Et v Yates
[2015] ACTSC 183
•14 July 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ET v Yates & Ors |
Citation: | [2015] ACTSC 183 |
Hearing Dates: | 29 May 2015 |
DecisionDate: | 14 July 2015 |
Before: | Penfold J |
Decision: | The appeal is allowed and ET will be re-sentenced. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – 19‑year-old offender with troubled background and history of juvenile offending – apparently good prospects of rehabilitation – seven relatively minor offences – five terms of imprisonment imposed – two months to be served in full-time custody – sentence manifestly excessive – offender to be re-sentenced. APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – plea of guilty discounts expressed as sentences that would have been increased but for pleas of guilty – whether concurrent sentences should be served concurrently or whether one or more could be suspended while one or more to be served in full-time custody. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 71(1) |
Cases Cited: | House v The King (1936) 55 CLR 499 R v Said El Masri [2005] NSWCCA 167 The Queen v Williams [2014] ACTCA 30 |
Parties: | ET (Appellant) Paul Ronald Yates (First Respondent) Nathan Thomas Weaver (Second Respondent) Romy Hearn (Third Respondent) Beau Tennant (Fourth Respondent) Megan White (Fifth Respondent) |
Representation: | Counsel Mr H Jorgensen (Appellant) Mr S McLaughlin (All Respondents) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (All Respondents) | |
File Number: | SCA 20 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 26 February 2015 Case Title: Yates, Weaver, Hearn, Tennant and White v ET Court File Numbers: CC14/7644; CC14/11486; CC14/9282; CC14/8271; CC14/5917; CC14/11941; CC14/2710 |
Background
ET has appealed against sentences imposed in the Magistrates Court on 26 February 2015.
ET was sentenced for a total of seven offences, being one theft, two failures to appear on a bail undertaking, one trespass, two minor thefts and one possession of cannabis. Those offences carry the following maximum penalties (fines may also be imposed for the offences carrying terms of imprisonment):
Offence Relevant legislation Maximum penalty Theft Criminal Code 2002 (ACT), s 308 10 years imprisonment Fail to appear on a bail undertaking Bail Act 1992 (ACT), s 49(1) 2 years imprisonment Trespass Public Order (Protection of Persons and Property) Act 1971 (Cth), s 11(1) $1,100 Minor theft Criminal Code 2002 (ACT), s 321 6 months imprisonment Possession of cannabis Drugs of Dependence Act 1989 (ACT) $110
Although the consent to the Magistrates Court exercising jurisdiction in relation to the theft offence limited the sentence that could be imposed to 5 years imprisonment rather than the 10 years available in the Supreme Court, this did not mean that the sentencing Magistrate was required to treat 5 years imprisonment as the maximum custodial penalty for the offence he was dealing with (R v Said El Masri [2005] NSWCCA 167 at [30]; R v Doan (2000) 50 NSWLR 115 at [35]).
The offences
The following outline of the circumstances of the offences is sourced from the various police statements of facts tendered in the Magistrates Court.
7 February 2014
ET removed items to a total value of $269.90 from Myer in the Canberra Centre. She was taken back to the store by a Myer loss prevention officer. Police who were called to the store searched ET and found cannabis seeds in her handbag. It seems likely that the items taken were recovered, but this is not explicit in the police statement of facts. ET was issued with a notice from Myer banning her from the store. This incident gave rise to the first minor theft charge and the possession charge.
4 August 2014
ET took 11 “fragrance items” to a total value of $1,196 from Myer in the Canberra Centre. She was observed through CCTV surveillance and detained, and all items were recovered. ET had been banned from Myer in the Canberra Centre under the banning notice already mentioned, which she had signed at the time. This incident gave rise to the charges of theft and trespass.
29 August 2014
ET did not appear in the Magistrates Court despite having entered an undertaking to do so on 19 August 2014. A first instance warrant was issued, and on 17 September 2014 ET was identified by police in Braddon, where she was arrested. This resulted in the first fail to appear charge.
4 October 2014
ET stole a laptop computer valued at $399 from Dick Smith Electronics in the Belconnen Mall. This was the second minor theft offence.
15 October 2014
ET did not appear in the Magistrates Court despite having entered an undertaking to do so on 17 September 2014. A first instance warrant was issued, and on 23 October 2014 ET attended the City Police Station, where she was taken into custody. This was the second fail to appear offence.
Appellant’s circumstances
ET turned 19 not long before she was sentenced in the Magistrates Court. Her criminal history as a juvenile was before the sentencing Magistrate. It involved:
(a)at the age of 14, offences of aggravated robbery in company; ride/drive motor vehicle without consent; robbery; obstruct/resist territory public official; minor theft; and common assault;
(b)several breaches of good behaviour orders and the issue of first instance warrants: in particular, two sentences of 6 months imprisonment, one for the robbery offence committed when ET was 14½ and one for the common assault committed not long before she turned 15 (both of which were initially suspended) were subsequently served in full-time custody, in two separate periods of 6 months, as a result of breaches of the associated good behaviour orders; and
(c)at the age of 17, offences of minor theft; unlawful possession of stolen property; and failing to appear on a bail undertaking.
A pre-sentence report was also before his Honour. It provided the following information:
PRIOR CONTACT WITH CORRECTIONS
[ET] was not previously known to ACT Corrective Services. However, she has a history of juvenile offending which resulted in imprisonment in a youth detention centre. It is noted that [ET] was arrested twice during the current bail period for failing to report to the Police as per her bail conditions.
RELEVANT BACKGROUND INFORMATION
Family/Marital
[ET] was born in Canberra and, along with her three siblings, was raised by her grandparents following her mother's death from a drug overdose when the offender was four years old. She stated she enjoyed a good relationship with her grandparents who continue to provide support.
[ET]'s grandmother indicated the offender tended to be an unruly child who required strict rules and structure. However, she claimed this structure was removed from her granddaughter's life following a short period in foster care. In addition, [ET]'s grandmother indicated the offender's brother's death in 2011 had a severe impact on her.
[ET] reported she entered into her current relationship approximately eight months ago and the couple are expecting their first child together in May 2015.
Accommodation
During the bail period, [ET] resided at Koorinya [sic] House, an accommodation service for pregnant women in crisis. However, she was asked to leave the program, by her own admission, due to her failure to comply with the requirements of the program. [ET] now resides with her partner in government rental accommodation.
Financial Situation
[ET] reported she is reliant on Centrelink benefits. She indicated the current offences were committed to obtain money for drugs.
Companions
[ET] described few prosocial peers.
Alcohol and/or Drug Use
[ET] reported a history of daily alcohol abuse which commenced when she was 13 years and resulted in her imprisonment in a youth detention centre. She stated that, aside from periods in custody, she continued this pattern of alcohol abuse until her brother's accidental death in 2011. [ET] claimed she no longer abuses alcohol and stated she last consumed an alcoholic beverage in January 2014.
[ET] reported she commenced methylamphetamine use when she was 15 years old and her level of use escalated to smoking two points (.2 grams) when she was 16 years of age. She stated she ceased methylamphetamine use in August 2014 shortly before she discovered she was pregnant. A drug use questionnaire administered on 11 November 2014 indicated [ET] had used illicit substances at a substantial level in the preceding 12 months and should undertake a more thorough assessment regarding treatment options. Urinalysis drug testing results dated 1 December 2014 detected nil illicit substances.
Leisure/Recreation
[ET] has no organised activities that provide prosocial benefit.
Medical, Emotional and Mental Health
[ET] advised she is due to give birth in May 2015. She reported no problems with the pregnancy.
ATTITUDE TO OFFENCE
[ET] made no excuses for her actions and did not appear to minimise her offending behaviour. [ET] indicated all of these offences were related to her use of illicit substances.
OPINION
[ET] is a 19 year old woman with a history of substance abuse and related offending behaviour. She has a history of antisocial behaviour and involvement with antisocial peers. She is expecting her first child and is now residing with her partner. She is unemployed and has no history of employment; given that she is due to give birth in a few months; this is unlikely to change.
[ET] is assessed as medium-high risk of reoffending. Should she commit to a case plan to address her substance abuse issues and antisocial behaviour, her risk of reoffending may reduce.
Also before his Honour were two letters tendered by the defence, one from Robin Sale from the ACT Government’s Youth Support and Transition Team (YSTT) and one from Karinya House, a community-based organisation supporting pregnant and parenting women in crisis.
Robin Sale’s letter said:
[ET] began engaging with our services since October 2014 and since this point has met with me at least once a week. In the time that I have been working with [ET] I have seen her make some significant changes in her life, namely ceasing her drug use. [ET] has also built a support network that will be able to support her through her pregnancy and help her build a positive future for her and her child into the future. This has included:
• Actively and regularly engaging with the YSTT.
• Working with Karinya House in an outreach capacity.
• Attending regular antenatal appointments at the Canberra Hospital.
• Engaging with the social work department at the Canberra Hospital.
Lisa Knight, the Karinya House caseworker, said in her letter:
[ET] was referred to Karinya House in October 2014. She engaged well in outreach support and was positively focussed on her pregnancy. [ET] recognised that her accommodation was not a suitable environment in which to raise a newborn and requested residential support from Karinya House.
[ET] moved into Karinya House on 17 December 2014. However, she found living in the supported environment extremely challenging and struggled with being away from her partner. She left the service on 26 January 2015.
Since this time [ET] has continued to receive outreach support. She is understandably anxious about becoming a first time mother and is keen to learn as much about parenting as she can. She attends antenatal appointments at the Canberra Hospital.
[ET] has expressed an interest in moving back to Karinya House, however at the present time there is no vacancy available.
I will continue to work with [ET] in an outreach capacity until her baby is born and afterwards for as long as required.
Counsel for ET made brief submissions, mainly reflecting the contents of the pre-sentence report but also saying:
In relation to the offending behaviour, and in particular the theft, the trespassing and the theft charges that we have before the court, your Honour, this offending behaviour occurred against a long history of drug abuse by my client and her attempting to continue to fund her habit.
In relation to the fail to appear she has expressed her remorse in relation to those and has an explanation of a limited support network at that point in time as it was quite early on in her relationship process that she has placed herself in.
She is currently a young woman, in the time of her life filled with change, and is trying to deal with it the best she can. There is absolutely no excuse for her behaviour. She takes full responsibility for her actions and has taken some positive very proactive steps to address the underlying issues that led to the offending.
The Magistrates Court sentencing
The Magistrate assessed the fail to appear offences, and the theft, as within the medium range of objective seriousness, while finding that the other offences fell at the lower end of the scale of objective seriousness.
His Honour emphasised the significance of the offence of breaching a bail undertaking, noting that it is a serious offence irrespective of the nature of the charge in respect of which the bail has been granted.
In doing so, his Honour referred to comments made by Crispin J in Roy Anthony Ursino v Luke Roland Read; Roy Anthony Ursino v The Queen [2005] ACTSC 106 (10 October 2005) (Ursino), as follows:
12. As his Honour observed, offences of failing to appear in answer to a bail undertaking are prevalent, and the commission of offences of that character put the community to the expense and inconvenience of having to locate and arrest the absconding defendant and bring him or her back to court. Furthermore, if alleged offenders were permitted, without significant penalty, to delay trials or sentencing proceedings by failing to answer their bail, confidence in the whole process could suffer and other alleged offenders might be encouraged to adopt a similar course. Hence, in the absence of any significant mitigating factor, custodial sentences should be expected for offences of this kind.
The transcript of the Magistrate’s sentencing remarks includes as part of the quoted material, following immediately after “custodial sentences should be expected for offences of this kind”, the words “and there being no mitigating factors put to me today in relation to those failure to appear matters”. Those words do not appear in Ursino and, despite the formatting of the Magistrates Court transcript, are therefore presumably the Magistrate’s comments about ET’s matter. That is, his Honour appears to have overlooked the submission made by defence counsel that the failures to appear related to the limited support network available to ET at the relevant times.
His Honour noted matters set out in the pre-sentence report quoted at [11] above, including generally the relative absence of positive supports and influences in ET’s life, and her adolescent struggles with alcohol and illicit drug use. His Honour mentioned that she claimed not to have consumed alcohol since January 2014 and to have given up the use of illicit drugs in August 2014, and that the claim appeared to have been supported by urinalysis in December 2014. His Honour went on to note that ET had been assessed as unsuitable for community service and periodic detention; he then said that he had considered whether there might be some utility in a deferred sentence order, but did not explain why he rejected that option.
His Honour summarised his reasons for the individual sentences in the following terms:
I am not entirely convinced, having regard to your past, and the range of offending to which you have engaged in and the deliberate nature to which you engaged and the circumstances in which there are a number of charges and following on from those charges you committed yet further offences. The offences in their own right, of course, even so with someone of 19 years of age and someone who is experienced at least in a juvenile sense, a custodial term of imprisonment.
Weighing up all those matters as often I am required to do I look at any departure for disruption that might be imposed upon you under section 33 and I take all those factors into account in relation to whether or not they have been raised by Ms Ramsay on your behalf or not.
Weighing those matters I look at, obviously, the effect that any consequential term of detention is going to have upon you in relation to the birth of your child. Taking all those matters into account, looking at your criminal history and the considerations and the alternatives available to me, under section 10, I am satisfied on a proper application of sentencing principles that no sentence other than a term of imprisonment is appropriate in the circumstances.
Having regard to those matters, I take into account your pleas of guilty where that is relevant in accordance with the decision of R v Mack, out of the High Court. You are entitled to the benefit that affords you in a reduction in sentencing outcome based on the utilitarian value that is afforded to the court by way of making the plea of guilty.
His Honour proceeded to sentence ET as follows:
(a)for the trespass and possession of cannabis offences, to fines of $500 and $110 respectively, with 12 months to pay;
(b)for the theft offence, to 8 months imprisonment;
(c)for the two fail to appear offences, to 4 and 3 months imprisonment respectively;
(d)for the two minor theft offences, to 2 and 3 months imprisonment respectively.
His Honour then noted that he was required to consider totality “in relation to those terms of imprisonment”, and referred to further matters of general relevance to the sentencing, saying:
I acknowledge your history of juvenile offending and imprisonment in youth detention centres. I take into account your current personal circumstances. My focus is as has been addressed by Ms Ramsay, is to focus on someone as young as you and look at rehabilitation notwithstanding the assessment of medium to high risk of reoffending, the lack of employment going forward but for understandable reasons.
The lack of prosocial influences, other than the effect that your grandmother might be able to continue to provide for you and obviously a new person in your life - I take those matters into account and I have determined to impose the following sentencing arrangement.
Having regard to your age and prospects for reform, on the basis that having the child in May might at least finally dawn upon you about your responsibilities within the community to understand what they are and to apply them. Taking those matters into account, it seems to me that such an occasion might at least bring about a positive influence to you and bring your life back on track, having regard to the chequered past.
His Honour then specified that the shortest of the five prison terms, two months imprisonment for minor theft, would be served in full-time custody, with the other four prison terms being fully suspended subject to a 15-month good behaviour order.
The appeal
The grounds of appeal are:
(a)that the sentences of imprisonment imposed were manifestly excessive; and
(b)that his Honour failed to have sufficient regard to the appellant’s youth and rehabilitation prospects.
It is convenient to deal with the second ground first.
Failure to have sufficient regard to youth and rehabilitation prospects
In The Queen v Williams [2014] ACTCA 30 (Williams), the Court of Appeal repeated earlier comments to the effect that an appellant does not raise an error of the kind recognised in House v The King (1936) 55 CLR 499 by claiming that a court has, however described, failed to give proper weight to particular aspects of an offender’s circumstances or of the offences concerned (whether the particular claim is of insufficient or of excessive weight). The Court said:
11. ... the Crown referred to Carroll v The Queen 254 ALR 379, and specifically relied on the comments of the High Court in Bugmy v The Queen (2013) 302 ALR 192; the Crown submitted that in the latter case:
Gaegler J [sic] accepted that a ground of appeal which asserted that the weight afforded by the judge to the offender’s subjective case impermissibly ameliorated the appropriate sentence was a circumstance which might be indicative of manifest inadequacy (at [53]). Or as the plurality more concisely described it, it was a particular of the ground that the sentence was manifestly inadequate – see Bugmy at [22].
12. The paragraphs relied on by the Crown, and other comments, require careful consideration. At [22], the plurality did say:
The Director’s additional grounds were particulars of the ground that the sentence was manifestly inadequate.
13. However, at [24], their Honours went on:
Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal’s assessment of the appropriate sentence and Judge Lerve’s assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant’s subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve’s discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards. [citations omitted]
14. The plurality in fact made it clear that within a range of sentences for the offence, the weight to be given to evidence and to the various purposes of sentencing is a matter for the sentencing judge, and emphasised that the Court of Appeal was not empowered to impose a new sentence because it would have weighted different considerations differently. It was only empowered to do so if the Court of Appeal was satisfied that the discretion had miscarried because in the result, the sentencing judge imposed a sentence that was below the just range of sentences. The statements by the plurality in our view specifically disclaim that the other grounds of appeal were “particulars” of manifest inadequacy to the extent that they identified errors made by the sentencing judge, as distinct from identifying matters that were relevant in the sentencing decision and that pointed to the sentence actually imposed being below the just range of sentences.
15. Gageler J said at [53]:
The Director’s three “additional grounds of appeal” to the Court of Criminal Appeal were not clearly framed to invoke either category of appellate intervention. The first and second were framed in terms of a failure “properly” to determine or acknowledge relevant considerations. They would be capable of invoking the first category of appellate intervention only if the asserted impropriety rose to the level of a failure to take those considerations into account. As demonstrated in the joint reasons for judgment, they were not analysed by the Court of Criminal Appeal in those terms. The third was framed only in terms of “weight”. It was incapable of establishing an error in the first category of appellate intervention. It pointed at most to a circumstance which, taken with other circumstances, might be indicative of error in the second category.
16. His Honour noted that the appeal ground complaining about weight pointed at most to a circumstance which might be indicative of error in the second category referred to in House v The King (1936) 55 CLR 499 (House). His Honour did not suggest that the appeal ground concerned pointed to an error which might have caused the manifest inadequacy said to permit an inference of error.
17. The point made by the Court of Appeal in R v Ang was that, while particular aspects of the circumstances of the offence or the offender, or other applicable sentencing considerations, might be relevant to establish manifest inadequacy or manifest excess, they were not relevant as indications of the nature of the inferred error made by the sentencing judge, but as circumstances by reason of which the ultimate sentence might have been expected to be significantly higher or lower (see R v Ang at [22] to [25]).
18. In any event, it is not possible to assess, from a sentence which has been set following the instinctive synthesis that is required, what weight has been given to particular elements so as to determine that too little or too much weight has been given to any particular factor, unless the sentencing judge specifically says what weight has been given to it. This was not the case here, where the Crown did not identify any such remarks by the Chief Justice. As is made clear in House, any such errors can only be inferred, without being identified, by showing that the result is manifestly inadequate (or excessive).
19. Indeed, once it is conceded, as it was by the Crown at the hearing, that an error as to weight is not an error of the first kind described in House, which may permit re-sentencing even in the absence of manifest inadequacy or excess, then the sentencing judge’s alleged errors or considerations become irrelevant; what remains relevant is the matters that he or she was required to consider and the level of sentence that those matters could reasonably have been expected to produce.
The second ground of appeal does not raise a House v The King error, and does not require further consideration.
Manifest excess
However, consistently with the comments of the Court of Appeal in Williams, the appellant’s youth and rehabilitation prospects may be circumstances that support a claim that the sentence imposed was manifestly excessive.
The following matters emerge from the information before his Honour:
(a)That ET had had a troubled childhood, especially after losing her mother to a drug overdose when ET was only 4, and that the availability of the rules and structure that she seemed to need in her life had been disrupted by a period in foster care.
(b)That ET’s adolescence had involved substance abuse beginning at the age of 13 (including both alcohol and illicit drugs), with her alcohol abuse ceasing only after the traumatic death of ET’s brother when she was 15 years old and apparently being replaced with methylamphetamine use.
(c)That ET had been involved in relatively serious offending when she was 14 yrs old and, as noted, had served a total of 12 months in full-time custody as a result of that offending, but that since then she had committed only two more minor dishonesty offences while still a juvenile (at the age of 17).
(d)That ET’s adult offending was also minor compared with her earlier juvenile offending, and that she claimed that all her adult offending, that is, the offences for which his Honour was sentencing her, related directly or indirectly to her use of illicit drugs (apart from the cannabis offence, all three thefts, and the associated trespass, involved goods that may well have been readily saleable, and the other two offences arose out of those charges).
(e)That by the time of the sentencing:
(f)ET had been abstinent from alcohol for just over a year, from methylamphetamine use for around 5 months, and apparently from all illicit substances for at least a few weeks;
(g)ET was about 5 months pregnant, living with her partner, and continuing to receive support from her grandparents, with whom she seemed to have a good relationship;
(h)ET had been engaged with the YSTT since October 2014, had met with staff of that team at least weekly since then, and in that time had ceased drug use, proposed to undertake drug and alcohol counselling, and was in general focussing on her pregnancy and the changes she needed to make to provide a positive future for her and her baby.
In summary, the evidence was that ET had a troubled childhood and adolescence that in her early teens had involved relatively serious criminal activity and significant substance abuse. Although that criminal activity had not stopped, it had reduced significantly in the previous three or so years, and the relatively minor offences for which his Honour was sentencing were all directly or indirectly related to substance abuse. Around the time of the later adult offences, ET had discovered she was pregnant, and from August 2014 she had been taking various steps to fit herself for motherhood, including giving up substance abuse, and engaging in an apparently genuine way with government and non-government agencies who offered her support in her abstinence and in her more general preparation for life with her baby.
However, little of this was recognised in his Honour’s comments. In particular, while his Honour did mention ET’s challenging past, and her claims of having given up substance abuse, he did not suggest that her current circumstances indicated any particular prospects of rehabilitation, and focussed instead on her criminal history and other negatives including the fact that the impending birth of her child meant she was likely to remain unemployed for some time to come. His Honour’s summary of his reasons for concluding that no sentence other than a term of imprisonment was appropriate is quoted at [21] above. It is not easy to identify what exactly had led his Honour to that conclusion, and the reference to “a proper application of sentencing principles” does not help.
Nor do the sentences imposed by his Honour seem to bear any obvious rational relationship to the assessments he had made of objective seriousness. In particular, if his Honour considered that the theft offence was of mid-level seriousness, while the minor theft offences were of low level seriousness, it is hard to see how the latter offences could have justified sentences of 2 and 3 months imprisonment against a maximum prison term of 6 months (for the second offence, half the maximum term even after the guilty plea was taken into account) if the mid-range theft offence justified a sentence of only 8 months imprisonment against a maximum term of 10 years imprisonment.
Furthermore, the offence in relation to the various fragrance items could also have been charged as a minor theft, given the value of the goods involved. It was certainly open to the prosecution to lay the theft charge rather than another minor theft charge, but it is hard to see how the fragrance theft could properly have been categorised as a theft of mid-range seriousness. No doubt there are cases where thefts of goods with a very low monetary value have other aspects that render them serious examples of the offence – for instance, a theft of a low-value item with obvious sentimental value to its owner, or a theft intended to cause distress or embarrassment to its owner – but this does not seem to be such a case. This apparently anomalous level of seriousness ascribed to the theft was not explained by his Honour.
I am satisfied, having regard in particular to:
(a)the relatively minor nature of all the offences to which the appeal relates;
(b)the history that explains ET’s current circumstances; and
(c)the rehabilitation efforts that she has been making in the last 10 or so months;
that the total sentence imposed by his Honour was manifestly excessive, especially but not only in the requirement that ET serve two months in full-time custody.
Conclusions on appeal
Accordingly, I shall uphold the appeal, and re-sentence ET after hearing sentencing submissions.
Other matters
There are two other matters that I consider should be mentioned, although they were not as such grounds of appeal.
Treatment of discounts for pleas of guilty
His Honour specified plea of guilty discounts for the prison terms that mathematically amounted to 20% discounts from the sentences that his Honour would otherwise have imposed. However, the form in which his Honour expressed the discounts, namely that had ET not pleaded guilty he would have increased the sentences by 25%, does not reflect the principle that discounts given for pleas of guilty operate to reduce what would otherwise have been the appropriate sentence. An appropriate sentence is not to be increased for an offender who exercises his or her right to defend a charge. In Siganto v The Queen (1998) 194 CLR 656, Gleeson CJ, and Gummow, Hayne and Callinan JJ described it as “a serious error” to increase a punishment because an accused defended himself against a charge, saying:
20. The first ground of appeal arises out of the following observations made by Angel J in the course of his remarks on sentence. His Honour said:
"You pleaded not guilty, having always denied the charge, and have shown no remorse whatsoever. The jury took but a short time to find you guilty, an inevitable finding on the evidence. The jury were satisfied that you lied on oath in denying the crime, and that you lied to police during the record of interview when you said you were home on the night in question, and that you pretended to confuse your movements during that week when confronted with a Woolworths docket showing that you were out on the road on the night in question rather than at home as you had told the police.
Your victim, a full-blood Aboriginal woman, was greatly distressed by your crime. Her distress was evident to police officers who attended the Winnellie Post Office, and other police officers who interviewed her sometime after the event. Your victim's distress was aggravated by having to give evidence against you, both at the committal and at trial."
21. It is argued on behalf of the appellant that the manner in which Angel J referred to the appellant's plea of not guilty indicates that his Honour treated this as an aggravating circumstance, and increased the punishment which would otherwise have been imposed by reason of the fact that the appellant defended himself against the charge. Without question, that would have constituted a serious error. In R v Gray the Victorian Court of Criminal Appeal said [6]:
"It is impermissible to increase what is a proper sentence for the offence committed, in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence."
22. A person charged with a criminal offence is entitled to plead not guilty, and defend himself or herself, without thereby attracting the risk of the imposition of a penalty more serious than would otherwise have been imposed. On the other hand, a plea of guilty is ordinarily a matter to be taken into account in mitigation; first, because it is usually evidence of some remorse on the part of the offender, and second, on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case. It is also sometimes relevant to the aspect of remorse that a victim has been spared the necessity of undergoing the painful procedure of giving evidence.
Treatment of concurrent sentences
His Honour did not direct that any of the prison terms imposed were to be partly or wholly accumulated on other terms; under s 71(1) of the Crimes (Sentencing) Act 2005 (ACT) the sentences were therefore required to be served concurrently.
Despite this, as already mentioned, his Honour provided for one of those “concurrent” sentences to be served in full-time custody while the other four prison terms were wholly suspended subject to a 15-month good behaviour order.
I heard no argument on this approach, and so I refrain from expressing a view whether it is available to a sentencer to make multiple sentences concurrent but then to provide that one or some of those “concurrent” sentences are to be immediately served, wholly or in part, in some form of custody, while the others are to be served in the community, but with the risk that the offender’s subsequent behaviour might mean that the sentences are required to be served in custody.
However, whether or not such an approach is available, it is in my view inappropriate.
This is because the effect of such an approach is that if the offender breaches the good behaviour order attached to a suspended sentence, then the offender is apparently liable to serve the whole of that suspended sentence in full-time custody even if that sentence was (whether under an explicit order or by operation of s 71) to run concurrently with another sentence that has already been served in full-time custody.
Such an outcome could of course be avoided if the breach of good behaviour order is dealt with by re-sentence, which could take account of time already served on the supposedly concurrent sentence, but it is by no means clear that this result would follow if the suspended sentence were simply imposed on breach, or that a judicial officer dealing with the matter by re-sentence would be obliged to give credit for time already served on a “concurrent” sentence.
Furthermore, the fact that there might be methods of ameliorating the impact of such a sentencing approach does not in my view justify misleading offenders about the actual impact of the sentences that are imposed. If an offender is to serve in full-time custody a sentence that is concurrent or partly concurrent with other sentences, I cannot see why the offender should not immediately be given the benefit of real concurrency, in the sense that he or she should actually be serving so much of those other sentences as are concurrent with the sentence specified to be served in custody. If the sentencer considers that the offender should not receive the benefit of real concurrency, then the sentences should be explicitly accumulated.
| I certify that the preceding forty-five [45] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: K Duval-Stewart Date: 14 July 2015 |
7
1