Fleet v Leeson
[2021] ACTSC 153
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Fleet v Leeson |
Citation: | [2021] ACTSC 153 |
Hearing Date: | 20 July 2021 |
DecisionDate: | 28 July 2021 |
Before: | Burns J |
Decision: | See [35] |
Catchwords: | APPEAL – MAGISTRATES COURT APPEAL – Appeal against sentence – whether individual and aggregate sentences manifestly excessive – whether magistrate failed to take into account principle of totality – whether reasons given by magistrate inadequate – where Magistrate did not refer to any reports tendered regarding the appellant’s subjective circumstances – whether sentence given “ex tempore” – re-sentencing – lengthy criminal history – appellant made attempts to improve response to supervision and address factors likely to lead to re-offending – guarded prospects for rehabilitation |
Parties: | Eliott John Fleet ( Appellant) Dean Leeson ( Respondent) |
Representation: | Counsel E Chen ( Appellant) C Mutharaja ( Respondent) |
| Solicitors ACT Legal Aid ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 16 of 2021 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 23 April 2021 Case Title: Leeson v Fleet Court File Numbers: CC2020/2051 |
BURNS J:
On 23 April 2021, a Magistrate sentenced the appellant Eliott John Fleet to terms of imprisonment as follows:
· on charge CC 2020/2051, a charge of driving whilst disqualified on 7 February 2020, a sentence of three months’ imprisonment, commencing 7 December 2020 and expiring 6 March 2021;
· on charge CC 2020/2052, a charge of minor theft on 7 February 2020, a sentence of one month’s imprisonment, commencing 7 March 2021 and expiring 6 April 2021;
· on charge CC 2020/10257, a charge of assault occasioning actual bodily harm on 19 August 2020 a sentence of three months’ imprisonment, commencing 7 April 2021 and expiring 6 July 2021;
· on charge CC 2021/2578, a charge of attempting to escape custody on 7 January 2021, a sentence of six months’ imprisonment, commencing 7 July 2021 and expiring 6 January 2022;
· on charge CC 2021/862, a charge of exposing a child to cannabis, fined $1,000;
· on charge CC 2021/1116, a charge of contempt of court, find $5,000;
· on charge CC 2021/1115, a charge of attempting to escape custody on 8 January 2021, a sentence of 15 months’ imprisonment, commencing 7 January 2022 and expiring 6 April 2023; and
· on charge CC 2021/1117, a charge of resisting a public official, a sentence of three months’ imprisonment, commencing 7 January 2022 and expiring on 6 April 2022.
The aggregate sentence imposed by the Magistrate was one of 28 months’ imprisonment, commencing 7 December 2020 and expiring 6 April 2023. The Magistrate set a non-parole period of 20 months commencing 7 December 2020 and expiring 6 August 2022.
The appellant has appealed from the orders made by the Magistrate on the following grounds:
· the sentence imposed on the charge of escaping custody on 7 January 2021, charge CC 2021/2578, is manifestly excessive;
· the sentence imposed on the charge of escaping custody on 8 January 2021, charge CC 2021/1115, is manifestly excessive;
· the aggregate sentence imposed by the Magistrate is manifestly excessive;
· the Magistrate failed to take into account the principle of totality; and
· the Magistrate failed to take into account the appellant’s subjective circumstances.
Facts
The offences upon which the appellant was sentenced by the Magistrate occurred on four separate dates. The offences on 7 February 2020 involved the appellant driving a motor vehicle into the underground car park of the Gungahlin Club. At that time, he was a disqualified driver. Whilst at the Club the appellant returned to the underground car park and removed bolt cutters from the back of his car and proceeded to steal a bicycle that was secured under the Club. The bike was subsequently located at the home of the appellant, and he made admissions to police of having stolen the bike.
On 19 August 2020, the appellant committed an offence of assault occasioning actual bodily harm. It involved him smacking the daughter of his partner and occasioning to her actual bodily harm. Photographs were tendered before the Magistrate revealing some bruising to the buttocks of the child. The victim was five years old at that time.
On 7 January 2021, the appellant committed the offence of attempting to escape from custody. On 6 January 2021, police attended the address of the appellant’s partner, and the appellant was observed to jump the rear fence of the residence. The following day, police returned and the appellant opened the front door to police. He was advised that he was under arrest and police took hold of his arms. He broke free and ran away. In doing so he caused one of the police officers to fall to the ground and suffer a bruise to her upper right arm. Police pursued the appellant for approximately 50 m on foot before apprehending him.
On 8 January 2021, the appellant was brought before the Court. During the proceeding before a Magistrate, he made an attempt to escape from the courtroom by turning and running towards the door. A number of Corrective Services officers and a police officer managed to stop him before he could leave the courtroom. The police officer suffered an injury to his leg, but the Magistrate who sentenced the appellant on 23 April 2021 did not take into account in sentencing the appellant for the offence of attempted escape the injury sustained by the police officer. That decision has not been the subject of challenge by the respondent.
The Magistrate’s reasons
The sentence hearing before the Magistrate took place on 25 March 2021. At the end of that hearing, the Magistrate adjourned the matter until 23 April 2021 to hand down sentence. On 23 April 2021, after briefly setting out the facts relating to the offences, the magistrate made the following findings relating to the objective seriousness of the offences:
· the offence of driving whilst disqualified was particularly contumacious, having occurred shortly after the disqualification was imposed;
· the minor theft offence was opportunistic;
· the assault occasioning actual bodily harm offence was serious, but the Magistrate accepted “that it was in the course of disciplining the child”;
· the attempt to escape custody on 7 January 2021 was serious;
· the actions of the appellant on 8 January 2021 were “particularly serious”, on the basis that his actions disrupted the court, demonstrated contempt for the court and impeded the administration of justice.
The Magistrate then noted that the appellant had entered pleas of guilty to all of the charges and stated “I have adjusted the penalties that I am to impose to take into account those pleas of guilty”.
The Magistrate went on to say that, considering the objective seriousness of the offences, periods of imprisonment were appropriate. His Honour stated that the driving whilst disqualified offence, although the appellant’s first offence of that nature, was committed so shortly after the disqualification was imposed that a period of imprisonment was appropriate. After referring to the appellant’s extensive criminal history, the Magistrate stated that the appellant could be afforded little leniency based upon his history.
With regard to the structure of the proposed sentences, the Magistrate said: “I have also considered the issues of totality. It seems to me that there are four discrete periods of offending here that need to be separately punished, and the penalties for each of those sets of offences should accumulate upon each other”.
The Magistrate then proceeded to hand down sentence.
Consideration
I have reached the conclusion that this appeal must succeed with regard to the ground alleging that the Magistrate failed to take into account the appellant’s subjective circumstances. The ground could have been expressed differently to the effect that the reasons given by the Magistrate were inadequate, but nothing turns upon this distinction. A considerable amount of material was placed before the Magistrate relating to the appellant subjective circumstances. This material included:
· his criminal history;
· a Court Duty Report dated 18 June 2020;
· an Intensive Correction Assessment Report dated 13 August 2020;
· an updated Intensive Correction Order Assessment Report dated 20 October 2020;
· a further updated Intensive Correction Order Assessment Report dated 27 January 2021;
· a Court Duty Report dated 17 March 2021;
· a Mental Health Brief Assessment Report dated 19 February 2021;
· a letter prepared by Jennifer Laing dated 10 June 2021;
· a letter from Catholic Care dated 17 June 2020;
· a letter from Karralika dated 17 June 2020;
· an email from Meg Steep dated 11 June 2020; and
· a letter from Directions dated 19 March 2021.
During the sentence hearing the appellant’s lawyers made submissions about the appellant’s subjective circumstances. They referred to the reports which had been tendered. Unfortunately, none of that material was referred to by the Magistrate in his Honour’s sentencing reasons. It is particularly unfortunate, because these documents contained important information.
The Court Duty Report dated 17 March 2021 states that in the past the appellant’s response to supervision has been unsatisfactory with multiple breach actions having been initiated for positive drug screen results. The Report refers to the appellant having been raised by his grandparents since he was three months old, predominantly due to his mother’s incarceration. It refers to his ongoing de facto relationship of four years. His partner’s mental health declined since the appellant was placed in custody, and she had temporarily lost custody of her children. The appellant gave a history of drug and alcohol abuse commencing in his early teens. He disclosed the history of trauma, anxiety and depression for which he was being treated. He acknowledged his offending.
The Mental Health Brief Assessment Report dated 19 February 2021 provided further information in relation to the appellant’s childhood. He engaged poorly at school and went no further than Year 8. He first came to the attention of ACT Mental Health Services at the age of 16 years in 2005 when he was admitted to the psychiatric unit as an inpatient for seven days following an impulsive suicide attempt in the context of amphetamine use. He had to brief situational crisis contacts within the Crisis Assessment and Treatment Team in 2007 in the context of interpersonal and anger management issues with his partner. The clinical record from that time notes a history of Attention Deficit Hyperactivity Disorder (ADHD), conduct disorder and self-harming behaviour in the context of emotional dysregulation. The Report notes that he has an established diagnosis of ADHD as an adult, but has not sought treatment for it. He has been resistant to treatment for depression because of unwanted side-effects. He had been treated with dexamphetamine as a child, but ceased treatment in adolescence of his own choice. In the absence of active treatment, the appellant reported ongoing issues with racing thoughts, difficulty concentrating, inability to focus on completing tasks, vivid imagination, rumination and poor sleep which was felt to be consistent with the diagnosis of ADHD. He claimed to have been abstinent from the use of methamphetamine for several years, but acknowledged heavy daily cannabis use. The author of the Report recommended that the appellant would benefit from re-engaging with appropriate ADHD treatment to manage his symptoms, and that he should continue to engage with drug and alcohol services to minimise the harm associated with his substance use.
The most recent updated Intensive Correction Order Assessment Report dated 27 January 2021 stated that during the period of the assessment the appellant engaged appropriately in supervision. He attended appointments as directed and linked with the Domestic Violence Crisis Service (DVCS) “Room4Change” program. There was a concern about potential drug use, but he was ultimately discharged from the program following his entry into custody on 8 January 2021. The Assessment Report noted that the appellant had focused on completing the required intervention at DVCS to allow him to resume his family relationships. The Assessment Report noted that the appellant had continued cannabis use, but had disclosed this use. The use of cannabis was verified in drug testing on 22 December 2020. His engagement with Directions for drug related support was limited. The Assessment Report acknowledged that the appellant’s engagement with supervision had been positive, but his return to custody had been a setback. Concern was expressed regarding his ability to comply with the core conditions of an Intensive Correction Order, in particular to remain abstinent from illicit drugs.
Jennifer Laing is the appellant’s aunt, although at the age of two years he came to live with her parents and subsequently grew up as Ms Laing’s brother. She refers to the appellant having “endured events you would not wish on any child” and that these events have impacted his life. Whilst many of the appellant’s decisions have been questionable, she believes that for the first time in his life he is starting to think before he acts and consider the consequences of his actions. Ms Laing refers to the appellant’s strong connections to his partner and their children.
The letter from Catholic Care dated 17 June 2020 notes that the appellant was referred to their service on 3 March 2020. The author of the letter met the appellant twice since his initial referral. She stated that the appellant had been engaged and reflective at each of the sessions. The appellant had set goals for himself, including increasing financial stability and improving impulse control.
The letter from Karralika dated 17 June 2020 refers to the author of the letter working with the appellant in outreach counselling on three occasions between 18 May 2020 and 17 June 2020. The letter noted that the appellant’s engagement occurred during the COVID-19 crisis and all counselling sessions had been conducted using Zoom videoconferencing. The author of the letter stated that he had found the appellant to be friendly, courteous and cooperative.
The letter from Directions dated 19 March 2021 states that the appellant had engaged with various parts of that organisation intermittently since 2010. It notes that the appellant has not had a comprehensive mental health assessment or psychosocial support provided in the past. The letter notes that the appellant was diagnosed with ADHD before becoming homeless and, as a consequence of his upbringing, he experienced a range of adversity that left an ongoing legacy on his well-being. He has also been diagnosed with depression and anxiety. The letter refers to the appellant appearing determined to “move to a place of well-being, and distance himself from his contact with the justice system”.
What one can glean from this material is that there had been an improvement in the appellant’s compliance with supervision, albeit for a relatively short period before he returned to custody in January 2021. It also reveals attempts by the appellant to engage in counselling in 2020, despite the difficulties presented by the COVID-19 pandemic. The material also reveals a background of adversity and mental health issues which were not referred to by the Magistrate in sentencing the appellant.
The respondent submitted that it should not be inferred that the Magistrate had overlooked or ignored this material in sentencing the appellant simply because the Magistrate had not referred to the material. The respondent submitted that the sentencing reasons were given ex tempore and that a full and comprehensive recital of the evidence should not be expected. The difficulty with this submission is that the Magistrate adjourned the sentence proceedings for a period of approximately one month before handing down sentence. The Magistrate had more than adequate time to consider and craft his Honour’s reasons for sentence. It must be accepted that in some circumstances the fact that a judicial officer does not refer to every piece of evidence or every submission made by a party does not lead to a conclusion that the matter has been overlooked. Much depends upon the importance of the material. In the present case, the material to which I have referred was important in forming an assessment of the appellant’s prospects for rehabilitation. Because the Magistrate made no reference to the material, and indeed no reference to any assessment of the appellant’s prospects for rehabilitation, I cannot know how the Magistrate used that material. Of even greater significance is the fact that the appellant cannot know how the Magistrate used that material.
The appeal will be allowed, and the sentences imposed by the Magistrate will be set aside.
Further evidence
On the hearing of this appeal on 20 July 2021, I received further evidence from the appellant for use in re-sentencing should that become necessary. I received a letter written by the appellant which states that prior to being placed in custody on 8 January 2021 he had been making progress by attending programs at DVCS and Directions. The appellant stated that he was also attending Narcotics Anonymous and Alcoholics Anonymous meetings and engaging in Alcohol and Other Drug (AOD) prevention classes with his partner. He refers to the positive influence of the birth of his son. The appellant states that during his time in custody he has been taking steps to better himself such as completing multiple AOD classes and engaging with education and other courses. The appellant states that his absence has taken a toll on his partner’s mental health.
The appellant also provided me with a letter from Directions dated 13 July 2021 which refers to the appellant’s engagement with the services of Directions whilst in the Alexander Maconochie Centre. The letter states that the appellant has been proactive in his participation in various programs and in communicating with Directions. The author of the letter believes that the appellant needs to engage with mental health treatment services when he is in the community. Whilst the appellant has a lengthy criminal history, it must be acknowledged that he has made attempts to improve his response to supervision and to address factors likely to lead him to re-offend. His prospects for rehabilitation must nevertheless remain guarded.
Re-sentencing
It was not submitted that the sentences imposed by the Magistrate for the offences other than the attempt escape custody offences were excessive, but the reasons given by the Magistrate do not adequately reveal what discount was given for the appellant’s pleas of guilty and do not enable me to determine to what extent or in what way the Magistrate used the evidence of the appellant’s subjective features. For this reason, I will re-sentence the appellant on all offences based upon the material before me. I noted that it was accepted by the prosecutor before the Magistrate that all of the pleas of guilty, with the exception of that regarding the offence of assault occasioning actual bodily harm, were entered at the earliest opportunity. The plea of guilty for the offence of assault occasioning actual bodily harm was entered after the preparation of a brief of evidence. I propose reducing by 25 per cent the otherwise appropriate sentences where the appellant’s pleas of guilty were entered at the earliest possible opportunity, and by 15 per cent with regard to the offence of assault occasioning actual bodily harm.
The offence of driving whilst disqualified was the first offence of that nature committed by the appellant. For the offence of driving whilst disqualified the appellant is sentenced to one month’s imprisonment, commencing 7 December 2020 and expiring on 6 January 2021.
The Magistrate accepted that the offence of minor theft was opportunistic. There was some evidence before the Magistrate that the bike had been purchased for about $1000, but there was no evidence of the present value of the bike at the time of the theft. It should also be taken into account that the appellant made admissions to police about stealing the bike. The appellant will be sentenced to one month’s imprisonment commencing 21 December 2020 and expiring on 20 January 2021.
In sentencing the appellant for the offence of assault occasioning actual bodily harm, it is important to take into account that the offence was committed on a child and in the context of the appellant having de facto parental responsibility. The harm sustained by the child was bruising to the buttock area. The appellant will be sentenced to two months’ imprisonment, commencing 7 January 2021 and expiring on 6 March 2021.
The appellant has a previous conviction for escaping from arrest or custody in 2010. He was sentenced to one month’s imprisonment. In my opinion, the appropriate starting point for the offence of attempting to escape custody on 7 January 2021 is four months’ imprisonment. I will reduce that to three months’ imprisonment because of the appellant’s plea of guilty. That sentence will commence on 7 February 2021 and expire on 6 May 2021.
The offence of attempting to escape custody on 8 January 2021 has some features that make it more serious than the offence which occurred on the previous day. It occurred within the courtroom and in the middle of the proceeding relating to the appellant’s charges. It undoubtedly would have occasioned an upheaval within the courtroom and a disturbance to the proceeding. In my opinion, however, it did not justify the sentence of 15 months’ imprisonment imposed by the Magistrate. Bearing in mind that it was conceded by the prosecutor in the proceeding before the Magistrate on 23 April 2021 that the appellant’s plea of guilty had been entered at the earliest opportunity on that offence, it suggests that the Magistrate’s starting point was in the vicinity of 20 months’ imprisonment. In my opinion, the correct starting point is 8 months’ imprisonment, which should be reduced to 6 months’ imprisonment because of the appellant’s plea of guilty. That sentence should commence on 7 April 2021 and expire on 6 October 2021.
Finally, with regard to the offence of resisting a public official, the appellant will be sentenced to two months’ imprisonment commencing on 7 September 2021 and expiring on 6 November 2021.
The appellant has already served a period of imprisonment sufficient to expiate the fine imposed by the Magistrate for the offences of exposing a child to cannabis smoke and contempt of court. I will not interfere with the sentences imposed by the Magistrate on that basis. Similarly, the Magistrate imposed fines in re-sentencing the appellant for breaches of two Good Behaviour Orders and granted the appellant no time to pay. As I understand it, the appellant has already served a period of imprisonment sufficient to expiate those fines and accordingly I will not interfere with the orders made by the Magistrate.
Formal orders
The formal orders that I make are these:
(a)The appeals will be upheld with regard to charges CC 2020/2051, CC 2020/2052, CC 2020/10257, CC 2021/2578, CC 2021/1115 and CC 2021/1117.
(b)On charge CC 2020/2051, the appellant is sentenced to one month’s imprisonment, commencing 7 December 2020 and expiring on 6 January 2021.
(c)On charge CC 2020/2052, the appellant is sentenced to one month’s imprisonment commencing 21 December 2020 and expiring 20 January 2021.
(d)On charge CC 2020/10257, the appellant is sentenced to two months’ imprisonment commencing 7 January 2021 and expiring 6 March 2021.
(e)On charge CC 2021/2578, the appellant is sentenced to three months’ imprisonment commencing 7 February 2021 and expiring on 6 May 2021.
(f)On charge CC 2021/1115, the appellant is sentenced to six months’ imprisonment commencing 7 April 2021 and expiring 6 October 2021.
(g)On charge CC 2021/1117, the appellant is sentenced to two months’ imprisonment commencing on 7 September 2021 and expiring on 6 November 2021.
(h)The sentences imposed are to be served by way of full-time imprisonment from 7 December 2020 until 27 July 2021. The balance of the sentences are suspended with a Good Behaviour Order for a period of 12 months from 28 July 2021 to 27 July 2022 with conditions that the appellant accept the supervision of the Director-General responsible for adult corrections or that person’s delegate for that period of 12 months or such lesser period as deemed appropriate by his supervising officer, and obey all reasonable directions of each such person, including directions that he undertake counselling or treatment for the prevention of drug abuse and to address mental health issues.
(i)The appeals are otherwise dismissed.
| I certify that the preceding thirty-five [35] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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