Guy LINDON Grimwood v Wade Matthew Jones
[2005] ACTSC 97
GUY LINDON GRIMWOOD v WADE MATTHEW JONES
[2005] ACTSC 97 (12 September 2005)
SENTENCING – appeal – imprisonment – repeat offence of refusing breathalyser test – hindering police – periodic detention option – consent requirement – failure by counsel to advert to consent in the course of submissions – whether magistrate precluded from considering consent indicated during sentencing remarks and before orders pronounced – appeal allowed – periodic detention order substituted for balance of term of imprisonment
Road Transport (Alcohol & Drugs) Act 1977 (ACT) s 22, s 27, s 4D
Criminal Code Act 1995 (Cth) s 149.1
Magistrates Court Act 1930 (ACT)
Crimes Act 1900 (ACT)
Periodic Detention Act 1995 (ACT) s 4, s 5, s 6, s 31, s 23
ON APPEAL FROM THE MAGISTRATES COURT
No SCA 53 of 2005
Judge: French J
Supreme Court of the ACT
Date: 12 September 2005
IN THE SUPREME COURT OF THE )
) No SCA 53 of 2005
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN:GUY LINDON GRIMWOOD
Appellant
AND:WADE MATTHEW JONES
Respondent
ORDER
Judge: French J
Date: 12 September 2005
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The sentence of six months imprisonment is set aside.
The appellant is sentenced in lieu thereof to 26 periods of periodic detention, commencing on 30 May 2005.
The period of imprisonment already served, including time spent in custody on remand pending the hearing and determination of the appeal shall be counted as 15 of the 26 detention periods.
The appellant is to report to the Symonston Detention Centre at 7pm on Friday 16 September 2006 to serve the first of the remaining detention periods.
Introduction
On 30 May 2005, Guy Lindon Grimwood appeared in the Magistrates Court of the Australian Capital Territory. He faced two charges. The first charge was brought under s 22 of the Road Transport (Alcohol & Drugs) Act 1977 (ACT). It was alleged that on 18 March 2005, contrary to that provision, he had refused to provide a sample of his breath for analysis. He was also charged under s 149.1 of the Criminal Code Act 1995 (Cth) with hindering or obstructing an officer in the performance of the officer’s duties. He was sentenced to a term of six months in respect of the charge of refusing to provide a breath sample and placed on a good behaviour recognisance for 18 months in respect of the hindering charge. He now appeals against the prison term imposed on him.
The Facts of the Offence
The facts of the case appear from the learned magistrate’s sentencing remarks and from a statement of facts provided by the Australian Federal Police which were not disputed.
At about 9.15 on 18 March 2005, the appellant drove a white utility to the Gungahlin McDonald’s drive-thru and placed an order. A dispute about the order ensued between the appellant and McDonald’s staff. He is said to have harassed them verbally and threatened them with violence. He appeared to have been affected by alcohol. He left the immediate vicinity of the premises in the vehicle and police were called.
When the police arrived, however, his vehicle was observed parked nearby. They approached the vehicle and directed the appellant to step out. He showed signs of intoxication. He initially refused to step out and argued with police. Eventually he complied and was directed to walk to the side of the McDonald’s driveway. He was unsteady on his feet and his breath smelt of alcohol. Police then required him to submit to a roadside breath analysis by way of a screening test.
The appellant repeatedly refused to move to the police vehicle for that purpose. He was then physically apprehended and taken into custody. A struggle followed and he was placed on the ground and handcuffed. He did not comply with subsequent police directions to stop resisting and to comply with their directions. He was then taken to the Gungahlin Police Station and again refused to submit to a breath test. Ultimately he was taken to Canberra Regional Watch-house and charged.
The Proceedings in the Magistrates Court
The appellant appeared in the Magistrates Court on 30 May 2005 and pleaded guilty to both offences. He was represented by a legal practitioner, Ms Holm.
The appellant has a record of prior convictions going back to 1993. He had two prior convictions, one in 1997 and one in 2002 for refusing to provide a breath sample. He also had convictions for dangerous driving, negligent driving, driving while his licence was cancelled, driving with a blood alcohol above a prescribed concentration and failing to stop his vehicle when signalled by police. He had been fined and had his licence cancelled in respect of some of those offences. In 2002 he had been sentenced to 12 periods of periodic detention and also had a term of imprisonment of 3 months imposed, suspended for 2 years. He was also placed on a good behaviour bond for 2 years at that time.
A pre-sentence report, dated 26 May 2005, was before the Magistrates Court. In that report it was said that the appellant was born and raised in Canberra. He had lived an isolated existence with few meaningful friendships or significant relationships. He had completed a Year 12 Certificate at secondary school and had undertaken studies to get a Certificate in Civil Engineering at the Canberra Institute of Technology. Unfortunately he failed to complete that course.
He had worked in a number of jobs in the retail and building industry. He started his own concreting business in 2000 but it encountered financial difficulties and it failed. The appellant reported that he had business debts of up to $40,000 as at May 2005. He was then earning $1,200 a week after tax and paying over $1,500 a month in mortgage repayments.
Although describing his health as fair, the appellant said he felt depressed and suicidal and sought admission to Calvary Hospital Psychiatric Unit on 20 April 2005. He remained there until 11 May 2005. His consulting psychiatrist diagnosed Adjustment Disorder with depressed mood and suicidal ideation. His state of mind was complicated by alcohol abuse. He was taking a prescribed medication and said at the time of the pre-sentence report that he was abstaining from alcohol and cannabis use. He was continuing to seek psychiatric assistance. He had apparently engaged in alcohol abuse and the use of cannabis for his adult life. Attempts at abstinence from time to time had failed. He would relapse and previous patterns of use would recur.
The appellant was referred by the ACT Department of Justice and Community Safety to the ACT Alcohol and Drug Program on 23 May 2005 for an assessment. He was assessed as suitable to continue with case management and counselling. He was willing to participate in that program.
ACT Corrective Service records indicated that the appellant had successfully completed his previous periodic detention order of 12 periods as of 12 February 2002. He also successfully completed the good behaviour bond imposed on the same date. He completed a sober driver course during this time. In the months prior to the offence, according to the appellant, his drug and alcohol use had escalated significantly. On the night of the offence he had taken up to four antidepressant tablets, consumed excessive amounts of alcohol and used cannabis.
The pre-sentence report noted that the appellant had expressed remorse for the offence and that he appeared genuine in his desire to change his lifestyle. It was said to be encouraging that he had acknowledged the extent to which alcohol and drug use, business stresses and isolation had contributed to his mental state. He had sought appropriate treatment, and appeared committed to complying with his treatment plan. It was also encouraging that he had ceased using alcohol and cannabis. The author of the report then said -
Should Mr Grimwood maintain his resolve to abstain from alcohol and drug use, his risk of further offending in this manner will be reduced. He may be assisted in this through counselling with the ACT Alcohol and Drug Program. It is the author’s opinion however, that if Mr Grimwood were to relapse into alcohol and cannabis consumption, he would pose a continuing risk to himself and the community.
In comments upon sentencing options, the writer said that the appellant appeared to have the ability to abide by the conditions of a recognisance. Some conditions were suggested which were –
1. to accept counselling with the ACT Drug and Alcohol Program;
2. to undertake testing in relation to alcohol and drug use, including breath testing and urinalysis;
3. to undertake any further programs, education or treatment as directed by ACT Corrective Services.
It was said that a period of 18 months would be required to monitor the appellant’s progress under supervision. The appellant was said to be suitable for a community service order. Under the heading “Periodic Detention”, the following appeared -
The offender has not consented to a Periodic Detention Order. He stated that transport would prove difficult to organise for weekend detention.
The appellant, as a repeat offender in relation to the offence of refusing to provide a breath sample, was liable to a term of imprisonment for up to 12 months. His counsel, in the course of submissions in mitigation to the learned magistrate, had the following exchange. Ms Holm said -
As indicated in the pre-sentence report, the defendant has demonstrated an ability to comply with periods of recognizance and has previously successfully completed a periodic detention order. Based on his record of compliance, the court may be confident that any similar orders made …
The learned magistrate interrupted and said -
Well he won’t consent to a periodic detention order, so I can’t do that, Ms Holm. So that’s ruled out. So it’s either jail or nothing, basically.
Ms Holm responded -
Yes, your Worship. Corrective Services have stated in their report that they are encouraged by the defendant’s acknowledgement of the impact, his use of drugs and alcohol has had on his declining mental health and that as a result he has ceased consumption of both.
In the course of the learned magistrate’s sentencing remarks, a further exchange occurred. The learned magistrate said -
It may have been appropriate in a case of this sort to consider bearing in mind the efforts made by the defendant since his apprehension in March of this year, to impose a further periodic detention order, but the defendant has not consented to that and therefore it is not an option open to me.
Ms Holm interrupted -
Your Worship, may I interrupt. I have taken instructions from the defendant, shortly before coming in here and he has indicated that he …
His Worship responded -
Well I did raise it with you Ms Holm and you made no indication of that during your submissions. I think it’s too late now for that to be an option.
So that being the case, the defendant, through his solicitor has now indicated that he would be prepared to consent to a periodic detention order being made. But as I’ve indicated I specifically raised that issue with Ms Holm during her submissions and that was not indicated at that stage, and in my view it’s too late during the process of delivering judgment to now change his mind.
The learned magistrate then proceeded to impose a term of imprisonment of six months for the offence of refusing to provide a breath sample. On the charge of resisting the police, the appellant was placed on a good behaviour recognisance for a period of 18 months.
The Grounds of Appeal
On 29 July 2005 a notice of appeal against the prison sentence imposed on 30 May 2005 was lodged in this Court under Part 11 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act). It appears from the Court file that the time for initiation of the appeal was extended by order of the Master made on that day to 5 August 2005.
Section 216(1) of the Magistrates Court Act provides, inter alia, that where an appeal against a sentence has been instituted, the enforcement or execution of the sentence appealed from is stayed until the appeal is concluded. Counsel informed the Court that as a result of this provision, the appellant had been in custody on remand since 29 July 2005. Evidently no application was made for bail pending the hearing of the appeal.
The grounds of the appeal are in the following terms -
a) That the sentence is, in all the circumstances, manifestly excessive.
b) That the appellant’s legal representative failed to properly bring to the attention of the Court all relevant matters including the appellant’s instructions.
c)That the appellant’s legal representative failed to recognize the significance of comments made in a Pre-Sentence Report ordered in the proceedings and failed to properly bring her instructions to the attention of the learned Magistrate in an appropriate meaner (sic) or at an appropriate time.
d)That the learned Magistrate erred in failing to permit the appellant’s legal representatives to make further submissions in connection with alternative sentences to full-time imprisonment.
The issue on the appeal reduces to the question whether the learned magistrate erred by precluding himself from considering a periodic detention order because of the belated advice from counsel that the appellant had said he would consent to such an order. Associated with that question is the question of the proper orders to be made if the appeal succeeds on the first point.
Statutory Framework
The offence to which the appellant pleaded guilty is created by s 22 of the Road Transport (Alcohol & Drugs) Act -
A person who –
(a)has been the driver of a motor vehicle on a public street or in a public place; and
(b)has, in accordance with the provisions specified in this Act, been required to provide a sample of breath for breath analysis;
commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if –
(c)he or she refuses to provide a sample of breath for analysis; or
(d)he or she fails or refuses to provide a sample of breath in accordance with the reasonable directions of the police officer who made the requirement.
This is to be read with s 27 of that Act, which provides for the penalties to be imposed in the case of repeat offences –
If –
(a)a person is convicted of an offence against section 22, 23 or 24; and
(b)the court considers that, in all the circumstances and having regard to the antecedents of the person (including convictions for offences against the road transport legislation, against the Motor Traffic Act 1936 or for corresponding offences), that it is appropriate to do so;
the court may, in addition to, or in substitution of, a pecuniary penalty, sentence the person to a term of imprisonment not exceeding –
(c) for an offence by a first offender – 6 months; or
(d) for an offence by a repeat offender – 12 months.
The term “repeat offender” is defined in s 4D of that Act as follows -
(1) A person who is convicted of a disqualifying offence is a repeat offender in relation to the offence if the person has been convicted, or found guilty, of a relevant offence within 5 years before being convicted or found guilty of the disqualifying offence.
There is no dispute that in this case the appellant is a repeat offender.
The Crimes Act 1900 (Cth) sets out, in s 341, the purposes for which a sentence may be imposed and in s 342 a non-exhaustive list of matters to which, where relevant, the Court must have regard in seeking to achieve those purposes. Section 345 imposes constraints upon the imposition of sentences of imprisonment. Section 403 provides, inter alia, for conditional release orders. It is sufficient for present purposes to refer to these provisions rather than to set them out in full.
The Periodic Detention Act 1995 (ACT) authorises courts to impose sentences of periodic detention. Section 4 provides –
(1) A court -
(a)which convicts a person of an offence against a law of the Territory; and
(b) which, but for the option of making an order under this section, would otherwise sentence the person to a term of imprisonment of not less than 3 months but not more than 24 months;
may, instead of sentencing the person to imprisonment, by order –
(c) sentence the person to complete such number of detention periods at a detention centre, as the court specifies; and
(d) direct that the person be released from custody subject to any order that may be made under section 10(2).
(2) The number of detention periods that a person may be required to serve under an order shall be calculated at the rate of 1 detention period for each week of the term of imprisonment to which the person would otherwise have been sentenced.
(3)An order for periodic detention remains in force until-
(a) the relevant detention periods required to be served under the order, or any detention periods by which the order has been extended under section 25, have been served; or
(b) the order has been cancelled.
Section 5 sets out core conditions and provides -
The following core conditions shall be included in an order for periodic detention:
(a) that the offender report to an officer at the relevant detention centre on the date and at the time specified in the order;
(b) that the offender notify an officer at the detention centre within 48 hours of being charged with an offence in the Territory or elsewhere, while the order is in force;
(c) that the offender not commit an offence punishable by imprisonment, while the order is in force;
(d) that the offender notify an officer at the detention centre of any change in his or her address, while the order is in force, within 48 hours after the change;
(e) that, while the order is in force, the offender obey all lawful instructions and directions of the director or an officer.
Section 6 sets out the circumstances in which a periodic detention order may be made-
(1) A court shall not make an order under section 4 unless-
(a) the court is satisfied that it is appropriate for the offender to undertake such an order; and
(b) the court is satisfied that there are appropriate facilities available at the relevant detention centre for the offender to undertake such an order; and
(c) the offender submits himself or herself to a medical examination by a medical practitioner, if so required by the court; and
(d) the court has received a pre-sentence report in respect of the offender pursuant to the Crimes Act 1900, division 15.2; and
(e) the court has explained to the offender –
(i) the effect the proposed order would have; and
(ii)the consequences of noncompliance with the order and the circumstances in which the offender would be taken to have breached the order; and
(iii)that the court has the power under this Act to review the order on the application of the director or the offender; and
(f)the court is satisfied that the offender consents to undertaking such an order.
(2)For subsection (1)(a) and (b), the court may have regard to such matters as it considers appropriate, including-
(a) the pre-sentence report referred to in subsection (1)(d); and
(b)where a person has submitted to a medical examination by a medical practitioner, as required by the court - the report of that medical practitioner in respect of that examination; and
(c) a report by an officer, as required by the court.
A periodic detention order may be cancelled where a person who is a detainee under such an order is convicted of an offence and sentenced to a term of imprisonment. The Court also has the power to cancel the order upon application by the Director of Corrective Services where the Court is satisfied that the person is not serving the sentence in accordance with the order. The periodic detention order shall be cancelled by the Court where a person has for three or more detention periods failed to report as required by or under the Act. Where an order is cancelled, the remaining periods of detention to which the orders apply shall be served as a separate term of imprisonment imposed at the time of the cancellation .
Section 31 of the Periodic Detention Act provides -
(1)Where an order for periodic detention is cancelled under section 29 or 30 –
(a)any order that was made under section 15, 16 or 17 in respect of the detainee, ceases to have effect; and
(b)subject to section 32(1), any remaining periods of detention to which the order applied shall be served as a separate term of imprisonment imposed at the time of the cancellation.
(2)The term of imprisonment that a person is liable to serve for the purposes of this section shall be calculated at the rate of 1 week for each detention period that the person would otherwise have been required to serve under an order if it had not been cancelled.
I interpolate that means that if the detention order is cancelled then for every weekend that remains to be served, the detainee has to serve a full week.
Whether the Learned Magistrate Erred
There was evidence put before the Court on the appeal. Counsel for the appellant tendered by consent a letter from the practitioner who represented the appellant in the Magistrates Court. That letter, in the relevant parts, was in the following terms -
I confirm that I appeared on behalf of Mr Guy Grimwood on
30 May 2005 in relation to Charge Nos CC 2005/2435 and CC 2005/2436.
Prior to the matter being called on for hearing I had a lengthy discussion with Mr Grimwood in relation to the information contained in the Pre-Sentence report prepared by ACT Corrective Services. Specifically I raised the fact that the report indicated that
Mr Grimwood did not consent to a periodic detention. I indicated to Mr Grimwood that in the likely event that a custodial sentence would be imposed it would be preferable to consent to periodic detention. Mr Grimwood agreed with this recommendation. These instructions were the basis of my interjection during the sentencing Magistrate’s decision.
It is apparent that the letter is consistent with what the practitioner tried to convey to the learned magistrate during his sentencing remarks, namely that she had instructions to consent to a periodic detention order and had received such instructions prior to the proceedings commencing.
It is clear from the exchange which occurred between Ms Holm and the learned magistrate in the course of his sentencing remarks that he thought the appellant had changed his mind about consenting to a periodic detention order between the time of the first and second exchanges with Ms Holm. What Ms Holm said in the course of the sentencing remarks, however, was - “I have taken instructions from the defendant shortly before coming in here and he has indicated that he...”. This was either not heard properly or otherwise misunderstood by the learned magistrate. In that respect, his Worship may be said to have proceeded upon a misunderstanding. More fundamentally, however, even if he had understood the position correctly, he was not precluded from then considering whether a periodic detention order was appropriate. He seems to have regarded himself at that point in the reasons for decision as functus officio. In my respectful opinion he was not, and could have proceeded to receive submissions on the question of periodic detention.
That is not to say that in every case in which a defendant’s counsel catches the drift of sentencing remarks, counsel can intervene to suggest an option not adverted to in earlier submissions. In my opinion, however, there seems to have been a genuine misunderstanding in this case, associated with an error of principle by the learned magistrate, in determining whether it was even open to him to consider periodic detention.
The Disposition
What then is the appropriate disposition of the appeal? The question that arises is whether or not it is appropriate for the Court to interfere with the decision of the learned magistrate. Nothing has been said to suggest that the term of six months imprisonment was in any way excessive having regard to the circumstances of the case, including the prior record of the appellant. However, even when such a term would be appropriate, it was open to the magistrate to consider a periodic detention order. He failed to do that on the basis of both a misunderstanding and an error of principle.
In my opinion, this Court should now consider whether a periodic detention order would be appropriate in lieu of the term of imprisonment that has been imposed. In my opinion, at this stage the imposition of a periodic detention order would be appropriate. In so concluding, I have regard to the conditions of which the Court must be satisfied under s 6 of the Periodic Detention Act. Dealing with those conditions in order -
(a) It would be appropriate for the appellant to undertake such an order. The pre-sentence report held out positive prospects of the appellant’s rehabilitation with a supervised program. This is a program not without difficulty, but it appears that the relevant support services are available and that appropriate directions can be made to ensure that such programs are undertaken as an incident of the periodic detention order. I also have regard to the fact that the appellant now having spent some 3½ months in custody will, I think, be reasonably inclined to make the best of a periodic detention order covering the remaining time.
(b) I am satisfied by assurances from counsel that there is an appropriate facility available and that that is the Symonston facility. I have been informed that there is a place available at that facility.
(c) I do not require the appellant to submit to a medical examination.
(d) I have regard to the pre-sentence report which was before the learned magistrate and that supports, in my opinion, the appropriateness of such an order at this stage.
(e) I have already in part explained to the appellant through the reading of these reasons the effect of the order and the effect of non-compliance with it; and
(f) I am satisfied that the appellant consents to such an order being made.
Before I make the order I point out to the appellant, as has already been indicated, that it will require his periodic attendance at a detention centre and that, if this order is complied with, it will have the effect of satisfying the balance of the term of imprisonment that he would otherwise have to serve. If there is non-compliance with any aspect of the order or any of the directions that may be made under the powers conferred on the Director or his officers by the Act, then the Court can review and cancel the order on the application of the Director.
Moreover, if the appellant fails to attend for periodic detention on three occasions, then the order will automatically be cancelled. And if the appellant is convicted of any offence which results in a term of imprisonment during the period of the periodic detention, then again the periodic detention will be cancelled. Moreover the appellant has an obligation to inform the Department in the event that that occurs.
There are also provisions relating to the powers of the manager of a detention centre and I draw attention to the fact that under s 23 of the Periodic Detention Act -
(1)The manager of a detention centre may require a detainee who is reporting for, or otherwise serving, a detention period to submit to such test as may be prescribed to determine –
(a)whether alcohol is present in the detainee’s blood and, if so, the concentration of alcohol in the detainee’s blood; or
(b)whether a drug is present in the detainee’s body.
In other words, the appellant may be required to submit to alcohol or drug testing, otherwise it will be a breach of the requirements and the detention order may be cancelled.
There are other provisions for applications for leave of absence and the extension of the detention and the variation of a sentence on compassionate grounds and they are matters on which the appellant can seek advice from his counsel.
The orders I have in mind are -
(1) The appeal is allowed,
(2) The sentence of 6 months imprisonment is set aside,
(3) The appellant is sentenced in lieu thereof to 26 periods of periodic detention commencing on 30 May 2005, and
(4)The period of imprisonment already served including time spent in custody on remand pending the hearing and determination of this appeal shall be counted as 15 of the 26 detention periods.
(5)The appellant is to report to the Symonston Detention Centre at 7 pm on Friday, 16 September to serve the first of the remaining detention periods.
I certify that the preceding forty two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice French.
Associate:
Date: September 2005
Counsel for the appellant: Mr Doig
Solicitor for the appellant: James Horniblow
Counsel for the respondent: Ms Whitbread
Solicitor for the respondent: Director of Public Prosecution
Date of hearing: 12 September 2005
Date of judgment: 12 September 2005
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