Hamlin v Watkins
[2019] ACTSC 24
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hamlin v Watkins |
Citation: | [2019] ACTSC 24 |
Hearing Date: | 5 February 2019 |
DecisionDate: | 5 February 2019 |
Before: | Loukas-Karlsson J |
Decision: | See [39] |
Catchwords: | CRIMINAL LAW – APPEAL – GENERAL PRINCIPLES – appeal from Magistrates Court – appeal against sentence – whether appellant’s prospects of rehabilitation had been considered – whether appellant afforded procedural fairness – appeal allowed |
Legislation Cited: | Crimes Act 1900 (ACT) s 375 Crimes (Sentencing) Act 2005 (ACT) ss 6, 7, 10, 33 |
Cases Cited: | Bethke v Phelan [2016] ACTSC 328 Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Shay Hamlin (Appellant) Nicole Watkins (Respondent) |
Representation: | Counsel P Edmonds (Appellant) M Fernandez (Respondent) |
| Solicitors Paul Edmonds and Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 51 of 2018 |
Decision under appeal: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 12 September 2019 Case Title: Watkins v Hamlin Court File Number: CC 3657 of 2018 |
LOUKAS-KARLSSON J:
Introduction
On 12 September 2018, Chief Magistrate Walker made the following orders in relation to Mr Shay Hamlin (the appellant):
(a)Convicted of committing aggravated robbery (in company) on 4 March 2018 (CC18/3657) and sentenced to 27 months of imprisonment, with a non-parole period of 15 months; and
(b)Convicted of possessing a drug of dependence on 20 April 2018 (CC18/8070) and sentenced to 1 month of imprisonment, concurrent with the above sentence.
This is an appeal against the sentence of 27 months with a non-parole period of 15 months for the offence of aggravated robbery in company on 4 March 2018.
This is an offence contrary to s 310 of the Criminal Code 2002 (ACT), which on conviction carries up to 25 years' imprisonment. The appellant elected to have the matter dealt with in the Magistrates Court (s 375 of the Crimes Act 1900 (ACT)). The offence therefore carries a maximum of five years' imprisonment or a financial penalty.
The Appeal
The appellant relies upon the grounds outlined at paragraphs 4(i) and (v) of the Amended Notice of Appeal only, and those grounds of appeal are as follows:
(a)the Chief Magistrate erred by not having regard to a relevant consideration, being the appellant's prospects of rehabilitation (Ground 1); and
(b)the Chief Magistrate did not afford procedural fairness to the appellant by giving him notice that she was not then persuaded on the current evidence that he had been of prior good character as an adult prior to the offences (Ground 2).
Further evidence was tendered before me on the usual contingent basis, that evidence relating to his progress in custody would become relevant on resentence, should any ground of the appeal be upheld.
Jurisdiction
In relation to the nature of the appeal, this Court has jurisdiction pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act) to hear an appeal from a sentence or penalty imposed by the Magistrates Court: s 208.
The appeal is brought pursuant to s 209 of the Magistrates Court Act. The Court must conduct a review of the hearing in the Magistrates Court and the Magistrate's reasons. The Court must have regard to the evidence given in the hearing and has the power to draw inferences of fact. The Court must determine whether the Chief Magistrate erred in law or fact or exercised her discretion in a way that was clearly wrong: Connelly v Allan [2011] ACTSC 170; 212 A Crim R 320; Slipper v Turner [2015] ACTSC 27; 294 FLR 164 recently approved in Huggard v Murray [2016] ACTSC 246; 312 FLR 104; Bethke v Phelan [2016] ACTSC 328 at [8] (Bethke).
The decision at first instance
The facts before the Chief Magistrate, as they were recounted in the remarks on sentence, are as follows:
On 4 March 2018, the defendant and a friend, Ms Inglis, went shoplifting at Sportsmans Warehouse in Fyshwick and Ms Inglis was a known shoplifter so the staff kept an eye on her. As both the defendant and Ms Inglis went to leave the store with clothing items that had been taken, the duty manager, [the victim], tried to stop them.
Both proceeded to go past him with their heads down. Ms Inglis, in fact, pushed past [the victim] and the defendant tried to evade him by walking along the store towards a car. [The victim] very reasonably said, 'Mate, just hand over the clothes and leave.' [The victim] was still trying to recover the clothes that were held by the defendant when the defendant said to him, 'Mate, I have a syringe in my pocket and I will stab you with it.'
The defendant reached into his pocket. [The victim] was afraid that the defendant would do as he threatened, although he did not actually see a syringe. However, [the victim] persisted and, in fact, retrieved three of the stolen items. The value of the items taken was $519.90.
The theft was caught on closed circuit television. The defendant was arrested three days later. He was brought before the court and bailed. Ms Inglis was apparently charged with theft of those items by joint commission.
It was also stated in the remarks on sentence that:
After the defendant was brought before the court in relation to the aggravated robbery charge, he was released on bail. He was subsequently arrested in the early hours of 20 April 2018 and found to be in possession of 9.994 grams of methylamphetamine in two clipseal bags.
The appellant pleaded guilty to the aggravated robbery at a relatively early stage and there was some delay in the proceedings prior to sentence. The Victim Impact Statement (VIS) records that the victim was shaken up by the incident and did not work on several Sunday shifts thereafter, as he would be the only full‑time person to be on shift during those weeks. He suffered some financial impact as a result. However, by the time he prepared the VIS in May, he stated that he was “over it” and “moving on”. The Chief Magistrate indicated that he is perhaps an unusually robust victim.
The Chief Magistrate also found, at page 3 of the transcript, that the aggravated robbery appears to have been spontaneous and the items seized were of low value. A threat was made, although there was no practical attempt to carry it out and it is doubtful that it was even possible, noting that the appellant denied he had a syringe in his pocket. Nonetheless, the victim was concerned about the fact that such a syringe may have been available and felt fear. Her Honour found the offence fell towards the lower end of objective seriousness for offences of this type.
In relation to subjective circumstances, the Chief Magistrate noted that the appellant was a 32-year-old male raised by his mother and he has very limited education, having left school in Year 7. He has worked intermittently since then, largely in unskilled employment. He has engaged in drug use, including methamphetamine use.
The Chief Magistrate also went on to discuss the Pre‑Sentence Report (PSR). The appellant, it was indicated in the PSR, showed disdain in relation to the matter, and it was certainly not a positive PSR. Her Honour also made the following comment:
The defendant has a limited criminal history of matters in the Children's Court many years ago, otherwise he has been ostensibly law‑abiding and he has been found to be at low to medium risk of reoffending and has been found suitable for community service.
The Chief Magistrate then went on to deal with a number of decisions of this court and the courts in Victoria. Her Honour indicated a 25 per cent discount for an early plea of guilty was afforded. Her Honour also dealt with the question of parity in her decision.
In sentencing the appellant, her Honour took into account the early pleas of guilty which she noted were valuable, less as an expression of remorse than for the utilitarian value. Her Honour was satisfied that the s 10 threshold of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) had been crossed, that is, that no sentence other than full‑time custody is appropriate, and then sentenced the appellant. It should be noted that at no point were the prospects for rehabilitation mentioned in the remarks on sentence.
Appellant’s submissions
The appellant submitted that prospects of rehabilitation were a relevant consideration on sentence, particularly in relation to the length of the non-parole period, citing Zdravkovic v The Queen [2016] ACTCA 53. The appellant noted that the Chief Magistrate did not mention rehabilitation in her sentencing remarks.
The appellant submitted that, given the non-parole period is more than 50 per cent of the sentence and that the appellant’s risk of reoffending was assessed as medium-low, it cannot be inferred that her Honour considered rehabilitation but neglected to mention it.
The appellant accepted that neither the head sentence nor the non-parole period was manifestly excessive, however, submitted that, if the Court finds error by the sentencing magistrate, the Court may impose a shorter non-parole period. In the appellant’s submission, a shorter non-parole period would reflect that this is the appellant’s first full-time custodial sentence as an adult, and the “principle of parsimony normally applied to such cases”. In this respect, the appellant cited McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 at 563-564 and Moutrage v Haines [2008] ACTSC 36 at [40].
In relation to the second ground of appeal, the appellant noted that the Chief Magistrate made the following remarks when delivering sentence: “The defendant has a limited criminal history of matters in the Children’s Court many years ago. Otherwise he has been ostensibly law-abiding” (Transcript of Magistrates Court proceedings T 4.10). The appellant submitted that it can be inferred from these comments that her Honour did not accept that the offences he was facing on sentence were his first adult matters.
The appellant submitted that, if the appellant had been informed that her Honour was not willing to accept that he had been of prior good character, it would have permitted him to provide further evidence of such good character and there would have been “a real possibility that a finding favourable to the appellant would have been made by the sentencing magistrate, resulting in either a lower head sentence or non-parole period”.
Respondent’s submissions
In relation to the contention the respondent submitted that there was very little by way of material to assist the Chief Magistrate.
The respondent stated the following (T 2.20):
For the purposes of sentencing, the magistrate had before her the statement of facts, a copy of the victim impact statement, the criminal history, his mother’s letter to the court and a letter from an employer offering future employment, and a pre-sentence report.
The respondent submitted that her Honour had clearly adverted to elements that go to rehabilitation, including the fact the appellant had not been convicted as an adult. It was submitted that the Chief Magistrate was faced with an objectively serious offence with limited material to ‘counter’ it. It was submitted that her Honour “worked with the material that [was] before her”.
Consideration of Ground 1
When delivering sentence, the Chief Magistrate did not specifically refer to the prospects of rehabilitation. This is a relevant matter in circumstances where 16 years had elapsed since the commission of offences in the Children's Court, there was no adult criminal record, and the appellant was 32 years of age.
This, in my view, is a specific error on the facts of this case.
In Bethke at [33], Murrell CJ stated the following:
It is recognised that the Magistrates Court has a heavy workload and operates under considerable pressure and decisions are usually delivered ex tempore. In those circumstances, brief reasons may be given for sentences. It is not necessary to address every submission or give detailed reasons about any submission. However, reasons should be adequate to enable a proper understanding of the basis upon which a decision has been reached, and failure to do so may constitute an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376, O'Brien v Noble (2012) 6 ACTLR 132 and Brisciani v Piscioneri (No 4) [2016] ACTCA 32.
While recognising the heavy workload of the Magistrates Court in this regard, prospects of rehabilitation are nevertheless an important and relevant matter on the facts of this case. This is particularly so, as noted above, in light of the offender’s lack of adult criminal record and 16-year gap from the commission of an offence. Prospects of rehabilitation is a matter specifically referred to under s 7 of the Sentencing Act, which includes the following purposes of sentencing:
(a)to ensure the offender is adequately punished for the offence in a way that is just and appropriate;
(b)to prevent crime by deterring the offender and other people from committing the same or similar crimes;
(c)to protect the community from the offender;
(d)to promote the rehabilitation of the offender;
(e)to make the offender accountable for his or her actions;
(f)to denounce the conduct of the offender; and
(g)to recognise the harm done to the victim of the crime and the community.
As stated earlier, in my view, there has been a specific error in relation to this ground. The question of rehabilitation is an important matter that ought to have been specifically referred to on the facts of this case.
I also indicate that, in light of my finding in relation to Ground 1, it is not necessary to deal with Ground 2, the procedural fairness ground. This is because I will be proceeding to resentence, error having been found in respect of Ground 1. In relation to Ground 2, though, for completeness, I indicate that the ground of procedural fairness is not a ground that I would have upheld on the facts of this case.
This Court is empowered to refer the matter back to the Magistrates Court or vary the sentence to impose an appropriate sentence. No purpose would be served by referring the matter back to the Magistrates Court and thereby prolonging this case, so I will proceed to resentence.
Re-sentencing
I have referred to the relevant facts above that were recited by the Chief Magistrate. Firstly, in relation to objective seriousness, her Honour correctly found the objective seriousness to be at the lower end of objective seriousness, and counsel on the appeal did not cavil with that interpretation.
In relation to victim impact, it is important that I indicate that in evidence before me was a VIS from the victim of the offence. The extent of the impact upon the victim was made clear by the VIS, in particular, the impact at the time. The courts know the serious effects of such offences and it is important to have the words of the victim both for the court and for the offender. The court acknowledges the impact the offence has had on the victim.
In relation to subjective matters, I have already outlined the subjective matters above that were referred to by the Chief Magistrate. I should also indicate that before me on resentence was a considerable body of material, including the following:
(a)a letter under the hand of a trainer/assessor at Foresite Training and Licensing, dated 4 February 2019;
(b)a letter under the hand of a trainer/assessor at Foresite Training and Licencing, dated 15 January 2019;
(c)a certificate of participation dated 17 January 2019 for the successful completion of a Harm Minimisation Session;
(d)an ACT Corrections programs unit certificate of achievement in recognition of the offenders completion of First Steps to Anger Management program, dated 22 October 2018;
(e)a statement of participation and achievement for Use Hygiene Practices for Food Safety Training and Kitchen Operations, dated 4 February 2019;
(f)a statement of participation and achievement for Prepare & Serve Espresso Coffee Training & Barista Operations, dated 4 February 2019; and
(g)a Hepatitis Education certificate of participation, dated 29 November 2018.
It appears that the time in custody has had the requisite salutary effect on the appellant.
The Chief Magistrate did not have the benefit of this material before her. It is to the appellant's credit that he has used his time in custody wisely to rehabilitate himself. The letters and certificates before me speak to the rehabilitation that has occurred during this period in custody.
Conclusion
In coming to a resentence by way of instinctive synthesis, I take into account the purposes of sentencing under s 7 referred to above, and I take into account the matters, where relevant and known, under s 33 of the Sentencing Act.
The appeal will be upheld in relation to Ground 1. The sentence of the Magistrates Court imposed on 12 September 2018 in relation to the aggravated robbery is set aside, and the appellant is re-sentenced.
As I have indicated, I have taken all relevant matters into account, including s 10 of the Sentencing Act. In relation to the plea of guilty, a discount of 25 per cent is appropriate. I commence with a sentence of 32 months which, following the discount for the 25 per cent plea of guilty, results in a head sentence of 24 months. That will be backdated to 3 September 2018, and I set a non-parole period of 11 months. Therefore, the appellant will be eligible for parole on 2 August 2019.
Orders
I make the following orders:
(a)The appeal is upheld;
(b)I set aside the orders imposed on 12 September 2018 in relation to the charge CC18/3657 by the Chief Magistrate;
(c)I resentence the appellant as follows:
(i)For the offence of aggravated robbery (in company) (CC18/3657), the appellant is sentenced to 24 months of imprisonment, commencing 3 September 2018, and concluding 2 September 2020;
(ii)I set a non-parole period of 11 months, commencing 3 September 2018 and concluding 2 August 2019.
| I certify that the preceding thirty-nine [39] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Loukas-Karlsson. Associate: Date: 15 October 2021 |
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