Harper v Newman
[2022] ACTSC 207
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Harper v Newman |
Citation: | [2022] ACTSC 207 |
Hearing Date: | 5 August 2022 |
DecisionDate: | 5 August 2022 |
Before: | Mossop J |
Decision: | Appeal dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – minor theft – driving unlicensed – breach of good behaviour order – appeal on ground of manifest excess – sentences imposed did not disclose misapplication of sentencing principle – appeal dismissed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 110(2) Legislation Act 2001 (ACT) Road Transport (Driver Licensing) Act 1999 (ACT), s 31(2) |
Cases Cited: | House v The King (1936) 55 CLR 499 Samios v Petersilka (unreported, Supreme Court of the Australian Capital Territory, Master Hogan, 23 December 1993) Tracey v The Queen [2020] ACTCA 51 |
Parties: | Jason Harper (Appellant) Benjamin Newman (Respondent) |
Representation: | Counsel Self-represented (Appellant) K McCann (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 18 of 2022 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 31 May 2022 Case Title: Newman v Harper Court File Numbers: CC2019/10534 CC2021/9419 |
MOSSOP J:
Introduction
On 31 May 2022 the appellant, Jason Harper, was sentenced by a magistrate in relation to one charge of minor theft contrary to s 321 of the Criminal Code 2002 (ACT) (CC2021/9419) and a breach of a suspended sentence order in relation to a charge of driving unlicenced contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2019/1053). The appellant was sentenced to an effective sentence of three months and one day’s imprisonment commencing on 31 May 2022 and ending on 31 August 2022.
The appellant has appealed against the whole of the sentence imposed on the basis of an allegation of manifest excess. In oral submissions, the target of the claim of manifest excess was focused upon the extent of concurrency between the two sentences.
Background
The events giving rise to the charge of minor theft were set out in the Statement of Facts tendered on sentence. In summary, the appellant attended BWS in Hawker, Australian Capital Territory (ACT) on two occasions on 31 July 2021 and on a further occasion on 14 August 2021. He stole bottles of alcohol totalling, between the three occasions, $150.30. Each occasion was captured on CCTV. The appellant was summonsed and first appeared in the ACT Magistrates Court on 6 December 2021. He entered a plea of guilty on 25 March 2022.
At the time of the offending, the appellant was subject to a good behaviour order attaching to a suspended sentence which had been imposed on 24 February 2021. The appellant was originally sentenced on 24 August 2020 for the offence of driving unlicensed, to a term of two months’ imprisonment which was suspended upon entering into a good behaviour order for 12 months. On 24 February 2021 the appellant was re‑sentenced following a breach of the order for failing to comply with its conditions. The appellant was re-sentenced to a term of two months’ imprisonment which was suspended upon entering a good behaviour order for a period of nine months.
The appellant’s plea of guilty to the minor theft placed him in breach of the suspended sentence order made on 24 February 2021. Additionally, the appellant had been summonsed in relation to failing to otherwise comply with the conditions of the good behaviour order for failing to accept supervision, by reason of his failure to attend appointments and comply with other directions from ACT Corrective Services. Both breaches were admitted.
The appellant was sentenced on 31 May 2022. The magistrate afforded the appellant a 25 percent discount for his plea of guilty, with the sentence then rounded down to the nearest month with respect to the minor theft. This was an effective discount of 33 percent. The appellant was convicted and sentenced to two months’ imprisonment for this offence. For the breach of the suspended sentence, the magistrate cancelled the good behaviour order and imposed the sentence of two months’ imprisonment. The sentence for the minor theft was made concurrent as to one month with the breach sentence, making a total effective sentence of three months and one day’s imprisonment. The appellant has now completely served the sentence of two months’ imprisonment for the driving unlicensed offence.
There was a difference between the orders pronounced by the magistrate and the warrant of imprisonment. For the minor theft, the magistrate commenced the sentence of two months’ imprisonment on 1 July 2022 and noted in his oral reasons “it ends therefore on 30 August this year. So the total period of imprisonment imposed upon you is from today, 31 May through to 30 August 2022.” The warrant for imprisonment includes an additional day, noting a term of three months and one day commencing on 31 May 2022 and expiring on 31 August 2022. It appears that having pronounced his orders orally, and made his orders on the bench sheet, the bench sheet was then amended by the magistrate so as to alter the end date of the sentence from 30 August 2022 to 31 August 2022. The sentence then accurately stated a period of two months’ imprisonment. While the period of concurrency may not have been one month, the position was complicated by the fact that there were only 30 days in June. It is unnecessary to examine the definition of month in the Legislation Act 2001 (ACT) or the operation of the corresponding date rule articulated in Samios v Petersilka (unreported, Supreme Court of the Australian Capital Territory, Master Hogan, 23 December 1993) in the context of concurrency in any more detail, as the only ground of appeal is manifest excess and there does not appear to have been any administrative error in the documentation of the orders made by the magistrate.
The sole ground of appeal asserts that the sentence imposed was manifestly excessive. This ground, of course, invokes error in the nature of the fourth proposition in House v The King (1936) 55 CLR 499. The principles which apply to determining such a ground are well known, briefly summarised in Tracey v The Queen [2020] ACTCA 51 at [37]-[38] and need not be repeated. It must be emphasised that the issue is not whether this court might have imposed a different sentence but whether the length of the sentence was so great that it indicates that there must have been some error of principle in the sentence imposed.
The submissions made by Mr Harper who represented himself on the appeal did not appear to appreciate the significant constraints upon the scope of an appeal on the ground of manifest excess. Instead, they appeared to be submissions that might have been made at a hearing de novo. They included submissions which had not been made before the magistrate. The submissions may be summarised as follows:
(a)There was a gap of 11 months between the offence of unlicensed driving and his conviction in 2020. The shoplifting offence was committed 22 months after the original offence.
(b)Some of the delay in entering the guilty plea was as a result of requesting access to the CCTV.
(c)There was no audio on the CCTV, but that would have shown that on one of the occasions he asked the shop attendant if he could pay for the alcohol later and the shop attendant (unsurprisingly) refused to have such an arrangement.
(d)At the time he stole, he thought he could die if he did not get the alcohol and that some seven years ago he had seizures in hospital due to alcohol withdrawal when he was being treated for another condition.
(e)He was very embarrassed and ashamed about his offending.
(f)After his offending he realised that his problems in life are caused by alcohol and he cut down on his drinking to the extent that when he went into custody, he did not need any medication to cope with alcohol withdrawal.
(g)He had learned a lot in the Alexander Maconochie Centre about the importance of friends, family and appreciation of the time that he had left.
(h)He was almost 50 and he reflected on being charged with a “teenage” offence of shoplifting.
(i)He did not contend that the sentences themselves were excessive but submitted, instead, that there should have been a greater degree of concurrency.
While many of these matters were matters that were not raised before the magistrate and cannot demonstrate manifest excess, I will address the length of time since the offending and the submissions in relation to concurrency later in these reasons. I will consider each charge separately before turning to consider the question of concurrency and the overall sentence.
Minor theft
The maximum penalty for the offence of minor theft is 50 penalty units, six months’ imprisonment or both. The starting point and consequent sentence of two months’ imprisonment was imposed against the background of the appellant’s poor subjective case and the objective seriousness of the offence.
The charge of minor theft was a rolled-up charge which encompassed three incidents whereby the appellant attended the same store and stole items. The criminality encompassed within the charge was greater than had the charge been constituted by one offence. Further, the magistrate correctly observed the offending was not merely an incident of opportunism. That was certainly the case in relation to the second and third theft having regard to the first theft.
The magistrate correctly observed that the appellant’s criminal history limited the amount of leniency which could be afforded to him. The appellant’s antecedents included convictions from Queensland, New South Wales and the ACT dating back to 1991. This included at least 12 prior convictions for dishonesty-related offences, numerous convictions for driving-related offences and failures to appear and at least seven breaches of prior sentences. The appellant had previously received sentences of imprisonment including prior suspended terms of imprisonment for minor theft. There was no significant gap in his offending.
Additionally, at the time of the offence the appellant was subject to conditional liberty, being the suspended sentence for driving unlicensed. This was an aggravating feature on sentence.
At the time of the sentencing, the appellant was 49 years old. The magistrate noted the appellant’s dysfunctional upbringing and his acquired brain injury sustained during a home invasion. The appellant had a significant history of illicit substance use and alcohol abuse. He had not engaged with counselling in relation to his drug and alcohol issues. That was reflected in the breach of his good behaviour order associated with his failure to attend supervision appointments and to report for participation in the Outreach Drug and Alcohol Counselling Service. The appellant’s prospects for reform were not high and it was open to the magistrate to accept the assessment of the author of the pre-sentence report that he was at a medium/high risk of reoffending.
When the appellant’s poor subjective case is considered along with the objective seriousness of the offence and the relevant purposes of sentencing, it cannot be said the sentence of two months’ imprisonment was outside the magistrate’s proper exercise of discretion. More than that, it was a sentence which was perfectly appropriate in the circumstances.
Imposition of the suspended sentence
Having found the appellant breached the terms of the good behaviour order attached to the suspended sentence imposed on 24 February 2021, the magistrate cancelled the good behaviour order as required and proceeded in accordance with s 110(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT), imposing the suspended sentence.
This was the second occasion in which the appellant had breached the suspended sentence. The magistrate referred to the original sentence of imprisonment as being a suspended sentence of 12 months. That reflected what was said on the criminal history. It was in fact a sentence of two months suspended for a period of 12 months. Nothing turns on that error as the appellant was dealt with for the breach of that order in February 2021 and the criminal history accurately recorded that a term of two months’ imprisonment was suspended for a period of nine months. It was that sentence that was breached by the further offending. For the purposes of considering how to address the breach, the significant point was that notwithstanding the initial breach, he had been afforded the opportunity of a further suspended term of imprisonment when he was re-sentenced in February 2021.
His Honour took into account all the factors relevant to the exercise of the discretion in s 110(2). He acknowledged the minor theft was a different offence to that for which the suspended sentence had been imposed. However, he noted the terms of the good behaviour order were breached by the commission of any offence. The commission of the minor theft occurred five months after the imposition of the suspended sentence. The appellant’s breach of the order was twofold: being the commission of the offence and the failure to comply with supervision. As his Honour correctly observed, there was no disproportion between the seriousness of the breaching conduct and giving effect to the suspended term of imprisonment.
The offender is correct to point out that the offending occurred 22 months after the original offence. However, what his Honour was considering was a breach of the sentence imposed as a result of the resentence on 24 February 2021 and the passage of time since the original offending was, in the context of the earlier breach, not a significant mitigating factor.
There was nothing in the material before his Honour that would indicate that of the options available under s 110, the imposition of the sentence of imprisonment was inappropriate. Rather, having regard to the previous resentence and the two aspects of the breach of the suspended sentence, it was a case in which the failure to impose the suspended sentence would be an outcome which would tend to bring the institution of suspended sentences into disrepute. The imposition of the suspended sentence did not involve a sentence which was manifestly excessive.
Total effective term of imprisonment
The aggregate term of three months’ or three months and one day’s imprisonment cannot be said to be plainly unreasonable. The magistrate was aware of the need to “avoid the appearance of double punishment”, noting that he had treated the commission of the minor theft whilst subject to the suspended sentence as an aggravating feature. The magistrate appropriately allowed some concurrency between the sentences imposed. There was a need, however, to ensure separate and adequate punishment for the minor theft and his Honour appropriately allowed for some accumulation of this sentence. The degree of accumulation to achieve the overall sentence imposed cannot be said to be unreasonable when considered against the offending and the appellant’s poor subjective case.
The progress that the appellant has made in custody, in particular appearing to gain some insight into the adverse consequences of alcohol abuse and the importance of relations with family and friends, are matters which are in his favour but do not demonstrate that the extent of concurrency involved in the sentence resulted in an overall sentence which was manifestly excessive.
Conclusion
It is not possible to conclude, by reason of the sentences imposed or the relationship between them, that there has been a misapplication of principle. The sentence imposed on the appellant was not manifestly excessive. The sole ground has not been made out.
Order
The order of the Court is: Appeal dismissed.
| I certify that the preceding twenty-five [25] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 6 September 2022 |
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