Eaglen v Hayward
[2023] ACTSC 304
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Eaglen v Hayward |
Citation: | [2023] ACTSC 304 |
Hearing Date: | 13 October 2023 |
Decision Date: | 13 October 2023 |
Reasons Date: | 30 October 2023 |
Before: | McWilliam J |
Decision: | (1) The appeal is dismissed. (2) The judgment of Magistrate Temby delivered on 1 September 2023 is confirmed. |
Catchwords: | APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – PRACTICE AND PROCEDURE – Appeal against sentence – whether s 374 of the Crimes Act 1900 (ACT) alters the maximum penalty of an offence or is confined to imposing a jurisdictional limit – whether an Intensive Corrections Order should have been considered. |
Legislation Cited: | Crimes Act 1900 (ACT) ss 24, 48C, 334(2), 374 Crimes (Sentencing) Act 2005 (ACT) ss 10, 11, 12, 46C, 77, 78 Criminal Procedure Act 1986 (NSW) ss 3, 5, 6 Crimes (Sentencing Procedure) Act 1999 (NSW) s 66(2) Legislation Act 2001 (ACT) ss 7, 139, 140, 190 Magistrates Court Act 1930 (ACT) ss 207, 208 |
Cases Cited: | AB v The Queen [1999] HCA 46; 198 CLR 111 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Beniamini v Craig [2017] ACTSC 30 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1 Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 Day v R [2023] ACTCA 39 Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Edwards v Craggs [2020] ACTMC 22 Field v Unas [2019] ACTSC 13 Gillard v The Queen [2016] ACTCA 50 House v The King (1936) 55 CLR 499 Keen v Tither [2010] ACTSC 130 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Park v The Queen [2021] HCA 37; 273 CLR 303 Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 Preston v Carnall [2015] ACTSC 325; 300 FLR 302 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v DK [2016] ACTCA 7 R v LRS [2001] NSWCCA 338 R v UG [2020] ACTCA 8 Samani v The Queen [2017] ACTCA 23 Smith-Roberts v Alexander [2014] ACTSC 239 Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 Wany v Director of Public Prosecutions (NSW) [2020] NSWCA 318; 103 NSWLR 620 |
Parties: | Andrew Graham Eaglen ( Appellant) Callum Hayward ( Respondent/Informant) |
Representation: | Counsel P Edmonds ( Appellant) E Roff ( Respondent) |
| Solicitors Canberra Criminal Lawyers ( Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 47 of 2023 |
Decision Under Appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Temby Date of Decision: 1 September 2023 Case Title: The Police v Andrew Eaglen Court File Number(s): AM 912 of 2023 |
McWILLIAM J:
1․On 13 October 2023, I heard an expedited appeal from a sentence imposed by Magistrate Temby on 1 September 2023, whereby his Honour had sentenced the appellant for an offence of aggravated assault occasioning actual bodily harm, committed on 12 April 2023 against his former intimate partner of seven years. The sentence imposed in the court below was five months’ imprisonment, suspended after three months, upon the appellant entering into a 12-month good behaviour order, with core conditions.
2․It was necessary to expedite the appeal due to the fact that the appellant was in custody and the length of the sentence meant that without expedition, it was likely that the appellant would have served his sentence before any hearing of the appeal occurred, rendering the appeal nugatory.
3․Due in large part to the considerable assistance provided by the legal representatives appearing for each party on the appeal, each of whom prepared written submissions prior to hearing and competently developed the arguments during oral hearing, judgment on the appeal was able to be pronounced immediately following the hearing. The appeal was dismissed and the sentence imposed by the court below confirmed.
4․At the time those orders were made, due to the other business of the Court that day, I indicated reasons for the decision on appeal would follow. These are the reasons.
Grounds of Appeal
5․The appellant ultimately relied upon two specific grounds of appeal. They were:
(a)The sentencing magistrate erred in having regard to the wrong maximum penalty for the offence, namely seven years instead of two years, given that a prosecution election had been filed under s 374 of the Crimes Act 1900 (ACT) (Crimes Act) (Issue 1).
(b)The sentencing magistrate failed to have regard to a mandatory consideration, namely whether any of the offender’s term of imprisonment needed to be served in immediate full-time custody, or if the purposes of sentencing could be achieved instead by an intensive corrections order or “ICO” (Issue 2).
The Court’s power on appeal
6․The Court’s jurisdiction in relation to appeals from the Magistrates Court in criminal matters is exercised pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT), which includes appeals against sentences imposed by it, regulated by Div 3.10 (in particular, ss 207 and 208) of that statute.
7․The nature of such an appeal is by way of rehearing on the evidence before the magistrate and any other evidence that the appellate court permits to be adduced: Preston v Carnall [2015] ACTSC 325; 300 FLR 302 at 303-4; Peverill v Crampton [2010] ACTSC 79; 19 ACTLR 26 at [24]. No further evidence was sought to be admitted on this appeal.
8․The principles upon which such appeals are to be conducted have been set out in cases such as Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 (Cooper) at [8]-[12]; and Keen v Tither [2010] ACTSC 130 (Keen) at [44]. Error must first be identified – an appellate court will not set aside the sentence imposed by the sentencing court simply because the court on appeal might have imposed a different sentence. The appellate court strongly resists “tinkering” with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [62].
9․The nature of the error to be established may be of a specific kind, or it may arise by inference. A specific error is one such as the types of error described in House v The King (1936) 55 CLR 499at 505. Here, the two grounds of appeal set out above were each directed towards establishing specific error. The first asserted an error of law or principle, and the second asserted a failure to consider a mandatory consideration.
10․An inferential error may arise if the Court concludes that the sentence “falls outside the permissible range of sentences for the offender and the offence”: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell)at [35]. In such circumstances, the error might be inferred from the sentence being manifestly excessive or inadequate, unreasonable, or plainly unjust or wrong: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 at [26]-[28] and Dinsdale at [6]. The appellant here (properly) accepted that the sentence imposed was not manifestly excessive or plainly unjust.
11․If error is established, the appellate court exercises the sentencing discretion afresh and independently, even if it reaches the same result as that of the sentencing court: Gillard v The Queen [2016] ACTCA 50 at [43], referring to Kentwell at [35] and [42], and AB v The Queen [1999] HCA 46; 198 CLR 111 at 160.
12․If the appellate court considers that a different sentence is appropriate in all the circumstances, the appeal may be upheld and a different sentence imposed: Keen at [44], cited in Cooper at [10].
Issue 1: Is s 374 more than a jurisdictional cap?
13․The appellant’s complaint concerned the following finding by the magistrate, taken from the transcript of the hearing on 1 September 2023 (emphasis added):
In this matter the defendant has pleaded guilty to the charge that on 12 April 2023 he assaulted … and thereby occasioned to her actual bodily harm, and the offence involved family violence. I formally accept that plea and find the defendant guilty of the offence charged. I note that the maximum penalty for this charge is seven years’ imprisonment. A prosecution election form was filed on 4 May 2023 to provide this court with jurisdiction to deal with the matter.
14․The appellant argued that the prosecution election meant that the maximum penalty for the offence itself became two years’ imprisonment, not the seven years specified by the statute. That argument was based on s 374 of the Crimes Act, which is in the following terms (emphasis added):
374Summary disposal of certain cases at prosecutor's election
(1)This section applies if a person (the defendant) is before the Magistrates Court charged with—
(a)an offence punishable by imprisonment for longer than 2 years but not longer than 5 years; or
(b)an offence against the Work Health and Safety Act 2011, section 31 (1).
(2)For subsection (1) (a), the penalty of imprisonment for an offence charged as an aggravated offence because it involves family violence is the penalty for the simple offence.
(3)The prosecutor must elect whether to have the case disposed of summarily.
(4)The defendant must not be required to plead guilty or not guilty to the charge if the prosecutor has not made an election under subsection (3).
(5)The prosecutor must make the election before the later of—
(a)the 2nd time the proceeding for the offence is before the court; and
(b)21 days after the 1st time the proceeding for the offence is before the court.
(6)If the prosecutor does not elect to have the case disposed of summarily within the time required under subsection (5), the court must deal with the charge in accordance with—
(a)section 375 (5) to (13); or
(b)if the matter is being heard in the Childrens Court— section 375AA (4) to (12).
(7) If the prosecutor elects to have the case disposed of summarily, the court must hear and determine the charge summarily and sentence or otherwise deal with the defendant according to law.
(8)In sentencing or otherwise dealing with a defendant in relation to an offence that is an aggravated offence because it involves family violence, the court must treat the family violence as an aggravating factor for the offence, subject to the limitation on the penalty under subsection (9).
Example
A defendant is charged with aggravated assault occasioning actual bodily harm under s 24 because the offence involves family violence. The prosecutor makes an election to have the case disposed of summarily, based on the maximum penalty of 5 years imprisonment for the simple offence. The court convicts the defendant and must impose a sentence or otherwise deal with the defendant in a way that, subject to the limitation on penalty in s (9), acknowledges the objective seriousness of family violence.
(9)If the court disposes of a case summarily under this section and convicts the defendant of the offence, the court must not impose a penalty that exceeds—
(a)a fine of $5 000, imprisonment for 2 years or both; or
(b)if the maximum penalty provided for the offence by the law creating it is a fine of less than $5 000—the maximum penalty.
(10)In this section:
Magistrates Court includes the Childrens Court.
15․The emphasised words are those of significance to the present case. The offence in question was s 24(1) of the Crimes Act, which is the offence of assault occasioning actual bodily harm, punishable on conviction by imprisonment for five years. However, s 24(2) of the Crimes Act provides that where the offence is aggravated, the maximum penalty is imprisonment for seven years. Where the offence involves family violence, that is an aggravated offence: s 48C of the Crimes Act. Accordingly, s 374 applied through a combination of sections (1)(a) and (2) above.
16․The issue in dispute here concerns what is meant by determining the charge summarily and sentencing the offender according to law (s 374(7) of the Crimes Act). More specifically, this calls attention to the proper construction of the text in s 374(9) of the Crimes Act. The appellant argued that the words emphasised above meant that the maximum penalty for the offence itself is reduced to two years. The prosecution argued that those words did not change the “maximum penalty” for the offence, which remained at seven years. Instead, their effect was to limit or cap the sentence that could be imposed to two years. It was a cap on the jurisdiction of the Court, not a reduction in the “maximum penalty” for the offence.
17․The distinction makes a difference to the sentencing task, because the maximum penalty of an offence applies as a yardstick, as articulated by the High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [30]-[31]:
30.Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. …
31.…careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick.
The established approach to be taken in construing the statute
18․The orthodox approach is to consider the text itself, having regard to the context and purpose behind the legislation:SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 (SZTAL) at [14].
19․To this may be added the Territory’s Legislation Act 2001 (ACT) (Legislation Act), s 139 of which provides that in working out the meaning of an Act, “the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.”
20․In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole: s 140 of theLegislation Act. Section 7 of the Legislation Act defines “Act” to include a provision of an Act. Similarly, a provision is to be construed “so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole””: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [69] (references omitted).
21․As to working out the purpose of a provision (particularly where there is no relevant purpose or objects clause as is the case here), guidance was provided by Allsop CJ in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (Bay Street Appeal) [2020] FCAFC 192; 282 FCR 1 at [4] (citations omitted):
... The context, general purpose and policy of the provision and its consistency and fairness are surer guides to meaning than the logic of the construction of the provision. The purpose and policy of the provision are to be deduced and understood from the text and structure of the Act and legitimate and relevant considerations of context, including secondary material…
22․Context should be taken in its “widest sense”, including the other provisions of the statute and its legislative history: SZTAL at [14].
The proper construction of s 374(9) of the Crimes Act
23․The plain words of the section are (emphasis added):
If the court disposes of a case summarily under this section …the court must not impose a penalty that exceeds… imprisonment for 2 years…
24․The limit is imposed on the court, not the offence. The words do not state that the maximum penalty of the offence itself is reduced to two years. The plain text supports a construction favouring the limit operating only on the jurisdiction of the court.
25․The context to s 374(9) supports the same construction, in that the provision in which it sits is not dealing with altering the stated maximum penalties of offences at all. The context to the provision is expressly setting out the means by which the Magistrates Court exercises the jurisdiction to sentence for offences that have higher maximum penalties.
26․There is nothing otherwise appearing in the Crimes Act to suggest that in providing for certain offences to be dealt with summarily upon prosecution, the Legislative Assembly intended that a consequence of dealing with an offence summarily was to alter or reduce the maximum penalty of the offence itself. To interpret s 374 in such a way would place downward pressure on the terms of imprisonment imposed for every indictable offence that was elected to be dealt with summarily, because a sentence of two years imprisonment would become the ‘maximum penalty’ for a ‘worst case’, rather than the maximum sentence able to be imposed for cases that were not the ‘worst case’.
27․The appellant accepted that the construction for which he contended was not the intended purpose of s 374. I agree. The evident purpose of s 374 is to facilitate the hearing and determination of certain cases in a summary fashion. Because of the jurisdictional cap, the cases that are likely to be the subject of a prosecution election under s 374 are those that are not the ‘worse case’.
28․Drawing these considerations together, the text of s 374(9), having regard to its purpose and context, is quite plainly operating to impose a jurisdictional cap and no more.
The authorities support confining the section to a jurisdictional limit
29․As submitted by the respondent, the decision of Park v The Queen [2021] HCA 37; 273 CLR 303 is relevant to issue of interpretation here, where the High Court articulated the distinction between a maximum penalty and jurisdictional limit at [19] (emphasis added, citations omitted):
Contrary to the appellant's submission, a jurisdictional limit is not a matter required to be taken into account "[i]n determining the appropriate sentence for an offence" in accordance with s 21A. A jurisdictional limit relates to the sentencing court, not to the task of identifying and synthesising the relevant factors that are weighed to determine the appropriate sentence. To the contrary, the maximum penalty for an offence is a matter that is almost always required to be taken into account to determine the appropriate sentence, including where the maximum penalty exceeds a relevant jurisdictional limit.
30․Although the High Court was there considering an analogous legislative scheme for the summary disposal of indictable matters in NSW, the passage about the effect of a jurisdictional limit is equally applicable to the legislation presently under consideration here.
31․The appellant attempted to distinguish the established authorities on jurisdictional limits in NSW because of the different definitions used for indictable and summary offences in NSW. Those definitions are contained in s 3 of the Criminal Procedure Act 1986 (NSW) (NSW Act) as follows:
indictable offence means an offence (including a common law offence) that may be prosecuted on indictment.
summary offence means an offence that is not an indictable offence.
32․There is then a regime for working out which offences may be prosecuted on indictment provided for in ss 5 and 6 and Schedule 1 of the NSW Act.
33․The relevant definitions applying in the Territory are contained in s 190 of the Legislation Act as follows:
190Indictable and summary offences
(1)An offence is an indictable offence if–
(a)It is punishable by imprisonment for longer than 2 years; or
(b)It is declared by an ACT law to be an indictable offence.
(2)An indictable offence includes an indictable offence that is or may be dealt with summarily.
(3)Any other offence is a summary offence and is punishable on summary conviction.
34․The appellant’s submission was that the authorities dealing with NSW legislation were distinguishable because the definition of indictable and summary offences in NSW was not tied in any way to maximum penalties. In NSW an indictable offence will always be an indictable offence, whether it is dealt with the NSW Local Court or otherwise.
35․The appellant submitted that by contrast, the above definition in the Legislation Act meant that anything that had a maximum penalty in the Territory of no more than two years was summary for all purposes. On that argument that would include indictable offences dealt with under s 374(7) of the Crimes Act, which the appellant argued are, upon prosecution election, transformed into summary offences for all purposes.
36․The submission was misconceived for at least two reasons. First, although the statutory regime for indictable and summary offences in NSW is more complicated, there is a category of offences that must be dealt with summarily in NSW, which is tied to maximum penalties. Section 6(1)(c) of the NSW Act provides that where the maximum penalty is less than two years for an offence, those offences must be dealt with summarily, unless they are offences listed in Schedule 1 of the NSW Act.
37․Second and more significantly, that is not the relevant part of the definition that is in question where an election under s 374 of the Crimes Act is concerned. Section 374 does not operate in respect of offences where the maximum penalty is less than two years. Section 374 is directed to a category of indictable offences (being those where the maximum penalty is between two and five years) that may be dealt with summarily through an election. As the definition in s 190 of the Legislation Act makes clear, such offences remain “indictable offences”, notwithstanding they may be dealt with summarily. Contrary to the submission made by the appellant, the definition in s 190 of the Legislation Act supports a construction of s 374 as having no impact on the “maximum penalty” of an indictable offence, as the offence itself remains indictable.
38․That is, the indictable offence will remain an indictable offence whether it is dealt with on a summary basis by the Magistrates Court or otherwise. The distinction relied upon by the appellant was a distinction without a difference.
39․Support for the above construction is also found in cases in this jurisdiction such as Beniamini v Craig [2017] ACTSC 30 (Beniamini), where Refshauge J was expressly dealing with a prosecution election under s 374 (see [90]). The same argument as that in dispute here was raised by way of a notice of contention in the appeal before his Honour, and considered as follows at [101]-[103]:
101.…As Johnson J, with whom McClellan CJ at CL and Rothman J agreed, said, in Zreika v The Queen [2012] NSWCCA 44; 223 A Crim R 460, at 480; [99]:
Magistrates must not regard the jurisdictional limit as some form of maximum sentence reserved for a worst case: Re Attorney-General’s Application (No 2 of 2002) (NSW) [2002] NSWCCA 515; (2002) 137 A Crim R 196 at [27]; R v El Masri [2005] NSWCCA 167 at [30].
102.Thus, Grove J, with whom Spigelman CJ and Kirby J agreed, explained in R v Doan [2000] NSWCCA 317; 50 NSWLR 115 at 123; [35]- [36]:
35.The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted, must be rejected. As must also be rejected, the corollary that a sentence of two years imprisonment should be reserved for a ‘worst case’.
36.That conclusion is compatible with the observation of Allen J (Smart and Dunford JJ agreeing) in R v Young (Court of Criminal Appeal, 27 October 1993, unreported) at 5:
It is not the function of Local Courts to give less than appropriate sentences because the matters are being dealt with in the Local Court rather than in the District Court or the Supreme Court.
103. In my view, this construction should be applied to s 374 of the Crimes Act...
40․The same conclusion was reached in Smith-Roberts v Alexander [2014] ACTSC 239 (Smith-Roberts) at (see [9]-[10]), although the court did not there engage in any detailed consideration of the statute underlying such conclusion or the authorities outlined above.
41․The appellant attempted to draw support from a case in the Magistrates Court, Edwards v Craggs [2020] ACTMC 22 (Edwards), where Chief Magistrate Walker was considering the interaction between a summary election and the power to dismiss proceedings where an accused was mentally impaired under s 334(2) of the Crimes Act. In the course of considering that different issue, which was directed to whether the Magistrates Court required the consent of the prosecution before dismissal, the Chief Magistrate discussed the substance of s 374(7) (although at the time of the reasons in Edwards it was numbered differently).
42․The reasons in Edwards referred to the prosecution election for summary disposal as “accepting the sentencing cap that follows” (at [29]) and that it would be anachronous for a matter to be disposed of summarily in some ways but not in others. The appellant relied particularly on a passage where the Chief Magistrate stated (at [31]) that applying a purposive interpretation to Crimes Act, the legislative intention was that “offences in which the prosecution has exercised its discretion for summary disposal ought to be dealt with as a summary offence for all purposes”.
43․Edwards was dealing with a different context. The Chief Magistrate was clearly not addressing whether what there described as “a sentencing cap” for “all purposes” reduced the maximum penalty of an offence itself. It would be unfair to her Honour to import the words used as applying to the present argument. In any event, had I not considered Park to be relevant and applicable, Beniamini and Smith-Roberts should be followed as a matter of judicial comity in preference to any suggested contrary interpretation of a lower court.
44․For these reasons, there is no substance in Issue 1.
Issue 2: Did the court below err in failing to consider an intensive corrections order (ICO)?
45․The relevant aspect of his Honour’s reasoning is as follows (emphasis added):
…As I think was properly conceded by the defendant, in my view, having considered the possible alternatives, I am satisfied that only a term of imprisonment is appropriate in relation to this offence. The question is how that is to be served.
It was put on his behalf that there would be impacts in particular for his child in terms of financial support and not being able to see him. Ultimately, though, as I have indicated, the evidence as to the financial support is vague and is contradicted by information contained in the victim impact statement. I am unable to make any finding that there is substantial support provided or that the child will be significantly impacted by any inability to provide financial support. I also have no information as to whether the defendant is unable to continue to provide support even if he is without employment for a bit of time.
In my view, general deterrence in this matter is clearly important. Specific deterrence is important despite the gap from previous offending. Denunciation and making the defendant accountable are also important, as is the need to recognise the harm done to the victim. Having regard to all of those things, you are convicted. The sentence will be imprisonment for a period of five months. That is reduced from six months for the plea of guilty and to account for the three days of time in custody. That is to be served by full-time imprisonment, to be suspended after three months on entering into a 12-month good behaviour order, core conditions only.
46․The appellant argued:
(a)The option of an ICO was raised by the lawyer for the offender at the sentence hearing;
(b)That there was no mention of an ICO or any indication that the sentencing magistrate had given active consideration to this option; and
(c)That this caused the sentencing discretion to miscarry.
47․The starting point for a consideration of Issue 2 is ss 10 and 11 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) (notes omitted, emphasis added):
10Imprisonment
(1)This section applies if a court is sentencing an offender convicted of an offence punishable by imprisonment.
(2)The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
(3)If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless—
(a)The court orders otherwise; or
(b)the offender is released from full-time detention under this Act or another territory law.
...
11Intensive correction orders
(1)This section applies if an adult offender is convicted of an offence and the court imposes a sentence of imprisonment.
(2)If the sentence of imprisonment is for not more than 2 years the court may order that the sentence be served by intensive correction in the community (an intensive correction order).
(3)The court may make an intensive correction order if the sentence of imprisonment is for more than 2 years but not more than 4 years, but only if the court considers it is appropriate to do so, having regard to—
(a)the level of harm to the victim and the community caused by the offence; and
(b)whether the offender poses a risk to 1 or more people or the community; and
(c)the offender's culpability for the offence having regard to all the circumstances.
(4)An intensive correction order must include the core conditions mentioned in the Crimes (Sentence Administration) Act 2005, section 42.
(5)An intensive correction order may include 1 or more of the following additional conditions that can reasonably be complied with within the term of the order:
(a)a community service condition;
(b)a rehabilitation program condition;
(c)that the offender comply with a reparation order, a non-association order or place restriction order;
(d)a condition prescribed by regulation;
(e)any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005, that the court considers appropriate.
...
48․Sections 10 and 11 have been the subject of judicial consideration at appellate level in this jurisdiction. The following points have been made:
(a)The legislative scheme (including s 12, which relates to suspended sentences) reflects a two-stage process. The first stage requires a decision whether it is necessary to impose a prison term at all, and the second and separate stage requires a decision about whether any or all of a required prison term needs to be served immediately in some kind of custody (or whether it can be suspended and/or served within the community): R v DK [2016] ACTCA 7 (DK) at [30]-[31], referring to Dinsdalev The Queen [2000] HCA 54; 202 CLR 321 at [74]-[81]. See also Field v Unas [2019] ACTSC 13 at [18]-[20].
(b)An ICO is a sentence of imprisonment. This can be seen from the plain words of s 11 emphasised above, and the structure of the Sentencing Act, as to which see Samani v The Queen [2017] ACTCA 23 (Samani) at [55].
(c)The question of whether an ICO should be imposed does not arise as part of considering “available alternatives” at the first stage of exercising the sentencing jurisdiction under s 10(2) of the Sentencing Act. There is no obligation to consider an ICO as an option under s 10(2): Samani at [51]; DK at [36].
(d)Section 10(3) provides for any term of imprisonment to be served by way of full-time detention “unless the court orders otherwise”. However, this also does not give rise to any mandatory obligation to consider an ICO in and of itself (that is, regardless of any whether an ICO was raised or sought at the hearing): Samani at [55], [57].
49․It is also relevant to bear in mind the discretionary nature of the sentencing task. The reasons of the sentencing court explain the course that has been chosen in the exercise of that discretion, and what considerations were taken into account in determining a particular course. The sentencing court does not generally have to expressly refer to every sentencing option available and individually rule each one out in order to demonstrate that each has been considered. As Sully J stated in R v LRS [2001] NSWCCA 338 at [66]:
[A] sentencing judge [is not required to] meticulously set out, as though in a prescribed check list, a precise series of procedural steps ... and ... thereafter meticulously [mark] each with a tick or a cross as the Judge might think appropriate.
50․Statements to similar effect have been made at appellate level in this Court. In Day v R [2023] ACTCA 39, the Court stated at [30]:
It is to be recalled that although it is incumbent upon a sentencing judge to explain their findings, it does not follow that a failure to refer to a fact or topic permits an inference that the matter has not been taken into account amounting to a finding of error on appeal. What, if any inference can be drawn will depend on the facts of the particular case.
51․Without wishing to labour the point, in R v UG [2020] ACTCA 8 the Court referred at [63] to “ponderous reasons that rehearse every conceivable consideration” as being something to be avoided, going on to say that arguments “advanced on behalf of the appellants that this or that point was not mentioned in sentencing remarks, with an invitation to infer that the judge ignored it, rarely prosper.”
52․For this reason, the mere fact that a particular option such as an ICO is not referred to in a judgment does not of itself establish a failure to consider that alternative. In similar reasoning in Samani, the Court of Appeal stated at [43]-[45]:
43.For one thing, the absence of any reference to an ICO in the reasons for sentence does not necessarily mean that it was not considered, especially in the light of the above conclusions relating to his Honour’s compliance with s 10(2).
44.In the often quoted South Australian authority of Napper v Samuels (1972) 4 SASR 63, Bray CJ sitting in the Full Court said this:
Again, I cannot think that a sentencing tribunal is bound to name all the courses that it might have taken and its reasons for not taking any of them, except the one actually adopted, under pain of being held to have overlooked some or all of the others.
45.In Rudolf v The Queen [2016] NSWCCA 313 the sentencing Judge in the court below did not specifically state that he had considered an ICO even though a submission had been made that it was an option. Johnson J, in the New South Wales Court of Criminal Appeal, said at paragraph [48]:
The fact that a sentencing Judge does not refer to s.5, and to the steps involved in considering measures short of full-time imprisonment, does not of itself give rise to sentencing error: R v Cousins [2002] NSWCCA 340; 132 A Crim R 444 at 450 [33]; Douar v R [2005] NSWCCA 455; 159 A Crim R 154 at 166 [74].
53․In the present case, the emphasised words in the extract of the magistrate’s reasoning at [45] above indicate that attention had been given to the two-stage process and that what really concerned his Honour was the manner of the term of imprisonment to be served. That is sufficient to demonstrate the sentencing magistrate appreciated there was a discretion available as to how to serve the sentence, which is further supported by the fact that the sentencing magistrate imposed a partially suspended sentence.
54․It is true that the magistrate did not specifically mention the possibility of an ICO. However, applying the foregoing authorities, that does not, without more, establish error. Further, having regard to the context in which the hearing occurred, I am not persuaded that there was any specific error in the reasoning process for the sentence imposed.
55․That context is as follows. First, the imposition of the sentence and the delivery of reasons here immediately followed the sentencing hearing. At the hearing, the possibility of an ICO was raised by the offender’s lawyer, but it was plainly put as a hopeful alternative to a fully suspended sentence:
LEGAL REPRESENTATIVE: …your Honour, at the outset the defendant concedes that the section 10 threshold is crossed. That is due to, firstly, the family violence context, but secondly and perhaps more significantly, the prior record. The ultimate submission today, your Honour, will be that your Honour nevertheless has a number of options on sentence, including a fully suspended term of imprisonment, or, if your Honour were against me on that, whilst it would require an adjournment and a further assessment to be done, an intensive corrections order would also not be out of the realms of possibility for this defendant.
56․No further mention was made about the suitability of an ICO. The submission ultimately made was that a fully suspended term of imprisonment would adequately deal with the need for both general and specific deterrence.
57․That feeds into the second matter of context, being the statutory conditions that must exist before an ICO can be made. Section 46C of the Sentencing Act relevantly provides:
...
(4)However, the court must order the director-general to prepare an intensive correction assessment before sentencing the offender to a sentence of imprisonment by intensive correction.
(5)The director-general must arrange for an assessor to prepare an intensive correction assessment ordered by the court.
(6)The intensive correction assessment must address the matters mentioned in section 46D.
58․Section 77 of the Sentencing Act then relevantly provides:
77Intensive correction orders—eligibility
(1)The court must not make an intensive correction order for the offender unless satisfied that—
(a)an intensive correction order is suitable for the offender under section 78; and
(b)it is appropriate for the offender to serve the sentence by intensive correction; and
(c)the offender has given informed consent to serving the sentence by intensive correction.
...
59․The transcript of the hearing before the magistrate reveals that an ICO was not requested when the plea was entered and a court duty report was ordered instead. There was no formal application made either before or at the hearing to adjourn the proceeding until such an assessment could be conducted and there were no specific submissions made as to why an ICO would be an appropriate sentencing disposition such that an adjournment was necessary.
60․The result was that under ss 77 and 78 of the Sentencing Act, the appellant was not eligible for an ICO because there was no assessment of his suitability, which meant that the Court could not be “satisfied” of his suitability, being a mandatory criterion for the exercise of the discretion in such a manner. In addition, the offender had not given informed consent to serving the sentence by way of an ICO. A similar position arose in Samani, which caused the Court of Appeal to state at [53]:
Another potentially relevant matter is that the judge must be informed that the offender consents to the possibility of an ICO before an ICO may be imposed. Section 77 of the Crimes (Sentencing) Act 2005 (ACT) provides that a court “must not make an intensive correction order” unless the court is satisfied that the offender “has given informed consent to serving the sentence by intensive correction”. It remains unclear on the appellant’s case how a court can be obliged to assess suitability for an ICO until it has been informed that the offender has consented to being dealt with in this way.
61․Samani was later relied upon in dealing with a similar argument in Nchouki v The Queen [2018] ACTCA 28; 13 ACTLR 168 at [105]:
Regarding the appellant’s submission that the primary judge should have considered an intensive corrections order, the respondent submitted that the appellant’s trial counsel had conceded that a period of full-time imprisonment was appropriate. No application for an assessment of the appellant for an intensive corrections order was made by the appellant’s trial counsel. Rather, the appellant’s counsel submitted that full-time imprisonment with a period suspended was the appropriate disposition. An intensive corrections order cannot be imposed in combination with a sentence of full-time imprisonment or a suspended sentence: Crimes (Sentencing) Act, s 80. The approach to be taken by this Court with regard to a submission made for the first time in this Court that an intensive corrections order should have been considered in sentencing, was recently considered in Samani v The Queen [2017] ACTCA 23. The Court stated, at [30]:
30.The Court firstly observes that, in Zhuang v Director of Public Prosecutions (DPP) (NSW) [2016] NSWCCA 27 at paragraph [39], the New South Wales Court of Criminal Appeal noted that:
There is a practical expectation that an offender’s legal representative will make submissions to the sentencing Judge at first instance by reference to the particular factors which are sought to be taken into account on sentence.
31.The motivation necessary to re-examine a sentence where a matter was not, but should have been, argued in the court below was discussed in Zreika v R [2012] NSWCCA 44; 223 A Crim R 460 at [81]:
The Victorian Court of Appeal has emphasised recently, that in sentencing appeals, the Court is reviewing the exercise of a discretionary judgement and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not likely entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made. The Court spoke of the need for exceptional circumstances before this can be done, where it can be shown that there was most compelling material available on the plea that was not used or understood, and which demonstrates that there has been a miscarriage of justice arising from the plea and sentence: Romero v R [2011] VSCA 45 at [11]; Keane v R [2011] VSCA 156 at [13], [18]; Bayram v R [2012] VSCA 6 at [28] – [29].
62․Applying these authorities to the present appeal, it is equally difficult to see how the failure to either refer to, or actively engage in discussion about, whether an ICO should be imposed was in any way an error on the part of the sentencing magistrate. By the sentencing magistrate proceeding with the hearing, rather than taking up the faint invitation of an adjournment for an ICO assessment, it must have been clear to the appellant that his Honour was not considering taking a course that involved an ICO. In the circumstances in which the case was presented, his Honour could not do so as a matter of law because the assessment required by the Sentencing Act had not been done.
63․Given that context, it is unsurprising that the sentencing magistrate did not expressly refer to the ICO in the reasons on sentence. It is not that his Honour failed to consider the alternative, it was simply that as at the date of the hearing, as a matter of law, that alternative was not available. The principle that it is not incumbent on a sentencing magistrate to explain every permutation of available sentencing options carries even greater force when the appellant was not eligible for a particular option at the time of sentence.
64․The appellant relied on the recent decision of Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3; 97 ALJR 107 as supporting the proposition that where the possibility of an ICO was raised, it was a jurisdictional error for a sentencing Court to fail to consider whether a sentence of full-time imprisonment or an ICO would be more likely to address the offender’s reoffending. In Stanley, such an obligation was held to have arisen from s 66(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (NSW Sentencing Procedure Act) (discussed below).
65․The appellant accepted that, notwithstanding s 11(3) of the Sentencing Act also requires the court to have regard to whether the offender poses a risk to people in the community when an ICO is being considered, there were material differences between the NSW statute and the Sentencing Act, such that it could not be said that a failure to consider an ICO in the ACT gave rise to a jurisdictional error, as was the finding of the majority in Stanley.
66․However, what was relied upon was a broader principle referred to by the majority at [65] (citations omitted, emphasis added):
The power to make, or refuse to make, an ICO is discretionary. However, as the parties accepted, that conferral of power comes with a corresponding duty. The court will come under a duty to consider whether to make an ICO where that matter is properly raised in the circumstances of the case, and where the disentitling provisions identified below are not engaged. This is consistent with the general principle that, where a jurisdiction is conferred and "created for the public benefit or for the purpose of conferring rights or benefits upon persons the court upon an application properly made is under a duty to exercise its jurisdiction and is not at liberty to refuse to deal with the matter".
67․Reliance was also placed on Wany v Director of Public Prosecutions (NSW) [2020] NSWCA 318; 103 NSWLR 620 as indicating (at [51]-[52]) that while a sentencing court is not required to consider making an ICO in every case, an obligation to consider making such an order may be enlivened where a cogent argument is advanced for taking that course.
68․I am not persuaded those authorities are of assistance here for two reasons.
69․First, as accepted by the appellant, the statutory scheme under consideration in Stanley was different, with s 66(2) of the NSW Sentencing Procedure Act mandating a sentencing court to “assess the relative merits of full-time detention as against intensive correction in the community, for the purposes of considering the "paramount consideration" of community safety identified in s 66(1)”: Stanley at [54].
70․Second, this was not a case where an ICO was properly raised (or a cogent argument made in support of such an alternative) in the circumstances of the case. In my view, the statement as to the common law principle when there is a conferral of jurisdiction in Stanley is consistent with the statements made in Samani and Nchouki above. In order for an ICO to be “properly raised” so as to potentially oblige a sentencing magistrate to engage with the issue as a potentially available sentencing option, and demonstrate that such consideration has been given, the legal representatives will need to follow the procedures set out in the Act. Unless the statutory regime for assessment and consent is invoked, it is difficult to see how such an option could be “properly raised”. At the very least, a sentencing court requires sufficient information to enable the assessment of an offender’s suitability, which will be by way of an intensive correction assessment prepared by qualified professionals, as well as an offender communicating their consent to an ICO as an option. An offender (through their legal representative) cannot just turn up to a hearing, briefly mention the existence of an ICO as a potential sentencing option, offer no submissions on the statutory requirements for such an option and then criticise a sentencing magistrate who does not expressly refer to it in any reasons for imposing a sentence as a failure to deal with the matter or exercise the jurisdiction. While I am prepared to assume that there may also be a general common law duty arising for a sentencing magistrate to exercise their jurisdiction to consider a benefit as described in Stanley at [65], in the circumstances that occurred in the court below, it cannot be said that the matter was properly raised.
71․Returning to the principles for appellate intervention set out above, it is not enough that an ICO may have been an equally available alternative, or that this court on appeal may have considered an ICO preferable to what was imposed on the appellant. What must be established is that there was error in the course that was actually taken, including any specific error in the reasoning process that led to the particular sentence imposed. In the circumstances as they have been set out above, no such error has been made out.
Conclusion
72․For the above reasons, the orders of the court were as follows:
(1)The appeal is dismissed.
(2)The judgment of Magistrate Temby delivered on 1 September 2023 is confirmed.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam. Associate: T Dunbabin Date: 30 October 2023 |
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