Ferguson v Tasmania
[2011] TASSC 51
•20 September 2011
[2011] TASSC 51
COURT: SUPREME COURT OF TASMANIA
CITATION: Ferguson v Tasmania [2011] TASSC 51
PARTIES: FERGUSON, Peta Lynne
v
STATE OF TASMANIA
FILE NO/S: 282/2011
DELIVERED ON: 20 September 2011
DELIVERED AT: Hobart
HEARING DATES: 15, 19, 24, 26 August 2011
JUDGMENT OF: Wood J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – The hearing – Matters relating to decision – Duty to state reasons for sentence – Factual basis for sentence not clear – Facts of offending not stated by prosecutor in open court in presence of accused.
Trueman v Tasmania [2009] TASSC 9, referred to.
R v Causby [1984] Tas R 54, referred to.
Aust Dig Magistrates [128]
Magistrates – Appeal from and control over magistrates – Tasmania – Motion to review – The hearing – Generally – Review of sentence – Cancellation of drug treatment order – Order that seven months' imprisonment be activated – Whether sentence manifestly excessive – Extent of compliance with drug treatment and supervision – Proportionality of penalty.
Sentencing Act 1997 (Tas), ss27B, 27C, 27F, 27G, 27K, 27N, 27Q.
Aust Dig Magistrates [272].
REPRESENTATION:
Counsel:
Applicant (15/8/11) : In Person
Applicant (19, 24, 26/8/11): P Morgan
Respondent: S Nicholson
Solicitors:
Applicant: (15/8/11) In Person
Applicant (19, 24, 26/8/11): Legal Aid Commission of Tasmania
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 51
Number of paragraphs: 71
Serial No 51/2011
File No 282/2011
PETA LYNNE FERGUSON v STATE OF TASMANIA
REASONS FOR JUDGMENT WOOD J
20 September 2011
These are reasons for orders made on 19 and 26 August 2011 upholding a notice to review, quashing a sentence of seven months' imprisonment and re-sentencing the applicant.
Ms Ferguson applied to review two sentencing orders made by Magistrate C P Webster relating to numerous offences on 23 complaints, mostly involving shop-lifting. In relation to 21 complaints, the magistrate imposed a sentence of seven months' imprisonment, after cancelling a drug treatment order previously made in relation to those complaints. The learned magistrate imposed an additional period of one month imprisonment in relation to two further complaints of stealing. It was ordered that the period of one month imprisonment be served as a cumulative sentence. The total period of eight months' imprisonment is subject to review.
The sentence
The learned magistrate made the two sentencing orders under review on 14 April 2011. The sentencing order of seven months relating to the multiple offences on 21 complaints was made after cancellation of a drug treatment order pursuant to the Sentencing Act 1997 ("the Act"), s27Q. The drug treatment order contained a treatment and supervision part and a custodial component as required by the Act. The custodial component was nine months' imprisonment. The magistrate exercised his discretion under the Act and activated some of the custodial component of the order by requiring the applicant to serve seven months' imprisonment.
The other sentencing order involved the imposition of a further period of imprisonment being one month in relation to two complaints requiring that that period was to be served cumulatively. These two complaints relate to offending that occurred while the applicant was subject to the drug treatment program and are referred to as the new complaints.
The drug treatment order had been imposed by the same magistrate on 21 June 2010. The Act provides that the custodial component, in this case nine months, must represent the sentence of imprisonment that would then have been imposed were it not for making the order: s27F. If a cancellation order is made, then the magistrate must activate some or all of the custodial part of the order, or cancel the custodial part of the order, or re-sentence the offender: s27Q(2).
The grounds of review
The applicant seeks the review of the sentencing orders on two grounds: first, that the total period of eight months' imprisonment was manifestly excessive and, second, that the magistrate erred in law by failing to give sufficient reasons regarding the sentence of seven months' imprisonment.
In relation to the first ground of review, that the period of imprisonment was manifestly excessive, it is not submitted that the drug treatment order should not have been cancelled. Rather, it is submitted that the period of seven months' imprisonment ordered to be served is excessive and that a much shorter period should have been imposed. This ground of the notice to review invites consideration of the discount of two months in commuting the sentence from nine months to seven months, bearing in mind various mitigating considerations and, more broadly, consideration of whether a period of seven months' imprisonment is excessive.
The submissions did not dwell on the period of one month imprisonment imposed in relation to the new complaints. Rather, the submissions were that the total period of eight months was an excessive punishment.
In relation to the second ground of appeal, it is argued for the applicant that insufficient reasons were provided for the length of the gaol term of seven months. This aspect of the review draws attention to the reasons given for the length of the custodial component of the drug treatment order being nine months' imprisonment. The magistrate's reasons when the drug treatment order was first made assume significance. It will be seen that the magistrate's reasons given for the imposition of the seven month term presupposed that the rationale for the original sentence of nine months' imprisonment had been provided when the drug treatment order was imposed. As a result, the magistrate's focus on the later date was on the extent of any discount that may have been appropriate, given all that had occurred in the meantime. As might be expected, by the time of cancellation the question had become, what proportion of the original sentence should be served?
Against this background, it is accepted by the State that in considering ground two and scrutinising the magistrate's reasons for the sentence of seven months, it is proper for me to have regard to the reasons given by the magistrate when imposing the drug treatment order in the first place. It is accepted that the reasons given at that earlier time are captured by the notice to review. Furthermore, it is accepted that if insufficient reasons have been provided for the sentence of seven months, taking into account what was said when the drug treatment order was first made and the custodial component of nine months was imposed, and subsequently, when commuted to seven months, then this ground should succeed.
This state of affairs and the significance of the reasons when the order was first made are reflected in the terms of ground two that "the learned magistrate erred in law in failing to provide sufficient reasons for the custodial part of the drug treatment order of nine months' imprisonment of which seven months was activated."
This ground does not concern the sentence of one month imprisonment imposed in relation to the two new complaints.
Nature of offender
At the time of sentencing the applicant was aged 29 years. She had used various illicit substances since she was approximately 15 years old. The applicant's drug addiction was a prominent factor in her offending. Her offending occurred while she was under the influence of drugs, to obtain money for drugs, or as an aspect of her dysfunctional lifestyle resulting from drug-taking. She is the mother of four children who have all been placed in State care. The applicant has extensive prior convictions for relevant offences, particularly offences of dishonesty of a similar kind to those which are now under review. Relevant prior convictions are set out below.
Applicant's prior convictions
Between December 1994 and March 1998 the applicant had a number of matters dealt with in the Children's Court for which she mainly received probation orders. These included offences of assault, assault a police officer, motor vehicle stealing and stealing.
Between July 1998 and May 2006, the applicant was sentenced in the Magistrates Court with regard to various offences including charges of assaulting a police officer, assault, disorderly conduct, possession of stolen property, burglary, stealing and various driving offences. During this period the applicant was, for the most part, given fines, probation orders and undertakings of good behaviour. She received one sentence of imprisonment for 14 days that was wholly suspended.
Subsequently, the applicant appeared in the Magistrates Court on four occasions when she was sentenced for a large number of matters.
6 March 2007
The applicant was sentenced to a global sentence of four months' imprisonment commencing 5 February 2007. Two months were suspended on conditions that she be of good behaviour and commit no further offences of dishonesty for 36 months. The conduct spanned between 27 January 2003 and 3 December 2006 and involved:
· eight counts of stealing with items valued between $5 and $273,
· two counts of attempt to obtain goods by false pretences with goods valued at $150 – $200 and $500,
· two counts of forgery,
· two counts of uttering,
· obtain goods by false pretence with a value of $3,150.00, and
· six driving offences, including driving with alcohol in her body.
On the same date the applicant was sentenced to six weeks' imprisonment to be served concurrently for five counts of failing to appear and three counts of breach of bail.
8 February 2008
The applicant was sentenced to a global sentence of six months' imprisonment commencing 8 February 2008. This term of imprisonment was wholly suspended on conditions that she be of good behaviour and commit no offences of dishonesty for two years. The sentence, in part, related to breach proceedings arising from the abovementioned sentence imposed on 6 March 2007. The sentence also related to new offences committed between 23 January 2007 and 22 July 2007 involving:
· eleven counts of stealing with items valued between $15 and $510,
· receiving stolen property to the value of $1,
· breach of bail requirements,
· seven counts of obtaining goods by false pretences with goods valued between $68.55 and $154.30, and
· dishonestly acquiring a financial advantage.
9 May 2008
The applicant received a global sentence of three months' imprisonment, commencing 29 April 2008, for:
· four counts of obtaining goods by false pretences with the goods valued at $22.30, $444.50, $362.50 and $27,
· receiving stolen property with a value of $5, and
· forgery.
On the same date the applicant was given a fine of $100 and ordered to pay costs of $30 for:
· four counts of stealing with items valued at $20, $101.44, $40 and $159.95,
· burglary,
· breach of bail requirements, and
· breach of bail conditions.
7 May 2009
The applicant was fined $300 and ordered to pay costs of $30 for three charges of stealing involving property valued at $100 or less.
It can be seen from her prior convictions that largely she had received the benefit of sentences falling short of actual imprisonment. She had served a period of two months' imprisonment in March 2007 and a period of three months' imprisonment in April 2008 for offences of a similar kind to those now before the Court.
Nature of offending
For reasons that I will go into later, there has been uncertainty regarding the facts presented to the sentencing magistrate by the prosecution with regard to the 21 complaints that attracted the drug treatment order. It has been agreed that for the purposes of determining the notice to review, the facts provided to the magistrate are as follows:
5158/09 13/02/09 Unlawful Control of Property 6 items of clothing reasonably believed to be stolen total value $279.86 6365/09 24/05/09 Trespass 24 May, 2009 entered Coles Supermarket, New Town when subject to a "prohibition notice" Unlawful Possession of Property Possession of confectionary items value $41.90 9811/09 02/06/09 Stealing Stole meat worth $60 from Coles Supermarket 8082/09 17//06/09 Stealing Stole clothing worth $77 property of Kmart, Eastlands 91628/09 19/06/09 Common Assault Assaulted employee of Target by pushing her with both arms striking her chin with her hand 8220/09 20/06/09 Stealing Stole toiletry items and make-up worth $170.53 from Priceline 20/06/09 Stealing Stole food and towels worth $58.40 from Woolworths 9967/09 30/06/09 Stealing Stole underwear value $54 the property of Myer 91859/09 02/07/09 Stealing Stole women's clothing total value $79.97 the property of Best and Less 02/07/09 Common Assault Assaulted employee of Best and Less by punching him to the head during apprehension for shop-lifting. One punch struck him to the head and two or three glanced off side of his head 02/07/09 Trespass Entering Northgate shopping centre when subject to a "prohibition notice" 8650/09 02/07/09 Stealing Duplicate of count of stealing on complaint 91859/09
9773/09 16/07/09 Trespass Entered Target when subject to a "prohibition notice" 17/07/09 Trespass Entered Target when subject to a "prohibition notice" 9772/09 16/07/09 Stealing Stole clothing worth $150 from Target 17/07/09 Stealing Stole underwear worth $91.96 from Target 9810/09 23/07/09 Stealing Stole bottle of bourbon value $27.99 property of BWS 9300/09 26/07/09 Stealing Stole two barbeque chickens worth $24 property of Woolworths. Applicant's explanation to police that she had no money and she was hungry 9812/09 19/08/09 Trespass Entered Target in contravention of a notice 19/08/09 Stealing Stole a jumper valued at $39.95 9813/09 20/05/09 Stealing Stole 62 cosmetic items valued at $1150 property of Woolworths 10/09/09 Stealing Stole 32 greeting cards valued at $179 property of Akashic Bookshop 90029/10 18/11/09 Trespass Entering Coles supermarket in Sandy bay when banned from all Coles stores in Australia 18/11/09 Stealing Stealing air fresheners total value of $17.58 613/10 30/11/09 Trespass Entered Woolworths Glenorchy when subject to a "prohibition notice" banning her from all Woolworths stores in Tasmania 30/11/09 Stealing Stole 2 x leg hams worth $96 1068/10 06/12/09 Stealing Stole clothes from Valleygirl worth $49.95 06/12/09 Stealing Stole a car decoration value $12 from Bracelet DIY 06/12/09 Stealing Stole track pants valued at $15 from Pedestrian Clothing 1067/09 06/12/09 Stealing Stole meat worth $143 from Woolworths 06/12/09 Stealing Stole meat worth $56.85 from Coles 13925/09 29/12/09 Trespass Entered while banned from Woolworth's stores 13924/09 29/12/09 Stealing Stole steak worth $32
The above charges span approximately 11 months, involve a total of 33 offences and 19 incidents of offending, and a total value of property of $2,906.94. The two assaults were unplanned and can be characterised as being in the nature of a strenuous resistance to her apprehension for stealing. There is no suggestion they resulted in any injury to the complainants.
The two additional complaints that the applicant pleaded guilty to on 7 April 2011 and which attracted one month imprisonment were:
7621/10 11/06/10 Stealing Theft of hair products, razors and lollies value $71.46 property Chemist Warehouse 13528/10 04/09/10 Stealing Theft of 11 DVD discs value of $368.70 belonging to Video City. As previously noted, these two offences were committed while the applicant was on the drug treatment program.
It is convenient to deal first with the ground of appeal regarding the magistrate's reasons.
Ground 2: Were sufficient reasons provided for the sentence of seven months' imprisonments?
A consideration of the reasons for the sentence of seven months' imprisonment requires consideration of two dates – 21 June 2010 when the original drug treatment order was imposed and 14 April 2011 when the order was cancelled (or more correctly, the treatment and supervision part of the order was cancelled: s27Q(1)). It should be noted that on 21 June 2010 the magistrate was sentencing the applicant for other offences that are not the subject of this notice to review and which did not attract a drug treatment order, involving driving offences and a breach of suspended sentence. It should also be noted that by that date, the applicant had been on bail for some months subject to a requirement that she comply with the drug treatment program as a test of her attitude to drug rehabilitation. His Honour had the benefit of progress reports from court mandated diversion program case managers or officers. I will return to consider the content of these reports later.
The magistrate noted the following matters relevant to sentence with regard to all matters:
"Obviously I've read your court mandated drug program reports and you've been on a drug program, category 1, since 2009 and I've had the benefit of reading all those reports and seeing your progress. You're aged twenty nine. Your long criminal history lowlights, or highlights, on the 6th May 2007 convicted of stealing, forgery and other acts of dishonesty, four months imprisonment, two months suspended. 8th February 2008, stealing, six months wholly suspended. 9th May 2008, stealing, three months imprisonment. As I said, I'll deal with the easy ones first."
After proceeding to impose sentence for the driving offences and breach of suspended sentence, the magistrate stated:
"Now I'll deal with the matters – all the other matters. I'd better mention them just so there's no misunderstanding, 613/2010, 1067/2010, 1068/2010, 5158/2009, 6365/2009, 8082/2009, 8220/2009, 8650/2009, 9300/2009, 9772/2009, 9773/2009, 9810/2009, 9811/2009, 9812/2009, 9813/2009, 9967/2009, 13924/2009, 13925/2009, 900229 – that doesn't – that sounds too many, perhaps it's – that's a trespass and stealing matter – and 91628/2009 and 91859/2009. I'm going to deal with that – give you – deal with that and place you into category 3 of the court mandated drug program, but – well you can sit down now. What's going to happen is I've got to go through a whole list of matters."
The magistrate then moved on to deal with the statutory criteria for the imposition of a drug treatment order pursuant to the Act, s27B. Having done so, the magistrate concluded that he was satisfied that, in all the circumstances, it was appropriate to make a drug treatment order. The drug treatment order was then made in accordance with the Act and the custodial component of nine months' imprisonment was imposed, not required to be served unless ordered to do so.
It can be seen that the magistrate's reasons for imposing the custodial period of nine months are very brief and touch on the applicant's age, prior convictions and her response to the drug treatment program while on bail. It seems obvious that a gaol sentence was considered by the magistrate to be appropriate and warranted, but what of a sentence of imprisonment for a period of nine months, albeit effectively suspended? The magistrate does not explain why such a lengthy period is appropriate. The magistrate stated that 21 complaints were involved and made a very brief reference to the nature of the offending. The magistrate noted the nature of offending involved dishonesty, basically shoplifting and one assault following. Perhaps as a result of dealing with the matters in such a generalised fashion, the magistrate overlooked that there were in fact two assaults and not one as mentioned.
The magistrate also noted the applicant's long criminal history and the recently imposed terms of imprisonment. While the prior convictions are relevant in determining the sentence to be imposed, there are limits to the weight that may be given to her record. The penalty must be proportionate to the gravity of the offending: Veen v R (No 2) (1988) 164 CLR 465. As noted, the remarks about the nature of the offending are very limited.
When the drug treatment order was cancelled on 14 June 2010, nothing was said by the magistrate to justify, in retrospect, the length of the term of imprisonment of nine months. The comments made by the magistrate related to matters relevant to the reduction of that sentence such as time spent in custody and "sanctions". In imposing sentence the magistrate described the applicant's performance on the program as "bad" and then noted her co-operation with the scheme and that "it wasn't good but you're still entitled to some credit for that".
I turn to consider the legal requirements for reasons when sentencing. Sentencing judges or magistrates are under a general obligation to give reasons for their sentences, and a failure to give reasons may amount to an appealable error: Trueman v Tasmania [2009] TASSC 9. The rationale for the obligation to give reasons for sentences is the same as for the obligation to give reasons for other decisions. It is a manifestation of the fundamental principle of the common law that justice must not only be done but must manifestly be seen to be done: R v Thomson (2000) 49 NSWLR 383, per Spigelman CJ, at 394; Trueman v Tasmania, per Crawford CJ, at par[32].
In cases involving a substantial custodial sentence, even if it is conditionally imposed, an accused person has a "natural right to know the reasons for imprisoning him, not only as an assurance that he has been fairly dealt with, but to enable him or his legal advisers to determine whether he has good grounds for appeal" (Tame v Fingleton (1974) 8 SASR 307; Cross v Police [2001] SASC 47, per Olsson J, at pars[24] and [30]).
In Trueman v Tasmania Crawford CJ at par[33] made the point that there are limits to what is required in terms of reasons and they should not be treated as reasons for judgment. In cases involving a "routine penalty for a routine offence" lengthy reasons are not required: Cross v Police (above) at par[33], per Olsson J and Harrison v Taws [2009] TASSC 33, per Crawford CJ, at par[32].
As for the extent to which the reasons for sentence need to traverse the factual basis for the sentence Crawford CJ at par[19] in McDonald v Nilsson [2009] TASSC 85 stated that "the factual basis for the sentence should be clear, or made clear, and relevant matters known or made known, but subject to those issues, the sentencing officer may be able to say little more than state the sentence that he or she thinks appropriate for the case." The overriding consideration is that what is required will depend on the circumstances of each case.
The circumstances of the case
In this case there is a key aspect of the circumstances relevant to an assessment of the sufficiency of the magistrate's reasons. The facts of the offending were not read out by the prosecutor during the court proceedings once the pleas of guilty were indicated (the charges were not formally read), or indeed, at any stage. By contrast, the facts were stated by the prosecutor in relation to the two new complaints.
It can be gleaned from the transcript that the magistrate had reference to a written set of 'facts' with regard to each complaint, and that he had been provided with those before the pleas of guilty were indicated. It is not evident from the transcript or the record of proceedings on the court files when they were provided to the magistrate. It does not appear that that the prosecutor handed those facts to the magistrate during court proceedings. Indeed, the transcript reveals that defence counsel, at one stage, expressed uncertainty as to whether the magistrate had the facts and enquired of the magistrate whether he had them. I note that even if the facts were handed to the magistrate at some stage of the court proceedings, this occurred in such a way that there was not an obvious opportunity for the defence to take issue with those facts.
The approach taken in this case is contrary to the long-standing practice adopted by magistrates in this State that once pleas of guilty are entered the prosecutor reads the facts aloud in court. These "facts for the prosecutor", as they are often referred to, are the facts regarding the offending that the prosecutor relies upon for the purpose of sentencing. This practice is one that is adopted by magistrates regardless of pressure on the court lists. It is a matter of affording the accused justice. The proper method of presenting material to the court on a plea of guilty was discussed by Green CJ in R v Causby [1984] Tas R 54 at 61, with whom Neasey J and Cox J (as he then was) agreed. These observations have application to the presentation of factual material in the magistrates courts as well as the Supreme Court. Green CJ made reference to "the fundamental" that "save for statutory exceptions a judge may only act upon materials which have been properly presented to him in open court in the presence of the accused".
I would add that the experience of courts is that the practice of the prosecutor stating the facts in narrative form in open court serves to alert counsel and the defendants to errors and matters in dispute. If this is not done, there is a real risk of errors and facts in dispute not being detected. In this case, the applicant has identified during the hearing of the notice to review, a significant error in one of those sets of facts. It is asserted that she was on parole at the time of offending when she was not. That was not drawn to the magistrate's attention by defence counsel. Further, one of the complaints is a duplicate charge, and ought, for this reason to have been dismissed. That was not done by the magistrate, presumably because it was not detected.
Another risk that eventuated in this case is the lack of certainty about the material read by the magistrate. The "facts for the prosecutor" documents read by the magistrate are not on the court files. A copy of the facts have been retrieved by counsel for the respondent from the relevant prosecution files, but there has been difficulty experienced in these review proceedings in ascertaining whether they are in fact the copies of the documents provided to the magistrate.
It is beyond the scope of this review to comprehensively assess the approach adopted by the prosecution in this case in not stating the facts during court proceedings and the various ways that such an approach may taint the proceedings or potentially infect the sentence with error. However, for the purpose of this review, it is a telling consideration when assessing the sufficiency of the magistrate's reasons. It bears on whether justice was not only done but seen to be done. This is not a typical case of facts being stated by the prosecutor during court proceedings, followed by a plea in mitigation and then a sentence with a factual basis that is evident from the unchallenged statement of facts and plea in mitigation.
Given the approach taken, the factual basis for the sentencing order was a mystery and only the magistrate and the person who provided the facts to the magistrate knew, with certainty, the facts that were taken into account by the magistrate in sentencing. Having taken this unusual approach (and an approach which may be undesirable for other reasons which I have not explored) it was necessary, for the appearance of justice, for the magistrate to reveal the factual basis for sentencing in his comments and to thereby reveal that the applicant was being fairly dealt with.
As a final relevant consideration in assessing the need for reasons in this case, it is to be noted that there were 21 complaints that covered a range of conduct that involved varying degrees of culpability. It ranged from the theft of two barbeque chickens committed because the applicant was hungry, to stealing over $1000 worth of items in the category of "greed" rather than "need". The offending included other conduct, such as unlawful possession of property and two incidents of assault. Having regard to the observations made above, the assaults are not serious examples of violence. However, the applicant's offending overall warranted a penalty that would be effective as a deterrent. The applicant's prior convictions demonstrated a propensity for such acts of violence as well a substantial history of dishonest offending.
A sentence of nine months' imprisonment was a long gaol term that required justification. It is not self evident that by reference only to the number of instances of repeated shop-lifting and a broad view of the other offending without regard to the details, that such a sentence was warranted. The magistrate was not imposing a "routine penalty for a routine offence".
Given the circumstances of this case, notably, that the facts regarding the offending were not stated in open court, there was a failure to give sufficient reasons which amounted to a clear error in law. This ground of appeal succeeds.
Ground 1: Was eight months' imprisonment manifestly excessive?
The sentences imposed by the magistrate totalling eight months' imprisonment related to a large number of incidents of stealing and other related offences. The incidents involved persistent and regular offending committed over some 11 months in 2009 and also, two further incidents of offending in June and September 2010. Her prior convictions revealed a lengthy history of similar offending and that suspended sentences previously imposed by the courts had not proved to be a deterrent. The learned magistrate was entirely justified in taking the view that an actual gaol sentence was required.
At the time of sentencing in April 2011 the magistrate had before him a report from a court diversion officer dated 16 February 2011, recommending cancellation of the drug treatment order. The application to cancel was not opposed. The applicant's commitment and engagement with the drug treatment program under the order (also known as the CMD, or court mandated diversion, program) during the recent review period was described as "extremely poor and unsustainable". She had missed appointments and avoided urinalysis. She had tested positive for amphetamines/methamphetamines and THC from tests on 28 January and 2 February 2011. It was further noted in the report:
"CMD does not believe that Ms Ferguson is ready to address her drug use and has been pre-contemplative throughout the program. There was a brief period following serving sanctions that Ms Ferguson engaged. Even during this time, however, she took very little responsibility and showed no insight into her behaviours of substance abuse."
The magistrate also had before him when sentencing a significant number of progress reports provided by the applicant's case manager of the court mandated diversion program. These reports had been prepared for court attendances overseeing the applicant's progress on the program (see the Act, s27I(1)), most of them before the sentencing magistrate. An earlier report of 31 January 2011 noted the applicant's commitment to the CMD program had been extremely poor. Another report prepared in January described her engagement with CMD as "poor". Much more positive reports were provided to the court in October and November 2010. She was described as "trying hard to do well on the program" and that "she had engaged well in her case management appointments". It was also stated that she had participated well in counselling.
As noted, there is no issue raised in this review about the cancellation of the drug treatment order and the imposition of a period of imprisonment. The question here is whether seven months adequately reflected the mitigating factors and whether it was manifestly excessive. The sentence needed to reflect the fact that the drug treatment order in itself, involved a punishment which had been served by the applicant.
A relevant consideration is the legislative framework regarding drug treatment orders. The purpose of such orders is set out in s27C:
"27C Purpose of drug treatment order
A drug treatment order is a sentencing order that aims to do one or more of the following in respect of an offender with a demonstrable history of illicit drug use:
(a) provide an alternative sanction to imprisonment;
(b)through an integrated, supervised and reviewable treatment regime, facilitate the offender's rehabilitation and reintegration into the community;
(c) reduce the incentive for the offender to resort to criminal activity;
(d) reduce risks to the offender's health and well-being."
While the purpose of a drug treatment order is to rehabilitate the offender, it is nonetheless a sanction. It is evident from the scheme of the Act that, as a sanction, it is not a "soft option". The standard conditions of orders impose onerous requirements on offenders (core conditions of orders are set out in the Act, s27G. If the order is not proving to be effective or the offender is unwilling to comply with conditions the order may be cancelled and the offender faces the prospect of serving the custodial component of the sentence: s27Q(2). Furthermore, contravention of any conditions of a drug treatment order requires court action, and offenders face serving periods of time in prison involving the activation of some of the custodial component of their sentence known as 'sanctions'. Consequences of non-compliance range from merely confirming the treatment and supervision part of the order to an order that the custodial part of the drug treatment order is to be activated for not less than one day and not more than seven days to be served in prison. By virtue of the Act these days are held in abeyance and are not required to be served until the custodial periods activated under such orders exceed 13 days (the Act, s27N). If an order is made requiring a person to serve an activated part of the custodial period, the custodial part of the sentence must be reduced to reflect the part served.
The Act provides that when cancelling the treatment and supervision part of the order the court is required to take into account the extent of the offender's compliance with that part of the order, s27Q(2). It is evident from the magistrate's reasons that in making an order activating part of the custodial component of the sentence, he was aware of his obligation in this regard. His Honour noted that the applicant's co-operation with the program "wasn't good but you're still entitled to some credit for that". I turn to consider in some detail the applicant's level of compliance with treatment and supervision under the order and the information before the magistrate in this regard.
In this case, treatment and supervision under the applicant's drug treatment order not only addressed her drug-taking but also other areas relevant to her risk of re-offending. Consequently, the applicant's case management plan identified not only substance abuse but also vocational training and family/parenting relationships as areas to be addressed under the order.
I set out in brief some matters regarding the history of the applicant's response to the drug treatment program that were before the magistrate when sentencing. In November 2009 the applicant's counsel indicated pleas of guilty were to be entered and the magistrate sought a report as to the applicant's suitability for a drug treatment order and adjourned the proceedings for the purpose of assessment. The court received a Drug Treatment Assessment Report dated 2 December 2009 stating that the applicant was assessed as being suitable for the "CMD program" but suggesting that the applicant be given a period of "bail diversion" to ascertain her ability to comply with any future drug treatment order. On the basis of that report the magistrate admitted the applicant to bail on 11 December 2009 and bail conditions required the applicant to submit to urinalysis as required by the case manager, to comply with all reasonable directions of a court diversion officer or case manager, and comply with the conditions of the Individual Management Plan. The purpose of this order was evidently to test her compliance with the drug treatment program before the magistrate gave consideration to formalising her participation in the program under a drug treatment order.
The bail order was made in December 2009 and was in place until 21 June 2010 when the drug treatment order was made. Before making that order the court received a positive assessment report about the applicant's progress while subject to those bail conditions.
After the drug treatment order was made in June 2010 there was a two month period when the applicant's drug screen tests were positive for the presence of cannabis but she made good progress in other areas. She engaged in a full time training program and also worked as a cleaner. After that period she then relapsed and served 14 days in prison as sanctions. Before her relapse and afterwards she was described as doing "extremely well" on the program.
During the bail order and drug treatment order the applicant was, generally speaking, compliant with case management appointments and other appointments made with respect to the program. On two occasions in November and December 2010 it was recommended she receive "reward days" (s27K) as a consequence of her efforts in engaging well on the program. She attended court on a regular basis and despite relapses and problems that arose from time to time, recommendations were made to the magistrate that she continue on the program. These recommendations continued to be made until a further relapse in January 2011. As previously noted in a report dated 16 February 2011 it was recommended by a court diversion officer that the order be cancelled.
While the applicant did not graduate from the program, and ultimately her attitude to drug rehabilitation proved to be entirely inadequate, there were other matters to consider relevant to the Act, s27Q(2). She had, at various stages, been compliant with treatment and directions regarding drug use. Also, she had been co-operative with directions to attend court and also appointments with her case manager and others for the purpose of review and counselling. Further, she had demonstrated a substantial level of compliance with supervision regarding areas such as vocational training.
Matters relevant to the applicant's compliance with the order and mitigating matters in general are as follows:
· The applicant had served 14 days in prison during the course of the drug treatment program as sanctions imposed by the court when reviewing her progress.
· The applicant had been subject to treatment and supervision (including her participation on the program when on bail) for a continuous period of approximately 14 months with respect to the matters for sentence.
· The applicant had attended court for review of her progress by a magistrate at regular intervals. On some of those occasions she faced the prospect of a period of time in custody as a sanction for non-compliance. Nonetheless, reports provided to the court on a regular basis recommended her continuation on the program until a report of February 2011.
· The applicant had been closely supervised while on the program. She had attended case management interviews on a regular basis, approximately once per week, and was required to attend programs, as directed and appointments with counsellors. There were at least 47 dates when the applicant attended appointments with CMD Services. On a significant number of these dates she had more than one appointment and on some dates up to three appointments.
· The applicant had made some gains during the program. It was reported that there were times when she tried hard and made efforts to engage. She had some success in dealing with her drug problem. She had had a significant morphine and amphetamine addiction, and at times during the program, the only substance detected in her system was a quantity of cannabis, described as a "residual" level indicating no ingestion of the drug since the previous test.
· She had completed the Getting Smart program which is a drug and alcohol addiction program of 12 sessions.
· The applicant had achieved vocational certificates: Certificate 2 in Asset Maintenance (cleaning operations), 150 hours of training, and a First Aid certificate while on the program.
· The applicant had obtained full time work while on the program and indeed, it was the first time she had worked full time.
· The applicant has suffered a number of tragic events in the time that she was on the drug treatment program. Her father passed away in early 2010. In approximately June 2010 her grandmother passed away. On Christmas Eve of 2010, a very close friend died from an overdose. Several weeks before being sentenced in April 2011, the father of her two eldest children died in very tragic circumstances. Being in custody at that time and not able to provide support to her children in those circumstances proved to be a significant burden to her. These events also undermined, to some extent, her prospects of successfully completing the program.
· At the time of sentencing the applicant still maintained a desire to address her drug addiction.
· While the order was in place there was a reduction in her rate of offending.
Another consideration in assessing the sentence of seven months, relates to the fact that the sentence was backdated to the 25 March 2011, when the defendant had been remanded in custody on Supreme Court matters. Noting the authority of Geale v Tasmania [2009] TASSC 28, per Evans J at par[63], that order was appropriate; in such circumstances the offender should be allowed the benefit of the pre-sentence time in custody on other matters and the sentence backdated to the date the offender had been remanded in custody on other matters. When assessing the length of the sentence it is relevant that backdating the sentence was not a special leniency afforded to the applicant.
The submissions at the hearing of the motion to review focussed on the extent to which the magistrate discounted the sentence of nine months' imprisonment. These submissions presupposed that the original sentence of nine months was correct and it should be noted that I am not constrained by that view. Noting that there is not a specific ground of appeal addressing the discount allowed by the magistrate, the question for me is the more general one of whether the sentence of seven months is manifestly excessive having regard to all the circumstances, set out above, including the applicant's compliance with treatment and supervision under the order. The extent of the discount allowed by the magistrate is relevant in the context of the broad enquiry of whether the sentence was plainly excessive. It is apparent that having discounted the time spent in prison for sanctions, the magistrate allowed in effect a reduction in the sentence of a total of six weeks to reflect time spent subject to the drug treatment program and other mitigating factors of this case. In the circumstances of this case such a reduction is inadequate by both the time the defendant spent on the program and what was involved.
Given the nature of some of the offending, the instances of theft involving a modest value of property, particularly noting that some of the stealing offences related to essential items such as basic food, clothing and toiletries, the drug treatment order was in itself a substantive punishment. The fundamental principle, that penalties must be proportionate to the gravity of offending, applies to the task of sentencing with regard to the imposition and cancellation of drug treatment orders.
The question is whether the sentence of seven months' imprisonment is manifestly excessive. Having regard to the nature of the offending, the imposition of a drug treatment order and an intensive level of supervision for a lengthy period of time, the extent to which the applicant had complied with aspects of the treatment and supervision part of the order, the 14 days in prison already served as sanctions, and other matters in mitigation to which I referred, a sentence of seven months was clearly excessive to the point of error.
This ground of review is upheld in relation to that sentence.
I reach a different view in relation to the sentence of one month imprisonment imposed for the two new complaints for offences committed in June and September 2010 involving stealing a total of $500 worth of property. These complaints had not been the subject of the drug treatment order and the offences had in fact been committed while the applicant was engaged in the drug treatment program. I consider that the sentence was within the range of the magistrate's sentencing discretion.
Re-sentencing
Having reached the conclusion that both grounds of the notice to review should be upheld and having made an order on 19 August 2011 that the sentence of seven months be quashed, the applicant was to be re-sentenced. Having resolved questions regarding the factual material before the magistrate, the matter was relisted on 26 August 2011 for that purpose.
The weight to be given to the mitigating considerations bearing upon the exercise of my sentencing discretion is a matter upon which I expect minds may differ. In my view a lengthy sentence of imprisonment was not required, principally because the sanction of a drug treatment order for the course of offending, in this case, has already proved to be a substantive penalty. A deterrent penalty was no doubt needed, but it was more due to the repetitive and persistent quality of the applicant's offending and less to the inherent seriousness of each individual offence. An intense rehabilitation order had fulfilled to a significant extent the need for a proportionate penalty in the particular circumstances of this case. Of course, the weight to be given to compliance with a drug treatment order is a matter that will depend on the facts of each case. I concluded that a period of three months imprisonment was appropriate.
The sentencing orders made on 26 August 2011 were as follows: that complaint 8650/09 be dismissed as it is a duplicate of count one on 91859/09 and the applicant be sentenced to three months' imprisonment backdated to 25 March 2011. The term of one month imprisonment imposed by the magistrate in relation to the two new complaints was cumulative to that term, resulting in a period of four months' imprisonment.
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