Freeman v Moore - [2018] TASSC 36

[2018] TASSC 36

COURT: SUPREME COURT OF TASMANIA

CITATION: Freeman v Moore [2018] TASSC 36

PARTIES:  FREEMAN, Brett Matthew
  v
  MOORE, Luke

LUSTED, Trudie
BONDE, Michael (Acting Sergeant)
BONDE, Mike (1/C Constable)
LUSTED, Gary
PARKER, John

FILE NO:  1040/2018
DELIVERED ON:  16 August 2018
DELIVERED AT:  Hobart
HEARING DATE:  1 August 2018
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Mistakes as to offences for which offender was to be sentenced.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  In person
             Respondents:  S Nicholson
Solicitors:
             Respondents:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 36
Number of paragraphs: 27

Serial No 36/2018
File No 1040/2018

BRETT MATTHEW FREEMAN v LUKE MOORE, TRUDIE LUSTED,
Acting Sergeant MICHAEL BONDE, 1/C Constable MIKE BONDE,
GARY LUSTED, and JOHN PARKER

REASONS FOR JUDGMENT BLOW CJ

16 August 2018

This is a motion for the review of some sentencing orders made by a magistrate, Mr S Brown. On 5 April 2018, the learned magistrate sentenced the applicant, Brett Freeman, to 4 months' imprisonment on a charge of evading police, imposed a cumulative sentence of 6 months' imprisonment on a large number of other charges, activated a sentence of 6 months' imprisonment that had previously been imposed but wholly suspended, ordered that that activated sentence be served cumulatively, and ordered that the applicant not be eligible for parole until he had served 12 months' imprisonment. The applicant contends that the sentences imposed on him were manifestly excessive, particularly because of the 12-month non-parole period. More significantly, he contends that, in imposing the fresh 6-month sentence of imprisonment, the learned magistrate made a number of errors as to the scope of his offending. It is clear that, in deciding to impose that sentence of 6 months' imprisonment, the learned magistrate took into account allegations made in two charges that had been dismissed, and overlooked the fact that another charge had been amended.
The wholly suspended sentence of 6 months' imprisonment was imposed by the same magistrate on 7 April 2016. It related to a series of family violence, firearms and dishonesty offences committed by the applicant over a three-day period in early February 2015. Those offences can be summarised as follows:
·     Breaching the family violence order by being within 50 metres of the individuals to whom it related.
·     Breaching the family violence order by abusing his former partner.
·     Breaching the family violence order by smashing a window.
·     Breaching the family violence order by possessing a semi-automatic pistol, a revolver, and ammunition for those weapons.
·     Breaching the family violence order by entering certain premises.
·     Having possession of the semi-automatic pistol when it was reasonably believed by a police officer to have been stolen or unlawfully obtained.
·     Having possession of the revolver when it was reasonably believed by a police officer to have been stolen or unlawfully obtained.
·     Possessing the semi-automatic pistol when not the holder of the appropriate firearms licence.
·     Possessing the ammunition for the pistol when not the holder of the appropriate firearms licence.
·     Possessing the ammunition for the revolver when not the holder of the appropriate firearms licence.
·     Possessing methylamphetamine on 9 February 2015.
·     Possessing methylamphetamine on 11 February 2015.
·     Possessing a glass smoking pipe designed to be used in connection with the smoking of a controlled drug.
·     Breach of a bail condition requiring him not to possess a firearm or ammunition.
When that suspended sentence was imposed, the applicant was serving a sentence of 14 months' imprisonment for assaulting a police officer. He was soon to be released. The learned magistrate wholly suspended the sentence of 6 months' imprisonment on condition that the applicant was not to commit another offence punishable by imprisonment for a period of two years after his release from prison.
The new offences to which the sentencing proceedings in April 2018 related, in chronological order, were as follows:
·     On 17 October 2016, breaching a family violence order by having contact with his former partner via Facebook.
·     On 20 October 2016, breaching the same family violence order by having contact with his former partner by telephone twice.
·     On 26 November 2016, driving with illicit drugs, namely amphetamine and methylamphetamine, in his blood.
·     On the same date, driving when his driver licence was suspended.
·     On 7 June 2017, burglary of premises at Ulverstone.
·     On the same date, stealing a cash till insert and coins to an approximate value of $150 at Ulverstone.
·     On 19 June 2017, burglary of the premises of a car rental company in Launceston.
·     On the same date, stealing a safe, a Caltex star card, and the keys to 13 vehicles from that car rental company.
·     On 17 October 2017, breaching bail by failing to appear in the Magistrates Court on charges relating to the offences committed on 26 November 2016.
·     On 10 November 2017, driving with methylamphetamine and amphetamine in his blood.
·     On the same date, speeding on the Bass Highway at Deloraine at 142Km per hour.
·     On the same date, evading police at Deloraine by failing to pull over when a police car's emergency lights and sirens were activated.
·     On the same date, speeding on the Bass Highway at Elizabeth Town at 150Km per hour.
·     On the same date, driving on the Bass Highway when his driver licence was suspended.
·     On the same date, possessing methylamphetamine.
·     On the same date, possessing an Ice pipe.
·     On the same date, using methylamphetamine.
The learned magistrate was required by s 11A(3C)(b) of the Police Powers (Vehicle Interception) Act 2000 to impose a separate sentence on the charge of evading police, and did so. As I have said, he sentenced the applicant to 4 months' imprisonment on that charge. That sentence was backdated to commence on 10 November 2017.
In respect of all of the other offences committed by the applicant during the period from 17 October 2016 to 10 November 2017 inclusive and listed above, the learned magistrate imposed the cumulative sentence of 6 months' imprisonment that I have referred to.
In addition, the learned magistrate made three cumulative driving disqualification orders for periods totalling 30 months – 12 months in respect of the charge of evading police, and 9 months in respect of each of the two charges of driving with drugs in the applicant's body.
As I have said, the learned magistrate also activated the whole of the 6-month suspended sentence imposed in April 2016, ordered that it be served cumulatively with the other prison sentences, and ordered that the applicant was not to be eligible for parole until he had served 12 months of the sentences, which totalled 16 months. The learned magistrate was obliged by s 27(4B) of the Sentencing Act 1997 to activate the whole of the 6-month suspended sentence unless he was of the opinion that an order to that effect would be unjust. The applicant's counsel did not submit to the learned magistrate that that course would be unjust, and it has not been submitted to me that the taking of that course was unjust. Therefore no question arises in these proceedings as to the appropriateness of the order activating the whole of that sentence.
Most of the charges relating to offences committed by the applicant on 10 November 2017 were contained in complaint number 35745/17. Count 9 on that complaint was a charge of unlawful possession of property, contrary to s 39 of the Police Offences Act 1935. The particulars of that charge, in their original form, included the following:
"... on the 10th November 2017 at Sassafrass [sic] in Tasmania, you had possession of property, namely 1 x Tasmanian driver licence, 1 x Commonwealth bank card, 1 x student identification card all in the name of Maya GOUGH and $5,000.00 in cash, that was reasonably believed by one Constable Chris LANGSHAW a police officer to have been stolen or unlawfully obtained."
On 6 December 2017, that charge was amended by deleting "and $5,000.00 in cash". The applicant pleaded not guilty to that charge, as amended, on that day. On 2 February 2018, the prosecutor tendered no evidence on that charge, and the learned magistrate dismissed it.
Count 4 on the same complaint was a charge of failing to keep left of a dividing line. It alleged that on 10 November 2017 the applicant was the driver of a vehicle on a road with a dividing line, namely the Bass Highway at Elizabeth Town, and that he failed to drive to the left of that dividing line. The applicant pleaded not guilty to that charge on 6 December 2017. On 2 February 2018, the prosecutor tendered no evidence on that charge, and the learned magistrate dismissed it.
Count 3 on that complaint was the charge of speeding at Elizabeth Town. That charge originally asserted that the applicant had driven at 170Km per hour. The applicant pleaded guilty to that charge on 6 December 2017. On 22 February 2018, before the facts were stated, the prosecutor sought to amend that charge to reduce the asserted speed to 150Km per hour. The learned magistrate amended the complaint accordingly. Apparently there had been a dispute, not as to the applicant's guilt, but as to his speed.
When he sentenced the applicant on 5 April 2018, the learned magistrate overlooked the amendment to that speeding charge, the dismissal of the charge of failing to keep left of a dividing line, and the amendment and dismissal of the charge relating to unlawful possession of property at Sassafras. In summarising the offences committed by the applicant on 10 November 2017, his Honour said the following:
"And then from the 10^th November 2017 you've pleaded guilty to a speeding matter whereby you were travelling at 142 kilometres per hour on the Bass Highway, you pleaded guilty to evading police and aggravated circumstances, another incident of speeding whereby you were doing 170 in a 110 kilometre per hour zone, you failed to keep left, you were driving whilst suspended and at the time you were also in possession of methylamphetamine, a smoking device, you pleaded that you were using methylamphetamine and possession – unlawful possession of property worth about five thousand dollars and on a separate complaint you've been charged with driving with a prescribed illicit drug present in your blood on that occasion." [My emphasis.]
The mistakes as to the speed at Elizabeth Town and the failure to keep left may well have been so trivial that they made no difference to the length of the relevant prison sentence. The same cannot be said in relation to the mistaken belief that the applicant was to be sentenced, amongst other things, for the "unlawful possession of property worth about five thousand dollars".
It follows that, at least in relation to the sentence of 6 months' imprisonment imposed on 5 April 2018, this motion to review must succeed. Both parties agreed that I should re-sentence the applicant rather than remitting the matter to the Magistrates Court.
Because of the wording of the applicant's notice to review, I think I must consider whether the sentence of 4 months' imprisonment on the charge of evading police was manifestly excessive. On the day in question, the applicant's driver licence was suspended as a result of him failing to pay fines. That was an aggravating circumstance by reason of s 11A(2A)(d)(i) of the Police Powers (Vehicle Interception) Act. Section 11A(2A) of that Act lists a number of aggravating circumstances which, if present, result in the maximum penalty for evading police being higher than it would otherwise be. On the day in question, police officers travelling in the opposite direction observed the applicant speeding along the Bass Highway, turned their vehicle, activated its emergency lights and sirens, and tried to catch up with the applicant, but he overtook another vehicle and sped away from them. They chose to follow him without exceeding the speed limit. He stopped at Parramatta Creek and ran into nearby bushes. He was arrested there. He had been trying to get to Devonport because of concern for the welfare of his girlfriend, who was pregnant. He panicked when the police tried to stop him. He pleaded guilty to the charge.
At the time of sentencing, he was 38 years old. He had had drug problems for over 10 years. Although he was driving with illicit drugs in his body, there was no suggestion that there was anything wrong with his driving apart from his speed and his decision not to stop. That is to say, there was no suggestion that he was intoxicated. He had some serious prior convictions. In 2010 he was sentenced to 2 years' imprisonment for drug trafficking. I have already mentioned his sentence of 14 months' imprisonment for assaulting a police officer in 2015. He was also sentenced to 3 months' imprisonment in 2015 for an assault, a breach of an interim family violence order, and some firearms offences. He had no prior convictions for evading police. His only significant traffic conviction was one for driving with an illicit drug in his blood in 2014.
He pleaded guilty to the charge of evading police. He sought a drug treatment order, but he was rejected as unsuitable for a number of reasons, including his attitude to his offending and to the consequences of his drug use.
The sentence of 4 months' imprisonment on the charge of evading police was far from lenient, especially considering that the applicant was ultimately unsuccessful in evading them, and did not cause any injuries or damage by the way in which he drove. However the learned magistrate was entitled to impose a heavy penalty in order to deter the applicant and others from committing that sort of offence, and the applicant could not claim to be entitled to much leniency having regard to his record of prior convictions, particularly the conviction for assaulting a police officer that resulted in a 14-month prison sentence. The learned magistrate was obliged to observe the totality principle, as discussed by the High Court in Mill v The Queen (1988) 166 CLR 59, and therefore to take into account in the applicant's favour the fact that the sentence for this offence would be cumulative with the activated 6-month sentence that had previously been suspended. Having regard to all the relevant sentencing factors, I am not persuaded that the head sentence of 4 months' imprisonment was a manifestly excessive one for the offence in question.
Next, it is necessary for me to determine an appropriate penalty for the 17 offences committed from 17 April 2016 to 10 November 2017 as listed in [4] above. The following matters are relevant as to the circumstances of those offences:
·     The Facebook message sent by the applicant to his former partner on 17 October 2016 was a long one in which he indicated that he had ruined his life, had decided to end it, and wanted to say goodbye. It did not contain any threats but could well have disturbed his former partner, who had the care of their child.
·     The two telephone calls on 20 October 2016 were made by the former partner, not the applicant. He took her calls, in breach of the family violence order then in force, and spoke to her for about an hour.
·     On 26 November 2016 there was no suggestion that the applicant's driving was affected by the illicit drugs in his blood. His licence had been suspended as a result of the non-payment of fines, rather than because of any driving offences.
·     The burglary and stealing offences in June 2017 were committed for the purpose of getting money to buy drugs. At Ulverstone, he broke into a coffee shop, damaging the lock and surrounds of the front door and smashing a window. He stole a till, which was recovered, and about $100 in coins, which were not. He was caught because his fingerprints were found. In Launceston, he was seen by police officers running away from the premises of the car rental company. Police officers obtained a search warrant, searched his residence, and found the stolen Star card. He had removed a safe worth about $500 and 13 sets of keys valued at about $250 each. The keys were not recovered. The learned magistrate was not told whether the safe was recovered.
·     On 10 November 2016, when the applicant was arrested at Sassafras, he had about 7.8 grams of methylamphetamine in his possession. The learned magistrate was told it had a street value of approximately $3,000 if sold by the gram, but more if sold in quantities of 0.1 grams.
I have already referred to the applicant's age, his prior convictions, and some of his personal circumstances. It counts in his favour that he pleaded guilty to all of the charges listed in [4] above except for the driving offences committed on 26 November 2016. Of course in accordance with the totality principle I must take into account the activated 6-month sentence and the 4-month sentence imposed by the learned magistrate. I must also take into account that on two of the relevant charges, those relating to the applicant driving with illicit drugs in his body, the learned magistrate imposed driving disqualification orders for periods totalling 18 months. There is no reason to disturb those two orders.
In all the circumstances, I have decided that the applicant should be sentenced to 4 months' imprisonment, cumulatively with his other sentences, as a global sentence for the offences listed in [4] above.
That brings me to the question of parole. It has been held in a number of cases that when a judicial officer imposes and/or activates a number of sentences of imprisonment, the Sentencing Act does not permit that judicial officer to impose a single non-parole period in relation to more than one sentence: Carr v Department of Police and Emergency Management [2009] TASSC 74 at [5]; Williamson v Lane [2013] TASSC 53, 24 Tas R 258 at [15]-[24]; Street v Tasmania Police [2016] TASSC 52; Director of Public Prosecutions v Eldayar [2016] TASCCA 16 at [14]. To my embarrassment, I note that I expressed the opposite view in Lavell v McKenna [2017] TASSC 10 at [3] when I should have followed what the Court of Criminal Appeal said in Eldayar.
The learned magistrate should have fixed separate non-parole periods on a sentence-by-sentence basis. By virtue of s 17(3) of the Sentencing Act, the non-parole period in respect of each sentence may not be less than half of the head sentence. By virtue of s 70(b) of the Corrections Act 1997, a prisoner may not be released on parole before the completion of a continuous period of imprisonment of 6 months unless there are exceptional circumstances.
The applicant has a bad criminal record. In 2016 and 2017 he engaged in a wide variety of offending involving drugs, dishonesty, firearms, driving offences, and breaches of a family violence order. The report obtained by the learned magistrate in relation to his suitability for a drug treatment order indicated that there was a very high risk of him re-offending and that he was far from willing to take full responsibility for the offences that he had committed. However, for the purposes of re-sentencing, the applicant told me that he had been working within the prison, and that he had been making efforts to enrol in appropriate courses. In the circumstances, I think that I should set aside the learned magistrate's order as to parole and make new orders permitting the Parole Board to grant parole if it sees fit, but with non-parole periods that total more than half of the total of the applicant's head sentences.
For these reasons, I make the following orders:
1The motion to review is allowed.
2The sentence of 6 months' imprisonment imposed on 5 April 2018 in respect of complaints 35985/16, 31760/17, 33727/17, 35746/17, 35305/17, 30426/18 and 35745/17 is varied by reducing the head sentence to a sentence of 4 months' imprisonment.
3The order made on 5 April 2018 that the applicant not be eligible for parole until serving 12 months' imprisonment is varied so as to provide that he will not be eligible for parole until he has served (a) 3 months' imprisonment in respect of the sentence of 4 months' imprisonment imposed on count 2 of complaint 35745/17, and (b) 3 months' imprisonment in respect of the sentence of 6 months' imprisonment that was imposed on 7 April 2016 and activated on 5 April 2018; and (c) 3 months' imprisonment in respect of the sentence of 4 months' imprisonment referred to in order number 2 above.

For the purposes of s 92A of the Sentencing Act, I specify the following things:
·     The terms of imprisonment that are being imposed or "confirmed" are (a) the sentence of 4 months' imprisonment commencing on 10 November 2017 imposed on count 2 of complaint 35745/17; (b) the reduced sentence of 4 months' imprisonment referred to in [26] above; and (c) the sentence of 6 months' imprisonment that was imposed on 7 April 2016 and activated on 5 April 2018.
·     Those three sentences are to be served cumulatively.
·     The applicant is not eligible for parole in respect of those sentences before the expiration of 3 months of each sentence.
·     The total period that the applicant is liable to serve for all three of those sentences of imprisonment is 14 months. (That is because 4 + 4 + 6 = 14.)
·     The period, in relation to the three sentences, before the expiration of which the applicant is not eligible for parole, is 9 months. (That is because 3 + 3 + 3 = 9.)