Director of Public Prosecutions v Cowton
[2014] VCC 51
•31 January 2014
| IN THE COUNTY COURT OF VICTORIA AT GEELONG CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-13-02334
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANDREW JOHN COWTON |
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JUDGE: | HER HONOUR JUDGE SEXTON | |
WHERE HELD: | Geelong | |
DATE OF HEARING: | 31 January 2014 | |
DATE OF SENTENCE: | 31 January 2014 | |
CASE MAY BE CITED AS: | DPP v. Cowton | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 51 | |
ADDITONAL REASONS FOR SENTENCE
AMENDMENT OF ORIGNAL SENTENCE IMPOSED ON 29 JANUARY 2014
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P.L. Bourke | OPP |
| For the Accused | Mr M.W. Brugman | M W Brugman |
HER HONOUR:
1 Mr Cowton, can you see and hear me all right?
2 PRISONER: Yes.
3 HER HONOUR: Yes, thank you very much. Thank you very much for making yourself available again today. I have called this matter back on because I had a concern that I might not have applied the law correctly in passing sentence on you and I wanted to hear further from your barrister and the prosecutor about that.
4 I understand that this issue has been conveyed to the barristers. I have got the unrevised copy of the sentence here and what I said after referring to the cases of Hunter[1] and Mourad[2], that “I propose to moderate, that is, reduce in some way, my sentence to take into account the fact that you are doing four months cumulative, and so it seems that I was expressly saying that that was all I was taking into account was the four months.”
[1] [2006] VSCA 129
[2] [2008] VSCA 4
5 Looking at Mourad's case, in particular, at paragraph 15, it refers to "appropriate relativity between the totality of the criminality and the totality of the effective length of sentences imposed which includes the sentence being served as a consequence of the breach of parole", and it was only that last bit that I had regard to.
6 I don't know, who wants to go first?
7
MR BOURKE: I might be able to assist Your Honour. I looked at the case of Hunter again that my friend took you to and paragraph 31 of that
judgment - - -
8 HER HONOUR: Yes, which I have as well in front of me.
9 MR BOURKE: - - - extracted in that paragraph, Your Honour, is a part of the judgment of R v. Sullivan, and I thought it was – or it assisted me and I think understand perhaps the second part of that quote. "It is a principle which requires the court to have regard both to the sentences about to be imposed," and that is obviously Your Honour's sentence, "and those which the prisoner is undergoing. Notwithstanding s.16(3B), the principle of totality also has application in circumstances where, as here, a sentence currently being served derives from a breach of parole."
10 The sentence currently being served by Mr Cowton, in my submission, Your Honour, is an 11 months' sentence, not a four months' sentence that he has got to go. So if I'm understanding Your Honour's query, it seems to me that Your Honour must take into account the fact that he is undergoing an 11 months' sentence, and not just four months of it. Whether that transfers into a different sentence is a matter for Your Honour.
11 HER HONOUR: Yes, well, that is a second aspect, I will come to that in a moment. I can see that that is a way of looking at it, but I wonder whether I should be having regard to the whole of the sentence, that is to say, 23 months with an 11 month minimum and, of course – and there is some difficulty there because that has not been a total time in custody; there has been obviously a break.
12 MR BOURKE: That's right. Again, just returning to the quote there. "Sentence currently being served", it seems to me, Your Honour, that there probably could be an argument that the sentence currently being served is the 23 months' sentence. That is the language that we all use when we speak of these things. We call a suspended sentence, a sentence, when they've not served any time at all. So I can see the argument that it might extend as far as that.
13 The opposite argument, Your Honour, is to say that he was released on parole and goes back into custody and was told he's got to serve 11 months.
14 HER HONOUR: And that is the sentence he is currently undergoing.
15 MR BOURKE: Physically undergoing.
16 HER HONOUR: Yes.
17 MR BOURKE: So, none of that is particularly helpful for Your Honour but I can see two approaches to the terminology and perhaps one benefits Mr Cowton more than the other.
18 HER HONOUR: And if there is any - - -
19 MR BOURKE: Yes.
20 HER HONOUR: - - - uncertainty about that, and neither Hunter or Mourad are absolutely clear on that particular issue, except that, as I say, in terms of Mourad, it says, "The totality of the effective length of sentence is imposed which includes the sentence being served as a consequence of the breach of parole." So that seemed to take into account having been out of custody and come back in - - -
21 MR BOURKE: And back in because of the breach.
22 HER HONOUR: Because of the breach, but I should – I mean, just in terms of what it really realistically means - - -
23 MR BOURKE: And the quote in Hunter says the same thing, "being served" derives from a breach of parole.
24 HER HONOUR: Yes. So, if totality means having regard to the whole of the sentence currently being served; well, there are three ways of looking at it, including the way that I did previously look at it. So the first is what I did, which was just the amount of the sentence he has left to serve, so as at the date of sentence that was around about four months, and that's what I did, and that meant, as I explained or said to Mr Cowton at the end, he had to do another four months on his 12 months that I had imposed as a minimum, so that meant 20 months with a minimum of 16 months, but that just doesn't seem right to me.
25 MR BOURKE: And I agree with that, Your Honour.
26 HER HONOUR: And I think Mr Brugman – you agree with that?
27 MR BRUGMAN: Yes, I agree with that too.
28 HER HONOUR: So that's why principally I brought the matter back because I realised that that didn't seem to be right. So then the other two options are taking into account just the 11 months, that is the time served since the breach for the offences that I am sentencing him for, it was 11 months and some weeks, and that means not taking into account the head sentence of the sentence he is undergoing. It doesn't take into account the 23 months.
29 MR BOURKE: Twenty-three months, that's right, yes.
30 HER HONOUR: And so then if I look at the totality, by adding them together, we end up with a 20 months sentence that I am imposing, with a minimum of around about just under 24 months.
31 MR BOURKE: I'm not sure it's really a mathematical exercise, Your Honour, which was going to be the next part of the argument really, as to what the effect of this is, on how Your Honour takes it into account.
32 HER HONOUR: It's not a pure mathematical exercise and I did not do that previously, but just in terms of looking at the totality of the sentence, I suppose I have to look at what it adds up to.
33 MR BOURKE: Yes.
34 HER HONOUR: And so I would be looking at the totality of his criminality, that is to say the previous – the dishonesty offences, the firearm offences, the drugs offences, for which he was sentenced in 2011, and then looking at the perjury that I'm sentencing him for; if I do look at then the totality by adding it up, if I take into account the whole of the sentence, it means on the sentence I've currently given him, that's three years' seven months' with a 23 month minimum.
35 As you say, it's a matter – the next step is to decide whether, looking at it appropriately that way, that's effectively the totality of the sentence, albeit that there was a time out on parole; whether that infringes the principle of totality.
36 MR BOURKE: Yes.
37 HER HONOUR: Yes, all right, thank you, Mr Bourke. I'll just come to Mr Brugman in terms of the way to look at it and then we'll look at whether either of you want to say anything about what it means for the sentence I impose.
38 So, first of all, Mr Brugman, you agree that I was in error the way I took into account the four months?
39 MR BRUGMAN: Yes, Your Honour, the way your sentencing remarks read, yes, I would agree, Your Honour. Your Honour did say four months rather than the 11 months that he is actually serving.
40 HER HONOUR: All right, and what do you say as to whether it should be the whole of the sentence, the head sentence and the minimum, including the time that he's doing for the breach?
41 MR BRUGMAN: In my submission, the sensible way seems to be the actual time he is doing now, but Your Honour has to take into account that what was imposed was a 23 months' sentence with an 11 months' sentence with it, and he's had some break in between from when he was released in August last year until his parole was cancelled on the 15th of May, but they are all matters Your Honour has to take into account and I certainly wouldn't want to argue anything other than – anything against Mr Cowton getting his sentence reduced, because he's been doing 11 months, Your Honour, and, Your Honour did specify "four months" in your sentencing remarks as being the period that you take into account when you – I think we discussed this earlier, we thought that on reflection it should have been the 11 months that Your Honour took into account.
42 HER HONOUR: Nothing that I've been saying today will be increasing the sentence that I imposed the other day.
43 MR BRUGMAN: Yes, Your Honour. The 23 months and 20 months, it does sound like a fairly significant sentence, Your Honour. I do take into account the head sentence. That's why, in a lot of ways, it is much neater to just give him a straight sentence in some ways, and I'm certainly not asking Your Honour to do that.
44 HER HONOUR: Yes, I don't think I'm re-visiting the sentence in that sense. I am somewhat restricted that I can only correct an error rather than - - -
45 MR BRUGMAN: Hunter certainly talks about in paragraph 30 about "relativity between the totality of the criminality and the totality of the sentences", so whatever Your Honour intends, the practical effect, which is what effectively your sentencing remarks were addressing - - -
46 HER HONOUR: Yes.
47 MR BRUGMAN: - - - but the way Your Honour worded it, Your Honour did say "four months" rather than "11 months".
48 HER HONOUR: Yes, all right.
49 MR BRUGMAN: As Your Honour pleases.
50 HER HONOUR: Mr Bourke, anything about what the outcome would be, whether I – taking away the arithmetic side of it, whether I take into account the 11 months or the whole of the head sentence and parole; what do you say?
51 MR BOURKE: On either of those scenarios, 11 or 23?
52 HER HONOUR: Yes.
53 MR BOURKE: It seems to me, Your Honour, given the sentencing remarks that you made, that is, you took into account the four months that Mr Cowton had to go and then formulated a sentence. If Your Honour now intends, and which I think you should, take into account at least the 11 months, the effect of that can only be, it seems to me, logically, a reduction in Your Honour's sentence, from what it was two days ago.
54 How much of a reduction is entirely a matter for Your Honour, but it clearly cannot go the other way, obviously.
55 HER HONOUR: Yes.
56 MR BOURKE: And it seems to me on a rational basis it would be hard to understand if there was no change in Mr Cowton's sentence as well.
57 HER HONOUR: Yes.
58 MR BOURKE: So I would have to – well, happily concede that logically it must, in some way, result in a reduction of Your Honour's sentence, from what it was initially.
59 HER HONOUR: Yes, all right, thank you. Anything further, Mr Brugman?
60 MR BRUGMAN: Nothing further, Your Honour.
61 HER HONOUR: This isn't part of my sentence, but I just make the observation that had I not brought the matter back on and proceeded to have the sentence entered into the record, the question that we've got about exactly how much you look at, would have, no doubt, been answered by the Court of Appeal, had it gone there, but I was trying to save everybody the time and effort.
62 MR BOURKE: Yes, Your Honour.
63 HER HONOUR: But we will have to wait another day for that to be clarified.
64 MR BOURKE: I suppose I should say, Your Honour, that if Your Honour has any real doubt about which number you take into account, the 11 or the 23, it seems to me that - - -
65 HER HONOUR: And the head sentence.
66 MR BOURKE: That's right, it would be another 23 months which was the head sentence.
67 HER HONOUR: Yes.
68 MR BOURKE: Of the sentence he's doing now, yes.
69 HER HONOUR: I beg your pardon, yes.
70 MR BOURKE: And I think Your Honour alluded to this a few moments ago, but if Your Honour's in any real doubt about which approach is the correct one, the benefit must go to Mr Cowton.
71 HER HONOUR: Yes, yes, I agree.
72 Now just one other thing that just occurred to me, given the order of sentences that applies are the last two days, or at least – yes, two days, not including today, pre-sentence detention for this sentence that I should declare, because I think s.15 meant that this sentence took priority – yes, s.15. I suppose I should do it in an abundance of caution and if that's not right then Corrections will sort it out.
73 MR BOURKE: It's two days, Your Honour.
74 MR BRUGMAN: Yes, I agree with that.
75 MR BOURKE: I'm content if you declare two days.
76 HER HONOUR: Yes, all right.
77 This is a matter that has been brought on by me to correct what I thought was an error in my sentence and the parties have kindly agreed with that.
78 Under s.104A of the Sentencing Act, I have the power to amend a sentence and I indicate that this sentence had not passed into record yet, so that permits me to exercise this power.
79 The issue has been discussed with counsel and will appear on the transcript so I will not go into detail now, but I indicate that as a result of that discussion and my re-visiting of the authorities to which I had regard initially in my sentence, I am of the view that I should have regard to more than the four months of the sentence that Mr Cowton has left to serve and counsel agree with that.
80 There is some question as to whether I should have regard to the sentence he is currently serving, that is 11 months for the reclaimed parole, or to the whole of the sentence that he was on parole for, which is 23 months with a minimum of 11.
81 There being some uncertainty about that, and the prosecutor fairly conceding that if there is uncertainty, it should flow to the benefit of Mr Cowton, I propose to have regard to the whole of that sentence.
82 The upshot of all of that is having looked at the criminality in the charge for which I am sentencing for perjury, and the criminality in respect of the matters for which Mr Cowton was sentenced in 2011, and having looked at all of the sentence that he had imposed on him in 2011, I propose to amend the sentence that I announced on 29 January 2014, pursuant to s.104A of the Sentencing Act.
83 Mr Cowton, what all of that means is that I am now going to impose a sentence on you that is different to the sentence I imposed the other day.
84 So, on the charge of perjury you are convicted and sentenced to 18 months' imprisonment, and I direct that you serve a minimum term of eight months before becoming eligible for parole.
85 I declare that you have served two days of pre-sentence detention in respect of this sentence and that is to be deducted administratively from your sentence.
86 The previous announcement that I made of what you would have got had you pleaded not guilty remains the same.
87 The upshot of all of that, Mr Cowton, is that you have a minimum of eight months in respect of this matter, and that will be added to the four months that you had left to do. So, as of today, there will be 12 months before you will be eligible again for parole, rather than 16 months as I said to you the other day.
88 Mr Cowton, do you understand the changes that have been made?
89 PRISONER: Yes, sort of.
90 HER HONOUR: All right, so the other day I said 20 months with a minimum of 12 months, and then you had to add on top of that the four months you are already doing.
91 PRISONER: Yes.
92 HER HONOUR: So that was 16 months before you would be eligible for parole. You do not need to understand the law, but all you need to understand is that I made a mistake and I have now corrected that and as a result your sentence is different, and it is, in fact, less. So the sentence I am now imposing is 18 months with a minimum of eight months, but that still has to have the four months added on to it, so it is 18 months, but you will have to do 12 months before you are eligible for parole.
93 PRISONER: All right.
94 HER HONOUR: I am sorry that we might have messed you around yesterday when we were going to have the video link, but I was caught up in another case and we could not get to you.
95 PRISONER: Yes.
96 HER HONOUR: Mr Brugman, I am sure, will be in touch with you to explain further.
97 MR BRUGMAN: I'd be grateful, Your Honour, if the link could stay open after the court is adjourned just so I could speak briefly to Mr Cowton.
98 HER HONOUR: Yes, all right, I'll allow that to happen in these unusual circumstances.
99 MR BRUGMAN: As Your Honour pleases, thank you.
100 HER HONOUR: So obviously the original sentence will be revised and then this sentence will be added to it so they will be together when revised.
101 MR BRUGMAN: Yes, Your Honour.
102 HER HONOUR: I thank you all for your attendance and Mr Cowton, this has got nothing to do with your matter, but I am just leaving the link open so that when I leave the court Mr Brugman can have a chat to you.
103 PRISONER: Yes.
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