Director of Public Prosecutions (Vic) v Toulmin (aka Harris)
[2013] VSCA 145
•14 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0270
| DIRECTOR OF PUBLIC PROSECUTIONS (VICTORIA) |
| Appellant |
| v |
| JODIE ANN TOULMIN (also known as JODIE ANN HARRIS) |
| Respondent |
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| JUDGES | WARREN CJ, NEAVE and WEINBERG JJA |
| WHERE HELD | MELBOURNE |
| DATES OF HEARING | 13 March and 29 May 2013 |
| DATE OF JUDGMENT | 14 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 145 |
| JUDGMENTS APPEALED FROM | R v Harris [2009] VSC 78 (Osborn J) R v Toulmin [2012] VSC 142 (Obsorn JA) |
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CRIMINAL LAW — Director’s appeal against sentence — Invalidity of sentencing orders — Respondent convicted on one count of being accessory after the fact to manslaughter and two counts of obtaining property by deception — Wholly suspended sentence of three years’ imprisonment imposed — Sentencing judge purported to fix non-parole period of two years, contrary to R v Hatch [1998] 3 VR 693 — Respondent subsequently dealt with for breach of suspended sentence in 2012 — Effects of invalidity of 2009 order not then appreciated — Suspended sentence restored and non-parole period of one year imposed — Whether portion of 2009 sentencing orders imposing non-parole period severable — Whether 2009 suspended sentence order capable of founding 2012 orders — Effect of superior court orders made beyond power — Appeal allowed — Non-parole period imposed in 2009 severed — Respondent’s application for leave to appeal against 2012 conviction refused — Ludeman v The Queen (2010) 31 VR 606 applied.
CRIMINAL LAW — Application for leave to appeal against 2012 sentence by respondent to Director’s appeal — Fresh evidence — Respondent sentenced on basis that she may be required to give evidence in manslaughter trial — Now certain that she will be required to do so — Sentencing discretion re-opened — Relevance of protracted history of matter and Director’s failure over significant period to raise invalidity of 2009 order — Respondent committed further offences upon release on bail on belated discovery of invalidity of 2009 order — Support necessary to facilitate respondent’s re-integration into community — Appeal allowed — ‘Straight sentence’ of nine months’ imprisonment imposed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P B Kidd SC with Ms F L Dalziel | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Respondent | Mr C B Boyce | Michael Brugman |
WARREN CJ
NEAVE JA
WEINBERG JA:
On 29 May 2013, at the conclusion of the hearing of this matter, this Court made various orders. We allowed the Director’s appeal against a suspended sentence imposed by Osborn J (as his Honour then was) on 27 February 2009 on the basis that the sentence, as structured, was invalid. We also allowed an appeal by Ms Toulmin against a sentence imposed by Osborn J on 30 March 2012 for having contravened the original suspended sentence order. However, we did so solely on the basis of fresh evidence. We said that we would publish our reasons at a later date. These are those reasons.
Factual background
On 27 February 2009, Jodie Ann Toulmin (also known as Jodie Harris) was sentenced by Osborn J in the Supreme Court at Melbourne to two years’ imprisonment on one count of having been an accessory after the fact to manslaughter (count 1), two years’ imprisonment on one count of having obtained property by deception (count 2), and 12 months’ imprisonment on a second count of having obtained property by deception (count 3). His Honour ordered that one year of the sentence on count 2 be served cumulatively upon the sentence on count 1, making a total effective sentence of three years. He purported to fix a non-parole period of two years, and directed that the entirety of the sentence be suspended for a period of three years.
As will be seen, the sentence imposed on that date was irregular, and invalid. The error went undetected for several years. It was only uncovered by accident, in circumstances that will shortly be discussed.
Once it became apparent that there was a problem with the February 2009 sentence, the Director of Public Prosecutions very properly took immediate steps to have the situation rectified. He filed an appeal against that sentence arguing, at that stage, that it was wholly invalid, and perhaps even a nullity. Indeed, he went further. He virtually initiated a bail application on behalf of Ms Toulmin, indicating that bail pending appeal would not be opposed, and that the application itself would be facilitated in whatever way possible.
Perhaps it was not fully appreciated at that time. However, any finding that the February 2009 sentence was wholly invalid had potential implications so far as the 30 March 2012 sentence was concerned.[1] After all, if the original sentence was a nullity, Ms Toulmin’s conviction for having contravened the suspended sentence order made in February 2009 would at least be questionable. We will return to this issue later in these reasons.
[1]The point was raised in passing by the Director at the bail application on 26 November 2012, with the Director noting that the point had only been appreciated after the filing of submissions.
This, in turn, led to an application for leave to appeal against Ms Toulmin’s conviction for having contravened the original suspended sentence order. The situation has become extraordinarily complex, a product of a series of sentencing laws that are themselves unduly technical, and potentially productive of injustice.
In order to understand how this situation has come about, it is first necessary to say something about the circumstances surrounding the offences for which the February 2009 sentences were imposed.
Ms Toulmin’s first offending
In October 2005, Ms Toulmin had, for some time, been in a relationship with Lawrence Butler. They were not, however, living together. She went to his house in order to have a shower. She saw a large bag in the bathtub which appeared to her to be leaking blood. Butler, at that stage, told her that the bag was full of fish. She then saw a bloodstained sheet in Butler’s bedroom, and asked him whether the bag contained the remains of a lodger who had been staying with him. He replied: ‘if you think that is what happened, you can help me’. He told her that he had been in a fight with his lodger, and that the lodger had been ‘knocked out’. He said that he had gone out for a time, and when he returned, the lodger was dead.
Ms Toulmin then saw Butler drag the bag outside, place it in a drum and set fire to its contents. She later noticed what appeared to be bones in the drum. Over the following days, while believing that Butler had killed his lodger, she assisted him by cleaning up bone and ash. She also travelled interstate with him for the purpose of selling the lodger’s car (count 1: accessory after the fact to manslaughter).
More than half a year later, in late July and early August 2006, Ms Toulmin asked her ex-husband to assist in obtaining money from the deceased lodger’s bank account into which, it seems, Centrelink payments were still being made. Using identification and ATM cards belonging to the deceased, her ex-husband made several withdrawals from the account, totalling $11,180. Ms Toulmin and her ex-husband each purchased a car with the proceeds (count 2).
Count 3 related to Ms Toulmin’s use of false identities to enter into contracts to purchase 15 mobile phones. She later sold those phones in order to fund the purchase of drugs.
Ms Toulmin confessed to these matters on 9 July 2008, and made full and frank admissions to police. She pleaded guilty before Osborn J, a matter which his Honour took into account in deciding to wholly suspend the term of imprisonment that he imposed.
Subsequent procedural and custodial history
On 16 November 2010, Ms Toulmin was dealt with by Osborn J for having contravened the suspended sentence order previously made in February 2009. His Honour noted that she had, by then, complied with an undertaking that she had previously given that she would testify against Butler at his trial for murder. However, in his Honour’s words, she had ‘relapsed into dishonesty and committed a series of shoplifting offences’,[2] for which she had been convicted in the Magistrates’ Court. As a result, the Crown sought to have the original sentence of three years’ imprisonment restored.
[2][2011] VSC 55, [5].
On that occasion, Osborn J said that the offences committed by Ms Toulmin involved ‘crude and stupid acts of dishonesty’.[3] His Honour was satisfied that exceptional circumstances existed, and that the three year suspended sentence imposed in February 2009 should not be restored. That was substantially because, in his Honour’s opinion, the offending dealt with in the Magistrates’ Court had been ‘causally linked’[4] to the stress arising from Ms Toulmin having had to give evidence at Butler’s trial. He also noted that she had spent 41 days in custody for the theft offences, and that throughout that period, she had been drug free. Indeed, she presented before his Honour as a ‘normal healthy person’.[5] Accordingly, he made no formal orders.
[3]Ibid [8].
[4]Ibid [44].
[5]Ibid [34].
On 30 March 2012, Ms Toulmin was again brought before Osborn J. She once again admitted that she had contravened the February 2009 suspended sentence order. The Crown sought a restoration of the original three year sentence. It seems that, a month or so earlier, Ms Toulmin had been convicted in the Magistrates’ Court of multiple charges of theft and obtaining property by deception, and one charge each of failing to answer bail and driving whilst disqualified. She had been sentenced to 115 days’ imprisonment with 46 days of presentence detention having been declared.
By this stage, Osborn J was satisfied that the original three year sentence had to be restored. However, in light of the particular circumstances at that time — notably the possibility that Ms Toulmin might once again have to give evidence against Butler (he having succeeded in his appeal against conviction for murder, and having had a new trial limited to manslaughter ordered)[6] — a non-parole period of only one year was fixed. His Honour directed that this sentence be served concurrently with all other sentences that Ms Toulmin was then serving. Because she was, at that stage, still serving the 115 day sentence imposed by the Magistrates’ Court, no presentence detention was declared.
[6]Butler v The Queen (2011) 216 A Crim R 215.
Some eight months or so later, on 26 November 2012, the issue of the validity of Ms Toulmin’s original sentence came to light. The matter arose this way. The retrial of Butler was mentioned before Curtain J at a directions hearing. During the course of that hearing, her Honour expressed misgivings about the validity of the February 2009 sentence, and, by implication, the March 2012 sentence as well. She drew the attention of the parties to a decision of this Court, R v Hatch,[7] which suggested that the sentence imposed upon Ms Toulmin in February 2009 was invalid. That was because his Honour had purported to combine a wholly suspended sentence with a non-parole period. According to Hatch, that was beyond power.
[7][1998] 3 VR 693 (‘Hatch’).
As soon as the Director became apprised of the problem associated with Ms Toulmin’s sentence, he took steps to have the matter clarified. First, he initiated an appeal out of time against the original sentence, submitting that it was wholly invalid. Of course, by this time, Ms Toulmin had served about eight months of the 12 month non-parole period that Osborn J had fixed in March 2012.
Next, as we have indicated, the Director was proactive in assisting Ms Toulmin to bring on an application for bail pending the determination of his appeal. That application was heard by Redlich JA who, on 26 November 2012, granted bail.
As we have noted, the Director’s original Notice of Appeal relied upon one ground only, namely that the February 2009 sentence was wholly invalid.
The next stage in this saga was as follows. On 13 March 2013, the Director’s appeal came on for hearing before this Court. Regrettably, Ms Toulmin, in breach of her bail, failed to appear. A warrant was issued for her apprehension, but the hearing was conducted in her absence. The appeal was adjourned part heard, pending the filing of further submissions.
The Director foreshadowed that he would seek to abandon the argument that he had originally advanced as to what this Court should be invited to do. Initially, as we have indicated, the Director sought simply to have this Court set aside the February 2009 sentence and, in lieu thereof, substitute a term of three years’ imprisonment, wholly suspended. This would have overcome the difficulty, noted in Hatch, of attempting to combine a suspended sentence with a non-parole period.
According to the Director’s original submission, an order of that kind, made by this Court, would have given effect to Osborn J’s original intention. It seems that little thought was given, at that stage, as to what effect the adoption by this Court of the Director’s initial argument would have upon the validity of Osborn J’s subsequent decision, on 30 March 2012, to require Ms Toulmin to serve a non-parole period of 12 months.
Having given careful consideration to this matter, the Director seems to have come to the view that there might be a problem with approaching the matter in the manner originally contemplated. He accordingly proposed to amend his Notice of Appeal, no longer seeking to have this Court resentence Ms Toulmin in the way for which he originally contended, but rather by simply severing that part of the February 2009 sentence that involved the fixing of a non-parole period. He contended, in effect, that the original sentence of three years’ imprisonment, wholly suspended, was perfectly lawful, and that any irregularity associated with the fixing of a non-parole period could be rectified by setting aside only that component of the sentence that comprised the non-parole period. He submitted that this would have the effect of enabling Osborn J’s 30 March 2012 sentence to stand.
During the course of oral argument on 13 March 2013, the Director sought and was granted leave to amend his Notice of Appeal. Leave was granted so that the Director’s Written Case could be recast to better reflect some of the matters that had been raised during the course of the hearing.
Thereafter, the Director, having reflected upon the situation, and the various matters that had been raised by the Court, decided that there were a number of difficulties associated with his appeal that had to be overcome. For one thing, it became apparent to him that the appeal, which purported to have been brought pursuant to s 287 of the Criminal Procedure Act 2009, was incompetent. The sentence under challenge, having been imposed in February 2009, could only be appealed pursuant to the provisions of the Crimes Act 1958. That was because the commencement date of the Criminal Procedure Act 2009, so far as appeals against sentence were concerned, was 1 January 2010.
In relation to a Director’s appeal against sentence, that meant that the challenge had to be brought pursuant to s 567A of the Crimes Act 1958.
The Director then sought leave to amend his original Notice of Appeal in order to refer to the correct legislative foundation of the appeal. He accepted that the leave that had been granted to him to amend his Notice of Appeal and Written Case on 13 March 2013 did not envisage an amendment as fundamental as that now sought. Nonetheless, he submitted that, if further leave were required, it should be granted.
The Director, having radically altered his position, provoked an application by Ms Toulmin to seek leave to appeal against her 30 March 2012 conviction.[8] She now wished to argue that, as a result of the irregularity associated with the February 2009 sentence, there never was a valid suspended sentence order capable of being contravened. As such, the orders made by Osborn J on 30 March 2012 should be quashed.
[8]Although expressed to be a ‘Notice of Application for Leave to Appeal against Conviction’, we note that, on one view of the orders of the Court of Appeal dated 26 November 2012, such leave has already been granted. The relevant orders read ‘The oral application for an extension of time to seek leave to appeal against the orders made … on 30 March 2012 is granted’ and ‘The application for leave to appeal against the order made … on 30 March 2012 is granted’. It is unnecessary to consider in detail whether this leave covers the appeal now sought to be brought, though we simply note that the Notice of Application for Leave to Appeal was filed more than four months after the hearing before Redlich JA.
The protracted documentary history of this matter does not end there. Late on the afternoon of 28 May 2013, the day before the resumption of the hearing of this appeal, counsel for Ms Toulmin indicated, for the first time, that he might, depending upon the course the matter subsequently took, seek leave to bring a further appeal. A draft Notice of Application for Leave to Appeal, purporting to challenge the February 2009 sentence, was provided to the Court . Ironically, the proposed ground of appeal was in identical terms to that which had previously been filed on behalf of the Director, but which was eschewed in his later amendments to his Notice of Appeal and Written Case.
Matters did not improve. At the commencement of the hearing of the appeal on 29 May 2013, the Court was informed that Ms Toulmin would now also seek leave to appeal against the March 2012 sentence.
The result was that there were, by this stage, no fewer than three separate appeals, or applications for leave to appeal, before this Court. For the purposes of clarity, we set them out as follows:
(a)The amended Director’s appeal against the February 2009 sentence;
(b)Ms Toulmin’s application for leave to appeal against her March 2012 conviction; and
(c)Ms Toulmin’s application for leave to appeal against the March 2012 sentence.
Each of Ms Toulmin’s applications for leave to appeal were, administratively, subsumed within the Director’s own appeal, and heard together with it. Of course, it was convenient to deal with them together in order finally to dispose of this matter. Insofar as Ms Toulmin indicated that she might have sought leave to appeal against the 2009 sentence on the same ground as originally sought by the Director, submissions in support of that ground were considered in relation to the Director’s amended appeal.
The validity of the non-parole component of the February 2009 sentence
There can be no doubt that Osborn J erred in fixing the non-parole component of the February 2009 sentence. This Court’s decision in Hatch[9] makes that plain. The Court’s reasoning is fully exposed in the following passage from the judgment of Callaway JA (with whom Batt JA agreed on this point):[10]
[9][1998] 3 VR 693.
[10]Ibid 702.
It should be said at the outset that a non-parole period cannot be combined with a partly suspended sentence. I am speaking of the time at which the sentence is imposed, not when it is restored. … The practical difficulties are readily apparent and would have been encountered if [the judge below] had been minded to fix a non-parole period in the present case whilst still partly suspending the sentence…
The most elaborate consideration of the first issue is the ruling of Judge Hassett in R v Campbell (unreported, 9 October 1995). In that case his Honour had sentenced the prisoner to 15 months’ imprisonment, fixed a non-parole period of six months pursuant to s. 11(2) and made an order pursuant to s. 27 suspending the whole of the sentence. He was asked to revoke the fixation of the non-parole period and gave reasons for refusing to do so. His Honour considered that a non-parole period could be combined with an order wholly suspending the sentence of which the non-parole period formed part. He declined to follow such obiter dicta to the contrary as could be found in Director-General of Corrections v Sweeny and McGrath and R v Lowe and pointed out that minimum terms and wholly suspended sentences had been combined under the predecessor of s. 28…. Two other important components of Judge Hassett’s reasoning were that an order under s. 31 restores rather than imposes a sentence of imprisonment and that s.31(5) is exhaustive, with the consequence that a non-parole period cannot be fixed on breach, and that s. 27(3) refers to the whole sentence and not just to the head sentence.
I have been greatly assisted by his Honour’s ruling, but I have come to a different conclusion for a number of reasons. One of them, as I shall explain when I turn to the second issue, is that in my view a non-parole period may be fixed on breach. Another is that a suspended sentence and a sentence with a non-parole period afford alternative dispositions, contemplating different forms of conditional release and supervision. Because they are alternatives, the "sentence of imprisonment" referred to in s. 27(3), that would have to be appropriate if unsuspended, is in effect a head sentence. (Even if those words did refer to the whole sentence, that might simply mean that a suspended sentence could not be imposed if the judge thought that a non-parole period should be fixed.) Another consideration is that it would be difficult to restore part only of a suspended sentence that included a non-parole period, so that the option in s.31(5)(b) would be unavailable even if the court was of opinion that an order under s. 31(5)(a) would be unjust.
Finally, there is the insuperable difficulty presented by s.14(1), which provides:
"(1) If -
(a) a court has sentenced an offender to be imprisoned in respect of an offence and has fixed a non-parole period in respect of the sentence; and
(b) before the end of that non-parole period the offender is sentenced by a court to a further term of imprisonment in respect of which it proposes to fix a non-parole period
the court must fix a new single non-parole period in respect of all the sentences the offender is to serve or complete."
There can be only one non-parole period. That follows from ss.14 and 15(1)(b), which stand in contrast with the former s.535 of the Crimes Act 1958. If Judge Fricke had fixed a non-parole period and wholly suspended the sentence, the effect of Judge Neesham's order for cumulation would have been two consecutive sentences each with its own non-parole period. Judge Neesham would not have been able to fix a new single non-parole period under s.14, because it is a condition precedent to doing so that the offender be sentenced by a court to a further term of imprisonment in respect of which that court proposes to fix a non-parole period. Judge Neesham would not have been proposing to fix a non-parole period. He would have been restoring the unserved part of Judge Fricke's sentence, in respect of which Judge Fricke had fixed a non-parole period. Even if Judge Neesham had ordered the applicant to serve the restored term concurrently with Judge Wodak's sentence, there would still have been two non-parole periods. That was permissible under s.535(1) and (2)(b). It is not permissible under the current provisions.[11]
[11]Ibid 697-8.
The Director’s submissions
The Director rightly submitted that Osborn J’s decision to fix a non-parole period, in combination with a wholly suspended sentence, cannot be permitted to stand. More controversially, he submitted that the problem was best rectified by simply severing that non-parole component of the sentence, leaving the balance undisturbed. According to the Director, this would have meant (subject to his position as to Ms Toulmin’s application for leave to appeal against the 30 March 2012 sentence, to which we will shortly return) that Ms Toulmin would be required to serve at least the remaining four months or so of the non-parole period fixed by the March 2012 sentence.
The Director derived support for his submission that this form of severance should now be adopted, from a number of different sources.
First, he submitted that the non-parole period should be treated as ‘extraneous to the real intention’ of the sentencing judge. According to the Director, Osborn J plainly intended to impose a wholly suspended sentence. That made the fixing of a non-parole period both inappropriate and redundant.
Secondly, the Director invoked the principle laid down by a five member bench of this Court in Ludeman v The Queen[12] that an appeal against sentence is not to be regarded as an appeal against ‘the sentence generally’, but rather against one or more of its ‘individual components’.[13]
[12](2010) 31 VR 606, 614 [55], 619-21 [82], [85] (Ashley and Redlich JJA) (‘Ludeman’).
[13]Ibid 614 [53] (Ashley and Redlich JJA).
These ‘components’ would ordinarily include a term of imprisonment on a particular charge, an order for cumulation or concurrency, an order wholly or partly suspending a term of imprisonment, and, critically for present purposes, a non-parole period.
Indeed, Ashley and Redlich JJA, in Ludeman, said:
… [T]he definition of ‘sentence’ is apt to include a non-parole period which is ‘part of the sentence’ for an offence – see s 11(1) of the Sentencing Act.[14]
[14]Ibid 616 [63]. See also 615 [57].
The Director accepted that Ludeman itself was based upon the language used in the Criminal Procedure Act 2009, which, of course, has no application to his appeal. However, he submitted that the reasoning in Ludeman applied with equal force to the present circumstances. He noted that the definition of ‘sentence’ in s 566 of the Crimes Act 1958 (which applied to the appeal provisions of that Act) was relevantly the same as the definition contained in s 3 of the Criminal Procedure Act 2009. An order fixing a non-parole period under s 11 of the Sentencing Act 1991 was therefore a ‘sentence’ for the purposes of s 567A of the Crimes Act 1958.
The Director next argued that, in accordance with Ludeman, the success of an appeal in relation to a particular ‘sentencing order’ did not, necessarily, re-open the entire sentencing discretion.[15] It may, in a particular case, do so if, for example, a change to such a component had a ‘flow on effect’ to the other ‘sentencing orders’ made in that case. However, the Director submitted that Ms Toulmin’s case did not involve any ‘flow on effect’ of that kind.
[15]Following Ludeman, the provisions of the Criminal Procedure Act 2009 concerning applications for leave to appeal were amended to provide that a judge of the Court might refuse leave to appeal if there were no reasonable prospect that the ‘total effective sentence’ imposed below would be reduced on a successful appeal: Criminal Procedure Amendment Act 2012 div 1.
The Director did not challenge any of the individual sentences imposed on 27 February 2009. He said that his appeal was directed solely at what he described as a ‘technical matter’ which, in his submission, has had no effect whatever upon Ms Toulmin’s rights, or her liberty. He noted that it was by no means uncommon for an offender to confine an appeal against sentence to a challenge to the non-parole period, and cited authority for that proposition.[16] He argued that any cases that may have supported the contrary view should now no longer be followed. That was both because those cases were founded upon a different statutory definition of ‘sentence’,[17] and also because they predated Ludeman.
[16]R v Krasnov (1995) 82 A Crim R 92; R v Demarco [1999] VSCA 69; R v Merritt (2008) 191 A Crim R 272; Underwood v The Queen [2011] VSCA 270; Kumova v The Queen [2012] VSCA 212.
[17]DPP v Wardrope (Unreported, Court of Criminal Appeal, 20 August 1987) (also reported at (1987) 29 A Crim R 198, although the report does not contain the part of the reasons concerning the point raised by the Director); R v Iddon & Crocker (1987) 32 A Crim R 315.
The Director argued that if his primary submission were accepted, the result would be that the breach proceedings on 30 March 2012 would remain valid. In other words, the individual sentences imposed on 27 February 2012, and the order for suspension, would remain unaffected by the setting aside of the non-parole period.
Not content with putting his case on that basis, the Director put forward an alternative submission. He argued that irrespective of the validity of the February 2009 sentence, the 30 March 2012 conviction and sentence should be viewed as lawful.
The Director’s alternative submission was originally put forward on the basis that the only matter before this Court was his appeal against the February 2009 sentence. He noted, in his written submission, that, at that stage, Ms Toulmin’s March 2012 conviction had not been challenged.
However, as has been seen, after the Director had filed his amended Written Case, Ms Toulmin filed an application for leave to appeal against the March 2012 conviction. To some degree, that undercut the Director’s alternative submission.
Nonetheless, the Director maintained that the March 2012 orders, having been pronounced by a superior court, were at worst ‘voidable’, and remained valid unless and until set aside.[18] He submitted that on no view could they simply be treated as though they had no legal effect.
[18]Citing Cameron v Cole (1943) 68 CLR 571, 590-1 (Rich J); Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; DPP v Edwards [2012] VSCA 293; Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook, 5th ed, 2013) [10.190].
Ms Toulmin’s submissions
Ms Toulmin joined issue with the Director in a number of respects. She contended, in her draft Notice of Application for Leave to Appeal against the February 2009 sentence, that Osborn J’s orders had been wholly invalid. His Honour had purported to suspend a sentence that also contained a non-parole period. That could not be done. It followed, so it was said, that the March 2012 orders were invalid. There could not, logically, have been a breach of a suspended sentence if there was no valid suspended sentence capable of being breached. Accordingly, so it was submitted, the March 2012 conviction should be quashed.
Ms Toulmin also submitted, in her Revised Written Case on the Director’s appeal, that the Director’s submission that the February 2009 sentence could be subjected to severance should be rejected. She argued that the error made in relation to that sentence was not simply the fixing of a non-parole period, but rather the suspension of that non-parole period in the course of purporting to impose a wholly suspended sentence.
According to Ms Toulmin, it being clear from Hatch that a sentence that includes a non-parole period cannot be suspended, it followed that the order for suspension, and not merely the non-parole period, had to be invalid. As such, the entire sentence had to be set aside, and not merely the non-parole period itself.
Ms Toulmin next submitted that the Director should not be permitted to change the very basis upon which his appeal rested. As previously noted, in his original Notice of Appeal, the Director alleged that the ‘sentence imposed [in February 2009] was invalid’. The particulars of that ground attacked the entirety of that sentence, and did not seek to sever any component of it. Rather, the Director sought a fresh exercise of the sentencing discretion.
Ms Toulmin submitted that the Director’s position had been consistent throughout until the first time that this appeal came on for oral hearing. He had, for example, readily accepted Curtain J’s characterisation of the February 2009 sentence as a ‘nullity’ when her Honour so described it during the course of the Butler directions hearing.
Indeed, Ms Toulmin argued, the Director had proceeded on precisely the same basis when he consented to bail because he regarded Osborn J’s original sentence as wholly invalid, and therefore as raising doubts as to the legality of her continued detention.
According to Ms Toulmin, having now realised the implications of a finding that the February 2009 sentence was entirely invalid, so far as the 30 March 2012 conviction is concerned, the Director wished to resile from his earlier position and put an entirely different case. Ms Toulmin contended that this change on the part of the Director was unwarranted, and would operate to her prejudice. Had the Director taken the same stance from the time he became aware of this problem, as he now did, he would, in all likelihood, have opposed bail. Yet, his current position might have the effect of requiring Ms Toulmin to be returned to custody, perhaps for a considerable period of time, indeed anything up to a further two years and four months. Ms Toulmin submitted that the Director had, by the errors of his own staff, contributed significantly to the difficulties that now confronted her.
As we have indicated, counsel for Ms Toulmin, at the hearing of the appeal on 29 May 2013, filed a Notice of Application for Leave to Appeal against the 30 March 2012 sentence. The basis of that challenge was that ‘fresh evidence’ had been obtained which warranted reopening the sentencing discretion. That evidence went to the fact that it is now certain, as distinct from merely likely, that Ms Toulmin will be required to give evidence against Butler at his retrial.[19]
[19]The Crown’s application for special leave to appeal from this Court’s judgment in Butler having been refused: R v Butler [2012] HCA Trans 196 (17 August 2012).
The Director did not dispute that this new circumstance constituted fresh evidence, and accepted that the sentencing discretion was accordingly reopened.
The respective submissions put on behalf of the Director and Ms Toulmin may be summarised as follows.
The Director’s position, by the conclusion of argument, was that:
(a)the non-parole period fixed on 27 February 2009 could be ‘severed’ from the balance of the sentencing orders made that day;
(b)consequently, the March 2012 conviction remained valid;
(c)absent any other challenge to the March 2012 sentence, Ms Toulmin should be required to serve the balance of the sentence imposed on that date;
(d)however, there was now fresh evidence that bore upon the March 2012 sentence, and the Director did not object to its being received;
(e)the sentencing discretion exercised in March 2012 was therefore reopened,
(f)it would be open to this Court, and indeed appropriate, to impose a ‘straight sentence’ on Ms Toulmin, which would either result in her immediate release (subject to other matters pending) or require her to serve a maximum of a further four months in custody for these matters.
Counsel for Ms Toulmin informed the Court on 29 May 2013 that he agreed with nearly all of the Director’s submissions. The key point of difference related to the validity of the March 2012 conviction. Counsel submitted that, for the purposes of ss 83AB and 83AR of the Sentencing Act, there was no ‘suspended sentence order’ in existence as at 30 March 2012 upon which Osborn J could have acted to restore any part of the February 2009 sentence. A ‘suspended sentence order’, for the purposes of those provisions, meant an order made under s 27 of the Sentencing Act 1991. While an order made by a superior court could never be regarded as a nullity, it was not open to Osborn J, as a matter of statutory construction, to have been satisfied, at the time he restored the suspended sentence, that such an order was extant.
Counsel for Ms Toulmin appeared to accept, at least implicitly, that if the 2009 non-parole period order was severed, but the rest of the 2009 suspended sentence order was valid, then Ms Toulmin would have no basis upon which to appeal against the 2012 conviction.
The application for leave to appeal against the March 2012 conviction
We rejected Ms Toulmin’s submission that there was no ‘suspended sentence order’ which could form the basis of a ‘finding of guilt for contravention of order as
to suspended sentence’.[20] That submission, in our view, faced several insurmountable hurdles.
[20]Sentencing Act 1991 s 83AR.
It is settled law that orders of superior courts of record, though made without power, remain effective unless and until they are set aside. If authority is necessary for that proposition, the point is clearly made by Rich J in Cameron v Cole:[21]
It is settled by the highest authority that the decision of a superior court, even if in excess of jurisdiction, is at the worst voidable, and is valid unless and until it is set aside… The language of Lord Greene MR, in Craig v Kanssen, where he says that ‘a person who is affected by an order which can properly be described as a nullity is entitled ex debito justitiae to have it set aside,’ is correct as an abstract proposition; but since the order before his Lordship was one of a superior court, the expression is somewhat misleading, and his statement that the distinction is ‘between proceedings or orders which are nullities and those in respect of which there has been nothing worse than an irregularity’ fails, I venture to think with all submission, to meet the actual facts of the case. This is true enough in the case of an inferior court (In re the Affairs of Hart); but in the case of a superior court the distinction is between irregularities so fundamental as to create an unconditional right, ex debito justitiae, to have the judgment set aside, and non-fundamental irregularities as to which the court has a discretion. Since the case before the Master of the Rolls was one of the former type, although no exception can be taken to his Lordship's actual conclusion, his criterion was, with all deference, somewhat inaptly expressed. If the decision is void (as it may be in the case of an inferior court), the court may proceed to a real trial without any formal setting aside of the void decision (R. v. Marsham; Ex parte Pethick Lawrence; Bannister v Clarke; In re the Affairs of Hart).[22]
[21](1944) 68 CLR 571 (citations omitted). See also New South Wales v Kable [2013] HCA 26.
[22]Ibid 590-1. See also Pelechowski v Registrar of the Court of Appeal (1999) 198 CLR 435; DPP v Edwards [2012] VSCA 293; Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Lawbook, 5th ed, 2013) [10.190].
Reference was also made in the course of argument to the decision of the West Australian Court of Appeal in Dreja v State of Western Australia.[23] In that case, the appellant had been sentenced to a wholly suspended term of imprisonment in July 2009. In October 2009, he came before a magistrate and was dealt with for having breached the suspended imprisonment order. He received a fine of $600. In December 2010, the appellant was again dealt with for having breached the suspended imprisonment order as a result of his conviction for robbery. On that occasion, he was given a fine of $2,000 for breach of the suspended sentence order. In September 2011, the appellant’s appeal against the July 2009 suspended term of imprisonment was allowed. The Court ordered that that wholly suspended sentence be set aside, and the appellant be resentenced to pay a fine of $1,000.
[23][2012] WASCA 151.
The appeals before the West Australian Court of Appeal addressed the issue of the validity of the $600 fine and the $2,000 fine, having regard to the fact that the suspended sentence upon which they were based had been set aside on appeal.
As was acknowledged on the hearing of this appeal, Dreja is readily distinguishable. The suspended sentence in that case was imposed by a magistrate, and not by a superior court. Dreja does, however, contain an analysis of authority on the point in relation to the operation of suspended sentence orders. Pullin JA (with whom Newnes and Mazza JJA agreed) noted that:
[A]n order imposing a sentence of suspended imprisonment has ongoing effect. It is executory or partly executory until the order is spent. If the court orders a sentence of suspended imprisonment to be set aside then, in the absence of any indication that it was intended to be an order setting the sentence aside ab initio, the order takes effect to nullify the sentence only from the date of the setting aside order.[24]
[24]Ibid [15].
In support of that conclusion, Pullin JA quoted from Hancock v Prison Commissioners,[25] in which the English Court of Criminal Appeal considered the effect of an order under s 4(3) of the Criminal Appeal Act 1907 (UK), which provided that if that Court considered that a ‘different sentence should have been passed’, it had the power to ‘quash the sentence passed at the trial’. There, Winn J had held:
When one finds those words in the section and considers the context in which they are used and the subject-matter to which those words must be applied, one is inevitably driven to the conclusion that the word 'quash' is not there used in the sense in which the Shorter Oxford English Dictionary tells me that it often is used, namely, 'to annul', 'make null or void', but is used in the less drastic meaning that the former sentence is by the order of the court rendered null and void at the moment when the Court of Criminal Appeal decides to substitute for it a different sentence, so as to make that earlier sentence null and void and of no effect for the future from that point of time onwards, but not so as to render it null and void ab initio, namely, as from the date when it was passed.[26]
[25][1960] 1 QB 117 (‘Hancock’).
[26]Ibid 125.
Pullin JA found that that reasoning was not applicable to the Western Australian appeal provision in s 14 of the Criminal Appeals Act 2004 (WA). Nevertheless, his Honour noted that Hancock had been approved in a number of decisions in other States, including by this Court in DPP v TY (No 2).[27] In that case, referring to Hancock, Maxwell P, Ashley and Neave JJA said:
With respect, this is a compelling analysis — as a matter of statutory interpretation and as a matter of both principle and policy. It is necessary that a court order imposing sentence be — and be treated as — valid and enforceable unless and until it is set aside (whether after a successful conviction appeal or after a successful sentence appeal). For analogous reasons, an injunction must be obeyed “to the letter” unless and until it is dissolved or set aside on appeal. Breach of an injunction will be a contempt of court notwithstanding that the injunctive order is later quashed on appeal. The status of court orders — at least those of superior courts — is quite different in this respect from that of administrative decisions. Even a court order which lacks constitutional (and therefore legislative) authority only ceases to have valid operation from the date of quashing.[28]
[27]DPP v TY (No 2) (2009) 24 VR 705.
[28]Ibid 712 (citations omitted).
For these reasons, we refused Ms Toulmin leave to appeal against the March 2012 conviction.
Conclusion regarding the February 2009 sentence and the March 2012 sentence
Because of the pragmatic approach taken by both parties and the Court, and the way Ms Toulmin’s appeal against the 2012 conviction had been disposed of, we considered it appropriate that the Director be permitted to amend his case on his appeal in the way we earlier outlined.[29] Further, it became unnecessary for us to determine whether the Director should be permitted to appeal only against the non-parole period fixed in February 2009. That was because counsel for the Director, at the oral hearing, indicated that he would be satisfied with the result so long as the Court accepted that the 2009 sentencing discretion had miscarried. As we have said, the Director also accepted that, as a result of the fresh evidence, the 2012 sentencing discretion should be regarded as having been reopened.
[29]See above para 24.
This case has a number of extraordinary features. Ms Toulmin has now been dealt with no fewer than three times for the offences she committed in 2005-2006. We considered that the February 2009 sentence, being fundamentally flawed, could not be allowed to stand. It is both surprising, and somewhat disappointing, that despite nearly four years having elapsed from the time that sentence was imposed, it was not until November 2012 that the error was detected.[30]
[30]Although the appeal proceeded upon the basis that the matter had not been brought to the attention of the Court, and that counsel for the Director had been unaware of the irregularity, the transcript of 30 March 2012 tells a somewhat different story. The prosecutor is reported to have said ‘Your Honour fixed a non-parole period initially which was just probably shouldn’t have been done’. His Honour interpolated: ‘Not effective, nugatory’. The prosecutor then added: ‘then [that] just can be ignored.’: T32 (30 March 2012). His Honour had previously said that he would ‘put aside the question of whether [he] should have fixed a non-parole period’: T31 (30 March 2012).
Ms Toulmin was potentially exposed to an actual custodial term of three years’ imprisonment for the entirety of that lengthy period. The fact that the original sentence turns out to have been irregular was in no way her fault.
In relation to the Director’s appeal against the February 2009 sentence, which was sought to be brought pursuant to s 567A(1) of the Crimes Act 1958, this Court can only interfere with the sentence in question if ‘it thinks that a different sentence should have been passed’.[31] However, despite the language of that provision, it is clear that the appeal is not a hearing de novo. Rather, it is based upon error, and, importantly, involves a challenge to the exercise of judicial discretion.[32]
[31]See Crimes Act 1958 s 567A(4). This contrasts with the language of s 289 of the Criminal Procedure Act 2009 which, in terms, speaks of a need to be satisfied of ‘error’.
[32]House v The King (1936) 55 CLR 499.
Ms Toulmin’s application for leave to appeal against the March 2012 sentence seemed to us to be in a quite different category. That application attracted the operation of the Criminal Procedure Act 2009, the sentence having been imposed after 1 January 2010.
In relation to the March 2012 sentence, both parties agreed that the sentencing discretion had been reopened owing to the availability of fresh evidence. We considered that to be correct. It was therefore unnecessary to consider whether the Director’s successful appeal against the 2009 sentence might have also re-opened the sentencing discretion in relation to the 2012 sentence.
The relevant principles governing fresh evidence on an appeal against sentence were set out by Redlich JA in R v Duy Duc Nguyen[33] as follows:
[33][2006] VSCA 184.
It is common ground that this Court may, in limited circumstances - sometimes described as "rare and exceptional" - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.
The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.[34]
[34]Ibid [36]-[37] (citations omitted).
In our view, (i) and (ii) of the items identified by Redlich JA as relevant were satisfied. The application for special leave in Butler had only been refused following the sentence on 30 March 2012. Further, the fresh evidence demonstrated the true significance of the fact, then in existence, that Ms Toulmin would be the principal witness in any retrial of Butler. The rejection of the application for special leave meant that she would, certainly, be required to give evidence.
Having established that the sentencing discretion exercised in March 2012 had been reopened, the question which followed was, what orders should be made? Particularly, should any other sentence be substituted so as to avoid a miscarriage of justice? As we have noted, the Crown did not dispute that, given the fresh evidence, a ‘straight sentence’ would be appropriate, in lieu of the sentence imposed on 30 March 2012.
The position that confronted this Court was that Ms Toulmin had served approximately eight months of the 12 month non-parole period that his Honour fixed in March 2012. It is perhaps noteworthy that had she not applied for and been granted bail, she would by now have served the entirety of that non-parole period. Moreover, she would not have had the opportunity to reoffend in the way that she did.
If we were to give effect to Osborn J’s intent, as manifested in March 2012, we would presumably have required Ms Toulmin to serve a further four months’ imprisonment before being eligible for parole. Therefore, subject to any other matters that she faces, she would have been eligible for parole four months from the date of our orders.
We should say that on 29 May 2013 those other matters were outlined in somewhat greater detail. It appeared that the position was that Ms Toulmin was on remand in respect of several offences to be dealt with in the Magistrates’ Court. Those offences were committed throughout the period December 2012 to February 2013. They included handling stolen goods, possessing the proceeds of crime, theft of a motor car, driving while disqualified and theft. We were told that Ms Toulmin had pleaded guilty to those offences. We were also told that the Director’s view that Ms Toulmin need not receive an immediate term of imprisonment for those offences would be conveyed to the informant.
We were also told that no action had yet been taken with respect to Ms Toulmin’s failure to meet the conditions of her bail granted 26 November 2012. The Director was not in a position to say definitively that no such action would be taken. We were told, however, that given the history of this matter, the Director would take what was described to us as a ‘pragmatic’ approach.
There were a number of perfectly sensible reasons for resolving these proceedings by way of a ‘straight sentence’. Despite s 5(2AA)(a) of the Sentencing Act 1991, we could not ignore the fact that, in the light of recent events, Ms Toulmin’s chances of being granted parole at the earliest opportunity may have been somewhat problematic. Had we simply reinstated the original three year sentence imposed in February 2009, and restored in March 2012, she might well have been required to serve virtually the whole of that sentence. Such an outcome would be unduly harsh, given that she has now had this three year term hanging over her head for more than four years. It might be also thought that such an outcome would have involved an element of ‘double punishment’.
As regards the possibility of a suspended sentence, Ms Toulmin’s record, and recent history, suggested that there was a significant chance that she would, once again, contravene such an order. That, too, would have resulted in her being subjected to the whole of the remaining period of three years (less eight months presentence detention).
In a case with these highly unusual features, we considered it appropriate for this Court to accede to Ms Toulmin’s submission, very properly supported by the Director, that she receive a ‘straight sentence’.
We decided that, in the particular circumstances of this case, a total effective sentence of nine months’ imprisonment would be appropriate. Having regard to the period of presentence detention that we declared, that would require Ms Toulmin to serve the best part of a month more, and then be released with nothing further hanging over her head arising out of these matters. The extra month would be warranted both by reason of the gravity of her offending, and because it would provide an opportunity for her to be properly prepared for release.
We were provided, on 29 May 2013, with updated information, in the form of an affidavit from Ms Toulmin’s solicitor and submissions from counsel from the bar table, as to Ms Toulmin’s recent past and her plans upon her release from prison. The sentencing discretion having been reopened, that material bore upon whether there was anything sensible to be achieved by now requiring her to undergo a significant term of further imprisonment.
That affidavit material, in summary, stated that, when released from prison on 26 November 2012 in consequence of the order for bail, Ms Toulmin was entirely unprepared for life in the community. On that day, her understanding was that she was immediately required to go to Court in order to testify against Butler. To her surprise, she was instead simply released from custody. As she did not want to go into witness protection, she was placed in temporary housing before attempting unsuccessfully to find her own accommodation. The affidavit recorded Ms Toulmin’s view that had she not been granted bail, she would by now have completed the March 2012 sentence, and given appropriate support such as counselling and housing, would not have further offended.
Counsel for Ms Toulmin added, at the hearing of the appeal, that arrangements had now been made for Ms Toulmin to be able to reside with her partner upon her release. She would also be in a position to see her children. He expressed the hope that Ms Toulmin would be given a non-custodial sentence in respect of the Magistrates’ Court matters which were then pending, with orders for supportive counselling. He added that Ms Toulmin had been completing a course in prison to assist in her drug rehabilitation, but, by reason of her sudden release on 26 November 2012, she had not been able to finish what she had begun. This had led to obviously deleterious consequences.
Ms Toulmin seemed to us to present a most difficult sentencing problem. Her past history suggested that unless she took major steps to change her way of life, she was likely to continue offending. Nonetheless, we considered that she was not without some prospects of rehabilitation, and deserved some measure of leniency. It goes without saying that the ‘straight sentence’ that we imposed should not be taken to reflect in any way the gravity of her 2005-2006 offending.
Summary of conclusions
For the reasons set out above, we made orders on 29 May 2013 allowing the Director’s appeal against the February 2009 sentence. We ordered that the non-parole period fixed by Osborn J be severed from the remaining orders. As previously indicated, we refused Ms Toulmin leave to appeal against the March 2012 conviction. However, on the basis of fresh evidence, we granted her leave to appeal against the March 2012 sentence.
Having allowed that appeal, we resentenced Ms Toulmin to a total effective sentence of nine months’ imprisonment, with a declaration of presentence detention in respect of the time served from 30 March 2012 until her release on bail on 26 November 2012.[35] The result was that she will now be required to serve only a further month or so in custody on these matters.
[35]Counsel were agreed that this period could properly be taken into account as presentence detention.
It would have been open to us to impose a sentence which, allowing for other matters, would have enabled Ms Toulmin’s release without serving any further period in custody for breach of her suspended sentence. We were concerned, however, as we have said, that there be time for the relevant authorities and Ms Toulmin’s family to make arrangements regarding her eventual release and the availability of appropriate support in the community. The events which followed her release in November 2012 were unfortunate, and should serve as a warning in future cases.
In our orders of 29 May 2013, we recorded, for the purposes of s 5(2AB) of the Sentencing Act 1991, our declaration that the sentence we imposed was less severe than would otherwise have been imposed because of the undertaking that Ms Toulmin had given to assist the Crown in the retrial of Butler for the offence of manslaughter which he is now alleged to have committed.
The orders and judgment of this Court reflect the perfectly sensible approach ultimately adopted by both parties to this appeal. It should be emphasised that the circumstances of this case were extremely unusual. The total effective sentence of nine months’ imprisonment that we imposed in lieu of the sentence originally fixed in March 2012 is undoubtedly very lenient. Certainly, a sentence of that duration bears little relationship to the objective gravity of this offending. It must be remembered, however, that the final outcome of this appeal turned essentially upon fresh evidence that was both specific, and particular to this case. The sentence we fixed should not be viewed as any sort of precedent.
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