Durek v The Queen
[2012] VSCA 28
•29 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2011 0194
| CHRISTOPHER DUREK | |
| Appellant | |
| v | |
| THE QUEEN | Respondent |
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JUDGES: | NEAVE, MANDIE and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 23 February 2012 | |
DATE OF JUDGMENT: | 29 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 28 | |
JUDGMENT APPEALED FROM | Director of Public Prosecutions v Christopher Durek (Unreported County Court of Victoria, Judge Hannan, 22 July 2011) | |
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CRIMINAL LAW - Breach of intensive corrections order - Whether judge misapprehended the nature of an existing sentence affecting the appellant - Appeal dismissed - No point of principle
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J McLoughlin | Victoria Legal Aid |
| For the Crown | Mr D A Trapnell SC | Mr C Hyland, Solicitor for Public Prosecutions |
NEAVE
MANDIE
HARPER JJA:
The appellant appeals (by leave) against the imposition on him of 320 days’ imprisonment as a result of his failure to comply with an Intensive Correction Order (‘ICO’). The ground of appeal is that the sentencing discretion miscarried because the learned sentencing judge was misinformed about a sentence that the appellant was then undergoing. The appellant says that he should be resentenced and that a non-parole period should be fixed.
The matter arises in the following way. The appellant had been charged on five counts of intentionally causing a bushfire, on 1 November 2009, contrary to s 201A of the Crimes Act 1958 (Vic). The appellant pleaded guilty in the County Court and, on 10 September 2010, he was sentenced to 12 months’ imprisonment on each of the five counts, the sentences to be served concurrently. The trial judge directed that the term of imprisonment be served by way of a 12 months’ ICO.
The ICO required the appellant to (among other things) report to a community corrections officer at least twice per week, and attend the Ballarat Community Correctional Services (‘CCS’) each week to undertake unpaid community work and undergo counselling and/or treatment. It was also a condition of the ICO that the appellant must not commit another offence that is punishable by imprisonment.
Between 22 December 2010 and 20 January 2011, the appellant committed 11 reported breaches of the ICO. These breaches comprised two incidents of failing to comply with the supervision condition, five incidents of failing to comply with the unpaid community work condition, one incident of failing to comply with the assessment and treatment condition and three incidents of failing to comply with the reporting condition. Further, the appellant did not have any contact with CCS after 12 January 2011.
Additionally, the appellant breached the ICO by further offending. On 29 June 2011, the appellant was convicted in the Ballarat Magistrates’ Court of the following:
·two counts of criminal damage (committed on 12 December 2010);
·contravening a Family Violence Intervention Order (committed on 12 October 2010 with respect to an order made on 5 October 2010);
·failing to answer bail;
·driving whilst disqualified;
·using an unregistered motor vehicle;
·forging notice/authorisation required by the Road Safety Act;
·driving whilst suspended; and
·failing to comply with a Community Based Order.
For these offences, the appellant was sentenced in the Ballarat Magistrates’ Court to a total effective sentence of one year’s imprisonment and a non-parole period of six months was fixed. In addition, a suspended sentence of six months’ imprisonment that had been imposed upon the appellant on 7 September 2010 in the same court was also restored but that term was ordered to be served concurrently with the sentences imposed on the other offences.
Apparently as the result of an error in data entry at the Ballarat Magistrates’ Court, the Magistrates’ Court extracts and the appellant’s criminal history showed that the net effect of the sentences imposed on 29 June 2011 was that the appellant was serving a total effective sentence of 18 months with a non-parole period of 12 months rather than a total effective sentence of 12 months with a non-parole period of six months.
When the matter of the breach of the ICO came before the judge in the County Court on 22 July 2011, the data entry error was brought to the attention of the judge. The following exchanges took place between the judge and counsel:
DEFENCE COUNSEL: He's serving that at the moment, Your Honour, but there would appear there's an error in what the magistrate actually ordered at Ballarat and what's reflected in the extracts.
HER HONOUR: Tell me about that.
DEFENCE COUNSEL: Your Honour, what I can do is give you – and forgive me for the handwritten note across the top, but it's the only copy I have on my file. It's a letter directed to the Ballarat registry alerting the court as to the error in the sentence that was imposed, and it looks like it's a data entry error. As I understand it, [the Magistrate] was on leave until Monday the 18th, and from discussions with my friend I don't know that that error has been corrected at this point, so after - - -
HER HONOUR: So [the Magistrate] in fact set a six-month non-parole period.
DEFENCE COUNSEL: Yes, yes, and what I - - -
HER HONOUR: And was someone from your office present on that day? How do you know that's the case?
DEFENCE COUNSEL: Yes, because I have a handwritten note. I appeared on that day.
HER HONOUR: You appeared? All right, that's fine, yes.
DEFENCE COUNSEL: Yes, at Ballarat, yes. What I will do after today, Your Honour, if that error still exists, and it sounds like it does, is lodge an appeal to the County Court to correct that error.
HER HONOUR: It shouldn't be necessary. I'm sure [the Magistrate] will fix it.
DEFENCE COUNSEL: Look, I agree, Your Honour, and as you can see, the date of that letter is 4 July.
HER HONOUR: Yes.
DEFENCE COUNSEL: And as I understand, she was on holidays and that's fair enough. I'm reluctant to lodge an appeal, but I'm not going to let it stand as it is if the error's not corrected.
HER HONOUR: No, I understand.
DEFENCE COUNSEL: But I knew you'd be interested in that.
HER HONOUR: Yes.
DEFENCE COUNSEL: Because it should run alongside the 320 days that'll be restored, but as it stands at the moment, it looks like it's 18 months, but six was restored on the suspended sentence, six was given I think on the breach of the CBO, and my friend will correct me if I'm wrong.
HER HONOUR: So what are you asking me to do today? Find the breach proven.
DEFENCE COUNSEL: Yes.
HER HONOUR: And commit the accused to prison for the unexpired term, being 320 days.
DEFENCE COUNSEL: Yes, that's in the absence of exceptional circumstances, Your Honour.
HER HONOUR: Which you're not arguing.
DEFENCE COUNSEL: Yes, correct.
HER HONOUR: Yes, so that's the order that you're seeking?
DEFENCE COUNSEL: Yes.
HER HONOUR: You're seeking that I commit him to prison for the unexpired term of 320 days and order it be served concurrently with the sentence he's undergoing.
DEFENCE COUNSEL: I would have to say that's what the Crown's seeking. I'm not in a position to oppose that in the absence of exceptional circumstances.
HER HONOUR: Yes.
COUNSEL FOR DPP: Look, Your Honour, the Crown simply relies on the presumption of cumulation in terms of the - - -
HER HONOUR: But it's not obligatory. This is a sad case, and it just doesn't seem that this poor man's circumstances have got any better. Yes, he's committed some further offences. There's a substantial term of imprisonment he's about to undergo. Yes.
COUNSEL FOR DPP: Your Honour, all I would say on that issue is that the presumption does not override the principle of totality.
HER HONOUR: Yes, indeed.
COUNSEL FOR DPP: So that's really – we all agree on that. But look, Your Honour, yes, look, that error, if it is an error, but look, my understanding is that – and if Your Honour has a look at the criminal history is that he was sentenced to 12 months' imprisonment with a minimum of six months, and on top of that there was a six-month order of cumulation for a restoration of the suspended sentence.
HER HONOUR: Yes.
COUNSEL FOR DPP: And then he gets a further aggregate period of 12 months concurrent. So my reading of the situation, and I've confirmed with central records, are of the view that the sentence that's currently being served is 18 months.
HER HONOUR: That's their understanding. I understand that, and that'll have to be sorted out in the Magistrates' Court.
COUNSEL FOR DPP: Yes.
HER HONOUR: Yes.
COUNSEL FOR DPP: But certainly if Your Honour is dealing with this matter today, you'd be ordering either concurrency or cumulation.
After the above exchange, her Honour found the breach proven and committed the appellant to prison for the unexpired term being 320 days and ordered that this be served concurrently with the sentence he was undergoing. Her Honour said that there were no exceptional circumstances.
The appellant submitted that the judge so acted upon a misapprehension as to the orders made by the Ballarat Magistrates’ Court and that, as a consequence, the sentencing discretion is reopened and that the appellant should be resentenced. The appellant further submitted that, on a resentencing, a non-parole period should be fixed to the intent that the appellant should be immediately eligible for parole.[1] The respondent submitted that the above exchanges demonstrate that the judge did not act under such misapprehension and that the appeal should be dismissed.
[1]He was otherwise eligible for parole in relation to the sentence imposed in Ballarat.
We would reject the appellant’s submission. We are not satisfied that the judge acted under any misapprehension as to the sentence imposed in Ballarat. Defence counsel informed her Honour of the data entry error and her Honour noted that the Magistrate in fact set a six months’ non-parole period. Defence counsel told the judge that he had appeared in Ballarat and that he had a handwritten note of what had occurred. In response to defence counsel suggesting that there would have to be an appeal to correct the error, the judge said that an appeal would not be necessary and that she was sure that the Magistrate would fix it.[2] When counsel for the DPP indicated that he had a different ‘reading of the situation’ which he had confirmed with ‘central records’, the judge said that that was ‘their understanding’ and that (ie the error) would have to be sorted out in the Magistrates’ Court. The judge did not reject what had been put to her by defence counsel who had been present at Ballarat and had a handwritten note confirming his recollection. Nor did the judge indicate that she was acting on the basis that the records were correct or that the error asserted by defence counsel was not an error.
[2]I note that the Court was informed that the error has now been corrected, although this only occurred after leave to appeal in the present matter had been granted.
We would therefore dismiss the appeal.
A little more needs to be said about the appellant’s contention that a non-parole period should be fixed in relation to the period of 320 days’ imprisonment imposed as a result of breach of the ICO. The question of fixing a non-parole period strictly only arises if it be correct (contrary to our view) that the judge below acted under a misapprehension as submitted by the appellant. In addition, although it was not a ground of appeal, it was perhaps implicit in the appellant’s submissions that the judge had erred in any event by not fixing a non-parole period. In that regard, however, it was not put to the judge below that a non-parole period should be fixed or that she had power to do so. In our view, therefore, the judge did not fall into error by failing to consider the fixing of a non-parole period.
The respondent submitted that, in any event, the judge had no power to fix a non-parole period because s 11 of the Sentencing Act1991 (Vic) (‘the Act’) did not empower a court to fix a non-parole period if the sentence imposed was ‘less than one year’.[3] The respondent said that the court had imposed a sentence of 320 days for breach of the ICO pursuant to s 26(3A)(c) of the Act and, that being a sentence of less than one year, there was no power to fix a non-parole period. On the other hand, the appellant submitted that the relevant sentence for this purpose was the term of 12 months initially imposed by the court by way of an ICO. The appellant submitted that the committal of the offender to prison for the unexpired portion of a sentence under s 26(3A)(c) of the Act was not a sentence for breach of the ICO but the restoration of the balance of the term of imprisonment imposed for the original offences (in this case, the offences of intentionally causing a bushfire). Accordingly, the court did have power to fix a non-parole period and, if it proposed to do so, s 14(1) of the Act became applicable. Although we are inclined to the view that the appellant’s submissions on this question are correct, it is not necessary to decide the matter because we are of the view that, for the reasons already stated, no occasion arises for resentencing the appellant as there was no error by the sentencing judge.
[3]See s 11(2) of the Act.
Finally, in our opinion, even if the occasion had arisen to resentence the appellant and there was power to fix a non-parole period, we would not have been of a mind to pass a different sentence to that imposed below. In that regard, we note that, in a case involving very serious breaches of an ICO, the judge accorded substantial leniency to the appellant by ordering full concurrency when s 26(4)(b) of the Act provided that the unexpired portion of the term of imprisonment should be served ‘cumulatively on any other term of imprisonment previously imposed on the offender by that or any other court’ unless the court otherwise ordered.
For the reasons stated, we would dismiss the appeal.
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