DPP v Grech
[2016] VSCA 98
•10 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2015 0222
| DIRECTOR OF PUBLIC PROSECUTIONS | Appellant |
| v | |
| STEVEN KEVIN GRECH | Respondent |
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| JUDGES: | WEINBERG AP, ASHLEY and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 19 April 2016 |
| DATE OF JUDGMENT: | 10 May 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 98 |
| JUDGMENT APPEALED FROM: | DPP v Grech [2015] VCC (Judge Smith) |
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CRIMINAL LAW – Sentence – Intentionally causing serious injury – Whether sentence manifestly inadequate – Victim a stranger to offender – Offender using wooden stake to strike victim – Assault continued after victim was unconscious – Victim on crutches – Sentence of 12 months imprisonment combined with three year community correction order – Over 600 days pre-sentence detention declared – Appeal allowed – Offender resentenced to 12 months imprisonment – Community corrections order increased to five years.
CRIMINAL LAW – Sentence – Interaction of community corrections orders and non-parole period – Not permissible to exercise discretion not to declare pre-sentence detention to avoid effect of legislative requirement to set non-parole period – Boulton v The Queen [2014] VSCA 342 considered – R v Hutchison [2015] VSCA 405 considered – Sentencing Act 1991 ss 11, 18, 44(1), 44(3).
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms F L Dalziel | Mr J Cain, Solicitor for Public Prosecutions |
| For the Respondent | Mr L W Hartnett with Mr P J Smallwood | Papa Hughes Lawyers |
WEINBERG AP:
I agree with Ferguson JA.
ASHLEY JA:
I agree in the reasons of Ferguson JA and with the orders which her Honour proposes.
FERGUSON JA:
Overview
The respondent, Steven Grech, pleaded guilty to one charge of intentionally causing serious injury which carries a maximum penalty of 20 years’ imprisonment. The charge arose out of an incident during the course of which the respondent used a wooden stake to strike the victim several times. At the time of the assault, the victim had a broken leg and was using a crutch. The respondent delivered the last blow whilst the victim lay on the ground, unconscious. The victim sustained serious injuries. The effect of some of those injuries is ongoing.
On 20 October 2015, the respondent was sentenced to 12 months’ imprisonment combined with a three year community correction order (‘CCO’). The respondent had been on remand before sentencing and a period of 667 days[1] was declared as having been served. Consequently, the respondent served no further time in prison and the three year CCO commenced immediately upon his release.
[1]On the appeal, it was agreed that the correct number of days of pre-sentence detention was 611.
The Director of Public Prosecutions appeals the sentence on the ground that it is manifestly inadequate. The Director contends that the sentencing judge:
(a)failed properly to reflect the gravity of the offending;
(b)failed sufficiently to punish the offender to an extent which is just in all the circumstances;
(c)failed sufficiently to manifest the denunciation by the court of the type of conduct in which the offender engaged;
(d)failed to give sufficient or any weight to the principle of general deterrence;
(e)failed to have sufficient regard to the need to deter the respondent from committing offences of the same or similar character;
(f)failed to have sufficient regard to the impact of the offence upon the victim; and
(g)gave too much weight to mitigating factors concerning the offender, with the result that the sentence is manifestly inadequate.
What happened when the offences were committed?
At about 3:00am on 22 December 2013, the respondent was with a female friend on Ballarat Road in Footscray when a bouncer refused him entry to the Powell Hotel. The respondent became angry and placed a wooden stake in a nearby garden with the intention of using it to assault the bouncer.
There is a McDonald’s store close to the Powell Hotel. While he was waiting for the bouncer to come out of the hotel, the respondent saw the victim, Mr Feysia Hika, attempt to get into a taxi in the McDonald’s carpark ahead of some other people who had booked it. As I have said, Mr Hika had a broken leg, and he was using a crutch. He was intoxicated. There was an argument, but eventually Mr Hika got out of the taxi. As he did so, he swung his crutch at one of the taxi passengers, who ducked to avoid being hit.
Mr Hika then walked towards Ballarat Road. He came across the respondent and his female companion. There was a verbal exchange between them and the respondent took offence. The respondent retrieved the wooden stake from nearby and used it to strike Mr Hika in the stomach and on the head. After Mr Hika had said ‘enough,’ the respondent hit him three more times. The respondent told police that Mr Hika was unconscious after the second of those blows. The judge described the incident as a ‘serious assault on a previously injured and vulnerable victim who had little ability to defend himself’.[2]
[2]DPP v Grech [2015] VCC [53] (‘Reasons’).
The respondent then threw the stake away and left the scene. He was later identified from CCTV footage and was arrested on 22 December 2013. He made substantial admissions about his offending at this time, including that he had intended to assault the bouncer who had refused him entry to the Powell Hotel, and that he had continued to hit the victim after he became unconscious. The respondent was remanded in custody that day.
Mr Hika was taken by ambulance to the Royal Melbourne Hospital, where he was treated for injuries. These included a number of facial and skull fractures; facial abrasions; bleeding to the white of one eye; multiple abrasions and grazes on both arms; and haematomas and bruising to the soft tissue areas around the left eye, cheek, eyebrow, head and right temporal area. His injuries were assessed as ‘severe substantial life-threatening and potentially fatal injuries to multiple sites of the head and face’.[3] He was considered to be at high risk of further and long term medical complications such as seizures or cognitive impairment, and continued to suffer pain at the time of sentencing.[4]
[3]Ibid [12], [15].
[4]Ibid [28].
The Offender
The respondent has a long history of mental health problems, dating back to when he was about 13 years of age. He has been diagnosed by his general practitioner (who is now deceased) with schizophrenia, anxiety and depression.[5] He smoked cannabis daily from an early age, and started using heroin periodically when he was about 25 years old.[6]
[5]Ibid [13].
[6]Ibid [14].
The judge noted that the respondent was intoxicated at the time of the offence, and that it was also likely that he had consumed drugs.[7] The respondent was educated until year 10, and was employed in the car manufacturing industry for 10 years in between long periods of unemployment. He had had one serious relationship.
[7]Ibid [46].
The respondent has a number of prior convictions, the majority of which relate to dishonesty offences (thefts and burglaries). The sentencing judge considered these offences of no relevance to the present offending, and did not take them into account when sentencing the respondent.[8] He also has a number of prior convictions involving the possession or trafficking of drugs, and for violent offences (including assaulting police, making threats to kill, and contravening a family violence intervention order). The sentencing judge considered the offending the subject of these convictions to be less serious than the present offence.[9]
[8]Ibid [16]–[17].
[9]Ibid, [18]–[19].
The Judge’s Reasons
The judge set out the circumstances surrounding the offending, the effect on the victim of the crime, and the respondent’s personal history and circumstances. He referred to the various purposes for which sentences may be imposed, and noted that he should not impose a prison term unless he considered that another sentence would not achieve the relevant sentencing purposes in respect of the respondent.[10] The judge said that he had taken into account each of the matters set out in s 5(2) of the Sentencing Act 1991 and he made some observations about them.
[10]Sentencing Act s 5.
Among other things, the judge noted that the maximum term for this offence was 20 years’ imprisonment. He characterised the offence as serious, observing that Mr Hika ‘was vulnerable; he had a broken leg; he was on crutches; [and] his ability to defend himself was minimal.’ The judge adopted the prosecutor’s description of the victim as a ‘soft target.’ The judge also referred to Mr Hika’s victim impact statement in which he described the ongoing effects of the assault with which he has to live each day. The judge accepted that the victim had long-term symptoms. The judge also mentioned that the respondent had pleaded guilty on the first day of his trial.
The judge relied upon a report by Mr Matthew Staios, a consultant psychologist. Mr Staios also gave evidence. The judge’s summary of the evidence of Mr Staios regarding the respondent was as follows:
(a)He had had mental health issues commencing at the age of 13.
(b)He had experienced symptoms of paranoia and auditory hallucinations which the respondent had attributed to the smoking of cannabis.
(c) He had had psychotic symptoms since his early teens which were exacerbated when he used illicit substances including cannabis.
(d) He had been diagnosed with schizophrenia, depression and anxiety in about 2009. He had been prescribed anti-psychotic medication which he would often forget to take. He reportedly ceased taking that medication completely about three years prior to the assault.
(e) He frequently experienced paranoia, auditory hallucination, difficulty concentrating, and had poor memory.
(f) He had never been hospitalised as a result of his mental health issues.
(g) Since the age of 12, he had reportedly used about three grams of cannabis daily, together with periodic heroin use from the age of about 25. Since his incarceration in 2013, he had reported to have used heroin on one occasion in June 2015.
(h) He told Mr Staios that on the night of the assault, he had consumed cannabis and heroin as a form of self-medication to assist with reducing his psychotic symptoms, in particular auditory hallucinations, that is, the hearing of voices.[11]
[11]Reasons [31].
The judge then referred to other aspects of Mr Staios’s evidence.[12]
[12]Ibid [32]–[42].
The judge accepted counsel for the respondent’s submission that what the respondent primarily needed was appropriate mental health treatment.[13] He accepted the evidence of Mr Staios that the respondent was likely to be suffering from the continued effects of chronic paranoid schizophrenia, cannabis use disorder and a major depressive disorder which was likely to have contributed to the respondent’s behaviour. Consequently, the judge accepted that this reduced the respondent’s moral culpability for committing the offence, and that a prison sentence may weigh more heavily upon the respondent than it would on others.[14] The judge saw both general and specific deterrence as important sentencing considerations.[15]
[13]Ibid [44].
[14]Ibid [46], [50].
[15]Ibid [49].
In conclusion, the judge was of the view that a custodial sentence was warranted. As I have indicated, he sentenced the respondent to 12 months’ imprisonment together with a three year CCO and made the declaration as to time served to which I referred at [4] above.[16] Because the respondent had already served 12 months in prison, this meant that he did not have to serve any further time before the CCO commenced to operate.
[16]Ibid [54].
Is the sentence manifestly inadequate?
The Director submitted that bearing in mind the seriousness of the offence, the need for specific and general deterrence, denunciation and punishment, it was clear that the sentence was manifestly inadequate and demonstrated error in principle.
In relation to the gravity of the offence, the Director pointed to the multiple blows struck to the head of the victim, even after he had said ‘enough’. He also pointed to the fact that the victim was using a crutch to walk. He focussed attention upon the impact of the respondent’s conduct on the victim, particularly his injuries and the fact that he was likely to continue to suffer pain.
The Director noted that although the judge had concluded that specific deterrence was an important sentencing consideration, no mention had been made of any remorse on the part of the respondent. Moreover, Mr Staios assessed the respondent’s risk of recidivism as moderate (and not low).
The Director referred to several cases involving the offence of intentionally causing serious injury in what counsel described as ‘comparable circumstances of comparable gravity.’ Those cases were relied upon to support the submission that the sentence imposed in this case was out of keeping with current sentencing practice.
The first case upon which the Director relied was Barfoot v The Queen.[17] One of the offences in that case concerned an assault by a drug and alcohol affected man upon an innocent bystander. The offender had removed a large piece of timber from the front yard of a nearby house, walked up to the victim and hit him on the head a number of times. The offender then kicked the victim while he was on the ground and stomped on his head repeatedly while he lay unconscious in the gutter. The offender was sentenced to seven years’ imprisonment.
[17][2011] VSCA 282.
The Director next relied upon Bennett v The Queen.[18] The offender in that case punched the victim in the stomach and rib areas, wrestled with him, used a ceramic pot in a failed attempt to hit the victim in the head, put his hands around the victim’s throat, bashed the victim’s head into the concrete floor, and hit the victim to the head with the broken-off head of a statue. He was sentenced to five years’ imprisonment.
[18][2011] VSCA 253.
Next the Director relied upon Director of Public Prosecutions v Save.[19]That case involved a home invasion with the victim being hit on the head and legs repeatedly with a piece of wood. The offender was sentenced to five years’ imprisonment.
[19][2008] VSCA 163.
The last case to which the Director referred was Wallace v The Queen.[20]There the offender struck the victim with a golf club about 10 times across the back of the head, back, arms, ribs and legs. He was sentenced to six years’ imprisonment.
[20](2012) 35 VR 520.
The Director next submitted that the sentence imposed in the present case suggested that the judge had crafted his sentence in order to assist the respondent’s rehabilitation at the expense of other relevant sentencing purposes.
The respondent submitted that the sentence imposed was not wholly outside the range open to the sentencing judge. He pointed to the position taken by the Director on the plea that the injuries sustained by Mr Hika were not at the higher end in cases of this kind.
The respondent further submitted that the judge had taken into account all relevant matters and had exercised his discretion soundly.
As to the cases relied upon by the Director, the respondent noted that they had all been decided before the guideline judgment in Boulton v The Queen,[21] about which I will say more below. The respondent observed that that case confirmed, amongst other things, that a CCO can be punitive, achieve deterrence and may be suitable even in cases as serious as those of intentionally causing serious injury. I would add that the cases were decided not only before Boulton but also before the legislation was amended to permit the making of a CCO in combination with a prison term of up to two years. I will say more about those amendments below.
[21][2014] VSCA 342 (‘Boulton’).
Indeed, the first three cases were decided before CCOs were even available as a sentencing option. They are of limited assistance in determining whether the sentence imposed in this case was outside the range of sentencing options reasonably available.
In my opinion, the sentence of 12 months’ imprisonment combined with a three year CCO fails to reflect the gravity of this offence, as well as the need for deterrence and denunciation. This was a vicious attack upon a defenceless victim. The attack continued even after Mr Hika had pleaded ‘enough.’
Making the commission of this crime even more abhorrent, the respondent continued the attack after rendering his victim senseless. It is apparent from the material that the respondent needs (as his counsel and the judge said) appropriate mental health treatment. But that is not a reason to downplay the other important sentencing imperatives to such a degree that in reality they are not met. That is the outcome of the sentence as it currently stands. That sentence is manifestly inadequate.
The question then is whether a different sentence should now be imposed or whether there is some basis upon which the Court should exercise its residual discretion, and refuse to intervene.[22]
[22] DPP v Karazisis (2010) 31 VR 634, [73]–[78], [100], [103]–[105].
It is necessary first to consider what sentencing options are available – in particular, whether in combination with a CCO, a further term of imprisonment may be imposed without setting a non-parole period.
CCOs and parole – the interaction of ss 11, 18 and 44 of the Sentencing Act
During the course of the plea hearing the following exchange occurred between the prosecutor and the judge:
JUDGE: assuming that what I was looking at was a combination of imprisonment and CCO, is a year and a half or so imprisonment enough?
COUNSEL:I would say no, Your Honour, without going into ranges, but it is open to Your Honour to impose a further term of up to two years and combine that with a CCO on top of whatever’s already been served, and in my submission I don’t necessarily say that a CCO wouldn’t be appropriate.
It became clear during the hearing of the appeal that what the prosecutor had been submitting on the plea was that it was open to the judge to impose a sentence of up to 611 days (being the time that the respondent had been on remand) together with an additional two years’ imprisonment (without fixing any non-parole period) in combination with a CCO. Ultimately, the judge did not accede to that submission.
Nevertheless, the Director contends that this Court may take that path. The issue is whether it is permissible to do so. It requires consideration of sections 11, 18 and 44 of the Sentencing Act 1991. The question is not of academic interest only. It bears upon the course to be followed in the event that the respondent falls to be re-sentenced
Sub-sections 44(1) and (3) provide:
(1)When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.
(3)If a court makes a community correction order in respect of an offender in addition to imposing a sentence of imprisonment in accordance with this section, the community correction order commences on the release of the offender from imprisonment or, if the offender is released on parole, on the completion of the parole period (as defined in section 55(1) of the Corrections Act 1986).
When CCOs were first introduced, they could only be imposed in addition to a prison term where the total term of imprisonment (after deduction of any period of pre-sentence detention) was three months. Section 44(3) then provided that where a composite sentence was imposed, the CCO commenced on the release of the offender from imprisonment. By amending legislation,[23] the three month period was increased from three months to two years, and s 44(3) was amended to take its current form. Under that sub-section, a CCO begins on release from prison or if parole is served, then on completion of parole. The amendments brought into focus the potential interaction of prison terms, parole and CCOs.
[23]Sentencing Amendment (Emergency Workers) Act 2014 s 18(1), (2).
Parole is dealt with in s 11 of the Sentencing Act. When an offender is sentenced to a term of imprisonment of two years or more, s 11(1) provides that the sentencing court must fix a non-parole period ‘unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.’ There is a discretion as to whether to set a non-parole period if the term of imprisonment is at least one but not more than two years.[24] Any non-parole period that is fixed must be at least 6 months less than the sentence imposed.[25]
[24]Sentencing Act s 11(2).
[25]Ibid s 11(3).
The Explanatory Memorandum to the Bill which introduced the amendments to s 44 makes it clear that the setting of non-parole periods was not intended to change:
New section 44(1) provides that when sentencing an offender in respect of one, or more than one, offence (other than an ‘arson offence’), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all terms of imprisonment to be served (after deduction of pre-sentence detention under section 18) is 2 years or less.
Given the operation of section 11 of the Sentencing Act 1991, this means that an offender may receive a sentence of imprisonment in respect of which a non-parole period has been fixed, and then be required to complete a community correction order. Under section 11(1), if a court sentences a person to be imprisoned for a term of 2 years or more, it must fix a non-parole period unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate. If the term of imprisonment is less than 2 years but not less than 12 months, the court may fix a non-parole period. These amendments do not affect the court’s discretion as to whether a non-parole period should be fixed in these circumstances.
The Explanatory Memorandum also addressed when the CCO would begin if parole had been granted:
If the offender is serving a sentence of imprisonment that does not have a non-parole period fixed, then the community correction order commences upon the offender’s release from imprisonment. If the offender is serving a sentence of imprisonment with a non-parole period, the community correction order will commence upon completion of the parole period as defined in section 55(1) of the Corrections Act 1986.
In Boulton, the guideline judgment, this Court considered the interaction between parole and CCOs. The Court accepted that there are ‘significant conceptual and practical difficulties’ in combining a non-parole period with a CCO.[26] That being so, the Court stated that, ordinarily, parole and CCOs should be treated as alternatives.[27] Of course, the Court was there addressing the situation where there is a discretion as to whether to impose a non-parole period; that is when the sentence is at least one year but less than two.[28]
[26]Boulton [199].
[27]Ibid.
[28]Deng-Mabior v The Queen [2015] VSCA 179 (‘Deng-Mabior’) [40].
Once a sentence of two years or more has been imposed, however, there is no discretion. A non-parole period must be set unless one of the two limited exceptions in s 11(1) applies. An anomaly arises if a judge chooses to impose a CCO with a two year sentence (rather than a CCO with a sentence of one year and 11 months). The anomaly arises because of the mismatch between s 44(1) and s 11(1); the former permitting a CCO where the sentence is two years while the latter requires that a non-parole period be set in that situation. A number of appeals have been allowed because the sentencing judge imposed a combination CCO/two year sentence without fixing a non-parole period.[29]
[29]Ibid; Baldwin v The Queen [2015] VSCA 299 (‘Baldwin’); Debono v The Queen [2016] VSCA 16 (‘Debono’).
It would seem that in order to avoid the perceived difficulties that might arise from combination orders where a non-parole period must be set, prosecutors have on occasion (as in this case) sought to call in aid s 18 of the Sentencing Act. That section provides:
(1)If an offender is in respect of an offence sentenced to a term of imprisonment or to a period of detention in an approved mental health service under a hospital security order, any period during which he or she was held in custody in relation to—
(a) proceedings for the offence; or
(b)proceedings arising from those proceedings including any period pending the determination of an appeal—
must be reckoned as a period of imprisonment or detention already served under the sentence unless the sentencing court or the court fixing a non-parole period in respect of the sentence otherwise orders.
In R v Hutchison,[30] Osborn JA sentenced an offender who had been convicted of attempting to pervert the course of justice. His Honour had been invited by counsel for the accused to impose a sentence which combined a prison term with a CCO. Osborn JA said:
Section 44(1) of the Sentencing Act constrains the length of the prison term I may impose in conjunction with a CCO, but both your counsel and the prosecutor submitted that I might, in this case, direct that your pre-sentence detention not be treated as time served pursuant to s 18. That course could be adopted to facilitate the making of a CCO in circumstances where I would not regard a total term of imprisonment of no more than two years to be adequate. Although the terms of s 44(1) themselves discount pre-sentence detention from the maximum term of imprisonment imposed in conjunction with a CCO, more significantly, the course proposed also enables a sentence which avoids the significant practical and conceptual difficulties inherent in imposing both a non-parole period and a CCO that would otherwise be required under s 11(1) of the Sentencing Act.[31]
[30][2015] VSCA 405 (‘Hutchison’).
[31]Ibid [34] (footnotes omitted).
Osborn JA cited Boulton as authority for the proposition that s 18 might be used to facilitate the making of a CCO in the case before him.
In Boulton, the Court referred to s 44 as in force before amendment and said:
The question of whether the legislation, as it then stood, permitted the judge to impose a sentence of the 265 days served, made it necessary to consider the effect of the words ‘after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served’, which appear in parenthesis in s 44(1)(b) of the Act. The Court sought further submissions on this issue.
The Director submitted that the natural meaning of the provision, and the only meaning which would give effect to the words in parenthesis, was that ‘a court may combine a CCO with a sentence of imprisonment if the custodial period remaining after deduction of pre-sentence detention is three months or less.’ The purpose of the provision was to make clear that the phrase ‘to be served’, immediately preceding the words in parenthesis, referred to the time remaining to be served after sentence, and not the time calculated from the date when the offender went into custody, which is taken into account under s 18 of the Act.
The Director submitted that this interpretation was consistent with the approach taken in Hancock v The Queen. In that case, this Court when resentencing an offender imposed a sentence of 249 days’ imprisonment, which was equivalent to time served, combined with a two year CCO. VLA and SAC adopted the Director’s submission.
We accept the Director’s submission. At the same time, we note that this interpretation of s 44(1)(b) produces a counter-intuitive result. It means that there is no difference for this purpose between a person who has served a lengthy period of pre-sentence detention, and a person who has not served any pre-sentence detention at all. Both can be sentenced to a term of imprisonment (of up to two years’ imprisonment) in addition to a CCO. Moreover, if s 18 were for some reason inapplicable to a period of pre-sentence detention, the provision for the deduction of that period in calculating the additional term to be served by reference to s 44(1)(a) would not apply, so that the person could be given a term of three months’ imprisonment in addition to the time already served. Of course, the sentencing judge would need to take these matters into account when applying the totality principle.[32]
[32]Boulton [235]–[238].
Before returning to Osborn JA’s reasoning in Hutchison, I would make three observations about this passage from Boulton.
First, the Court was considering the pre-amendment provisions which were silent as to the effect of parole periods. I will discuss this in more detail below. Secondly, the Court did not itself refer to the interaction between time on parole and the operation of a CCO. In the case before it, this issue did not arise because the accused had already been in custody for the amount of time of the sentence imposed.[33] Thirdly, and related to this last point, the Court made no reference to s 11(1) and the requirement to fix a non-parole period.
[33]The same is true in respect of Hancock v The Queen [2013] VSCA 199 to which their Honours referred.
Returning then to Osborn JA’s reasons for sentence in Hutchison, his Honour sentenced the offender to 21 months’ imprisonment and a two year CCO.[34] He ordered that the pre-sentence detention of 405 days already served not be reckoned as a period of imprisonment or detention already served under s 18(1).[35] He told the offender that he would serve a further 21 months in custody, followed by a two year CCO and said:
I make this order in the terms I have just stated to avoid the difficulties of both setting a non-parole period and making a CCO if I were to sentence you to more than two years’ imprisonment and rely on the discounting provision s 44(1). I have, of course, taken your pre-sentence detention into account in fixing both your term of imprisonment, and the length and terms of the CCO.[36]
[34]Hutchison [48].
[35]Ibid.
[36]Ibid [48]–[49].
I would observe at this point that his Honour did not have the benefit of submissions of the kind that have been advanced before this Court. Moreover, he was faced with both prosecution and defence counsel submitting that it was open to him to embark upon the course that he followed.
The discretion to ‘otherwise order’ under s 18(1) in relation to pre-sentence detention is not unfettered. If there is a ‘compelling’ reason to do so, then it may be appropriate not to give credit for the period of detention served before sentence.[37] An example may be where additional pre-sentence detention has been served than would otherwise have been the case because of the offender’s own conduct.[38]
[37]The Queen v Fordham (unreported, Court of Crimial Appeal, 1 March 1988) (O’Bryan J, McGarvie and Tadgell JJ agreeing); The Queen v Foster [2000] VSCA 187 [38] (Batt JA) [39] (Chernov JA). The period of time spent in detention may still be a factor in setting the sentence of imprisonment to be served so that the principle of totality is not infringed.
[38]The Queen v Foster [2000] VSCA 187 [38] (Batt JA), [39] (Chernov JA).
The question is whether it is permissible to exercise the discretion under s 18(1) solely in order to overcome the perceived difficulties which would arise from a sentence which combines a prison term, parole and a CCO.
There is no authority directly in point. However, there are some similarities between the present case and the situation that arose in R v Hill.[39] That case concerned s 35(1) of the Sentencing Act. That section is the equivalent of s 18(1) but in respect of time spent in custody before sentencing an offender to detention in a youth training facility. In Hill, the offender had pleaded guilty to manslaughter. He was aged 15 at the time of the offence, and 16 at the time of sentencing.
[39][1996] 2 VR 496 (‘Hill’).
On appeal, the Court held that the sentence that had been imposed was excessive and set it aside.[40] The Court considered that an appropriate sentence was four years’ imprisonment but that it would be harmful to the offender if that time were spent in an adult prison. Under the legislation as it then stood, if the sentencing court believed that there were reasonable prospects for the rehabilitation of the young offender and that the offender was particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison, a youth training order could be made.[41] However, the Sentencing Act set a limit of three years in respect of detention to be served in a youth training centre. Section 35(1) applied in relation to the reckoning of pre-sentence detention where detention was to be served in a youth justice centre.[42]
[40]Ibid 502.
[41]Sentencing Act s 32. The current s 32 is of the same effect in respect of youth justice centre orders and youth residential centre orders, youth training centre orders no longer being applicable.
[42]Sentencing Act s 35(1) then provided ‘If an offender is sentenced to a term of detention in a youth training centre in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings and for no other reason must, unless the sentencing court otherwise orders, be reckoned as a period of detention already served under the sentence.’
The offender had already served 373 days in pre-sentence detention in a youth justice centre. If that period was not declared to be reckoned, then the Court could impose a sentence of a further three years to be served in a youth training centre, thus making it in effect time to be served of four years in total (one year having already been served).
The prosecutor submitted that it would be wrong in principle to adopt what he suggested was a ‘device’ to achieve this result. The sentencing judge had accepted that submission.
On appeal, this Court said:
In most cases, such a result would appear to offend the principle that an offender should serve a term no longer than the justice of the case requires; it being the duty of the court to impose a sentence appropriate in all the circumstances or, put another way, a sentence which fits the crime. If that is the sentence imposed, justice requires that time already served is subtracted. That was the practice in the law long before legislative intervention.
The legislation is silent as to the considerations which the sentencing court should take into account in exercising the wide discretion granted to the court by s35(1).
There are here two considerations which appear to us to be diametrically opposed to each other. On the one hand, there is the consideration that what we have termed the “clear intention” of Parliament is that the period of detention not exceed three years; on the other hand, if we take the view (as we do) that three years’ detention is inadequate, then we would be obliged to sentence the applicant to imprisonment. Not without considerable hesitation we have finally concluded that though “device” it may be, that word ought not necessarily be given a pejorative meaning, and in the particular circumstances now before the court it is a legitimate device, and one, we might add, which counsel for the applicant urges us to adopt. Furthermore the adoption of this course will assist in the achievement of two objectives which are important in the case of a youthful offender, particularly so where the offender is a child. The first of these is that rehabilitation is usually far more important than general deterrence; the second is that such an offender is not, if it can be avoided, sent to an adult prison for a first offence.[43]
[43]Ibid 505 (citation omitted).
The Court went on to sentence the offender to detention in a youth training centre for three years, and made an order which had the effect that one year of the period already served not be reckoned as PSD.
In R v Tippett,[44] Young CJ (with whom Crockett and Marks JJ agreed) observed that it is ‘generally unwise for a sentencing judge to attempt to take into account time already served’ in circumstances where an order is made that that time should not be reckoned as a period of imprisonment served.[45] The Chief Justice said that in his experience it was ‘very unusual for a judge to do so’ and in most cases, he thought that it was preferable that it not be done.[46]
[44](Unreported, Court of Criminal Appeal, 17 November 1998) (Young CJ, Crockett and Marks JJ).
[45]Ibid 7.
[46]Ibid. See also The Queen v Roderick (Unreported, Court of Criminal Appeal, 17 April 1991) (Marks J, Gobbo J agreeing).
In a similar vein, in R v McHugh,[47] Street CJ said:
[47](1985) 1 NSWLR 588.
It is desirable sentencing practice that, where there has been a period of
pre-sentence custody exclusively referable to the offences for which sentence
is being passed, the commencement of the sentence (and the non-parole or
non-probation period) should be back-dated for an equivalent period. This is
to be preferred to a process of assessing the proper sentence (and non-parole
or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy
of the record, preventing there being a hidden factor affecting the length of
the custody involved in consequence of the sentencing order. In addition, this
practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing…[48]
[48]Ibid 590-591. At the time that McHugh was decided, backdating of sentences was permissible in New South Wales. That remains the position and is now provided for in s 47(2)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The opinion expressed by Street CJ continues to be followed: Wiggins v R [2010] NSWCCA 30 and the cases there cited. In Victoria, there is no equivalent provision to s 47(2)(a) of the NSW legislation and sentences are not backdated. Rather, subject to limited exceptions, a sentence of imprisonment begins on the day that it is imposed: Sentencing Act 1991 s 17(1). Both the approach in Victoria and New South Wales share a common purpose of truth in sentencing.
The text of s 18(1) does not specify when and in what circumstances the discretion to order that pre-sentence detention not be declared might be exercised. One must look to its context, particularly ss 44(1) and (3) and s 11(1). Section 11(1) all but mandates the setting of a non-parole period. Save for the circumstances specifically identified in the section, it involves no discretion once the sentence is two years or more.
Section 44(1) provides for the making of a CCO when the effective sentence is longer than two years. However, as Boulton makes clear, a sentence of more than two years’ imprisonment, which requires the fixing of a non-parole period, can produce anomalies between offenders as to the actual length of time served.
There is nothing in the legislation to suggest that a sentencing court is to have a discretion as to whether to fix a non-parole period when a CCO is made in combination with a term of imprisonment. Rather, the reverse is true. For s 44(3) addresses the very situation that is sought to be avoided by the use of s 18(1) to circumvent the setting of a non-parole period under s 11(1).
Section 44(3) contemplates that there may be circumstances in which there is a period of parole to be served and a CCO. That section sets the order in which the different forms of supervision are to take effect – first, the period of parole and second, the time spent fulfilling the requirements of the CCO.
If it be necessary, s 38(2) provides further support for the proposition that the legislation contemplates that there may be a combination of a period on parole and a CCO. That section provides that unless s 44(3) applies, a CCO must commence not later than three months after the making of the order.
This is not, as in Hill,[49] a situation where there is a lacuna in the legislation that needs to be filled. The legislation implicitly (if not explicitly) addresses the very point at issue.
[49]Hill 498.
One must not, of course, forget purpose when considering how legislation should be interpreted. In that regard, the Director submitted that where not declaring pre-sentence detention enables a disposition that is beneficial to the offender, it is open to the sentencing judge to ‘otherwise order’ under s 18(1). However, it seems to me that this submission does not take into account that parole periods also fit within the objects of the Sentencing Act. The submission seeks to elevate the sentencing purposes served by a CCO above those purposes served by fixing a non-parole period. There is no warrant for doing so, even more so when the legislature has included the clear indication in s 44(3) that has been discussed above.
In my opinion, it is not a proper exercise of the discretion under s 18(1) to achieve a result that circumvents the requirement to fix a non-parole period under s 11(1). I have reached this conclusion even though there may be good reasons why it would be preferable not to set a non-parole period when a CCO is ordered together with a term of imprisonment.
In Hill, the Court did not have to grapple with the interaction of a sentence involving a prison term and two subsequent but different schemes for supervision. There was no relevant equivalent to s 44(3) that might have cast light on what the legislation meant in the context of that case, and how it should be applied.
Moreover, it is open to characterise the facts in Hill as so compelling that, exceptionally, it was appropriate in the unusual circumstances of that case, to exercise the discretion not to declare pre-sentence detention. For Hill involved a very serious crime, but an offender who was only 16 at the time of sentencing. The Court had the difficult task of balancing the seriousness of the offence against what it described as the ‘highly undesirable’ environment of an adult prison for a young person. It therefore arrived at a result that took both matters into account. In my view, Hill should be largely confined to its own facts.
This Court has previously suggested that the legislature should re-visit the provisions in ss 44(1) and 11(1) to address the anomaly that arises from the requirement to fix a non-parole period where the sentence imposed is two years (rather than one year and 11 months).[50] I would add that consideration might be given to amending the legislation to avoid the conceptual and practical difficulties that have been identified where both a period of parole and a CCO are to be served.[51]
[50]Deng-Mabior [6], [38]; Debono [13].
[51]Boulton [199]. The Sentencing Advisory Council has also suggested that consideration be given to not requiring a non-parole period to be fixed where a sentence of imprisonment is imposed with a CCO: Parole and Sentencing: Research Report, February 2016, para 3.22.
Should the residual discretion be exercised?
There was nothing in the conduct of the Director that would warrant the exercise of the residual discretion. The Director’s submissions before the sentencing judge, and on appeal, had arguable support in the authorities. There was no appreciable delay in the bringing of the appeal.
Nevertheless, the respondent submitted that if the Court held that the sentence imposed was manifestly inadequate, it should exercise its residual discretion, and dismiss the appeal. He contended that the discretion should be exercised because it would be a crushing outcome for a man who was released from custody in October 2015, who had been on remand for over 600 days, who had, and has, psychiatric and cognitive impairments, who may find incarceration more burdensome than would a person of normal health, whose risk of recidivism is significantly reduced if he is supported in the community and medicated, and who believed that he would be able to continue his rehabilitation in the community if he were now to be required to return to prison for any length of time.
For the reasons given, it is not an option to sentence the respondent to a longer term of imprisonment without setting a non-parole period. At least in theory, it would be possible to set a longer term, fix a non-parole period with the CCO to continue its operation after the respondent completed parole (if he were released on parole) or completed his prison term. In such a case, for reasons explained, a declaration in respect of time served would need to be made.
However, the practical and conceptual difficulties which others have recognised accompany such an approach would be even more stark in this case given that the CCO has already commenced operation. Most pointedly, the operation of the treatment and rehabilitation conditions that were attached to the CCO would be disrupted.
The next option would be to impose a longer prison term without a CCO. Again, in such a case, a declaration of time served would need to be made. At the time that he was originally sentenced, an appropriate sentence would have been five years with a non-parole period of three years. However, the respondent has completed his prison term and is part way through completion of the conditions attached to the CCO. Those matters must be taken into account.
The final option, and the one which I endorse, is to increase the period of the CCO. It should not be forgotten that a CCO is punitive, albeit less punitive than a term of imprisonment.[52]
[52]Boulton [91].
I would allow the appeal and re-sentence the respondent to 12 months’ imprisonment combined with a CCO of five years (subject to the respondent consenting to its terms).[53] For the avoidance of doubt, the time already spent in performance of the CCO previously imposed is to be taken into account as part performance of the new CCO.
[53]Sentencing Act s 37(c).
In addition to the terms attached to the CCO by s 45 of the Sentencing Act, I would attach the conditions originally imposed by the sentencing judge (with the period of supervision to be increased from three to five years). I would also impose a condition that the respondent perform 350 hours of unpaid community work. In this regard, I note that the purpose of attaching such a condition is to punish the offender in the community.[54]
[54]Sentencing Act s 48C(2).
This outcome also avoids the difficulties that the respondent contended would arise if he were to be re-sentenced to a further term of imprisonment. The new sentence does, however, involve a more punitive disposition than the sentence imposed by the judge. In that regard, it goes some way to better reflecting the gravity of the offence committed, the need for deterrence as well as denunciation of the respondent’s conduct, and punishment of the respondent, whilst still recognising that he will benefit from the treatment and rehabilitation conditions that have been imposed.
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