David Thomas St John v Daniel WILLIAMS
[2006] ACTSC 105
DAVID THOMAS ST JOHN v DANIEL WILLIAMS and ORS
[2006] ACTSC 105 (27 OCTOBER 2006)
CRIMINAL LAW – Sentence – appeal from Magistrates Court – cumulation of sentences for multiple offences – fixing of “standard” non-parole period – non-parole period to be fixed as minimum period of actual imprisonment warranted by offences – rehabilitation prospects – deferred sentence order proposed by prosecutor – suspended sentence order now appropriate – Crimes (Sentencing) Act 2005 (ACT), s 12, s 27, s 117.
Crimes (Sentencing) Act 2005 (ACT), s 12, s 27, s 117
Pearce v R (1998) 194 CLR 610
Power v R (1974) 131 CLR 623
R v Simpson (2001) 53 NSWLR 704
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 37 of 2006
Judge: Gray J
Supreme Court of the ACT
Date: 27 October 2006
IN THE SUPREME COURT OF THE )
) No. SCA 37 of 2006
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAVID THOMAS ST JOHN
Appellant
AND:DANIEL WILLIAMS
Respondent
ROHAN McMULLAN
RespondentJOEL WOODS
RespondentSHAUN TIMMISS
RespondentELLIOT BOLITHO
RespondentANDREW MITCHELL
Respondent
ORDER
Judge: Gray J
Date: 27 October 2006
Place: Canberra
THE COURT ORDERS THAT:
That the appeal be allowed.
The convictions and the imposition of the sentences of imprisonment imposed by the Magistrate be confirmed and those sentences which are not cumulative upon another sentence are to take effect from 4 July 2006.
The sentences to be served on and from 30 October 2006 be suspended.
The appellant be required to sign an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years.
David Thomas St John (the appellant) appeals from the severity of a sentence imposed in the ACT Magistrates Court on 8 August 2006 for a variety of offences including possession of drugs, motor vehicle offences and offences involving dishonesty. In respect of all of the offences with which he was charged, he was sentenced to a total of 24 months imprisonment and a non-parole period of 16 months was fixed.
The appellant is now 39 years of age and has an extensive criminal record extending back over the past 20 years. He has previously served terms of imprisonment both for robbery and driving offences. The offences with which the Magistrate was concerned cover a period of time from 6 June to 4 July 2006. They involved charges concerning the possession of amphetamines and cannabis. They also included four offences that involved obtaining or attempting to obtain property by deception by means of a stolen credit card, two instances of taking and using motor vehicles and three offences of driving whilst disqualified. Apart from these offences there were also other motor vehicle offences and the possession of a knife without reasonable excuse.
Mr Gill, who appeared as counsel for the appellant, in his written submissions has provided a list of the offences in tabular form by reference to their Magistrates Court number and the penalties that the Magistrate imposed. I set them out.
06/5314 6.6.06 possess drug of dependence 3 months imprisonment
06/5315 6.6.06 possess drug of dependence 3 months (conc)
06/5349 7.6.06 minor theft 4 months (conc)
06/5350 7.6.06 unreg car rising of the court
06/5351 7.6.06 drive disqualified 6 months (conc)
3 years disqualified
06/5352 7.6.06 uninsured rising of the court
06/5353 7.6.06 false reg plates rising of the court
06/7115 9.6.06 obtain property by deception 6 months (conc with 5576)
06/7117 9.6.06 obtain property by deception 6 months (conc with 5576)
06/7119 9.6.06 obtain property by deception 6 months (conc with 5576)
06/71121 9.6.06 obtain property by deception 6 months (conc with 5576)
06/5576 13-14.6.06 take and use mv 12 months (cumul 5351)
06/5578 14.6.06 possess drug of dependence rising of the court
06/5579 13.6.06 drive disqualified 6 months (conc with 5576)
3 years disqualified
06/6000 29.6.06 take and use motor vehicle 12 months (6m conc 5576)
06/6324 29.6.06 drive disqualified 8 months (conc 6000)
3 years disqualified
06/6102 4.7.06 possess knife rising of the court
06/6107 4.7.06 possess drug of dependence 4 months (conc 6000)
As I understand the submission that Mr Gill made in relation to the overall sentence of two years imprisonment imposed by the Magistrate, it was that the Magistrate had somehow not given effect to proper principle in cumulating some of the offences and making others concurrent. Reference was particularly made to the sentence of eight months imprisonment that the Magistrate imposed in respect of the charge of driving whilst disqualified, even though this sentence had been made concurrent with the 12 months sentence for take and use a motor vehicle. Mr Gill submitted that the maximum penalty for the offence of drive whilst disqualified is 12 months imprisonment. If that submission implies that the sentence imposed was not proportionate, it needs only to be pointed out that the last offence in respect of which the appellant had been sentenced to imprisonment was also an offence of drive whilst disqualified. In October 2005, the appellant was sentenced to six months imprisonment for that offence.
The Magistrate was amply justified in considering that a sentence of imprisonment was the only appropriate penalty in respect of each of the offences before her. The appellant’s previous criminal history could not justify extending leniency to him in respect of any of the offending before the court. It was appropriate for the Magistrate to determine what sentences should be served cumulative upon each other, particularly in respect of different species of criminal offending. She was also obliged to review any aggregate that might be derived from that process and consider whether the aggregate was just and appropriate as a reflection of the overall criminality. The effect of that might well be to require some moderation of the sentences imposed in respect of each offence or some adjustment to their concurrence or cumulation. A consideration of matters in this way is sometimes said to be a reflection of the totality principle. That principle can be given effect through complete or partial cumulation of sentences and by making all or some of the sentences concurrent.
Although Mr Gill on behalf of the appellant referred to the principles set out by the High Court in Pearce v R (1998) 194 CLR 610 as a need to provide proper basis for sentencing on each count, the general approach to which I have just referred was not in issue in that case. Pearce was a case which recognised that, where the commission of offences which contained common elements was being considered by a sentencer, it would be wrong to punish the offender twice for the commission of elements that are common.
Looking at the way that the Magistrate structured the sentences in the present case by reason of making some concurrent with each other and others cumulative, and having regard to the overall result, I do not see any error in either the result or in the approach of the Magistrate.
In this case, the major submission put to the Magistrate on sentencing related to the appellant’s rehabilitative prospects. The appellant had, in a note to the Magistrate, expressed his strong determination to seek rehabilitation. He acknowledged the fact that he had not taken such chances when they had been offered to him in the past. The updated pre-sentence report tendered to the Magistrate made this comment:
Mr St John has perceptively assured this Officer that given his previous deceptions about tackling his misuse of drugs and his past failures on Court Orders, he is aware that he has an [sic] significant credibility problem now that he would like to genuinely address these issues in his life. Mr St John has stated that if the Court imposes a fulltime custodial sentence, then he will still seek to admit himself to a residential rehabilitation program upon release.
In respect of this aspect, the Magistrate concluded as follows:
My sincere hope is that the defendant will overcome his drug addiction, and if attending a residential rehabilitation program will assist, and he is motivated to do so, that is excellent. But it is something that he will have to do upon his release from jail, as I can see no alternative today but to impose an immediate custodial sentence.
In my view, the Magistrate was amply justified in taking such an approach. My concern, however, is that the Magistrate, in focussing upon the requirement for an immediate custodial sentence, did not give adequate consideration to the length of time that the appellant should spend in that custody. The “release from jail” referred to by the Magistrate seems to imply the service of the whole sentence. Nevertheless, at the conclusion of her remarks setting a total term of 24 months imprisonment, the Magistrate set a non-parole period of 16 months. No explanation was given for the justification for, or the fixing of, this particular period. The non-parole period so set, might be described as a “standard” non-parole period bearing, as it did, a relationship requiring two-thirds of the sentence to be served in prison. There is, of course, no legislative prescription in relation to non-parole periods as there is, for example, in New South Wales. The fixing of a non-parole period in this Territory is not constrained by statute nor do the cases mandate a standard proportion of the sentence that should be served before release to parole.
The fixing of a non-parole period calls for an assessment of the minimum term that should be set for the offender to serve in prison. The non-parole period is to be determined by what the sentencing judge concludes, according to accepted principles of sentencing, as to that which ought to be the minimum period of actual imprisonment (see Power v R (1974) 131 CLR 623). It is recognised, even in New South Wales where there is a statutory standard non-parole period and a requirement for there to be special circumstances to depart from it, that the requirements of rehabilitation may well be best computed in terms of linear time and not in terms of a fixed percentage of a head sentence (see R v Simpson (2001) 53 NSWLR 704 at 717 [58]). Generally, I consider an approach which has regard to linear time as to the period appropriate to be served on parole to have even more force in a jurisdiction that does not have standard non-parole periods. However, that observation is not to detract from the primary perspective which should be the length of the minimum period of actual incarceration (cf Simpson at 717 [57]).
I would be reluctant to interfere in the Magistrate’s assessment of the period of actual imprisonment that she thought appropriate in the circumstances of this case were it not for a submission put to her to which she makes no reference in her sentencing remarks. At the conclusion of the sentencing submissions, the prosecutor submitted that it would be in the best interests of the community to test whether the appellant could complete a residential rehabilitation program into which he had been accepted. The proposition put was that the appellant be released on bail to attend a proposed rehabilitation program and, on receipt of a favourable report for the appellant to be released on a deferred sentence order.
The sentence to be imposed in this case was a sentence subject to the recently enacted Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Section 27 of that Act makes provision for a deferred sentence order and Part 8.1 sets out the provisions concerning the making of such an order. The question of the suitability of deferred sentence orders for a particular offender is set out in s 117 of the Sentencing Act and it is clear that normally the trigger for such an order is the pre-sentence report and recommendations made in that report. In the present case, there is no reference in either of the tendered pre-sentence report or updated pre-sentence report to this sentencing option. If there had been, the court would have been obliged under s 117(4) of that Act to record its reasons for its decision to make or not to make such an order. It can be noted that failure to comply with s 117(4) does not invalidate any order so made (s 117(5) of the Sentencing Act).
The circumstance here is somewhat atypical, probably because of the options recently extended by the Sentencing Act not being addressed by the Magistrate nor the appellant’s counsel. Although the question of a deferred sentence order has not been the subject of a report or evidence, the prosecution has raised the issue. I consider that the issue having been raised ought to have been dealt with by the Magistrate. That is not to say that the Magistrate should have necessarily acceded to it but the fact that consideration should have been given to the sentencing option which had now become available was one that could also have had an effect on the consideration to be given to the fixing of a non-parole period. That would be so if the prospect of rehabilitation that might have merited the imposition of a deferred sentence, which the prosecution supported, were to be considered as more achievable under the administration of a parole order. A consideration of this aspect could well have indicated that a longer period on parole would facilitate successful rehabilitation than the eight months envisaged by the Magistrate but still be consistent with a minimum period of actual imprisonment called for by the commission of the offences by the offender. Whilst it was quite open to the Magistrate to have not acceded to the prosecutor’s submission, her not explaining the reasons for the course that she took could well lead to a justifiable sense of grievance on the part of the appellant.
To an extent, events have overtaken what could have been the proper disposition of this matter. The appellant has not sought a stay of his sentence and continues to serve it. The opportunity to reconsider the sentence in light of a proposition that he might be released on a deferred sentence order is now not available. I am inclined to think that the best course to follow would be to make a suspended sentence order under s 12 of the Crimes (Sentencing) Act 2005 suspending the balance of the sentence to be served by the appellant on and from 30 October 2006. I would also make a good behaviour order.
I allow the appeal. I confirm the convictions and the imposition of the sentences of imprisonment imposed by the Magistrate with such sentences as are not cumulative upon another sentence, to date from 4 July 2006 but I suspend the sentences to be served on and from 30 October 2006 and I make a good behaviour order requiring the appellant to sign an undertaking to comply with the good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years. I will hear counsel as to other appropriate conditions that may be required in the circumstances of this case.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 27 October 2006
Counsel for the appellant: Mr S Gill
Solicitor for the appellant: pappas j - attorney
Counsel for the respondents: Mr A Doig
Solicitor for the respondents: Director of Public Prosecutions (ACT)
Date of hearing: 3, 13 & 18 October 2006
Date of judgment: 27 October 2006
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