation for failure to give plea of guilty discount implied mistaken view of timing and circumstances of pleas of guilty – held: Magistrate fell into error of fact in addressing appellant’s pleas of guilty.
APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – non-parole periods – where offender on parole for previous sentence, and new sentence is imposed on other offences, no requirement that new sentence be entirely cumulative on previous sentence – Crimes (Sentence Administration) Act2005 (ACT), s 149 cancels existing parole – Crimes (Sentencing) Act 2005 (ACT), s 66(3) cancels non-parole period for previous sentence, to facilitate setting of new non-parole period for new total sentence if required by Crimes (Sentencing) Act, ss 65 and 66(2) – Magistrate therefore required to consider new non-parole period for total sentence of nearly three years – explanation for refusal to set non-parole period for new sentence of 12 months inadequate in relation to longer sentence – held: Magistrate erred in approach to non-parole period; refusal to set non-parole period without adequate explanation requires appellate intervention; non-parole period set.
EX TEMPORE JUDGMENT
No. SCA 16 of 2012
Judge: Penfold J
Supreme Court of the ACT
Date: 14 August 2012
IN THE SUPREME COURT OF THE )
) No. SCA 16 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: DARREN DOUGLAS POWELL
Appellant
AND: DARREN ANDREW FITZROY, BEN DAVID WALLER
SHAUN PINE
Respondents
ORDER
Judge: Penfold J
Date: 14 August 2012
Place: Canberra
THE COURT ORDERS:
THAT the appeal is allowed.
THAT the appellant be resentenced to a total of 12 months imprisonment, backdated to 17 July 2012, and made up as follows:
(a) On CC11/5142 (driving while disqualified) – two months imprisonment;
(b) On CC11/6988 (unlawful possession of stolen property) – four months imprisonment, cumulative on CC11/5142;
(c) On CC11/5140 and CC11/9547 (two charges of possessing a drug of dependence) – three months imprisonment on each charge, concurrent with each other and with CC11/6988;
(d) On CC11/6987 (fail to appear) – six months imprisonment, cumulative on CC11/6988.
Noting:
(a) that the appellant is currently serving a sentence of two years imprisonment previously imposed (the existing sentence); and
(b) that the non-parole period for the existing sentence has been cancelled, by operation of s 66(3) of the Crimes (Sentencing) Act 2005 (ACT), as a result of the imposition of the sentences set out in Order 2;
THAT for the purpose of s 65 of the Crimes (Sentencing) Act, the new non-parole period for the total sentence to be served by the appellant is two years and three months, backdated to 23 August 2010 and expiring on 22 November 2012.
Introduction
Darren Powell has appealed against sentences imposed on him in the Magistrates’ Court on 8 February this year in respect of five offences as follows:
(a) for an offence of driving while disqualified, two months imprisonment;
(b) for an offence of unlawful possession of stolen property, four months imprisonment cumulative on the drive while disqualified sentence, adding up so far to six months imprisonment;
(c) for two offences of possession of a drug of dependence, three months imprisonment each, to be served concurrently with each other and with the possession of stolen property offence, so that still amounts to six months imprisonment; and
(d) finally, for failing to appear on a bail undertaking, six months imprisonment cumulative on the possession of stolen property sentence, giving a total sentence of 12 months imprisonment.
The total sentence of 12 months imprisonment was expressed to begin on 23 August 2012 but, taking account of 38 days time served, to finish on 16 July 2013. This might more logically have been expressed as involving a 12-month sentence, explicitly backdated to 17 July 2012, to take account of time served and therefore expiring on 16 July 2013.
When her Honour sentenced the appellant there were unfinished sentences totalling two years imprisonment with a 12-month non-parole period that had previously been imposed in the Supreme Court and the Magistrates Court. The appellant had previously been released on parole, but when the sentencing Magistrate recorded convictions on the offences currently the subject of appeal, his parole was automatically cancelled under s 149 of the Crimes (Sentence Administration) Act 2005 (ACT).
The sentencing Magistrate noted this, although she described it as a cancellation of the appellant’s non-parole period rather than of his parole, and made further comments that, although not expressed as an order, were apparently intended to comply with s 161(2) of the Crimes (Sentence Administration) Act, which requires an order that the appellant be placed in the Director-General’s custody to serve the outstanding period of his previous sentence. The appellant had already had his parole revoked once before, so the outstanding portion of his sentence by then amounted to a bit over six months, expiring on 22 August this year.
Her Honour went on to say that “therefore” the 12-month sentence she was imposing would start on 23 August 2012. It is not clear whether her Honour saw this approach as required by the Crimes (Sentence Administration) Act or whether her “therefore” was intended only to refer to her own reasoning about the appropriate start date for the new sentence.
Her Honour had already explicitly declined to set a non-parole period for the new 12‑month sentence, saying:
So the total sentence is 12 months imprisonment and the non-parole is 12 months.
I decline to set a non-parole period because he has breached parole obligations in the past and has been sentenced to imprisonment as a result of breaching his parole obligations and if he is released, I have the view that he will breach again and since his release, he has potentially been in breach again of his parole obligations.
The appeal
The appellant challenged his sentence on several grounds, being in general terms her Honour’s treatment of the appellant’s pleas of guilty, her Honour’s approach to non-parole periods, and finally that the sentence was manifestly excessive.
Manifest excess
The manifest excess ground is fairly easily dealt with. I cannot see that any of the individual sentences was manifestly excessive.
The highest sentence, six months reduced from eight months for a failure to appear, strikes me as not obviously excessive for a person with five previous convictions for failing to appear and with apparently no particular excuse for the failure, nor any suggestion that he had attended the court at some point after failing to appear. It seems that he was only apprehended when police happened to come across him during a routine foot patrol.
The four-month sentence for possession of stolen property, which involved the appellant being found with a backpack containing various stolen credit cards and identity cards, does not seem excessive for a person with at least 70 prior convictions for dishonesty offences, noting, of course, that a prior record does not permit a higher than appropriate sentence, but it may well reduce or eliminate any claim to leniency.
None of the other three sentences – two months for driving while disqualified as a first offender (which, in this context, only means that this was the appellant’s first offence of driving while disqualified), and three months each for two offences of possessing trace quantities of illicit drugs to be served entirely concurrently with other sentences – seems to be excessive in the circumstances.
I can also see nothing wrong with the complete accumulation of three sentences arising out of three completely different occasions of offending and nor can I see, having regard to totality, that the total sentence of 12 months for the five offences is more than is required to reflect the overall criminality of the appellant’s conduct, that it is in any sense just too much, or that it amounts to a crushing sentence.
The manifest excess ground is not made out.
The guilty pleas
As to her Honour’s treatment of the pleas of guilty, I accept the principle urged on me by counsel for the respondent and that I have set out in earlier decisions that there is no right to a plea of guilty discount, only a right to have one’s plea of guilty considered and, if a plea of guilty discount is given, to have that discount identified. Her Honour took great care to specify her attitude to the various pleas of guilty and to explain why only one plea, that on the fail to appear charge, would attract a plea of guilty discount. She was clearly not in error as regards to her obligation to consider the pleas of guilty.
However, a failure to consider a plea of guilty is not the only possible plea of guilty error. In this case, the appellant says that her Honour had considered one of the pleas of guilty by reference to a mistaken view of the facts. In relation to the drive while disqualified charge, her Honour said that the appellant did not plead guilty to it “until October/November after the matters had gone through case management hearing and the delays that are associated with that case management hearing process”. This was not correct. The plea of guilty had been entered on 10 August 2011, well before the October/November period referred to by her Honour and, indeed, on the day in which other matters were referred to case management hearings that appear to have taken place two months later.
As to the charge of possession of stolen property, the appellant points out that her Honour had been made aware that the appellant’s plea of guilty had come after “significant discussions between the appellant’s representatives and the DPP” and that this fact, while not entitling the appellant to any particular sentencing discount as such, should have been taken into account in considering the timing of his plea of guilty. Having regard to this, it is said that her Honour’s refusal to give any plea of guilty discount for this charge, and her failure to refer to its timing, suggest that her Honour was mistaken about the timing of this plea of guilty, or perhaps failed to take account of a relevant consideration (by overlooking the significance of the delay caused by negotiations between the DPP and the appellant’s representatives).
I note in this context that her Honour’s reason for refusing a plea of guilty discount was in both cases that “He is not deserving of the discount”, and that the only colour that can be given to this remark comes from her Honour’s explanation that she would give a 25% discount on the failure to appear sentence “because he did plead guilty at the first opportunity on that charge”. Thus it seems that her Honour fell into error in her addressing of the appellant’s pleas of guilty to the drive while disqualified and possession of stolen property charges.
Non-parole periods
The other three appeal grounds seem to me to be different ways of attacking her Honour’s approach to non-parole periods in the sentencing exercise. As noted, the immediate effect of her Honour’s recording of convictions was that the appellant’s parole was automatically cancelled, and he was liable to serve the last roughly six months of his earlier two-year sentence in full-time custody. I do not see that this obliged her Honour to impose the new sentences entirely cumulative upon that previous sentence, but I can see no reason why that was not an available way for her to exercise her discretion.
However, in doing so, her Honour has failed to comply with s 66 of the Crimes (Sentencing) Act 2005 (ACT), which deals with setting a non-parole period when a new sentence is imposed on a person already serving a previous sentence. Section 66(3) of that Act says that the imposition of the new sentence automatically cancels any non-parole period for the existing sentence. It is possible that this is the source of her Honour’s confusion and the explanation for why she referred to the cancellation of the parole that is effected by s 149 of the Crimes (Sentence Administration) Act as the cancellation of the non-parole period. The cancellation of parole requires an offender to be returned to custody. The cancellation of a non‑parole period by s 66(3) has quite a different effect, which is to facilitate the operation of s 66(2). That provision applies the requirement to set a non-parole period, found in s 65, to a deemed sentence of imprisonment for a term equal to the total of the previous sentence and the new sentence being imposed.
That is, in this case, s 65 applied to require her Honour to set a non‑parole period for a deemed total sentence of nearly three years imprisonment and, to permit that, the appellant’s earlier non-parole period of 12 months was cancelled by the operation of s 66(3).
Section 65, of course, also permits a sentencer to decline to set a non-parole period if he or she considers “that it would be inappropriate to set a non-parole period, having regard to the nature of the offence or offences and the offender’s antecedents”.
In this case, as already noted, her Honour did decline to set a non-parole period, and she gave an explicit reason for doing so, being the appellant’s failure to comply with his parole obligations in the past. However, as her reasons also make explicit, her Honour considered she was imposing a 12-month sentence and declining to set a non-parole period for that 12-month sentence. In fact, as already explained, s 66(2) meant that s 65 required her Honour to set a non-parole period for a sentence of nearly three years, or to explain why she declined to do so.
Declining to set a non-parole period for a 12-month sentence is not a major decision, given that the obligation to set a non-parole period only cuts in at the imposition of a 12-month sentence. There is no non-parole period requirement for a sentence of 11 months and 29 days. This should not, of course, be taken to suggest that no reasons are required for a refusal to set a non-parole period for a 12-month sentence.
In contrast, however, imposing a sentence of nearly three years without a non-parole period, having regard especially to the role of parole in the rehabilitation of offenders, demands a clear explanation by reference to either or both of the nature of the offences or the offender’s antecedents. Her Honour made no mention in her explanation of the nature of any of the appellant’s offences. Her explanation by reference to his antecedents referred only to past breaches of parole obligations and her Honour’s expectation that there would be further breaches.
I am satisfied that this explanation was not adequate compliance with s 65(4) in the circumstances of a nearly three-year sentence.
Finding of error
Thus, I am satisfied that her Honour fell into error in her sentencing, both in relation to her handling of the pleas of guilty and, more significantly, in relation to her approach to the non-parole period requirements.
Whether the appellant should be re-sentenced depends on whether I consider that another sentence is appropriate. In this case I would have hesitated to uphold the appeal and re-sentence the appellant purely on the grounds of her Honour’s errors in relation to the pleas of guilty, but I am satisfied that an effective sentence of almost two years and 11 months imprisonment with no non‑parole period must be replaced.
Conclusion
The appeal is upheld and I shall re‑sentence Mr Powell.
Re-sentencing
Mr Powell, please stand. I now sentence you as follows:
(a) On charge CC11/5142, being driving while disqualified, to two months imprisonment to run from 17 July 2012, and that incorporates the backdating for the 38 days time served.
(b) On charge CC11/6988, possession of stolen property, to four months imprisonment accumulated on the first two-month sentence.
(c) On charge CC11/5140 and on charge CC11/9547, being the two possess drug of dependence charges, to three months imprisonment each, to be served concurrently with each other and with the sentence for possession of stolen property (giving a total of six months so far).
(d) Finally, for the fail to appear charge, charge CC11/6987, to six months imprisonment accumulated on the possession of stolen property sentence, giving a total sentence of 12 months.
That sentence will be largely accumulated on the two‑year total sentence that you are currently serving, except for the 38 days backdating for time served, and so the new sentence will expire on 16 July 2013. Under s 66(3) of the Crimes (Sentencing) Act, the non-parole period attached to your original two-year sentence is cancelled and, under ss 66(2) and 65(1) of the Crimes (Sentencing) Act, I am required to set a new non-parole period for the total sentence of two years and nearly 11 months.
Having regard to your apparent past unwillingness to take advantage of parole to pursue rehabilitation, a longer rather than shorter non-parole period seems to be justified. So I set a non-parole period of two years and three months, representing about 77% of the total sentence. That means that you will be eligible for parole again,
at the earliest, on 22 November this year. Of course, if you are granted parole again and you re-offend again, you will be back in the AMC serving the remaining nearly 8 months of this sentence. You may sit down.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Rik Sutherland
Date: 24 September 2012
Counsel for the appellant: Mr M Hassall
Solicitor for the appellant: Legal Aid Office (ACT)
Counsel for the respondent: Mr D Sahu Khan
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 14 August 2012
Date of judgment: 14 August 2012
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