Hudson v The Queen
[2020] ACTCA 46
•11 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Hudson v The Queen | |
Citation: | [2020] ACTCA 46 | |
Hearing Date: | 5 August 2020 | |
DecisionDate: | 11 September 2020 | |
Before: | Elkaim, Mossop and Abraham JJ | |
Decision: | See [60] | |
Catchwords: | APPEAL – SENTENCE – Manifest Excess – Sentencing for multiple offences – Commonwealth and Territory offences – prospects of rehabilitation – offences committed while in custody – appeal allowed | |
Legislation Cited: | Crimes Act 1914 (Cth) s 19AC | |
Cases Cited: | Barrett v The Queen [2016] ACTCA 38 | |
Parties: | Aaron Raymond Hudson (Appellant) The Queen (Respondent) | |
Representation: | Counsel A Hudson (Appellant) K McCann (Respondent) | |
| Solicitors In person (Appellant) ACT Director of Public Prosecutions (Respondent) | ||
File Number: | ACTCA 10 of 2020 | |
Decision under appeal: | Court: Before: Date of Decision: Case Title: Citation: | Supreme Court of the ACT Murrell CJ 2 May 2019 R v Hudson [2019] ACTSC 110 |
THE COURT:
On 2 May 2019 Murrell CJ sentenced the appellant to 4 years and 2 months’ imprisonment with a nonparole period of 33 months (R v Hudson [2019] ACTSC 110).
The appellant was unhappy with his sentence and filed a Notice of Appeal on 13 March 2020. Although he was represented at the sentencing hearing, he appeared for himself in the appeal.
Presumably because he is unfamiliar with the requirements of an appeal, the appellant filed no written submissions. In the Notice of Appeal however he says the following:
The sentence is excessive and unjust.
Chief Justice Murrell did not take the programs and prospects of rehabilitation into consideration.
The appellant’s concise statement of his reasons for the appeal are classically a complaint of a sentence which is manifestly excessive.
The Crown approached the appeal on the same basis and filed written submissions on 7 July 2020 defending the sentences imposed.
Thus far the appellant was facing the task of demonstrating the sentences were manifestly excessive. However, the respondent, in supplementary submissions dated 3 August 2020, pointed out two errors which it had identified in the reasons for sentence. They are:
(a)Two of the offences were contrary to s 474.17(1) of the Criminal Code 1995 (Cth). Because they were Commonwealth offences, and because the aggregate sentences for these offences was less than three years, it was not open to her Honour to set a single nonparole period applicable to all of the offences encompassing both the Commonwealth and Territory offences. Section 19AC of the Crimes Act 1914 (Cth) had not been complied with in relation to the Commonwealth offences.
(b)Six of the Territory offences (two indictable and four summary) were committed while the appellant was in custody. This should have generated the application of s 72 of the Crimes (Sentencing) Act 2005 (ACT). Regrettably neither party mentioned this section at the sentencing hearing.
The above two errors are not included in the grounds of appeal. Accordingly the appellant was invited to amend his Notice of Appeal. He accepted the invitation. With the consent of the respondent the appellant was not required to file an Amended Notice of Appeal. Rather the Court proceeded on the basis that the current notice included the two errors described above.
The consequence is that the appeal must succeed and the appellant be re-sentenced.
The appellant was asked if he sought an adjournment of his appeal to obtain legal representation, either in relation to the now identified errors or to prepare a fresh case for the purposes of his re-sentencing. The appellant said he wished to proceed without an adjournment, but on the basis that he could later provide the Court with any documents that he thought might assist his case. The Crown consented to this course.
The overall sentence described above was a product of seven individual sentences in respect of offences for which the appellant had pleaded guilty before the primary Judge. In addition her Honour sentenced the appellant for four offences that had been transferred from the Magistrates Court and also cancelled a Good Behaviour Order that had been attached to a suspended sentence of four months’ imprisonment.
The specific sentences can be found in [84] of her Honour’s reasons:
(a)Offence 1 – harassment of Ms Lees – 10 months’ imprisonment, reduced by 20 percent to 8 months’ imprisonment, from 19 May 2019 to 18 January 2020;
(b)Offence 2 – harassment of Mr Jolly – 5 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, from 19 December 2018 to 18 April 2019;
(c)Offence 3 – demand of Mr Jolly and accompanying threat – 6 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, from 19 January 2019 to 18 May 2019;
(d)Offence 4 – threaten Mrs Lees – 5 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, from 19 March 2019 to 18 July 2019;
(e)Offence 5 – blackmail Mr Jolly – 15 months’ imprisonment, reduced by 20 percent to 12 months’ imprisonment, from 19 July 2019 to 18 July 2020;
(f)Offence 6 – arson – 27 months’ imprisonment, reduced by 20 percent to 21 months’ imprisonment, from 19 March 2021 to 18 December 2022;
(g)Offence 7 - recklessly inflict actual bodily harm – 21 months’ imprisonment, reduced by 20 percent to 17 months’ imprisonment, from 19 September 2020 to 18 February 2022;
(h)Transferred offence 1 – obstruct public official – 6 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, from 19 June 2020 to 18 October 2020;
(i)Transferred offence 2 – possess offensive weapon with intent – 8 months’ imprisonment, reduced by 20 percent to 6 months’ imprisonment, from 19 August 2020 to 18 February 2021;
(j)Transferred offences 3 and 4 – detainee possessing prohibited thing – in each case, 4 months’ imprisonment, reduced to 3 months’ imprisonment, from 19 May 2020 to 18 August 2020.
It can be immediately seen that her Honour applied a 20 percent (or very close to 20 percent) discount to the sentences arising from the pleas of guilty. No complaint is made about the extent of the discount.
Her Honour described the facts of the offences from [8]:
Facts relating to the offence of 11 January 2018
8. On the evening of 11 January 2018, police were called to a workshop adjoining the Toyworld carpark in Fyshwick. When they arrived, they observed the offender singing loudly. As police approached, he picked up a 55-centimetre machete in his right hand, raised it to shoulder height, and advanced quickly towards the police, swearing at them. Although police directed him to drop the machete, he continued until he was about 2.5 metres from them. He then dropped the machete and ran back into the workshop. He was behaving suspiciously. Police yelled at him to get on the ground but he failed to do so. He was warned that he would be tasered, and when he failed to comply with police instructions, a taser was deployed. After arresting the offender, police observed a number of empty packets of medication and empty alcohol containers. The offender was not interviewed because of his apparent intoxication.
9. In a pre-sentence report that was tendered to the Magistrates Court, the offender admitted that he had misused prescription medication prior to the offences. He accepted full responsibility for the offences. He advised that he had previously engaged with negative associates but claimed that he was currently avoiding those individuals. However, he did say that he had recently been associating with cocaine users.
10.He was assessed as at medium risk of general re-offending. The authors of the pre-sentence report stated that the risk would be reduced if the offender engaged in interventions to address his misuse of prescription medication, mental health problems, and decision-making.
11.On 11 October 2018, Special Magistrate Hunter sentenced the offender to 4 months’ imprisonment, which was immediately suspended upon him entering into a good behaviour order for 12 months, conditioned on him accepting the supervision of the Director-General of Corrective Services.
12.Within a week, the offender committed the offences of 16 and 18 October 2018.
Facts relating to the family violence offences
Offence 1 – use carriage service to harass Ms Lees
13. In April 2015, the offender commenced a relationship with Kaitlin Lees. The relationship ended in June 2018, at about the time when the offender became a member of the Canberra chapter of the Nomads Outlaw Motorcycle Gang (Nomads). Soon thereafter, Ms Lees commenced a relationship with Mitchell Jolly.
14.In August 2018, the offender confronted Ms Lees about her new relationship and the identity of her new partner. About a week later, he began to send her text messages about her new partner. He also telephoned her. He threatened her that if she did not disclose her new partner’s name, he would shoot Bundy, their jointly owned dog, as well as two other dogs that Ms Lees owned. On one occasion, when Ms Lees was at home in bed and her utility vehicle was parked in the driveway, the offender called her and said “your ute looks nice in your driveway. It would be a pity if it went up in flames”.
15.Through September and into early October, the offender’s text messages and Telephone calls continued. Ms Lees did not answer the telephone calls and replied to some of the text messages by telling the offender to leave her alone. In one text message, the offender said “tell me who he is or I’m going to put Bundy down” and he later wrote “you might as well organise cremating Bundy”.
16.On 6 October 2018, when Ms Lees was in Murrumbateman with Mr Jolly, the offender called Ms Lees and told her that he was “on [his] way up to Murrumbateman”. Ms Lees’ mother, Mrs Vernessa Lees, showed Ms Lees a screenshot of the offender’s Facebook profile, which referred to Mr Jolly and stated, “I need this cunt’s number and address now”. The offender continued to call Ms Lees until the early hours of the following morning, demanding to know why Mr Jolly was not answering his calls.
17.Ms Lees changed her telephone number because the offender’s communications caused her great anxiety.
Offence 2 – Use carriage service to harass Mr Jolly
18. On 6 October 2018, the offender attempted to communicate with Mr Jolly by telephone and by messages and calls on the Facebook Messenger application. A Facebook message from the offender to Mr Jolly stated, “we need to have a chat. I’m on my way to yours now”.
19.On 7 October 2017, Mrs Lees was advised by the offender that the Nomads President was involved and that Mr Jolly had until 2 PM to contact the offender because “shit was going to go down”.
20.On 16 October 2018, at about 7:15 PM, Mr Jolly received a telephone call from the offender who said, “so you’ve answered your phone, finally going to have a chat”. He told Mr Jolly that he knew people in Murrumbateman, that Mr Jolly had five minutes in which to make a decision about whether to have a chat, and that if Mr Jolly did not agree then the offender would arrange for people to kick in Mr Jolly’s door in Murrumbateman. Mr Jolly hung up, but the offender continued to try to contact him by telephone throughout the night.
Offence 3 – Demand accompanied by threat to endanger Mr Jolly
21. At about 7:30 PM on 16 October 2018, the offender telephoned Mr Jolly (item 4 in Exhibit 1, Exhibit 2) and said that:
(a) he wanted to speak to Mr Jolly in person about Ms Lees and he was not prepared to discuss matters on the telephone;
(b) because of the offender’s membership of a certain group, he had certain rights;
(c) he did not care that there was a two year old in Mr Jolly’s house;
(d) he was near Ms Lees’ house and had someone near Mr Jolly’s house in Murrumbateman;
(e) he could see Ms Lees’ ute at the front of her house and she should move it before he had time to walk up to it;
(f) if Mr Jolly did not agree to meet him, he would hit Mr Jolly and Ms Lees;
(g) Mr Jolly was at the top of his “shit list”;
(h) he was emotional and angry, he did bad and stupid things when he was emotional and angry, and for that reason others higher up the food chain were “getting pissed off”; and
(i) he would be coming for Mr Jolly and he wouldn’t be coming alone.
Offence 4 – Threaten Vernessa Lees that he would inflict grievous bodily harm on Mr Jolly
22.After making the telephone call to Mr Jolly, the offender drove to Mrs Lees’ home. He told her that things had escalated and he asked for Mr Jolly. He said “I was told that [Mr Jolly] was here. I’ve got a gun in the car. I’m going to put a bullet in him if he is here”.
23.Based on several earlier observations, Mrs Lees believed that the offender possessed a .22 rifle.
Offence 5 – Blackmail Mr Jolly
24.On 18 October 2018, Mr Jolly received a telephone call from a male called “Abdul” who asked the offender to meet him. Mr Jolly agreed to do so. He met “Abdul” at Greenway. The offender was also present.
25.The offender demanded that Mr Jolly pay $5000 to him by the end of the week. Abdul left, leaving the offender alone with Mr Jolly. James Butt, the Sergeant-at-Arms of the Canberra chapter of the Nomads arrived. The offender and Mr Butt began to question Mr Jolly about his relationship with Ms Lees. During the incident, the offender spoke to Ms Lees and Mrs Lees by telephone, telling them that he needed $5000.
26.The offender told Mr Jolly that he wanted Mr Jolly to pay him $5000 by the following day and that paying the money would be the end of it, although he was still deciding whether Mr Jolly should receive a beating. The payment of $5000 was for “whoring out my missus”. The offender used his mobile telephone to photograph Mr Jolly’s driving license and gave Mr Jolly his mobile telephone number.
27. During the meeting, Mr Jolly felt very uneasy and unsafe.
28.On 19 October 2018, the offender was arrested at his Kambah residence. He appeared before the Magistrates Court and was remanded in custody.
Facts relating to the offences of 25 November 2018
Transferred offences 3 and 4 – detainee possessing prohibited thing
29.In November 2018, the offender was scheduled to move from the cell in which he was located, Cell 15. He did not want to move to a location where he thought that he may be at risk from members of rival motorcycle gangs. He was recorded on prison telephone calls saying that if he was moved he would “start punching on” and “kick off”.
30.On 25 November 2018, the scheduled date for the move, Corrections Officer Rucinski attended the offender’s cell and saw that he was holding two makeshift razors, one in each hand. The offender refused to drop the razors when asked to do so.
Offence 6 – Arson
31.Officer Rucinski called for backup assistance. Backup officers attended, wearing protective riot gear and carrying shields. Officer Rucinski was not wearing protective riot attire.
32.The offender set fire to the top and bottom bunk beds in his cell and started a fire on the cell floor.
33.A fire hose was deployed through the cell door hatch in an attempt to extinguish the fires.
34.The offender’s entire cellblock was locked down because of the fires and the offender’s associated conduct.
35.The total cost of repairing the fire damage was $24,224.
Transferred offence 1 – obstruct public official
36.When officers attempted to deploy a fire hose through the cell door hatch, the offender positioned his back against the hatch and blocked the hose. He remained in position despite several directions to move.
Transferred offence 2 – Possess offensive weapon with intent
37.When officers opened the offender’s cell door to extract him, the offender pushed his way past the officers who were wearing protective attire and carrying shields, and approached Officer Rucinski in an aggressive manner, holding one of the sharp makeshift razors in his right hand.
Offence 7 – Recklessly inflict actual bodily harm
38.Officer Rucinski tried to grab the offender but the offender was a large man and his momentum in coming towards the officer caused the officer to fall to the ground.
39.The other officers were able to restrain the offender, although he continued to struggle and resist them.
40.Officer Rucinski suffered a torn left bicep and required surgery to reattach the muscle.
41.One corrections officer hurt his knee during the incident and another suffered smoke inhalation requiring hospital treatment. ACT Fire and Rescue attended to check and clear the offender’s cell.
The primary Judge considered the Victim Impact Statements which she said were “restrained”. The objective circumstances of the offences were then examined. Her Honour said that “The harassment of Ms Lees was of high objective seriousness…The harassment of Mr Jolly was of moderate objective seriousness”. However her Honour found that the attempt to blackmail Mr Jolly was of “high objective seriousness”.
Turning to the offences committed while the appellant was in prison, the primary Judge thought that the reckless infliction of actual bodily harm was “a very serious matter”, while the offences of possessing an offensive weapon and arson were found by her Honour to be “serious”. Possession of prohibited things was considered to be “standard” by her Honour, although to be viewed in the context of the appellant’s criminal history.
The primary Judge examined the appellant’s subjective background. This included describing his extensive criminal history. Her Honour noted the offences that had involved violence and use of a weapon.
The primary Judge noted that the appellant had a good employment history and that, as an indication of his intelligence, he was undertaking a bridging course to enable him to commence a science degree at the University of Southern Queensland.
The appellant’s mental health condition was noted including that he suffered from Post‑Traumatic Stress Disorder. Despite this the appellant had spent his time in custody productively. He had completed a number of courses, undertaken educational studies and acted as a mentor for other inmates. He wrote a letter of apology to the prison for the offences he had committed on 25 November 2018.
Her Honour, at [75], ultimately gave this summary of the appellant:
The offender is an intelligent and articulate man with a volatile temper. Unfortunately, his upbringing was dysfunctional. He has a long history of possessing weapons (generally knives and similar weapons) and engaging in other criminal activity. He remains closely connected with the Nomads through his continuing relationships with Mr Butt and others. He has limited respect for the law and authority generally. Although he is well capable of obtaining a tertiary qualification and attaining a respected position in the community, it is not clear that he is committed to doing so; it may well be that he prefers to remain an outsider, giving vent to his penchant for violence. While his protestations of reform born of insight cannot be dismissed, they should be assessed with a degree of scepticism.
In respect of rehabilitation the primary Judge maintained the degree of scepticism she had previously expressed. Her Honour said, at [80]:
Although I am sceptical about the offender’s commitment to rehabilitation, I am not prepared to dismiss the prospect; it is a matter best assessed by the parole authority when the time comes.
The appellant’s submissions on re-sentencing concentrated on dispelling the primary Judge’s scepticism both as to his professed rejection of violence and his prospects of rehabilitation.
The appellant listed the many courses he had completed in prison, as well as describing his mentoring of other prisoners (as an educational tutor) and his success at the Open University. He said that he is currently enrolled in a double degree of Business and Arts at the Royal Melbourne Institute of Technology offered through Open Universities Australia which he hoped to complete within three years and then proceed to a Masters degree.
The courses described by the appellant included the following: Cognitive Self Change, Stress Less, First Steps to Anger Management, First Steps Alcohol and Drug Program, Seasons for Growth and other self-paced programs. The documents supplied after the hearing confirmed his enrolment and completion of these courses.
These documents included a letter from the manager of the prison education section, records of results and enrolments and certificates relating to participation and completion of a number of courses. The manager’s letter describes the university courses being studied by the appellant and observes that “[s]tudying at university in a jail complex is extremely difficult as deadlines are set earlier due to staff not working weekends…Aaron has always shown a keen interest in learning new skills and has demonstrated an excellent attitude in class”.
The appellant also provided further submissions concerning his continuing education endeavours. He ends in this way “I appreciate all the help and support AMC and Foresite afford me, if it was not for this it would be impossible for me to complete anything”. These observations are consistent with the just quoted passage by the manager and indicate the appellant’s desire to better himself and move away from the criminal path he had previously embarked upon.
In this regard, the appellant said that he had completely ceased any association with the Nomads Outlaw Motorcycle Gang (OMCG). The gang had played an integral part in his offending. As already seen from [75] of the sentencing reasons, her Honour said the appellant “remains closely connected with the Nomads…”. The further documents provided by the appellant include a Response to Request for Information by the prison authorities which confirms that the appellant has not had any contact with the Sergeant-at-Arms of the Canberra chapter of the Nomads.
The Crown also provided further documents as “Material on re-sentence”. Although no submission accompanied the documents it is apparent from their content that they were clearly designed to blunt the appellant’s assertion that he has severed his links with the Nomads.
There is also a list of disciplinary breaches and of injuries suffered by the appellant while in custody. A number of these relate to a dislocated shoulder, but it is not clear if this is indicative of a weakened, and self-dislocating, shoulder joint or a number of separate injuries in which the appellant’s shoulder has dislocated. It would seem most unlikely that over a period of about 12 months the appellant would have been involved in an incident resulting in the same injury on 12 separate occasions.
Some of the documents suggest the appellant has been “manipulating his circumstances, to dictate his accommodation”. There is an entry that states that on 21 February 2020 the appellant refused to be relocated because “safety is an issue due to OMCG associations”. This might suggest that the appellant was seeking to distance himself from the associations, or, perhaps, that the associations exposed him to contact with a rival gang.
Having received the respondent’s material, the appellant, clearly concerned that it provided an incorrect impression of his association with the Nomads, filed further submissions explaining a number of the entries. He makes the point that there have been no disciplinary problems since 21 February 2020 other than matters related to his health condition and his placement within the prison.
Her Honour referred to the appellant’s continued association with members of the Nomads OMCG stated at [70]–[71]:
A pre-sentence report prepared for the October 2018 proceedings reported that the offender had told the authors that he had been avoiding his negative associates. The authors of the presentence report prepared in April 2019 for these proceedings said that the offender had reported to them that he no longer had close ties with any antisocial associates in the community.
In evidence, the offender disputed that he had made that statement. He said that he had told the authors of the pre-sentence report the true position: that he remained in contact with James Butt, who was associated with the Nomads (although the offender disagreed with the proposition that Mr Butt was a “senior member” of the Nomads). In addition, the offender acknowledged that he remained in contact with Aaron Graham (an associate of the Nomads) and Aaron Peden (a member of the Nomads). Prison visiting and call records confirm that the offender remains in frequent contact with Mr Butt and has had some contact with Messrs Graham and Peden.
The appellant submitted that since his sentencing “all association with OMCG has ceased” and that the documents would prove that he had not “had contact with the [OMCG] directly or indirectly”. The documentation produced by the appellant only referred to Mr Butt and from that it appears that since late 2019 the appellant has not had direct contact with him. In response the respondent provided prison records which record contact with Mr Peden until late 2019, but also regular contact by telephone with Mr Graham including up until August 2020.
The appellant in response submitted that he had known Mr Graham since high school, that Mr Graham’s link to the Nomads was through the appellant and as such, he did not believe his association with Mr Graham should be seen as an ongoing link to the Nomads. We note that the appellant was cross-examined at his sentencing hearing in relation to his links with the three persons referred to by her Honour and this explanation in relation to Mr Graham was not proffered. It is of concern that her Honour’s sentencing remarks clearly stated the position in relation to those persons, yet the appellant only put material before this Court in respect to one. In that context, and given her Honour’s concerns for the purpose of re-sentencing, it is not for the appellant to decide who fits within the description.
The Court has decided to proceed on the basis that the significance of the appellant’s association with Mr Graham is a neutral factor on his re-sentence.
The appellant, in his oral submissions, also pointed out these matters about the facts of the offending:
(a)In respect of the arson offence, her Honour had assumed the cost of the damage caused was $24,224. In reality, said the appellant, the damage had been restricted to sheets and towels, but the authorities had decided to “revamp” the entire cell.
(b)Her Honour seemed to have assumed that the appellant, in recklessly inflicting actual bodily harm on the prison officer, had come into contact with that officer. The appellant said that was not correct. Although he confirmed his responsibility for the injuries to the officer, he said there had been no physical contact between them. Rather the officer had fallen over in his attempt to avoid the approaching appellant.
(c)In the findings as to objective seriousness of the offences her Honour at [47] referred to a threat to kill by use of a firearm when the offence was a threat to inflict grievous bodily harm.
In respect to the first two of those factual matters, a consideration of the material before the primary Judge and her Honour’s sentencing remarks reflects that there is no proper basis to conclude that any error has been established in relation to those matters. However, in respect to the reference to a threat to kill, the appellant is correct that the offence was misdescribed. This is in a context where her Honour had correctly described the offence when reciting the factual basis for the sentence. Nonetheless, we agree with the assessment that the offence of threatening to inflict grievous bodily harm is one of high objective seriousness. As her Honour stated, it was made in person at her home, and the threat related to the use of a firearm, adding to Mrs Lees’ fear.
When asked the result he wished to achieve from the appeal, the appellant said that he would like a shorter nonparole period. He said that he did well under supervision and wanted the opportunity to show that he could be a productive member of society. He emphasised that if his good behaviour in prison was not maintained he would be unlikely to be released on parole.
The respondent submitted that notwithstanding the errors, the same ultimate result should be reached on re-sentencing. In order to avoid the prima facie application of s 72 of the Crimes (Sentencing) Act, the respondent suggested that a direction be made under s 72(3) based on a finding of “special circumstances” as required by s 72(4). The special circumstances would be that in the absence of a direction the resulting total sentence would be too long and therefore unjust.
The respondent submitted that this approach had been approved in The Queen v Potts [2020] ACTCA 12. Although the decision in Potts comprised different approaches by the three judges hearing the matter, there was no disagreement that special circumstances could include consideration of the totality principle. As stated by Rangiah J, from [127]:
127.Her Honour’s approach reflected the “totality principle”. That principle requires that when a sentencing judge is considering imposing a series of consecutive sentences, the judge must review the aggregate sentence and consider whether it is just and appropriate; and, where necessary, achieve an appropriate result by making the sentences wholly or partially concurrent, or reducing the length of the individual sentences: see Mill v The Queen (1988) 166 CLR 59 at 63. In Nguyen v The Queen [2016] HCA 17; 256 CLR 656 (Nguyen), Gageler, Nettle and Gordon JJ observed at [64] that the object of sentencing is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of the criminality comprised in the totality of the offences. To similar effect, Bell and Keane JJ observed at [37] that a sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentence such that the overall sentence is just and appropriate to the totality of the appellant’s offending behaviour.
128.It must be recognised that s 72(4) requires that sentences for offences involving harm or threats to corrections officers by a person who is in lawful custody will ordinarily be wholly consecutive, and intends that there should ordinarily be harsher penalties than might be imposed for similar harm or threats in other circumstances. However, the provision does not suggest that totality is to be completely discarded. To the contrary, the “special circumstances” exception is consistent with the object stated in s 3 of the Sentencing Act of promoting flexibility in sentencing. In Tabbah v The Queen [2019] NSWCCA 324, the New South Wales Court of Criminal Appeal (dealing with s 56(3A) of the Crimes (Sentencing Procedure) Act 1999 (NSW)) held at [137] and [140] that a finding of special circumstances may be made by reference to the totality principle. There is no relevant distinction between that provision and s 72(4) of the Sentencing Act.
129.The harshness of the aggregate sentence considered by reference to the totality principle may amount to special circumstances for the purposes of s 72(4). The relationship of offences in time and circumstance may contribute to a conclusion that the overall sentence is too harsh and may justify a direction that sentences of imprisonment are to be served concurrently or partially concurrently. I therefore reject the Crown’s submission that the primary judge’s finding that the offences were part of the same incident and virtuously contemporaneous was incapable of leading to a finding of special circumstances sufficient to justify a direction that the sentences were to be served partly concurrently.
In relation to the nonparole period the respondent pointed out that while the shorter nonparole period might reflect a greater prospect for rehabilitation, there were other purposes to be achieved in the assessment of the period. The respondent pointed out that the nonparole period in this matter (66 percent) was within the ‘normal’ range and should be maintained.
In Taylor v The Queen [2014] ACTCA 9 at [19] the Court said:
The proper approach to fixing a nonparole period is well established and can be summarised as follows:
1. A nonparole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen (1974) 131 CLR 623 at 627 – 628, Deakinv The Queen (1984) 11 A Crim R 88 at 89, Lowe v The Queen (1984) 154 CLR 606 (Lowe) at 615, Bugmyv The Queen (1990) 169 CLR 525 (Bugmy) at 536.
2. An offender’s prospects of rehabilitation are important to the fixing of the nonparole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the nonparole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3. The proportion of the sentence that is to be served by way of nonparole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Ingev The Queen (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the nonparole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4. Ordinarily, the nonparole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a nonparole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for nonparole periods…
Although re-sentencing does not require an assessment of whether the original sentences were manifestly excessive, the respondent’s submission that the same overall sentence and nonparole period should be maintained does require at least an informal assessment of whether there had been manifest excess.
The ingredients of manifest excess have been repeated many times. For current purposes this description from Barrett v The Queen [2016] ACTCA 38, at [34] is applicable:
It is for the appellant to satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range.
More recently, in Hawker v The Queen [2020] ACTCA 40, the Court restated the relevant principles, from [14]:
14.The principles in relation to assessing whether a sentence is manifestly excessive are well established. Appellate intervention is not justified simply because an appellate court may have a different view as to the appropriate sentence than the sentencing judge: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28], or where the result arrived at below is markedly different from other sentences that have been imposed in other cases: Wong v The Queen [2001] HCA 64; 207 CLR 584 (Wong) at [58]; Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 (Hili) at [58]. Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was some misapplication of principle in the sentencing of the appellant, even though when and how is not apparent from the statement of the sentencing judge’s reasons: Wong at [58]; Hili at [58]-[59], [75]-[76].
15. To determine whether a sentence is manifestly excessive it is necessary to view it in the perspective of the maximum sentence prescribed for the offence; the standards of sentencing customarily observed with respect to the offence; the place which the conduct occupies on the scale of seriousness of crimes of this type and the personal circumstances of the offender.
Suffice to say here, that had this appeal proceeded on the original single ground of manifest excess, the appeal would have failed. There may well have been a strong argument that the appellant had been dealt with leniently. Theoretically, on re‑sentencing, the appellant is exposed to the possibility of a more severe sentence. The respondent, maintaining the attitude of fairness that had permeated its actions throughout the appeal, said that it did not call for any greater sentence than that which had been initially imposed.
The Court can see no basis upon which the sentences could be described as plainly unjust. The appellant’s criminal history alone would have prevented such a finding.
That said, the task for this Court on error having been established is set out by the High Court in Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [35]:
…In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed…
And later at [43]:
After having identified specific error of the kind described in House, the Court of Criminal Appeal may conclude, taking into account all relevant matters, including evidence of events that have occurred since the sentence hearing that a lesser sentence is the appropriate sentence for the offender and the offence. This is a conclusion that that lesser sentence is warranted in law. The result of the Court of Criminal Appeal's independent exercise of discretion may be the conclusion that the same sentence or a greater sentence is the appropriate sentence. In neither case is the Court required to re-sentence. Nor is the Court required to re-sentence in a case in which it concludes that a lesser sentence is appropriate for one or more offences, but that a greater sentence is appropriate for another or other offences, with the result that the aggregate sentence that it considers warranted in law exceeds the aggregate sentence that is the subject of appeal. The occasions calling for the Court of Criminal Appeal to grant leave, allow an offender's appeal and substitute a more severe sentence are likely to be rare. Were the Court to grant leave in such a case, convention would require that it inform the appellant of its intended course so that he or she might abandon the appeal.
(Citations omitted)
The Court adopts the primary Judge’s recitation of the factual basis of the offences and accepts her Honour’s assessment of the seriousness of the offences. The Court also adopts, without repeating, her Honour’s recitation of the subjective matters relied on below. As this is an issue of re-sentencing this Court has taken into account the evidence of events that have occurred since the hearing which is recited above. The appellant contended this evidence reflects that a lesser nonparole period than that imposed by her Honour is appropriate.
In the context of the observations in Kentwell recited above, and in light of the respondent’s concession that no greater sentence should be imposed, the Court, having conducted the separate and independent exercise of the sentencing discretion, is of the view that no different aggregate head sentence should be imposed.
In respect of the offences that fell within the scope of s 72 of the Crimes (Sentencing) Act although her Honour ordered some degree of concurrency a finding of special circumstances required by s 72(4) was not made. It is apparent however that her Honour was of the view that some degree of concurrency was required having regard to the principle of totality. As noted above the respondent accepted that is a proper basis to satisfy s 72(4). In light of our conclusion as to the aggregate sentence that order as to concurrency is not altered. If we were to do so it would necessarily increase the aggregate sentence to above that imposed by the primary Judge in circumstances where this is not one of those rare cases referred to in Kentwell where that should occur. That said, care must be taken in addressing the issue of special circumstances in s 72(4) on this basis as any issue of totality must properly be considered in the context where the offences, because of their nature and the circumstances in which they were committed, would ordinarily be served wholly consecutively with other offences. Special circumstances must be assessed in that context; the legislature requires that these offences are ordinarily to be treated differently.
Turning to the nonparole period which was the focus of the appellant’s submission.
The primary Judge was sceptical about the appellant’s commitment to rehabilitation concluding that it is a matter best assessed by the parole authority when the time comes. Since the appellant was sentenced on 8 May 2018 the appellant appears to have continued to immerse himself in courses with the apparent aim of self-betterment, including specific steps to address his tendency to violence and to improve his prospects of rehabilitation. Other aspects of his conduct including his disciplinary record of recent times, and the apparent ceasing of communication with Mr Butt, tell in the appellant’s favour.
Although the appellant’s submission focused on rehabilitation, the nonparole period must be fixed having regard to all the sentencing purposes in s 7 of the Crimes (Sentencing) Act, with appropriate punishment, accountability, denunciation, recognition of harm, protection of the community and deterrence. These are particularly significant given the nature and seriousness of this offending. In Taylor the Court observed that “[g]enerally, the perceived prospects of rehabilitation will make a significant difference to the non‑parole period”. The appellant has maintained his efforts directed towards rehabilitation. The evidence before this Court in that regard is more advanced than that before the primary Judge.
As a consequence we are of a different view in relation to the nonparole period. We impose a nonparole period so that the applicant will be eligible for release on 18 April 2021, it will then be a matter for the parole board to assess.
It is unfortunate that the two errors were not picked up and bought to her Honour’s attention at the time or closely following the imposition of the sentences, as they are of such a nature as could readily have been fixed.
In respect of the two federal offences, s 19AC of the Crimes Act dictates that a Recognizance Release Order should be imposed. However the imposition may be dispensed with if s 19AC(4)(b) is applicable. That provision relevantly states that “[a] court may decline to make a recognizance release order in respect to a person if…the person is expected to be serving a State or Territory sentence on the day after the end of the federal sentence, or the last to be served of the federal sentences, as reduced by any remissions or reductions under section 19AAA”. If the Court does decline to make an order under s 19AC(4) it is required to state its reasons for doing so and cause the reasons to be entered into the record (s 19AC(5)).
The Territory offences imposed in this matter will be in place “on the day after the end of the federal sentence”. To impose a Recognizance Release Order would therefore be inappropriate and futile. An example of this approach is to be found in Hancock v R [2012] NSWCCA 200 at [50]:
An obvious situation in which such a conclusion may be reached, is where, as in this case, the sentence for the Federal offence is to be made entirely concurrent with the sentence imposed for another offence. That was what was urged upon his Honour for the applicant. Another obvious situation where such a conclusion would be available, is where the sentence is to be made concurrent with a sentence for another offence, which the offender is already serving. In both of those situations, imposing a non-parole period or recognisance order would be an obvious futility, making its imposition inappropriate.
Accordingly, we decline to make a Recognizance Release Order.
The orders of the Court are:
(i)The appellant is given leave to amend the Notice of Appeal so as to allege errors by the primary Judge in the application of s 19AC of the Crimes Act 1914 (Cth) and s 72 of the Crimes (Sentencing) Act 2005 (ACT).
(ii)The appeal is allowed.
(iii)The appellant is re-sentenced as follows:
The suspended sentence – pursuant to s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT), the Good Behaviour Order is cancelled and the original sentence of 4 months’ imprisonment is imposed, to commence on 19 October 2018 and expire on 18 February 2019;
Offence 1 – harassment of Ms Lees – 10 months’ imprisonment, reduced by 20 percent to 8 months’ imprisonment, to commence on 19 May 2019 and end on 18 January 2020;
Offence 2 – harassment of Mr Jolly – 5 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, to commence 19 December 2018 and end on 18 April 2019;
Offence 3 – demand of Mr Jolly and accompanying threat – 6 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, to commence on 19 January 2019 and end on 18 May 2019;
Offence 4 – threaten Mrs Lees – 5 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment, to commence on 19 March 2019 and end on 18 July 2019;
Offence 5 – blackmail Mr Jolly – 15 months’ imprisonment, reduced by 20 percent to 12 months’ imprisonment, to commence on 19 July 2019 and end on 18 July 2020;
Offence 6 – arson – 27 months’ imprisonment, reduced by 20 percent to 21 months’ imprisonment, to commence on 19 March 2021 and end on 18 December 2022;
Offence 7 – recklessly inflict actual bodily harm – 21 months’ imprisonment, reduced by 20 percent to 17 months’ imprisonment, to commence on 19 September 2020 and end on 18 February 2022;
Transferred offence 1 – obstruct public official – 6 months’ imprisonment, reduced by 20 percent to 4 months’ imprisonment to commence on 19 June 2020 and end on 18 October 2020;
Transferred offence 2 – possess offensive weapon with intent – 8 months’ imprisonment, reduced by 20 percent to 6 months’ imprisonment to commence on 19 August 2020 and end on 18 February 2021; and
Transferred offences 3 and 4 – detainee possessing prohibited thing – in each case, 4 months’ imprisonment, reduced by 20 percent to 3 months’ imprisonment to commence on 19 May 2020 and end on 18 August 2020.
(iv)In respect of the offences committed contrary to Australian Capital Territory law, taking into account the 4 months’ arising from the cancellation of the Good Behaviour Order, the total term of imprisonment is 50 months.
(v)A nonparole period of 30 months is set, to commence on 19 October 2018 and end on 18 April 2021.
The overall sentence is imprisonment for 4 years and 2 months. The appellant will be eligible for parole on 18 April 2021.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Elkaim, Justice Mossop and Justice Abraham. Associate: Date: 11 September 2020 |
3
7
4