Dickson v State of Tasmania

[2024] TASSC 24

[2024] TASSC 24

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Dickson v State of Tasmania [2024] TASSC 24
PARTIES:	DICKSON, Marc Jason
v
STATE OF TASMANIA
FILE NO:	3402/2023
DELIVERED ON:	9 May 2024
DELIVERED AT:	Burnie
HEARING DATE:	13 February 2024
JUDGMENT OF:	Jago J
CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Review of sentencing orders – Whether unjust to activate suspended sentences – Whether other sentences imposed individually or in their combined effect manifestly excessive – Where no orders made allowing eligibility for parole – Consideration of totality principle

Visser v Smart [1998] TASSC 151
Braslin and Cohen v Tasmania [2010] TASCCA 1
Tanner v Brown [2011] TASSC 59
Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
R v Nolan [2009] QCA 129
Kaya v The Queen [2014] VSCA 55
Gill v The Queen [1990] TASSC 37

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:

Applicant:	Self-represented
Respondent:	W. Wu

Solicitors:

Respondent:  Director of Public Prosecutions

Judgment Number:	[2024] TASSC 24
Number of paragraphs:	29

Serial No 24/2024 File No 3402/2023

MARC JASON DICKSON v STATE OF TASMANIA

REASONS FOR JUDGMENT JAGO J
9 May 2024

1             The applicant moves to review a sentence imposed on him by a magistrate, Ms K Edwards, on 16 November 2023. On that date, the applicant pleaded guilty to the following matters of complaint (the new offences):

• 51971/2023 – five counts of use computer with intent to defraud;

• 51780/2023 – one count of unlawful possession of property and seven counts of

computer related fraud;

•	51808/2023 -	three counts of stealing and two counts of trespass;
•	51782/2023 -	one count of possess cannabis;

• 51950/2023 - one count of possess cannabis, one count of possess methyl amphetamine

and one count of possess a thing used for administration of a controlled drug;

• 52336/2023 - one count of burglary, one count of stealing and six counts of computer

related fraud;

• 51758/2023 - three counts of contravene the conditions of a notice, three counts of

trespass, one count of aggravated burglary, one count of stealing and one count
of dishonestly acquiring a financial advantage.

2            In respect these offences, her Honour imposed a global sentence of ten months' imprisonment. On the same date, her Honour also granted an application for breach of a suspended sentence, filed by prosecution on 24 October 2023. A partially suspended period of imprisonment had been imposed upon the applicant on 21 July 2022. The applicant had been sentenced to 365 days imprisonment. One hundred and forty one days of that sentencing order was suspended on condition the applicant commit no offence punishable by imprisonment for a period of 18 months. He breached that sentencing order by the commission of the new offences. That sentencing order was imposed for a large number of offences of dishonesty, including aggravated burglary, burglary, many counts of stealing, many counts of computer related fraud, dishonestly acquiring a financial advantage, unlawful possession of property and receiving stolen property; some minor offences contrary to the Misuse of Drugs Act, and many counts of breaching bail contrary to the Bail Act. Her Honour activated the 141 days imprisonment, backdated to commence on 2 June 2023. The ten month period of imprisonment she imposed for the new offending was ordered to operate cumulatively to the 141 days. The combined effect of the sentencing orders was to require the applicant to serve 15 months imprisonment, from 2 June 2023, without eligibility for parole.

3  

4             The applicant does not challenge her Honour's decision to activate the partially suspended period of imprisonment. Indeed, during the sentencing hearing before the Magistrate the applicant, who was at that point represented by Counsel, conceded there was no basis upon which he could contend it would be unjust to activate the partially suspended period of imprisonment.

5   The applicant's single ground of review reads:

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"That the ten month period of imprisonment was not backdated to 2/6/2023 as this was my date of incarceration and originally charges for being held in custody as the five month suspended sentence was not raised until 9/10/2023."

6             The applicant appeared unrepresented. He did not file any written contentions. He was at something of a disadvantage in presentation of his submissions and in crystallising his grounds of appeal. At a directions hearing held on 13 December 2023, the applicant confirmed that he was not submitting that the ten month global sentence imposed for the new offending was manifestly excessive, nor was he contending that the partially suspended sentence should not be activated. Rather, his complaint was that the ten month period of imprisonment had been ordered to operate cumulatively to the activated suspended sentence of 141 days' imprisonment, and no allowance was made for parole. He submits that the order for cumulation, coupled with the lack of parole eligibility, results in the overall sentence length being excessive.

7             As has been stated in a great many cases, an appellant court must not interfere with the exercise of the sentencing discretion, except in a clear case of error: Visser v Smart [1998] TASSC 151. The applicant must show that the sentence is so obviously excessive or in adequate, that the sentencing discretion must have miscarried; or put another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate. The appeal court must not substitute its own opinion for that of the magistrate, even if it would have exercised the sentencing discretion in a different manner. The appeal court has no charter to "tinker" with sentences imposed: Braslin and Cohen v Tasmania [2010] TASCCA 1 at [31].

The new offending

8             The details of the new offences which attracted the term of ten months imprisonment are as follows. In respect to complaint 51971/2023 the applicant was in possession of a bank card which did not belong to him, and he unlawfully used it to purchase cigarettes and food on 4 separate occasions, and also used it to pay for a taxi fare. The total value of the transactions was $247.40. The facts in respect to complaint 51780/2023 were very similar. The applicant was in possession of a bankcard which did not belong to him and he unlawfully used it on 7 occasions to purchase various goods to the value of $380.60. In respect to complaint 51808/2023 the applicant entered a residence on 2 separate occasions and stole tools and other items to a value of $830. Complaints 51782/2023 and 51950/2023 involved the applicant having possession of small amounts of cannabis consistent with personal use. In respect to complainant 52336/2023 the applicant entered a business and made his way to the staff room. He stole a bank card from a handbag and then used that card unlawfully on 6 occasions to purchase goods, mainly alcohol and cigarettes, to the value of $389.04. In respect to complaint 51758/2023 the applicant entered the Devonport business district on 3 occasions contrary to the terms of his police bail. On three occasions the applicant trespassed at various residences within the Devonport area. On one occasion the applicant entered a residential home and stole some air pods to the value of $350. He then sold those air pods at a second hand dealers knowing he was not the owner and acquired $10 for himself.

9             As can be seen the new offending was predominantly comprised of persistent, but relatively low level, offences of dishonesty. Of note, may of the items unlawfully purchased by the applicant were non-essential, such as alcohol and cigarettes rather than items which might be described as necessities.

Activation of suspended sentence

10          On the 21 July 2022 the applicant was sentenced to 365 days imprisonment, with 141 days suspended as of that date on condition he not commit any offence punishable by imprisonment for 18 months. The applicant was released from custody on 21 July 2022. On 31 July 2022, so a mere 10 days later, the applicant committed further offences of dishonesty on Complaint 34100/2022. Then on 14 August 2022 and 9 November 2022, he committed further offences against police and offences contrary to the Misuse of Drugs Act. On 29 March 2023 he was before the Launceston Magistrates Court for the

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offending just mentioned. He was sentenced to ten weeks' imprisonment commencing 30 December 2022. It is not clear from the information that is before me, whether there was an application for breach of the suspended sentence that was imposed on 21 July 2022 before the Launceston Magistrates Court. If there was, it clearly was not activated. What is apparent from this offending however, is that the applicant was again committing offences of dishonesty within ten days of being released from custody. It seems the applicant was again released from custody in respect to that sentencing order on 29 March 2023. The first of the new offences that were before Her Honour was committed on 21 April 2023, so again, within a very short period of time of the applicant being released from custody. With the exception of the one count of possess a thing used for the administration of a drug, all of the new offending comprised offences that were punishable by imprisonment. On 38 occasions then the applicant had breached the terms of the suspended period of imprisonment, had recommenced offending within a short time of his release from custody, and had continued to offend in a very similar manner. There was nothing before Her Honour to suggest the applicant had in any way engaged in rehabilitation.

11           The considerations relevant to a court's determination of whether the activation of a suspended sentence would be unjust are well understood, and include "the offender's attempts at rehabilitation, the seriousness of the offences giving rise to the breach, whether the offences are similar in character to that which gave rise to the suspended sentence, and the time lapse from the imposition of the suspended sentence to when the offences were committed": Tanner v Brown [2011] TASSC 59 at [95]. Having regard to the nature of the original offences and the breaching offences, the timing of the breaching offences, and the absence of material to suggest the applicant was minded to reform, Her Honour was clearly correct in determining it was not unjust to activate the partially suspended period of imprisonment. In determining it was appropriate to activate the partially suspended period of imprisonment, her Honour described the applicant as a persistent offender and noted that previously imposed sentencing orders had done little to deter his offending. Such was a fair and accurate assessment.

12 Having determined it was appropriate to activate the partially suspended period of imprisonment, the Court needed to be minded to s 27(6) of the Sentencing Act 1997. That provides;

"(6)	If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served–
(a) immediately; and
(b) cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court."

13           The underlying legislative policy pertaining to suspended sentences clearly provides that ordinarily, suspended sentences should be fully activated when an offender re-offends by committing an offence punishable by imprisonment. Departures from that general approach reduce the effectiveness of suspended sentences as a form of deterrence and erodes the public's confidence in the Court's sentencing discretion.

14 Section 27(6)(b) of the Sentencing Act indicates a clear underlying legislative policy that suspended sentences, when activated, should not ordinarily be served concurrently with other prison sentences. If activated sentences are made concurrent with other prison sentences, then the effect of suspended sentences as a means of deterrence will be eroded and, again, the public's confidence in the Court's sentencing discretion will be adversely impacted. Had Her Honour ordered the 10 month sentence commence on 2 June 2023, as the applicant contends, the practical effect would be the applicant would only be required to serve 10 months imprisonment. If the 10 months imprisonment imposed for the new offending is a proper exercise of the magistrate's sentencing discretion, and the applicant does not argue it was not, then in real terms the applicant is not being required to serve any

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additional period of incarceration flowing from the activation of the suspended sentence. This would be contrary to the underlying legislative policy, and would nullify the purpose and effect of the activation of suspended sentences that had been breached.

Sentence for the new offences

15           As noted, the applicant does not contend the 10 month period of imprisonment imposed for the new offending was manifestly excessive. Given, however, he is unrepresented it is prudent to consider same. The new offending comprised many matters of dishonesty, committed within a short time of the applicant's release from custody and against a background of the applicant having a terrible history of prior criminal offending.

16           His offending had started as a youth. His adult offending commenced in 1999. He had well in excess of 100 prior convictions for various offences of dishonesty, together with many prior convictions for bail offences, offences contrary to the Misuse of Drugs Act, and offences against good order. In 2000 he had been sentenced by the Supreme Court for the crimes of aggravated burglary and two charges of stealing. In 2002 he was again sentenced by the Supreme Court for three charges of aggravated burglary and three charges of stealing. He had regularly received periods of imprisonment by way of sentencing order. In 2004 he had received a 15 month period of imprisonment, in 2006 a six month period of imprisonment, in 2007 a five month period of imprisonment, in 2009 an 18 month period of imprisonment, in 2011 he had been made subject to a Drug Treatment Order but had breached the terms of that and was subsequently required to serve a period of imprisonment. In 2014 he had received a ten month period of imprisonment cumulative to a two month period of suspended imprisonment being activated. In 2019 he received a six month period of imprisonment. In 2020 he received a five month period of imprisonment. Despite substantial terms of actual imprisonment being imposed upon the applicant he had continued to offend. There was nothing of substance before Her Honour to suggest that was likely to change into the future.

17           The applicant had also been given the opportunity in the past by way of community based sentencing orders but he had breached them. He had received Community Correction orders, Drug Treatment Orders, suspended periods of imprisonment, but his recidivism continued. Her Honour was correct in describing him as a persistent offender.

18           By way of antecedents, the applicant was aged 42 at the time of sentencing. He suffered from schizophrenia and post-traumatic stress disorder. He had experienced difficulties with obtaining his usual medication during the period of time he had been incarcerated. His mother was gravely ill. The applicant had an ongoing drug addiction. He had been addicted to illicit substances for approximately 25 years. He had never been able to address his addiction. There was nothing before the Magistrate to suggest he was endeavouring to address the same.

19           In light of the nature and extent of the applicant's prior criminal conduct, there was a strong need for punishment and general and personal deterrence. It was a reasonable exercise of the sentencing discretion to consider rehabilitation was not a weighty consideration. The sentence of 10 months imprisonment for the new offences was not manifestly excessive.

The combined effect – totality and parole

20           The principle of totality is well recognised. It requires a judicial officer imposing sentences for multiple offences to review the aggregate of the sentences and consider whether the total effect of the sentences is just and appropriate. The totality principle serves to ensure both that the overall sentence is not excessive relative to the totality of the criminality of the offending, and also that an offender is not subjected to a "crushing sentence" not in keeping with his record and prospects: Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 304.

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21           The totality principle applies when sentencing for contravention of a suspended sentence, resulting in the activation of the suspended sentence and the imposition of a sentence for the new offences constituting the breach: R v Nolan [2009] QCA 129; Kaya v The Queen [2014] VSCA 55 at [19]-[21]. Application of the totality principle applies to both the head sentence and a non-parole period.

22           The legislative scheme for breach proceedings in Tasmania allows for the courts in their sentencing discretion to impose concurrent or partly concurrent sentences. This can be a suitable means, albeit not the only means of giving effect to the totality principles in cases involving the activation of a term of suspended imprisonment and the imposition of imprisonment for the new offending. Here, whilst her Honour was evidently mindful of the principle, the question is whether the sentences reflected adequate consideration had been given to the principle in the circumstances where her Honour determined it was not appropriate to provide for parole.

23   As to that Her Honour noted:

"In respect of the new charges, I have given consideration as to whether to impose a parole period on the sentence that I impose and I have determined that I am not going to impose a parole period. To my mind it would be setting the defendant up to fail and to have to serve further time after his release.

The history before the court is little encouragement that you will not reoffend in the future and to my mind it is preferable for him and in his interests that he finalises the sentence that he will now serve and be released with nothing over his head going into the future. That determination and the fact that I will not include parole will be reflected in the sentence that I do impose and I will reduce the amount given that I am not going to impose parole."

24           The purpose of fixing a non-parole period is to give a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom.

25           In Gill v The Queen [1990] TASSC 37, Crawford J with whom Neasey J agreed, spoke of the effects of not making an order that a defendant be eligible for parole at the earliest possible time, and said at [7]-[8]:

"The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely, it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them, or the object of achieving them, or some of them, should be considered by sentencing judges making the order removing eligibility for parole or extending the non-parole period."

26           Her Honour's sentencing comments suggest that she was of the view that the applicant was largely beyond successful rehabilitation. During the sentencing hearing Her Honour enquired as to the applicant's preparedness to participate in a further Drug Treatment Order. The applicant declined to be considered for such a sentencing order. Her Honour noted that previous periods of imprisonment had done little to deter the applicant from reoffending, and that previous periods of suspended imprisonment had been breached. She also noted that community based orders, including a Drug Treatment Order, had previously been unsuccessful. Indeed, a Community Correction Order had been imposed upon the applicant as part of the sentencing order made on 21 July 2022. The applicant had failed to successfully complete that Community Correction Order. Her Honour was of the view that providing for parole would serve no legitimate purpose and would in effect be "setting the defendant up to fail". It was a reasonable assessment to determine that the applicant had been given sentences directed towards

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encouraging his rehabilitation in the past and had squandered them. In the absence of material to suggest a change in attitude, or a commitment to address his drug addiction, which appeared to be the catalyst for the offending, Her Honour was entitled to consider rehabilitation as largely inconsequential to the exercise of her sentencing discretion.

27 In setting, or declining to set, a parole eligibility period, the sentencing judge's discretion is unfettered. Some guidance is to be derived from the terms of s 17(4) of the Sentencing Act, which relevantly provides that the Court may have regard to the nature and circumstances of the offence and the offender's character and antecedents. The factors which bear upon the head sentence, including the need for punishment and general and personal deterrence, are also relevant to parole. In my view, the applicant's very bad criminal record, coupled with an absence of material to suggest any commitment to reform, justified a conclusion that there should be no parole eligibility order.

28           The failure to make allowance for parole eligibility means that the combined sentences are a heavy response to the overall criminal offending, but I am not satisfied that the sentence imposed was outside the proper limits of the Magistrate's sentencing discretion such as to make it unjust or unreasonable.

29   For the foregoing reasons, the motion to review is dismissed.