Harding v County Court of Victoria
[2013] VSC 711
•17 December 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2013 05461
| DWYANE HARDING | Plaintiff |
| v | |
| COUNTY COURT OF VICTORIA | First Defendant |
| and | |
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Second Defendant |
---
JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2013 | |
DATE OF JUDGMENT: | 17 December 2013 | |
CASE MAY BE CITED AS: | Harding v County Court of Victoria | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 711 | |
---
ADMINISTRATIVE LAW – Judicial review of sentence of County Court Judge on hearing de novo of charges first heard in Magistrates’ Court – Denial of a realistic or practical opportunity to provide submissions in relation to non-parole period – Denial of natural justice – Sentence of County Court quashed.
CRIMINAL LAW – Construction of s 11 of the Sentencing Act 1991 – Whether fixing of a non-parole period available for aggregate prison sentence of 12 months or more where no individual sentence for more than 6 months.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Carr | Warren Graham & Murphy Pty Ltd |
| For the First Defendant | No appearance | Victorian Government Solicitor |
| For the Second Defendant | F Dalziel | Office of Public Prosecutions |
HIS HONOUR:
Introduction
On an appeal from the orders of a magistrate, a County Court judge set aside sentences imposed on Dwayne Harding (the plaintiff) for two terms of imprisonment for two separate offences. Each was for six months, the terms to be served concurrently. Instead, the judge imposed the same two sentences but ordered that one be served cumulatively upon the other. In effect, Harding was re-sentenced to serve an aggregate term of 12 months’ imprisonment in place of an effective sentence of six months.
Section 11(2) of the Sentencing Act1991 confers a discretion on the court to fix a non-parole period when it sentences an offender in respect of an offence for a term of imprisonment of 12 months or more but less than 2 years. The judge did not fix any non-parole period; indeed, in his sentencing remarks his Honour did not expressly consider fixing a non-parole period nor had counsel appearing for Harding on the appeal made any submissions on the question of a non-parole period.[1]
[1]At hearing, it was not made clear whether Harding’s advocate appeared as solicitor or counsel but for the purposes of this judgment I shall refer to the advocate as counsel.
In this court, Harding seeks relief in the nature of certiorari to quash the judge’s orders on the grounds that he was denied procedural fairness. He contends that, in the circumstances that occurred, he was given no opportunity to address the court on his eligibility for the fixing of a non-parole period.
By his originating motion Harding sought relief on a further ground, namely that the judge had failed to clearly warn Harding that he was considering imposing a greater sentence than that which the magistrate had imposed. Harding proposed to argue that the judge failed to comply with s 256(3) of the Criminal Procedure Act 2009 (‘CPA’) or a separate common law duty to similar effect.
When the Director of Public Prosecutions (the second defendant)[2] indicated he conceded that the procedural fairness ground had merit, Harding agreed not to agitate his ground concerning the alleged failure to give an appropriate warning about the possibility of a greater sentence. Moreover, Harding and the Director filed a joint memorandum[3] in support of a common submission that it was ‘incumbent upon the sentencing judge to afford counsel for the plaintiff the opportunity to make submissions about the imposition of a non-parole period’. [4] In oral submissions they both contended that, in the way the events unfolded on the appeal and re-sentencing, the judge had not given Harding such an opportunity and had thereby denied him procedural fairness.
[2]The first defendant is the County Court of Victoria. In conformity with R v Australian Broadcasting Tribunal, ex parte Hardiman & Ors (1980) 144 CLR 13, 35 it advised it would take no part in the proceedings and abide the outcome so long as no costs orders against it were contemplated.
[3]And, following an inquiry from the court, a further joint submission.
[4]Joint Memorandum [24].
In addition, the parties informed the court they consented to orders quashing the County Court judge’s sentence, remitting the proceeding to the County Court to be determined according to law, and requiring the parties to bear their own costs.
Notwithstanding their agreed position and consent to the orders as described, the parties accepted that an order in the nature of certiorari is a discretionary remedy which the court itself must be satisfied is appropriate to grant. Despite the agreed position of the parties, there were three questions on which I wished to be satisfied:
(a)Whether, on the proper construction of s 11 of the Sentencing Act 1991 and in the events that occurred, the County Court had any power to fix a non-parole period;
(b)Whether, on the facts of the case, Harding was denied procedural fairness; and
(c)Even if Harding was denied procedural fairness, whether it is appropriate, in the exercise of my discretion, to quash the judge’s decision.
For the reasons which I set out below, and not without some hesitation, I have decided that it is appropriate to grant the relief of the kind sought.
Did the County Court have power to fix a non-parole period?
Section 11 of the Sentencing Act 1991 provides as follows:
11 Fixing of non-parole period by sentencing court
(1)If a court sentences an offender to be imprisoned in respect of an offence for—
(a)the term of his or her natural life; or
(b)a term of 2 years or more—
the court must, as part of the sentence, fix a period during which the offender is not eligible to be released on parole unless it considers that the nature of the offence or the past history of the offender make the fixing of such a period inappropriate.
(2)If a court sentences an offender to be imprisoned in respect of an offence for a term of less than 2 years but not less than one year, the court may, as part of the sentence, fix a period during which the offender is not eligible to be released on parole.
(3)A non-parole period fixed under subsection (1) or (2) must be at least 6 months less than the term of the sentence.
(4)If a court sentences an offender to be imprisoned in respect of more than one offence, any period fixed under subsection (1) or (2) must be in respect of the aggregate period of imprisonment that the offender will be liable to serve under all the sentences then imposed.
So a court must fix a non-parole period for an offender sentenced to a term of two years or more (unless the court considers fixing any such period to be inappropriate because of the nature of the offence or past history of the offender), and may fix a non-parole period for an offender imprisoned for a term less than two years but not less than one year. And any non-parole period so fixed must be at least six months less than the term of the sentence.
By their joint memorandum, the parties contended that the County Court had increased Harding’s sentence from six months to 12 months. In making that submission the parties, in effect, aggregated the two terms into one which, they contended, was permitted by the proper construction of s 11.
The alternative construction of s 11(2) is that the discretion to fix a non-parole period only arises if a court sentences an offender to be imprisoned ‘in respect of an offence for a term’ of at least 12 months but not more than 24 months. Section 11(1) is similarly expressed to apply to circumstances where a court sentences an offender to be imprisoned ‘in respect of an offence’ for either ‘the term of his or her natural life’ or ‘a term of two years or more’. In this case Harding was not sentenced in respect of any single offence for a term more than six months.
Unless the two terms are aggregated as the parties contended they could be, there is no term of ‘not less than one year’ which could bring Harding’s sentence (or sentences) within s 11(2) to make him eligible for the fixing of a non-parole period. And if he was never eligible for the fixing of a non-parole period it could not have been a denial of procedural fairness for his counsel not to be given the opportunity to make submissions on the fixing of a non-parole period.
In my view there are a number of interpretive factors, which I will come to shortly, that show why the ‘alternative construction’ should not be preferred. The better view, ultimately, is that the singular expressions ‘an offence’ and ‘a term’ should be read as including the plural of each as required by the default rule in s 37(c) of the Interpretation of Legislation Act1984. Further, s 11(4) deals directly with a situation where the court sentences an offender to be imprisoned in respect of more than one offence. I will return to a discussion of this provision in more detail after I first rehearse the arguments in favour of the alternative construction.
Alternative construction
The legislative predecessors of s 11 are to be found in s 190 of the Community Welfare Services Act 1970 and s 17 of the Penalties and Sentences Act 1985. Sections 11(1), (2) and (3) substantially reproduce the provisions of those Acts except that the earlier Acts enacted the three as one sub-section. Like the current Act, the text of the previous provisions also suggested that the duty or discretion to fix a non-parole period was engaged when a single offence attracted a prison term of a particular duration. For example, s 190(1) of the Community Welfare Services Act stated that ‘where any person is convicted…of any offence and sentenced to be imprisoned then, if the term imposed is not less than [the relevant periods]‘ the court must or may (as the case may be) fix a non-parole period.[5]
[5]At that time called ‘a minimum term’.
Section 190(2), the equivalent of section 11(4) of the Sentencing Act, was expressed in quite cumbersome terms as follows:
Where a person is before a court to be sentenced upon convictions for more than one offence the court, notwithstanding that it sentences the offender to be imprisoned in respect of each of the offences for which the offender is convicted and is then to be sentenced, must not fix a minimum term in respect of each of the offences for which the offender is sentenced to be imprisoned but must fix a minimum term in respect of the aggregate period of imprisonment the offender will be liable to serve under all of the sentences then imposed.
In Ryan v The Queen,[6] Stephen J made brief observations about s 190 of the Community Welfare Services Act. In that case the High Court was concerned with the question whether the Victorian Court of Criminal Appeal could re-sentence an offender for four offences that were not the subject of the appeal when it set aside conviction on a fifth charge for which the offender had been sentenced at the same time as he had been sentenced on the other charges. The trial judge had made orders concerning concurrency and cumulation, and had fixed a single non-parole period in respect of all the offences.
[6][1982] 149 CLR 1.
Ryan had been sentenced to four years imprisonment for the conviction that was set aside on appeal. Four terms of imprisonment each of six months duration had been imposed on the other charges. Two were to be served cumulatively on each other and on the charge in respect of which conviction was set aside; the other two were made concurrent with each other term. Having determined that the Court of Criminal Appeal lacked power to vary the sentences on each of the four charges, Stephen J said he would grant special leave to appeal, allow the appeal and restore the sentences imposed on the four counts. Most importantly for present purposes, his Honour continued:
With concurrencies these amount to a total effective term of 12 months. Section 190 of the Community Welfare Services Act provides that no minimum term may be fixed in the case of sentences of less than 12 months and, as I would understand it, the provisions of subsection (2), requiring the aggregation of sentences for certain purposes, does not operate so as to transform the four sentences of six months each into anything more than six months’ sentences for the purpose of subsection (1). Accordingly no question of fixing a new minimum term arises.[7]
[7]Ibid 11.
In other words, it appears that Stephen J construed s 190(2) as first requiring that there be at least one offence for which a sentence of 12 months or more was imposed before it was engaged. The ‘aggregation’ referred to in s 190(2) did not operate to combine the individual terms of less than 12 months to achieve the minimum period that was the gateway to the operation of sub-s (1).
No other judge in that case commented on s 190. Indeed, the remarks of his Honour are plainly obiter dicta and the discussion of the topic is limited to the sentences which I have extracted. There is no reference to authority, submissions or contextual or purposive analysis of the provisions.
Stephen J’s discussion in Ryan’s case is the only one directly on the point that counsel could find. Against it there are a number of recent instances in which it appears to have been assumed that ss 11(1) or (2) are engaged by the aggregation of several sentences none of which of themselves would qualify as a term of the duration required to engage either subsection.[8] Similarly, in those instances, there appears to have been no detailed analysis of the section.
[8]The Queen v Elias [2007] VSCA 125, [2], [39] (Ashley JA, Nettle and Redlich JJA agreeing); The Queen v Sari [2008] VSCA 137 [41] where it was not questioned, on the appeal, that the sentencing judge had a power to impose a non-parole period when orders for cumulation on sentences on nine counts ranging between one to ten months resulted in a total effective sentence of 28 months.
In this matter, the question is squarely raised.
Confining attention simply to the text of ss 11(1) and (2), it appears that the mandatory obligation to impose a non-parole period in sub-s (1) and the discretionary power to do so in sub-s (2) arise when the court sentences an offender to a term of imprisonment of a qualifying duration in respect of a single offence. There is no specific indication in the text of either sub-section that multiple terms of imprisonment for multiple offences can or should be combined or aggregated when considering whether the qualifying duration of imprisonment applies. All of the expressions are consistently singular: ‘an offence’, ‘the term’, ‘a term’ and ‘the sentence’.
Sub-section (3), referring to ‘the term of the sentence’, also speaks in the singular.
Sub-section (4) invites close scrutiny because it is explicitly concerned with the situation where a court sentences an offender for ‘more than one offence’. It does not say, in terms, that if the court sentences an offender in respect of more than one offence the periods of imprisonment are to be aggregated when determining whether a sentence falls within the lengths specified in sub-ss (1) and (2). Although the provision states that ‘any period fixed under subsection (1) or (2)’ must apply to the aggregate period of imprisonment given where the court sentences an offender for more than one offence, the provision does not modify or affect the criteria for the fixing of a non-parole period ‘under’ those subsections. The criteria remains that an offender is sentenced to be imprisoned ‘in respect of an offence for a term’ (emphasis added).
Against the proposition that s 37(c) of the Interpretation of Legislation Act ought to operate so that reference to the singular in s 11 of the Sentencing Act includes the plural, it is arguable that a ‘contrary intention’ (to the interpretative presumption) could be inferred from the words of s 11. The very fact that within the text of s 11 there is both the language of ‘an offence’ and ‘a term’, on the one hand (in sub-ss (1) and (2)), and ‘more than one offence’ and ‘the aggregate period…under all sentences’, on the other (in sub-s (4)), suggests that the singular expressions in sub-ss (1) and (2) are intended to be confined to the singular and not read as including the plural.
Additional support for that inference arguably could be found from other provisions in the Sentencing Act. For example, s 9 specifically concerns the notion of ‘aggregate’ sentences; and s 6AAA(4) uses the expression ‘total effective period of imprisonment’ for the aggregate of multiple terms of imprisonment. The use of these descriptions elsewhere in the Act to express the meaning that the parties contend should be given to the phrases ‘a term’ in respect of ‘an offence’ seems to militate against the meaning they contend for. In other words, it might be said that Parliament has shown elsewhere in the Act that when it wants to refer to the effect of combining sentences given for several offences, it does so by the use of clear words.
The better view
Nevertheless, s 35(a) of that Interpretation of Legislation Act also requires that a construction of a provision that promotes the purpose or object underlying the Act should be preferred to one that does not. Reflection on the purpose for fixing a non-parole period has persuaded me that Parliament could not have intended the ‘alternative view’ of s 11.
The purpose of fixing a non-parole period is well established in the common law. Citing authorities well preceding the Sentencing Act, Callaway JA said in R v VZ: [9]
[9]R v VZ (1998) 7 VR 693, 697 [14] (citations in original); see also 694 [3] (Phillips JA) and 700 [22] (Batt JA). See also Director of Public Prosecutions v Josefski (2005) 13 VR 85, 94 [43] (Callaway JA).
…the High Court has repeatedly affirmed that the purpose of fixing a non-parole period is:
… to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence.[10]
It is the public interest that is primarily to be served by what Winneke P called in R v Mulvale:[11]
… discrete consideration of those factors which exist in the material before the court which bear upon the question of when the prisoner should be eligible for mitigation of confinement and, in turn, rehabilitated under conditional supervision.[12]
[10]See Power v R (1974) 131 CLR 623 at 629; Deakin v R (1984) 54 ALR 765; 58 ALJR 367 and Bugmy v R (1990) 169 CLR 525 at 531, 536 and 538
[11]Unreported, Court of Appeal, 20 February 1996 at 11
[12]See also the judgment of Batt JA in R v Sener [1998] 3 VR 749 at 752–3.
It is difficult to see why the object of rehabilitation should be attracted when, for example, an offender is sentenced to one term of imprisonment of three years, in respect of one offence, but not when the offender is, say, sentenced to five terms of imprisonment for separate offences, each of six months to be served cumulatively. In each case the total effective term of imprisonment is three years. Many similar examples can be envisaged with different combinations of offences and periods of imprisonment.
There is no reason in logic or principle why the object of rehabilitation would only apply to the single instance sentence, and not the multiple offence sentences. Moreover, it is not difficult to imagine circumstances in which the utility of and prospects for rehabilitation are greater in relation to offences of moderate gravity which, although numerous, attract small individual terms, compared with a single offence of greater gravity that attracts a longer individual term of imprisonment.
Putting it in the positive, it is highly likely that Parliament intended that the sentencing tool of fixing a non-parole period – a tool to promote the rehabilitation of offenders for the benefit of the community - be available when an offender is imprisoned for a term of a specified length whether that length is achieved by a single sentence or the combination of more than one sentence given on the same occasion.
Although far from conclusive, the Explanatory Memorandum for the Sentencing Act is at least consistent with that view of the legislative intent. Referring to what ultimately became s 11, clause 12 of the bill was explained as enabling the court to fix a non-parole period during which the offender could not be released. It then continued:
This period is to be at least 6 months less than the head sentence. [emphasis added]
The expression ‘head’ sentence may be apt to describe both a term of imprisonment imposed for a single sentence and the aggregate of several terms of imprisonment after concurrencies and cumulations have been applied. So understood, the choice of that word points to an intention that the non-parole period is, in appropriate cases, calculated from the cumulative term of several sentences.
Finally, it is difficult to see how the alternative construction would work in practice. For example, take a situation where an offender is sentenced as follows: 15 months on count 1; and 6 months on counts 2 and 3, with the sentence on count 2 to be served cumulatively upon the term for count 1, and 3 months of the term on count 3 to be served cumulatively upon the terms for the other 2 counts, otherwise concurrently. In that case the total effective sentence is 24 months (15+6+3).
The term imposed on count 1, alone, would qualify to attract the discretion to fix a non-parole period under s 11(2). But how would s 11(4) apply in that example? It requires that the non-parole period fixed under sub-s (1) ‘be in respect of the aggregate period’. But if it is already ‘fixed’ under sub-s (1) in respect of the 15 month term, then it will result in a non-parole period for that term of no more than 9 months (6 month being the minimum reduction that can be given). How is it then also applied ‘in respect of the aggregate period’ (ie 24 months), as required by s 11(4)?
The answer clearly seems to be that it is not intended to be applied in that way. It is intended that periods of imprisonment imposed on the same occasion are aggregated to ascertain whether either of ss 11(1) or (2) is engaged and, if so, a non-parole period of not less than 6 months is fixed in respect of the whole aggregate term if the circumstances call for it. Reading the word ‘offence’ to include ‘or offences’ in each of those sub-sections, when applying s 11(4), produces that meaning.
In conclusion, and respectfully, I am unable to adopt the view suggested by Stephen J in Ryan. It follows that, upon sentencing Harding to serve two terms of 6 months cumulative upon one another, the judge had a discretion to fix a non-parole period of at least six months less than the aggregate 12 month term.
Did the judge deny Harding procedural fairness?
There have been numerous instances in which courts have found a want of procedural fairness because a tribunal failed to disclose to a party the prospect of an unexpected adverse conclusion.[13] Aronson and Groves refer to:
…decisions [that] have suggested that disclosure of an adverse conclusion will be necessary where the conclusion is not obvious or anticipated or is not ‘reasonably to be expected’. Each of these slightly differing expressions suggests that procedural fairness may require an adverse conclusion which is not immediately obvious to the parties to be put to them for comment before it can fairly be made.[14]
In such cases, it has been held that procedural fairness required there to be some disclosure made to afford the party the opportunity to adduce material or make submissions to try and meet the foreshadowed conclusion.
[13]See generally the discussion of cases in Aronson and Groves, Judicial Review of Administrative Action (5th Ed, Thomson Reuters) 546-549.
[14]Ibid 546 (citations omitted).
On the other hand, decision makers are not generally required to disclose their mental processes or provisional views before making the decision in question.
The Full Federal Court (Northrop, Miles and French JJ) in Commissioner for the Australian Capital Territory Revenue v Alphaone[15] described the tension between these two principles:
It is a fundamental principle that where the rules of procedural fairness apply to a decision-making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material: Dixon v Commonwealth (1981) 55 FLR 34 at 41. However, as Lord Diplock said in F Hoffman-La Roche and Co AG v Secretary of State for Trade and Industry [1975] AC 295 at 369:
“… the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If that were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would be abolished.”
[15](1994) 49 FCR 576.
More recently, the High Court affirmed the statement of principle contained in the first two sentences in the Full Federal Court’s decision set out above.[16] Of most significance to the present case is the question whether Harding was afforded the opportunity to ascertain the existence of a relevant issue – namely, whether a non-parole period should be fixed – and to be heard on that issue.
[16]SZEBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152, 162 [32].
As Kirby J said in Parker v DPP:
Fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.[17]
[17](1992) 28 NSWLR 282, 296.
There is no doubt that, in the exercise of its supervisory jurisdiction, this court has power to set aside a County Court judge’s order made on appeal under s 254 of the CPA[18] from a conviction or sentence ordered by a magistrate.[19] Previous examples exist where this court has ruled on a claim that an appellant in the County Court was denied procedural fairness for not being warned of a potentially adverse change to his or her sentencing disposition.[20]
[18]Sections 254 ff of the CPA, insofar as they relate to sentence appeals, substantially reproduce the former provisions of ss 83 ff of the Magistrate’s Court Act 1989.
[19]See Brand v Parson [1994] 1 VR 252; Flynn v DPP [1998] 1 VR 322; Flaherty v DPP [2003] VSC 234 [14] (Osborn J).
[20]See Brand and Flynn at n 18 above.
Turning to the facts of this matter in further detail, a magistrate sentenced Harding on two charges of reckless conduct placing persons in danger of serious injury contrary to s 23 of the Crimes Act1958. Those charges arose from two separate instances of high speed driving in residential areas in Bendigo while being pursued by police. On one occasion Harding drove at 122 kph in a 50kph zone; on another, at 130kph in a 70 kph zone and then 170kph in an 80 kph zone. He admitted he knew both times that the police would stop pursuing him if he went fast enough.
Harding’s appeal in the County Court, brought under s 254 of the Criminal Procedure Act 2009, was conducted as a re-hearing. In such an appeal, the appellant is not bound by any plea entered in the Magistrates’ Court, [21] the County Court must set aside the sentence of the Magistrates’ Court and it may impose any sentence or exercise any power which the Magistrates’ Court did or could have imposed or exercised.[22] As early as possible during the re-hearing, the judge must warn the appellant that he or she faces the possibility that a more severe sentence may be imposed than that imposed by the Magistrates’ Court.[23]
[21]CPA, s 256(1).
[22]CPA, s 256(2).
[23]CPA, s 256(3).
There were four County Court appeals heard by the judge on the day of Harding’s appeal. Harding’s appeal was third in the list and his counsel (Mr A McLennan) also appeared for the first two appellants in the list. To better understand the meaning of what occurred on Harding’s appeal, it is relevant to set out part of what occurred in the first two appeals.
On the hearing of the first appeal, following the reading of the prosecution summary and provision of the prior criminal history, there was this exchange:
His Honour: Yes, Mr McLennan, your client is well aware, I imagine, that I have the power to increase sentence?
Mr McLennan: Yes, sir. That is a formal warning sir, I would seek instructions.
His Honour: No, I think I am required under the Act to ensure that he – and to tell him that.
Mr McLennan: Yes, Sir.
His Honour: So I am telling him through you. He signed the form, in any event, which acknowledges that to be the case, but nevertheless I think I am still required to say that.
Mr McLennan: If I may speak briefly with Mr [the client], Sir, in respect of that issue?
His Honour: Yes, sure. It is important that he understands.
Mr McLennan: May I be excused? His instructions are to proceed on that basis, Sir.
On that appeal his Honour re-imposed the same sentences as below.
On the hearing of the second appeal, also following the reading of the prosecution summary, and provision of the prior criminal history, the following took place:
His Honour: Mr McLennan, again I have to ask is your client fully aware that I have power to increase sentence?
Mr McLennan: Yes, Sir.
In that case, the sentence that was the subject of the appeal was a term of 12 months, with no non-parole period having been fixed. But the offender also faced 3 months imprisonment for the breach of a suspended sentence. That sentence was not the subject of the appeal and, in the absence of exceptional circumstances, had to be served cumulatively upon the appealed sentence.
Agreeing with counsel’s submission that it was appropriate that the offender should serve less than a total of 12 months in custody and that he would benefit from parole supervision, his Honour indicated the total effective sentence should be increased from the 12 months to 15 months but with a non-parole period fixed. Mr McLennan conceded that this was an appropriate course, no doubt conscious of the fact that a non-parole period would need to be at least 6 months less than the total effective sentence.[24]
[24]In fact, the judge fixed a non-parole period of 8 months (ie 7 months less than the total effective sentence).
Then came Harding’s appeal. Again, following the reading of the prosecution summary and the provision of Harding’s prior criminal history, there was this exchange:
His Honour: Again, I need to ensure that your client is fully aware that I have the power to increase sentence?
Mr McLennan: He is aware of that, Sir.
Mr McLennan then went on to conduct the plea. His submission was directed to the imposition of a term of imprisonment that was less than that imposed in the Magistrates’ Court which, of course, was a total period of six months. In the course of Mr McLennan’s submission his Honour made several comments that might well have been interpreted as signalling real disquiet about Harding’s conduct and antecedents. In response to the submission that Harding had ‘relatively limited history’, the judge replied, ‘Relatively limited history? A pretty bad driving record.’ His Honour specifically noted that there were two instances of offending and that Harding’s driving had put ‘other people and other people’s children at severe risk’.
Prior to making the orders, his Honour did not give any indication that the sentence that would be imposed might or would be one that would enable a non-parole period to be set. His Honour did not seek any submission as to whether a non-parole period should be imposed. Counsel appearing made no submission concerning the appropriateness or otherwise of fixing such a period.
The fixing of a non-parole period requires discrete consideration of the factors bearing upon when a prisoner should be eligible for release. Prominent among those considerations is the prisoner’s prospect of rehabilitation.[25] Although a judge would give consideration to the same suite of sentencing considerations when determining the appropriate term of imprisonment including, where there are multiple offences, questions of concurrency and cumulation, the weighting of those considerations may well be different when applied to the issues of whether a non-parole period should be fixed and, if so, what period.
[25]Director of Public Prosecutions v Josefski (2005) 13 VR 85, 94 [43] (Callaway JA).
Here the complaint is not that the court did not consider the question of whether a non-parole period should be fixed. Rather, it is that Harding was not given an opportunity to be heard on that question. Of course, there was no impediment to his counsel making a submission on that question. It is not suggested that a request to make a submission was refused. The contention is that counsel for Harding was not given any practical or realistic opportunity to be heard on that issue.
That contention depends upon the premise that, in the particular circumstances that occurred, the issue of the fixing of a non-parole period was not within the reasonable contemplation of counsel who appeared for Harding. Put another way, it could not reasonably have been expected that the issue of the fixing of a non-parole period needed to be addressed. That premise really amounts to saying that it was not within the reasonable contemplation of counsel appearing for Harding that the judge might increase the sentence from an effective sentence of 6 months to one of 12 months or more.
I have given this argument careful consideration. With real hesitation – perhaps even generously – I have decided that for reasons less to do with the judge and more to do with the particular combination of circumstances on the day, Harding did not have a practical opportunity to be heard on the question of the fixing of a non-parole period, and was thus denied procedural fairness.
Both counsel seemed to agree in a submission before me that it was most unusual – ‘almost unheard of’ – for offenders to have their sentences increased on County Court appeals, because of a practice that counsel are warned ‘explicitly’ that there is a real possibility the appellant’s sentence is going to be increased, so that appeals are abandoned before that step. Further, it was submitted that it was ‘almost unprecedented’ that there should be a doubling of sentence without that possibility being explicitly drawn to counsel’s attention.
First, the requirement under s 256(3) of the CPA is that the judge must warn the appellant, as early as possible during the hearing, that the appellant faces the possibility that a more severe sentence may be imposed. It is not disputed in this appeal that the judge gave such a warning. Nothing I say should be interpreted as putting that in doubt; the judge gave the appropriate warning as soon as the summary of the offence had been given. Furthermore, nothing I say should be interpreted as adding to the statutory requirement of what that warning should be.
Secondly, having given that warning, the judge made it quite clear in several statements that he viewed Harding’s conduct very dimly. It is part of counsel’s duty, skill and experience to detect the way the wind is blowing and adapt accordingly.
However, the issue of a non-parole period was expressly addressed in the immediately preceding appeal, in the context of the judge having made it clear that the sentence would be increased for the particular reasons that there applied. It is therefore plausible that counsel for Harding assumed that any prospect that Harding’s sentence might be increased by such an extent as to enliven the discretion to fix a non-parole period would be foreshadowed before the plea was concluded. Conversely, it might be said that because the question of a non-parole period had been raised in the previous appeal when the sentence was increased, and the warning of the possibility of an increase had been given in Harding’s case, counsel should not have made such an assumption. But I give Harding the benefit of the doubt.
I take into account that in Harding’s case it was only because (and not until) his sentence was effectively doubled that the question of a non-parole period even arose. In the particular circumstances that occurred, I am prepared to accept that it would have been reasonable for Harding’s counsel to expect to be warned should any need to address the court on a non-parole period arise. The making of that reasonable assumption by his counsel, the failure of the judge to warn counsel of the potential need to address the issue of a non-parole period, and the consequent deprivation of an opportunity for Harding (through counsel) to make submissions on that issue, resulted in a want of procedural fairness.[26]
[26]See, analogously, the analysis in DPP v Shoan [2007] VSCA 220, [26] (Buchanan JA), [35] (Nettle JA).
To an extent, in reaching that view I have placed some reliance upon what both counsel suggest is the current ‘practice’ in County Court appeals, which is that those appearing for appellants can rely upon receiving a quite explicit warning from the judge that their client’s sentence is likely to be increased, even more so if by a significant proportion. An acceptance of that proposition has influenced my acceptance of the plausibility – and reasonableness – in these particular circumstances, that Harding’s counsel’s would expect to be warned if the issue of addressing a non-parole period arose.
But what I have said should not be taken as any endorsement, generally, of counsel making such assumptions. Judge’s sentencing options are not fettered by assumptions made by counsel who, based upon those assumptions, refrain from giving proper consideration to all the sentencing options and making full submissions directed toward them. Counsel should not, for fear of being seen to ‘concede’ an adverse possibility, refrain from making a submission directed toward a more adverse outcome than the one they are advocating, when that outcome is plausibly within the sentencing options open to the court. There are many ways to ‘sound out’ a court whether it is appropriate to address a particular issue without weakening the force of the primary submission.
For the reasons I have explained, I accept that in the circumstances of this case Harding was denied procedural fairness.
Should I exercise discretion to quash the orders?
Whether, as a matter of discretion, I should grant the relief sought in this case comes down to whether the opportunity to address the court about fixing a non-parole period could possibly have made any difference to the outcome. As was said by McHugh J in Re Refugee Tribunal; Ex parte Aala[27] ‘…once a breach of natural justice is proved, a court should refuse relief only when it is confident that the breach could not have affected the outcome’.[28]
[27](2000) 204 CLR 82
[28]Ibid 122 [104]; see also 88 [4] (French CJ), 130-131 [131] (Kirby J), 154 [211] (Callinan J).
Here, his Honour plainly did not consider that the six month term imposed by the magistrate (taking into account concurrency) was adequate for the gravity of the offences.[29] Given that any non-parole period had to be at least six months less than the term of the sentence,[30] it is perhaps unlikely his Honour would have been disposed to fix any non-parole period.
[29]In sentencing, his Honour said, ’I think, quite frankly, that the overall sentence here is wholly inadequate…These were very bad offences…I actually don’t regard 12 months as being a stern sentence for these two offences, but that’s what I propose to order’.
[30]Section 11(3)
But, as I previously stated, the question of the fixing of a non-parole period requires discrete consideration from the other sentencing considerations. In this case, counsel for Harding made submissions to the judge about the rehabilitation prospects of his client which were not rejected. His Honour’s sentencing remarks, appropriately for the fixing of sentence and the order for cumulation, concentrated on the gravity of the offending but made no specific mention of rehabilitation.
Although I think that it was quite likely that the judge would have reached the same conclusion – indeed his Honour may well have considered the issue and, without articulating it, rejected the idea of fixing a non-parole period – I am unable to confidently conclude that submissions on the issue would have had no bearing on the outcome. Without that confidence, it is therefore appropriate that I should grant the relief sought and quash the orders made.
Conclusion
I have concluded that:
·on the proper construction of the Sentencing Act, and in the events that occurred, the County Court had the power to fix a non-parole period upon re-sentencing Harding, to two terms of six months imprisonment to be served cumulatively (an overall sentence of 12 months);
·on the particular facts of this case, Harding was denied procedural fairness in that he was not afforded a practical or realistic opportunity to be heard on the issue of whether a non-parole period should be fixed; and
·given that I cannot be confident that submissions on that issue could have had no bearing on the outcome of whether a non-parole period should be fixed, I should exercise my discretion to quash the judge’s decision and remit the matter to the County Court to be determined according to law.
Subject to hearing further from the parties, the orders will be:
1.The order of the County Court made on 22 August 2013 in proceeding AP-13-1923, sentencing the plaintiff to a total effective sentence of 12 months imprisonment, be quashed and set aside.
2.The plaintiff’s appeal to the County Court pursuant to s 254 of the Criminal Procedure Act 2009, in proceeding AP-13-1923, be remitted to the County Court (differently constituted) to be determined according to law.
3. The parties bear their own costs of this proceeding.
3
8
0