Director of Public Prosecutions v McGee
[2014] TASCCA 3
•28 May 2014
[2014] TASCCA 3
COURT: SUPREME COURT OF TASMANIA (COURT OF CRIMINAL APPEAL)
CITATION: Director of Public Prosecutions v McGee [2014] TASCCA 3
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
McGEE, Thomas Jackson
FILE NO: 209/2009
DELIVERED ON: 28 May 2014
DELIVERED AT: Hobart
HEARING DATE: 26 May 2014
JUDGMENT OF: Tennent, Porter and Pearce JJ
CATCHWORDS:
Criminal Law – Sentence - Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Application that offender be ordered to serve suspended sentence of imprisonment when sentencing order made by Court of Criminal Appeal – Court to which application should be made.
Sentencing Act 1997 (Tas), s27(1).
Aust Dig Criminal Law [3388]
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Application that offender be ordered to serve suspended sentence of imprisonment – Whether "unjust" to activate suspended sentence.
Sentencing Act 1997 (Tas), s27(4B) and (4C).
Aust Dig Criminal Law [3388]
REPRESENTATION:
Counsel:
Applicant: Y Prenc
Respondent: E Hughes
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Rae & Partners Lawyers
Judgment Number: [2014] TASCCA 3
Number of paragraphs: 18
Serial No 3/2014
File No 209/2009
DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
PORTER J
PEARCE J
28 May 2014
Orders of the Court
That that part of the sentence of imprisonment imposed on the respondent by the Court of Criminal Appeal on 8 November 2010 and held in suspense be activated.
That the respondent serve the term of imprisonment of nine months held in suspense with effect from 3 April 2014.
Serial No 3/2014
File No 209/2009
DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
TENNENT J
28 May 2014
I have had the benefit of reading the draft reasons of Pearce J in this matter with which I agree in substance.
At the hearing of this application, counsel for the respondent conceded his client had breached conditions of the suspended sentence sought to be reviewed by the Director of Public Prosecutions. Pursuant to the Sentencing Act 1997, s27(4B), if a court dealing with an application, such as that before this Court, is satisfied that the offender has been found guilty of a new offence, the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it. In this case, the respondent committed a number of offences which could be categorized as new offences and was dealt with for those by a magistrate on 4 October 2013. The Court was therefore required to activate the sentence and order the respondent to serve it. However, by virtue of s27(4C), if the Court were of the opinion that an order pursuant to s27(4B) would be unjust, the Court could instead order only part of the sentence to be activated, make a sentencing order in substitution for the suspended sentence, or vary the conditions of the suspended sentence.
Counsel for the respondent did not actually submit that it would be unjust to activate the order. However, his submissions appeared to be directed at suggesting there could be a finding that to activate the sentence would be unjust, and that it would be appropriate in those circumstances to activate only part of the order.
While there were matters put to the Court about the respondent's personal circumstances, both before and since the suspended sentence being reviewed was imposed, there was nothing, in my view, put to the Court which could support a conclusion that it would be unjust to activate the sentence. For those reasons, I determined that there should be an order that the sentence held in suspense be activated, and that the respondent be ordered to serve it. The period of the suspended sentence was nine months and the respondent had been in custody since 3 April 2014. It was therefore appropriate that any order that the respondent serve that period of nine months has effect from 3 April 2014.
File No 209/2009
DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PORTER J
28 May 2014
I have read the reasons for judgment of Pearce J. I agree with those reasons and they reflect the view I took when joining in the making of the order.
File No 209/2009
DIRECTOR OF PUBLIC PROSECUTIONS v THOMAS JACKSON McGEE
REASONS FOR JUDGMENT COURT OF CRIMINAL APPEAL
PEARCE J
28 May 2014
The Director of Public Prosecutions applied for an order under the Sentencing Act 1997, s27(1), on the grounds that the respondent, Thomas Jackson McGee, breached a condition of a suspended sentence. On 26 May 2014 the Court of Criminal Appeal ordered that the sentence of imprisonment of nine months, imposed on 8 November 2010, be activated, and that the respondent serve the sentence from 3 April 2014. These are my reasons for agreeing to that order.
On 15 September 2010 the Court of Criminal Appeal, Director of Public Prosecutions v McGee [2010] TASCCA 12, published reasons for upholding an appeal against a sentence imposed on the respondent by Tennent J. The respondent had been found guilty by a jury of one count of burglary and one count of arson, and had pleaded guilty to another count of burglary and one count of stealing. The learned trial judge recorded convictions and sentenced the respondent to 12 months' imprisonment wholly suspended on condition that for three years he be of good behaviour. The principal judgment in the Court of Criminal Appeal was written by Crawford CJ, with whom Evans and Porter JJ agreed. His Honour found the sentence imposed by the learned trial judge was manifestly inadequate. At the conclusion of his reasons he said:
"I would allow the appeal and quash the sentence. This Court should re-sentence the respondent after hearing from the parties."
On 8 November 2010 the Court of Criminal Appeal sentenced the respondent to imprisonment for one year and nine months from 15 September 2010, with the last nine months of that imprisonment suspended for two years from his release. The Court imposed a condition on that sentence that the respondent be of good behaviour during that period. At the time the sentence was imposed, the commission of an offence punishable by imprisonment during the period the order was in force rendered an offender liable to an application: Sentencing Act, s27(1). Following amendments to that Act which came into effect on 1 January 2011, it became a condition of a suspended sentence that the offender not commit another offence punishable by imprisonment during the period that the order was in force: s24(1).
The respondent was released from prison on 3 June 2011. Thus the two year period for which the part of the sentence that was suspended commenced on that date. The Director of Public Prosecutions contends that the respondent was not of good behaviour and committed offences punishable by imprisonment during the period the suspended sentence was in force.
The application came before me, sitting as a single judge, in the Supreme Court in Launceston on 1 May 2014. I ordered that the application be adjourned to be determined by the Court of Criminal Appeal. I did so because the Sentencing Act, s27(1), provides that an application under that section is to be made to the court which made the order suspending the sentence of imprisonment. By s27(4) a different court may make an order under s27, but only a court that "finds an offender guilty of an offence". That provision had no application. The definition of the term "court" in the interpretation section, s4, makes clear a distinction between the Supreme Court, the Court of Criminal Appeal and a court of petty sessions. In this case it was the Court of Criminal Appeal, not the Supreme Court, which made the sentencing order alleged to have been breached.
The Director of Public Prosecutions submitted that the Supreme Court could deal with the application because the sentence passed by the Court of Criminal Appeal was "in substitution" for the original sentence, and thus is to be treated as if the order was that of the learned trial judge. I did not accept that submission. The Criminal Code, s402, distinguishes between a sentence passed by the Court of Criminal Appeal in substitution for the sentence of the trial judge, and an order quashing the sentence passed at trial and remitting the matter to the court of trial. In this case the sentence alleged to have been breached was imposed by the Court of Criminal Appeal, not the court of trial. That is consistent also with the words used by Crawford CJ at the conclusion of his reasons. The Director of Public Prosecutions also submitted that a consequence of the construction I have adopted is that there will be no appeal from an order made on a breach application. That is no different than the situation that applies to any sentence imposed by the Court of Criminal Appeal following a successful appeal.
The respondent's crimes were committed on 20 January 2009. He was one of three young men who entered a restaurant at St Helens, spread petrol and lit a fire to destroy forensic evidence of other crimes. Although he was sentenced as an aider, the Court of Criminal Appeal made clear that it regarded his crimes as serious.
During the two year period commencing 3 June 2011 for which the sentence of imprisonment was suspended, the respondent breached the conditions of the sentence by re-offending. The respondent properly conceded that the conditions were breached. On 4 October 2013 he was sentenced by a magistrate for numerous offences, not all of which constitute a breach. Those which do constitute a breach I list as follows:
20 August 2011
Motor vehicle stealing
16 September 2011
Unlicensed driving with a breach alcohol concentration of 0.124 and breaching bail
5 October 2011
Unlicensed driving in an unregistered and uninsured vehicle
5 December 2011
Driving while disqualified on an unregistered and uninsured motor cycle
24 January 2012
Breach bail by failing to appear
26 April 2012
Breach bail by failing to appear
30 September 2012
Common assault and destroy property
10 October 2012
Breach bail by failing to appear
23 January 2013
Breach bail by failing to report
14 May 2013
Breach bail by failing to appear
It was not explained why some of these offences took more than two years to be dealt with, but I infer at least some of the delay arose because of the respondent's failure to appear. The respondent was sentenced by the magistrate to an effective term of imprisonment of three months from 8 September 2013 with two months suspended.
This application was made by the Director of Public Prosecutions on 13 December 2013. It was served on the respondent on 14 January 2014. Although he appeared in the Supreme Court in Launceston on 18 February 2014, he subsequently failed to appear and was arrested on 3 April 2014. He has been in custody since then.
By operation of the Sentencing Act, s27(4B), if the conduct which constitutes the breach is itself an offence punishable by imprisonment, this Court must activate the sentence of imprisonment that is held in suspense and order the respondent to serve it unless it is of the opinion that it would be unjust to do so: State of Tasmania v Thorpe [2011] TASSC 18; Tanner v Brown [2011] TASSC 59. I sought a pre-sentence report. I did so primarily to learn of the respondent's compliance or otherwise with previous sentencing orders. The respondent failed to report to Community Corrections and no pre-sentence report was prepared. However a letter from Community Corrections explains that the respondent is currently in breach of both the probation order and the community service order to which he is subject. He has not reported to Community Corrections since 19 November 2013 and has performed only 1.5 hours of the total of 102 hours' community service ordered by the Magistrates Court on 4 October 2013 and 15 January 2014. The community service order of 15 January 2014 was made on his conviction for a common assault committed on 23 September 2013. Repeated attempts by Community Corrections to engage with the respondent have proved unsuccessful. Breach proceedings are underway. He is unsuitable for any further community-based orders.
At the time he was released from prison the respondent was aged 22. He is now 23. He has two young children. He was educated only to Grade 7 but has basic literacy and numeracy. He had something of a transient upbringing. He held employment with his father as a deckhand until his imprisonment on 8 November 2010 put a stop to that. The sentence imposed by the Court of Criminal Appeal did not deter the respondent from re-offending following his release. During the period for which the suspended sentence order was in force, the respondent committed offences of dishonesty and violence and alcohol related driving offences, mostly while on bail. The common assault committed on 30 September 2012 is a serious example of that offence. He displayed a general and continuing disregard for the law, including by failing to appear in court. His behaviour was contributed to by abuse of alcohol and illicit drugs. However, he has not taken advantage of the opportunity offered by the courts and Community Corrections to rehabilitate himself.
The submissions of the respondent's counsel were primarily directed at persuading this Court that not all of the suspended sentence should be activated. The respondent is still a relatively young man. However, I see no reason to conclude that the prospect of his rehabilitation is such that some other sentence should be imposed. I was not of the opinion that an order that he serve the whole of the sentence held in suspense would be unjust: s27(4). In those circumstances, the sentence must be activated.
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