Department of Police and Emergency Management v Greaves
[2009] TASSC 77
•10 September 2009
[2009] TASSC 77
COURT: SUPREME COURT OF TASMANIA
CITATION:Department of Police and Emergency Management v Greaves [2009] TASSC 77
PARTIES:DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT
KERR, Phillip George (Constable)
MILAZZO, Marisa (Detective Constable)
REID, Timothy Greg
McDONALD, Scott (Sergeant)
JERRIM, M
MOLLON, Jillinda (Senior Constable)
v
GREAVES, George William Douglas
FILE NO/S: 552/2009
DELIVERED ON: 10 September 2009
DELIVERED AT: Hobart
HEARING DATE: 6 August, 2, 3 September 2009
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Appeal and new trial – Appeal against sentence – Appeals by Crown – Principles applied by appellate court to Crown appeals.
Her Majesty's Attorney-General v O [2004] TASSC 53, referred to.
Aust Dig Criminal Law [3527]
Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – Whether sentence imposed manifestly inadequate.
Brown v Stone unreported B14/1995; Smart v R A43/1995 [[1995] TASSC 80]; Kerry Lloyd Bessell v William James Riley [1995] TASSC 15, referred to.
Aust Dig Magistrates [272]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: K Baumeler
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Butler, McIntyre & Butler
Judgment Number: [2009] TASSC 77
Number of paragraphs: 28
Serial No 77/2009
File No 552/2009
DEPARTMENT OF POLICE AND EMERGENCY MANAGEMENT, CONSTABLE PHILLIP GEORGE KERR, DETECTIVE CONSTABLE MARISA MILAZZO, TIMOTHY GREG REID, SERGEANT SCOTT McDONALD, M JERRIM, SENIOR CONSTABLE JILLINDA MOLLON v GEORGE WILLIAM DOUGLAS GREAVES
REASONS FOR JUDGMENT TENNENT J
10 September 2009
On 12 June 2009, the respondent, George William Douglas Greaves, was sentenced by a magistrate in respect of a number of offences appearing on several complaints. The learned magistrate sentenced the respondent on a global basis to six months imprisonment, three months of which were suspended on certain conditions.
The applicants, in effect the prosecuting authorities in respect of those complaints, have sought a review of that sentence. The sole ground of review, contained in the original notice filed 30 June 2009, was that the sentence imposed was, in all the circumstances of the case, manifestly inadequate. At the commencement of the hearing, counsel for the applicants applied to amend the notice to review to insert an additional ground of review. That was, that the learned magistrate erred in law in that he imposed a sentence when he had not heard or been provided with prosecution facts in relation to the complaints. That amendment was sought because it appeared from enquiries made by counsel for the applicants that there was no record of any such facts having been provided. The ground was not ultimately pursued. While counsel for the applicants was reluctant to concede that the learned magistrate did have facts for the prosecutor when he imposed sentence, the hearing to all intents and purposes proceeded on the basis that he did.
With the consent of the parties to the hearing of the review, copies of the facts for the prosecutor, in respect of all complaints in respect of which the respondent was sentenced, and a copy of his prior history before the court were handed up to the Court.
Facts
The following is a list of the complaints which were the subject of the learned magistrate's sentence with a brief description of the offences described in them:
Complaint Charge Date of offence
9377/07 Drive whilst disqualified 27/2/07
Fail to comply with a direction of a police officer
18187/07 Drive whilst disqualified 19/6/07
Driver not holding a licence driving with alcohol in body
Use unregistered motor vehicle
Using uninsured vehicle
Possess controlled plant
Possess thing used for the administration of a drug
Leave vehicle unattended without park brake
18850/07 Fail to appear
1621/08 Breach of bail
13868/08 Destroy property 9/5/08
92965/08 Stealing 9/5/08
92766/08 Attempted motor vehicle stealing June 2008
14392/08 In possession of stolen property June 2008
14011/08 Burglary 21/9/08
Stealing
14956/08 Fail to appear
15612/08 Burglary x 3 ) October/
Stealing x 3 ) November
Attempted burglary) 2008
5066/09 Burglary November 2008
Stealing
16415/08 Unlicensed driving November 2008
Use unregistered vehicle
Use uninsured vehicle
The first offence in time occurred in February 2007. At the time, the respondent was a disqualified driver. The respondent was seen driving a vehicle with a smashed headlight. Police directed him to stop. He drove off. He was followed to the driveway of a private home, and again directed to stop. Again, he drove off. Four months later, late one night, police attempted to intercept a vehicle for a random breath test. The vehicle stopped, and the occupants ran off. Police caught the respondent, who was the driver, in the backyard of a nearby private home. The respondent had left the vehicle without applying the brake. While he was being chased, the vehicle ran back and hit the police vehicle. Police found a bottle of whiskey, a small amount of cannabis, and a smoking device in the car. The respondent was then still a disqualified driver. He returned a blood alcohol level of .042. The respondent was charged and admitted to bail on this occasion. He was bailed to appear before a court on 6 August 2007. He failed to do so.
On 4 January 2008, the respondent appeared in court, and was bailed to re-appear on 23 January 2008. He did not do so.
In early May 2008 at Cygnet, the respondent and others removed an entire phone box from its base. They dragged the box to a secluded area nearby for the purpose of taking the telephone and coin box containing approximately $100. In the middle of June 2008, the respondent entered a yard at Mornington containing a large number of vehicles. He attempted to steal a vehicle using scissors in the ignition, but could not start it. A week or so later, the respondent took possession of a stolen motor bike and removed parts to disguise its identification. On 25 September 2008, the respondent was spoken to by police about the matter. He made admissions, was charged, and was bailed to appear before a court.
On 21 September 2008, the respondent, with others, broke into and stole money from a business in Huonville. He was arrested and bailed a few days later to appear in court on 3 November 2008. He did not appear. On 5 October 2008, the respondent and others broke into the Kermandie Football Club. In doing so, $2,010 worth of damage was caused. Alcohol to a value of $220 was stolen. On 9 November 2008, the respondent and others broke into the football club again in the same way, and this time stole alcohol and power tools. On this occasion, only $200 worth of damage was caused. On the same day, after leaving the football club, the respondent and others burgled a takeaway store and stole $400 cash. They did $500 worth of damage in the process. They left those premises and then smashed their way into another business. An alarm went off and they ran.
On 19 November 2008, the respondent smashed his way into the St James College canteen and stole $30. He did damage to a value of $75. On 24 November 2008, the respondent was intercepted driving an unregistered and uninsured vehicle. He did not have a licence and attempted to hide his face when he saw the police car.
The complaints identified above, and the summary of facts relating to them, reflect a pattern of continued offending over the period early 2007 through to November 2008. They also reflect a range of offending which includes drink-driving, driving whilst disqualified, other minor traffic offences and offences of dishonesty.
Prior convictions
The respondent was born on 7 January 1985. The offending, to which the complaints relate, began in February 2007. At the time, the respondent was 22 years old. He was also then on parole, having been released from custody on 24 October 2006 with five months and eight days of a sentence still to serve. He had numerous convictions which dated back to convictions in the then Children's Court in 1997, when he was only 12. The respondent had 15 convictions for driving whilst disqualified and 20 for motor vehicle stealing. He also had convictions for aggravated burglary, burglary, stealing and assault. He had, on more than one occasion, spent periods of time in youth justice detention or adult custody in respect of his offending. For example, on 27 February 2001, the respondent was sentenced to a period of six months detention in respect of two counts of motor vehicle stealing and two counts of drive whilst disqualified. In the year before, he had been ordered to serve a period of seven months detention for one count each of motor vehicle stealing and drive whilst disqualified.
Plea in mitigation and material before the court for sentence
The learned magistrate had a pre-sentence report dated 30 April 2009 in relation to the respondent. The report described a dysfunctional upbringing involving family violence and placements in foster care. It disclosed that the respondent had a child of his own, whom he did not see. At the time of sentencing, he had been in another relationship for about two and a half years. That relationship was credited with some improvement in the respondent's behaviour. It was noted in the report that the respondent had not been convicted of any offence since being released on parole in October 2006, a period which coincided with this relationship. Under the heading "Attitude and responses toward offending behaviour" the writer of the report said:
"With respect to the offences currently before Your Honour, the defendant advised he cannot blame family violence or other past circumstances for his behaviour, and that he was responsible for his actions. He acknowledged the damage he caused to the Kermandie Football Club premises impacted upon the club, and stated he is deserving of punishment and would have carried out the required repairs himself if the opportunity had arisen. Having said that, he denied one stealing and the attempted motor vehicle stealing charge, and justified driving related offences in terms of his perceived competence as a driver, his need to attend appointments, and transport difficulties associated with living in Huonville. The defendant has a history of offences similar to those presently before Your Honour dating back to 1996. He is mindful that when under the influence of alcohol he has no conscience and is easily led by associates, and advised it is important he distanced himself from some of his associates - including his brother, and that he reduce the amount of alcohol he consumes and restrict the persons with whom he associates to trusted friends and family."
The writer of the report recommended that the respondent was not suitable to perform community service. The respondent had been ordered to perform community service in April 2004 but had not completed the hours ordered. The opinion was expressed because of that breach, and the respondent's unreliability and poor attitude to attending appointments. That unreliability had extended to his keeping appointments for the purpose of the report. Probation was however recommended because of the respondent's high need for supervision.
The learned magistrate also had before him a screening report dated 20 March 2009 relating to the Court Mandated Drug Diversion Program. The respondent had reported to the writer of that report that he did not have an illicit drug problem and that illicit drugs were in no way connected to his offending. As a consequence, he was assessed as unsuitable to enter the program. What the respondent told the writer of that report about his illicit drug use was contrary to what was said in the pre-sentence report about the same issue.
The plea in mitigation made by the respondent's counsel to the learned magistrate was brief. The exchange between counsel and the learned magistrate was as follows:
"MS BAUMELER: Quite clearly it's a very complex incident – pre-sentence report that's been prepared. Mr Greaves has had significant difficulties throughout his life; he's had a very difficult childhood and that's certainly brought out in the pre-sentence report. Despite the fact that he's had those difficulties, in recent times he certainly appears to have stabilised and he has now quite a number of supports within the community. He has a worker with him in the back of the Court, and that person has been in Court essentially with him every time and been of great assistance to him, and as I said, despite the difficulties that he's had, he certainly seems to be, at least attempting to make a go of his life. Unfortunately he wasn't suitable for the CMD program – I can't recall now why that was the case, but he – has your Honour got the Court Mandated Drug Diversion Report?
HIS HONOUR: Yes, yes.
MS BAUMELER: Because I don't seem to have a copy on my file but obviously there was a reason why he wasn't suitable for that program.
HIS HONOUR: Because he said he didn't have an illicit drug problem.
MS BAUMELER: Oh, well that will do it. Obviously that's not borne out by the – the references in the – in the pre-sentence report under the heading of 'Health and Substance Use Issues'. So I don't know whether your Honour would consider a reassessment under the –
HIS HONOUR: No.
MS BAUMELER: No – okay. Because it would be my submission that essentially some sort of orders that assist in terms of rehabilitation and assist him in addressing the substance abuse that he's had difficulties with in the past, obviously is going to be of assistance to him. So if it's not done under the CMD program then I'd certainly urge your Honour to consider the reference to a probation order that's in the report, recommending that there be a supervised probation, because then at least there is some means where he can address those difficulties.
If it please."
Sentencing remarks
The learned magistrate's sentencing remarks were also brief. He said:
"HIS HONOUR: Yes, okay stand up Mr Greaves. You're charged before the Court with a number of matters: driving whilst disqualified; destroying property; burglary and stealing; possession of stolen property; failing to appear; a number of burglary matters; stealing, attempted burglary; driving of vehicles whilst not a holder of a driver's licence; driving an unregistered and uninsured vehicle; driving whilst disqualified; exceeding the breathalyser limit, ie you had a reading of .042 when you shouldn't have had any alcohol in your body; motor vehicle stealing and stealing. You're aged twenty four. You have a history of dishonesty and a history of driving whilst disqualified. On my count you have twelve driving whilst disqualified convictions; on the 31st of May 2005 you were convicted of driving offences and other offences of dishonesty. You received two years, I've got a note here. The 8th of April 2004, driving whilst disqualified a motor vehicle; you received six months disqualification and three months imprisonment. I've received a Court Mandated Drug report and you're ineligible and unsuitable for that scheme on the basis that you say that you've got no drug problem, that you don't use drugs, except for an occasional use of cannabis, and that you can't – there's no link between drugs and your offending. I've also a pre-sentence report and you're not suitable for Community Service orders, it's recommended that you be – that you be placed on a twelve month's probation order.
I'm going to record a conviction on all matters presently before the Court; there will be an in globo penalty, it will be two years disqualification of your licence accumulative upon any other period of disqualification. There will be six months imprisonment; three months wholly suspended for two years on condition you do not drive a motor vehicle whilst disqualified during that period. There will be twelve months – or commit any offences, sorry – or commit any offences of dishonesty. There will be a twelve month's probation order dating from the release from prison. There's forty four dollars eighty court costs and three hundred and twenty dollars Victims of Crime – twenty eight days from release from prison to pay. You've got three months in prison, and you've got three months suspended sentence hanging over your head, right, and it will be invoked if you drive whilst disqualified or if you drive, or if you commit any offence of dishonesty within the next two years. Okay, you can go."
The review
Counsel for the applicant submitted that the sentence imposed by the learned magistrate did not reflect the serious nature of the offending or the need for personal and general deterrence. He submitted that there were no circumstances identified before the learned magistrate which would justify his having afforded the respondent any leniency. The respondent had an extensive criminal history, and the offences he committed during the period covered by the complaints was a repeat of offending for which he had been convicted, in the main, several times before. The offending was persistent. The respondent committed offences while on bail, he disregarded bail orders generally and showed a consistent intention to avoid being dealt with for the offending. There was an obvious and continued disregard for the law. In those circumstances a penalty of the nature imposed, most particularly with half of it suspended, was manifestly inadequate.
Counsel for the respondent conceded that the sentence imposed was at the low end of the scale, but submitted that it was not so low as to demonstrate error. The respondent had had a tragic family history which was reflected in his long offending history. She submitted that the respondent was not an offender who in the past had been shown significant leniency and re-offended notwithstanding. He had, from the beginning of his dealings with the courts, had quite significant penalties imposed. For example, at a very early stage, he had been committed to Ashley Detention Centre and been made a ward of the State. The only real leniency shown to him was the imposition of a community service order in April 2004. The pre-sentence report, she submitted, showed a glimmer of hope for the respondent's rehabilitation and clearly the learned magistrate imposed a sentence to recognise that.
Counsel for the respondent referred to the stability and benefits offered by the respondent's current relationship. With respect, I am unable to see what benefits there are, given that the respondents offending, although he was not caught and convicted during the period, continued through most of the time the relationship subsisted. Counsel also raised the issue of the "double jeopardy" principle. She said the respondent had believed there would be no appeal against his sentence and has found the fact that there is now one stressful. Counsel for the applicants did not join issue with the need for the Court to consider the double jeopardy issue.
The law
Although he wrote a dissenting judgment in Her Majesty's Attorney-General v O [2004] TASSC 53, Blow J summarised, at pars31 to 35 inclusive, the principles relating to appeals by the State against sentence. I adopt that summary. He went on to conclude that the impact of "double jeopardy" factors were not such in that case as to override the fact that the sentence imposed was so manifestly inadequate. Underwood J (as he then was) in the same case said as to the "double jeopardy" principle at pars4, 5, 7 and 8:
"4 However, I regret to say that I differ from Blow J with respect to the ultimate disposition of this appeal. It is well established that in the case of a Crown appeal against sentence, an appellate court will be slow to intervene because of the so-called "double jeopardy" rule. The relevant principles applicable in this State were set out in R v Dowie [1989] Tas R 167. The authorities were examined by Deane and McHugh JJ in Malvaso v R [1989] HCA 58; (1989) 168 CLR 227 at 234 and approval was expressed of the following passage in the judgment of Barwick CJ in Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 at 310:
'On my view of the proper meaning of s 5D in the context of the Criminal Appeal Act, an appeal by the Attorney-General should be a rarity, brought only to establish some matter of principle and to afford an opportunity for the Court of Criminal Appeal to perform its proper function in this respect, namely, to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.'
5 In expressing approval of that statement of principle, Deane and McHugh JJ said that it could be expanded to include an express reference to the need to avoid the kind of manifest disparity or inconsistency in sentencing standards which could be described as being 'error in point of principle'. Their Honours then said, also at 234, that 'Otherwise, [the statement of Barwick CJ] should be accepted as representing general and authoritative guidance to the Courts of Criminal Appeal of this country'. This Court has since proceeded in accordance with those statements of principle. See for example, R v Harland-White CCA 23/1997; R v McDonald[2002] TASSC 120.
…
7 If the appeal were to be upheld, and the respondent re-sentenced, the period that he would have to spend in custody would be unlikely to exceed 6 months and, so far as I can see, would not serve to establish any particular principle. In these circumstances, and absent some point of principle, it seems to me unjust to take away the respondent's liberty and put him in prison because an undefined error, not caused or contributed to by him in any way, infected the sentencing discretion exercised with respect to crimes that occurred two and three years ago.
8 Accordingly, I am of the view that although the sentence imposed was manifestly inadequate, and although in lieu thereof a sentence of relevantly short actual imprisonment should have been imposed, the appeal should be dismissed."
Zeeman J in Brown v Stone, an unreported decision B14/1995, dealt with a review of a sentence for driving whilst disqualified. He said at 3:
"Despite the respondent's age, his previous record and the offence for which he was sentenced by the learned magistrate showed a complete disregard for the law, and in particular for the laws designed to provide some measure of protection for road users. The respondent's record lent little encouragement to the hope that the respondent had learned his lesson and had changed his ways. The fact that he had not offended for a few months since his release from prison was quite insufficient to found such a belief. The appropriateness of severe punishment for driving whilst disqualified on the part of youthful persistent offenders has been recognised by this Court in various cases of which Johnston v Dillon B24/1984 and Burridge v Gall B27/1984 are examples."
As to an offender's prior record, Zeeman J said in Smart v R A43/1995 [[1995] TASSC 80] at 3, when dealing with a review of a sentence:
"The learned sentencing judge was entitled to pay close regard to the applicant's record. Whilst no offender is to be sentenced on his record, the applicant had been given so many previous opportunities to reform that the learned sentencing judge was entitled to take the view that the appropriate punishment ought not to be mitigated by such considerations. An offender with a long record for offences of dishonesty who continues committing such offences whilst still the subject of a probation order and very soon after having been released from prison cannot expect leniency."
In Kerry Lloyd Bessell v William James Riley [1995] TASSC 15 at par9, Wright J, who was there dealing with a review of a sentence imposed on a driver, said:
"9 … A persistent disregard for the law and court orders is always regraded as a factor calling for stern measures to operate by way of personal and general deterrence. Flouting of orders of disqualification and the like brings the law into disrepute. Whilst no man may be sentenced on his record in such a way as to impose a fresh penalty for past offences, a prior record can manifest a continuing disobedience to the law which may indicate the need for a severe penalty by way of retribution, deterrence and the protection of society. In addition it may be said that to suspend an otherwise appropriate sentence will frequently rob it of any personal or general deterrent effect."
Conclusion
There can be little doubt that a sentence of imprisonment was an appropriate sentence for the respondent in this case. The sentence imposed required the respondent to serve a period of three months imprisonment, and that, on release, he have another three months hanging over his head should he re-offend. There are a number of factors which were relevant to the sentence imposed. These were:
-the offending commenced while the respondent was on parole,
-the offending commenced four months after the respondent's release from custody,
-the offending which then occurred was the same as that for which the respondent had last been sentenced by a court,
-the respondent drove whilst disqualified on two occasions in the first half of 2007 when he had 15 prior convictions for the same offence,
-on neither of the occasions was there any remotely acceptable explanation for the acts of driving,
-in respect of the second act of driving, the respondent also had alcohol in his body when he should have had none,
-the respondent's asserted stable home life and relationship had in fact had little or no ameliorating effect as far as the respondent's offending was concerned,
-the respondent committed 14 offences of dishonesty between June and November 2008. They resulted in significant loss and damage, and
-the respondent's persistent offending, despite having suspended terms of detention and custody imposed in the past, demonstrated a complete disregard for the law.
The respondent also spent a period in custody in respect of these matters from 25 November to 17 December 2008. The learned magistrate made no mention of taking that period into account and he was not alerted to it by either the police prosecutor or the respondent's counsel. Clearly the respondent was entitled to have that period taken into account, and it should be considered in any determination as to the adequacy or otherwise of the sentence imposed.
I am satisfied in all the circumstances of this case that the sentence imposed by the learned magistrate was manifestly inadequate in that it disclosed "manifest disparity or inconsistency in sentencing standards which could be described as being 'error in point of principle'" (see Her Majesty's Attorney-General v O (supra)).
The question remains whether, notwithstanding that finding, it is appropriate having regard to the "double jeopardy" principle, that this review should succeed. I am of the view that it is. The respondent's offending was persistent and serious and showed complete disregard for the intended deterrent effect of penalties previously imposed. There was nothing in the material put to the learned magistrate which justified any leniency or, to use the words of counsel for the respondent, might reflect "a glimmer of hope" of rehabilitation. Further, the respondent may well have thought there might be no appeal. However, he knew within a very short space of time that there was the prospect of one, he must have known given his counsel's concession that the sentence imposed was at the low end of the scale and therefore there was a risk it would be overturned, and he is still serving the actual term of imprisonment imposed.
Counsel agreed that, should this review succeed, I should re-sentence the respondent. I have formed the view for the reasons outlined that the sentence imposed, even the head sentence, was so low as to itself demonstrate there was error. In the circumstances, the orders of the Court are that:
(a) the notice to review filed 30 June 2009 is to succeed.
(b)the sentence imposed by the learned magistrate on the respondent on 12 June 2009, insofar as it imposed a term of imprisonment on the respondent which was partially suspended, is quashed.
(c)the respondent is to serve a term of 12 months imprisonment to commence on 12 June 2009. Three months of that sentence will be suspended on condition the respondent is of good behaviour for a period of three years from his release.
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