Hooton v Hales
[2002] NTSC 35
•3 June 2002
Hooton v Hales & Anor [2002] NTSC 35
PARTIES:KERRY HOOTON
v
PETER WILLIAM HALES and DAVID LAIRD
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING APPELLATE JURISDICTION
FILE NO:JA1 & JA2 of 2002 (9910890 & 20006001)
DELIVERED: 3 June 2002
HEARING DATES: 23 May 2002
JUDGMENT OF: MILDREN J
CATCHWORDS:
Appeal – Appeal against sentencing – sentencing in Commonwealth and Territory jurisdictions – no power to fix non-parole period for Commonwealth offences – regard to totality principle – re-sentencing.
Statutes:
Crimes Act 1914 (Cth), ss 19, 20, 20A.
Criminal Code (NT) ss 53, 54.
Justices Act, s 177.
Sentencing Act, ss 53, 54, 59, 60, 112.
Cases Cited:
Baird v The Queen, 104 FLR 113 at 117, referred.
Postiglione v The Queen (1966-7), 189 CLR 295, followed.
REPRESENTATION:
Counsel:
Appellant:S Cox
Respondents: R Noble for the respondent Hales
M Hassell for the respondent Laird
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondents: Office of the Director of Public Prosecutions (NT) for the respondent Hales
Commonwealth Director of Public Prosecutions for the respondent Laird
Judgment category classification: A
Judgment ID Number:
Number of pages: 9
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINHooton v Hales and Anor [2002] NTSC 35
No. JA1 & JA2 of 2002 (9910890 & 20006001)
BETWEEN:
KERRY HOOTON
Appellant
AND:
PETER WILLIAM HALES and DAVID LAIRD
Respondents
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 3 June 2002)
Mildren J:
These appeals are brought against sentencing orders imposed in the Court of Summary Jurisdiction on 13 December 2001.
On 4 August 1999, the appellant was convicted of two counts against the provisions of the Social Security Act 1991 (Cth) relating to the obtaining of social security payments to which the appellant was not entitled. The appellant pleaded guilty and the learned Magistrate convicted the appellant on each count and imposed cumulative sentences of ten months and three months imprisonment but ordered, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), the appellant to be released forthwith upon entering into her own recognisance in the sum of $1,000 to be of good behaviour for a period of three years. I will refer to these offences as "the Commonwealth offences".
Between 1 November 1999 and 9 March 2000, the appellant committed twenty-five offences against certain provisions of the Criminal Code (NT) relating to the stealing, forging and uttering of cheques and the obtaining of property by deception ("the Territory offences"). The amount involved was $26,750. The appellant was spoken to by police in relation to the Territory offences on 20 March 2000 at which time she made full admissions. It appears that she may not have been arrested, but was allowed to go free. Informations were laid against her and she was summonsed to appear, and did appear, on 21 June 2000. Thereafter, there was a long delay before the appellant's matter was able to be disposed of. It is not necessary to go into the reasons for the delay, except to mention that at one stage a warrant was issued for the appellant's arrest and at some stage, she was granted bail. It is not clear to me whether the appellant ever served any time in custody, at least until her pleas were formally entered on 24 August 2001.
On 24 August 2001, his Worship heard submissions in relation to the Territory matters and also in relation to an application by the respondent Laird who had commenced proceedings by way of information pursuant to s 20A of the Crimes Act 1914 for the appellant to be dealt with for breach of the recognisance release order made on 4 August 1999 with respect to the Commonwealth matters. The matter was not able to be finalised at that stage as certain reports were required to be ordered and obtained. Eventually the matter was resolved, after several adjournments, on 13 December 2001 when his Worship passed sentence.
Initially his Worship decided that he intended to revoke the recognisance release order and order that the appellant serve the whole of the Commonwealth sentences of thirteen months pursuant to s 20A(5)(c)(i) of the Crimes Act 1914; that in respect of the Territory offences, he would impose an aggregate sentence of two years and six months to commence at the expiration of the thirteen months ordered to be served in respect of the Commonwealth offences and that a non-parole period of twenty-two months should be fixed, the initial sentence for the Commonwealth offences and non-parole period to commence from 24 August 2001 when the appellant went into custody.
Later, on 24 August 2001, counsel for the parties invited his Worship to reconsider the sentences he had imposed, presumably pursuant to s 112 of the Sentencing Act. Whether that section or some other law would have permitted his Worship to review the orders made in relation to the Commonwealth offences, I do not know. In any event, counsel for the Commonwealth submitted that his Worship had no power to set a single non-parole period in respect of both the Commonwealth offences and the Territory offences: see Crimes Act 1914, s 19 AJ. His Worship was invited to reconsider the course he had adopted and it was put that his Worship was required to make another recognisance release order because his Worship had re-sentenced the appellant and that, therefore, s 19 AC(1) of the Crimes Act 1914 applied. His Worship rejected that contention but recognised the problem created by s 19AJ and sought the assistance of counsel as to how the problem might be resolved, A number of possibilities were canvassed, including the possibility that his Worship might only order a portion of the suspended sentence to be served instead of the whole thirteen months, or order only one of the two sentences to be served and take no action on the other one, or to restructure the Territory offences by imposing separate sentences, some of which might be made concurrent with each other. None of these suggestions appealed to his Worship.
Part of the problem facing his Worship was the fact that s 54(1) of the Sentencing Act (NT) required his Worship to fix a non-parole period of at least 50% of the head-sentence imposed in relation to the Territory offences. His Worship recognised that if he had no power to fix a non-parole period in respect of the Commonwealth offences and the thirteen month sentence had to be served first, the end result would be that the appellant would be required to serve at least twenty-eight months imprisonment before she could be eligible for parole, instead of the twenty-two months which he had originally fixed, and his Worship was not attracted to that result.
The solution eventually arrived at by his Worship was to recall his sentencing orders and instead his Worship imposed a sentence of two years six months in respect of the Territory offences, such sentence to commence on 24 August 2001 in respect of which his Worship imposed a non-parole period of fifteen months to commence on 24 August 2001. His Worship then ordered that the sentences totalling thirteen months on the Commonwealth offences, be served commencing from the expiration of the sentence for the Territory offences and fixed a non-parole period of seven months in respect of the Commonwealth offences, to commence on the expiration of the fifteen months non-parole period.
There are a number of reasons why his Worship was unable to resolve the problem in that way. First, there was no power to fix a non-parole period in respect of the Commonwealth offences. The reason for this is somewhat complicated, but, put as simply as I can, it amounts to this:
1.When his Worship ordered that the sentences be served pursuant to
s 20A(5)(c)(i), his Worship was not "imposing on the appellant a federal sentence" (see s 19AC(1). This his Worship had already done in 1999. What his Worship did was, in terms of s 20A(5)(c)(i), to "revoke the order" [made pursuant to s 20(1)(a)(b) when his Worship ordered that the appellant be released] and "dealt with" the appellant "by ordering (the appellant) be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that (the appellant) had not served at the time of ... her release". In other words, the order made was in effect an order committing the appellant to prison to serve the sentences already imposed but which had been held in suspense previously by the recognisance release order: cf. Baird v The Queen (1991) 104 FLR 113 at 117.
(2)The Crimes Act 1914 provides for circumstances in which the court may fix a non-parole period (s 19AB), which does not apply in this case. Moreover, there is no provision in the Act which permits a court to fix a non-parole period where a person is committed to prison in the circumstances contemplated by s 20A(5)(c)(i), irrespective of the length of the sentence or sentences to be served.
If I am wrong in this conclusion and the order for imprisonment is the imposition of a sentence, there is in any event no power to fix a non-parole period in respect of a Commonwealth offence unless the sentence imposed exceeds imprisonment for three years (s 19AB(1) of the Crimes Act 1914).
Secondly, his Worship's order that the non-parole period in respect of the Commonwealth offences was not only to begin at a time before the commencement of those sentences, but, on analysis, it would have ended before that time as well. I do not see how this could be done, given the definition of "non-parole period" in s 16(1) of the Act. In effect, the order amounted to the fixing of a second non-parole period in respect of the Territory offences which was not justified in law either.
Thirdly, the Crimes Act 1914 does not provide for the fixing of a non-parole period where a sentencer imposes sentences for Commonwealth and State or Territory offences at the same time, the total of which sentences exceed three years. So far as this Territory is concerned, where a sentence or sentences are imposed for Territory offences and those sentences exceed twelve months and are not suspended in whole or in part the sentencer must fix a non-parole period of at least 50% of the total head-sentence, unless the sentencer decides that it is inappropriate to fix a non-parole period at all: see ss 54 and 53(1) of the Sentencing Act. If a person being sentenced for a Territory offence or offences is already undergoing a sentence of imprisonment for a Commonwealth offence, s 60 of the Sentencing Act requires the sentencer to fix a commencement date in respect of the Territory sentences which must commence either from the date of the completion of the Commonwealth sentence if no non-parole period or pre-release period has been fixed, or, if such a period has been fixed, from the end of that period. Section 59 of the Sentencing Act requires that where no non-parole period has been fixed in respect of a particular sentence, that sentence must be served first.
A sentencer dealing with both Commonwealth and Territory offences at the same time may be faced with a complex task in ensuring that any sentences imposed comply with both the Crimes Act 1914 and the Sentencing Act (NT). Also, the sentencer must ensure, in accordance with the totality principle, that the total sentences imposed and/or ordered to be served, are not too much for all of the offending involved: see Postiglione v The Queen (1996-7) 189 CLR 295. It is clear that in this case, the learned Magistrate erred in failing to have regard to the totality principle, either in respect of the head-sentences or the total sentences to be served. Even assuming that his Worship's conclusion that a minimum period of twenty-two months was required to be served was not manifestly excessive or otherwise vitiated by error, his Worship should have either adjusted the head-sentence for the Territory offences down (i.e. by fixing a head-sentence of eighteen months for the Territory offences and a non-parole period of nine months, the sentence and non-parole period to commence after the expiration of the thirteen month term ordered to be served for the Commonwealth offence), or ordered that the Territory sentence be served partly concurrently with the Commonwealth sentence so that the appellant's release dated occurred twenty-two months after the commencement of the sentence ordered to be served for the Commonwealth offences. There may well have been other alternative dispositions open. Mr Hassell who appeared for the respondent Laird in respect of the Commonwealth offences, pointed out that s 20A(5)(c) of the Crimes Act 1914 offered a number of other alternatives including, so he submitted, ordering the appellant to serve a period of less than thirteen months. I doubt if any other option was open to the learned Magistrate other than to order the whole of the thirteen months to be served if the conclusion be correct that the appellant must serve a period of actual imprisonment in excess of thirteen months for the Territory offences, but as that issue was not fully debated before me I say no more about it.
The appellant has not applied for bail pending her appeals and thus has been in custody since 24 August 2001. The sentencing discretion having been vitiated by error, it is necessary for the appellant to be re-sentenced. Counsel for the appellant advised the Court that there is further material which is to be relied upon at the time of re-sentencing. There are also other issues which the appellant would wish to pursue if this Court were to re-sentence the appellant. In those circumstances, I was invited by all counsel to allow the appeal, quash the sentences imposed and remit the matters to the Court of Summary Jurisdiction for the appellant to be sentenced a fresh before a different Magistrate, pursuant to s 177 of the Justices Act. At the end of submissions, I made orders accordingly and indicated then that I would publish my reasons at a later date. These are my reasons.
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