JA v LYNDALL Macdonald and Morgwn Saunders

[2011] ACTSC 22

JA v LYNDALL MACDONALD AND MORGWN SAUNDERS
[2011] ACTSC 22 (22 February 2011)

APPEAL – criminal law – appeal against severity of sentence – whether sentence manifestly excessive – whether undue weight given to antecedent history – whether failure to give sufficient weight to rehabilitation – whether order expressed concurrent or cumulative – no specific error by Magistrate – different sentence would not have been imposed – appeal dismissed

Crimes Sentencing Act 2005 (ACT), s71

Ledson v Taylor &ors [2010] ACTSC 42
Kennewell v Rand [2005] ACTSC 89
Kennewell v Rand [2006] ACTCA 10
R v Boudelah (1991) 28 FCR 176
R v Dodd (1991) 57 A Crim R 349
R v JG [2005] VSCA 74

R v Madden (SCC 27 of 2008)

R v PM [2009] ACTSC 24

R v Quinlan (SCC 290 of 2009)

Saga v Reid and Collett [2010] ACTSC 59
Veen (No 2) (1988) 164 CLR 465

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 51 of 2010

Judge: Teague AJ
Supreme Court of the ACT
Date:   22 February 2011

IN THE SUPREME COURT OF THE     )
  )          No. SCA 51 of 2010
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:JA

Appellant

AND:LYNDALL MACDONALD

First Respondent

AND:MORGWN SAUNDERS

Second Respondent

ORDER

Judge:  Teague AJ
Date of order:  22 February 2011
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed.

1. This is an appeal against sentences imposed by a magistrate on 21 July 2010. The sentencing exercise that Magistrate Fryar faced was a particularly complex one.  The complexity arose for a number of reasons. One of those reasons was that the appellant had to be sentenced as to several serious offences which were committed on two days which were some months apart.  Another was that, on the first of the two days, there were quite separate but serious offences committed.  There were a series of property offences, followed by a major driving offence.  Another was that he had to be treated as a juvenile or child as to the offences on the first day, but as a young adult as to the offences on the second day.  Another was that he had been found guilty as to the offences on the first day, but had pleaded guilty to all the offences on the second day.  Another was that he had different co-offenders as to the two sets of property offences, but no co-offender as to the driving offence.  Her Honour had to comply with the relevant sentencing legislative provisions, not only the generally applicable ones, but also those as to child offenders, particularly as to rehabilitation.  She also had to take account of the general sentencing principles as to totality, cumulation, parity, and more.

1. The grounds of appeal included, in summary, that the sentences were manifestly excessive, that her Honour erred in failing to correctly apply the totality principle, that her Honour failed to allow appropriately for parity as to co-offenders, that her Honour failed to give sufficient weight to the increased allowance for rehabilitation in the sentencing of children under Chapter 8A of the Crimes (Sentencing) Act 2005, that her Honour gave undue weight to the appellant’s antecedent history as a child, that her Honour failed to express the order as either concurrent or cumulative with the existing sentence, and that her Honour erred in structuring the sentence so as to include an excessive period of periodic detention. 

1. There are legislative provisions protecting the identity of juveniles, being persons under the age of 18. Accordingly, I will refer to the appellant as the appellant, and give pseudonyms to the co-offenders.

1. As foreshadowed, the several serious offences are best analysed if broken up into three sets.  The first set of offences arose out of events that occurred on 14 July 2009.  As at 14 July 2009, the appellant was aged 17. He had turned 17 on 24 December 2008.  The five in the first set of offences were property offences, namely three aggravated burglaries, and two thefts.  As to that five, the appellant had a co-offender.  I will refer to him as Gerri.  As at 14 July 2009, Gerri was 20.  He had turned 20 on 3 May 1989. 

1. The second set of offences were two driving offences, which arose out of events on the same day, 14 July 2009, but shortly after the first set, as the appellant left the scene of the last theft.  One was of culpable driving causing grievous bodily harm, and the other failing to stop.

1. The third set of offences, five in all, arose out of events that occurred on 11 March 2010.  As at 11 March 2010, the appellant was aged 18.  He had turned 18 on 24 December 2009. All of the third set of offences were property offences, namely two aggravated burglaries, two thefts and one unlawful possession of stolen property.  As to that five, the appellant had two co-offenders. I will refer to one as Dick and the other as Harry.  As at 11 March 2010, Dick was 18.  He had turned 18 on 15 September 2009. As at 11 March 2010, Harry was aged 18.  He had turned on 18 on 26 July 2009.

1. Gerri pleaded guilty to the charges brought against him.  Dick and Harry pleaded guilty to all charges brought against them.  The appellant pleaded guilty to the charges that arose out of the third set of events.  The only trial was that before the Learned Magistrate who ultimately sentenced the appellant.  The trial was held on 9 June 2010 on the seven charges as to the first and second set of offences, both sets having taken place on 14 July 2009.  She found the appellant guilty on all seven.  She did so after hearing evidence, including from Gerri.  As to the property offences, she said that she was satisfied beyond reasonable doubt that the appellant and Gerri were the two men responsible for aggravated burglaries at each of three venues, namely Steve’s Melba Takeaway, the Kaleen Sports Club and Video 2000 Kaleen, along with the associated thefts of a Playstation game and liquor from the second and third venues.

8. As to the events giving rise to the second set of offences, what her Honour said included that the appellant drove the Commodore at dangerous speeds as he was being pursued by the police through the streets of Kaleen. His dangerous driving included that he manoeuvred the Commodore around police stop sticks. He disobeyed the direction of a police officer. Gerri, as the passenger in the Commodore, continually told the appellant to stop.  The Commodore collided with the traffic lights at the intersection of Belconnen Way and Hayden Drive.  The Commodore flipped onto its roof.  The appellant, in his driving, failed unjustifiably and to a gross degree to observe the standard of care which a reasonable person would have observed.  Gerri suffered severe injuries to his ankle and head, such that they required several surgeries.  The injuries resulted in significant scarring and pins in Gerri’s ankle. 

9. As to the evidence led before her, her Honour considered that Gerri and another witness spoke truthfully when they gave evidence of matters linking the appellant to the burglaries and the driving of the Commodore. She also found that Gerri was impressive and that the other witness was careful and honest. Her assessment of the evidence of the appellant, on the other hand, was that it included aspects that were concocted and inherently improbable.  She said that she found the evidence totally unbelievable, and rejected it in its entirety.
10. On 11 March 2010, just under 8 months later, the appellant was in the company of Dick and Harry.  The three men, all aged 18, decided to carry out a couple of daytime burglaries, and then to sell what they stole.  At around 11.30 a.m. on that day, in a car driven by Dick, the three looked at houses before selecting one in Curtain to burgle.  They knocked to see if anyone was home.  Getting no response, Harry kicked in the back door and the three looked around inside.  It was the home of a young couple with two daughters.  What was stolen included two pink cameras and a pink iPod.  The three moved on to the second house and from it stole a laptop computer and a data projector.  The three then moved on to another location where some of the items that had been stolen were sold.
11. I have attached a table as an Appendix to these reasons. The table provides a summary of the sentences imposed on each of the appellant and the co-offenders.  As is noted in the table, the four were sentenced by four different judicial officers.  That is not ideal. The principle of parity starts from the premise that a co-offender should not be left with a justified sense of grievance as to the comparable sentence of a co-offender. Harry was sentenced by me after I had heard argument on this appeal, but after I had heard submissions as to how Harry should be sentenced.  At that time, I was unaware that the appellant’s appeal was to come before me.  I indicated, after the hearing of the submissions as to Harry, that I wanted to be informed, because of considerations of parity, as to the sentences imposed on the appellant and Dick.  That set off a train of enquiries.  Those enquiries led to my being provided with more material. When sentencing Harry, I explained the reasons for the delay in his being sentenced. Those reasons have been recorded and need not be repeated here. Most of the reasons apply comparably as to the delay in handing down these reasons. That delay has, regrettably, been unduly long, with the main reason for that being the delay in my being provided with the transcript of what was argued before her Honour, a matter to which I will return.
12. I would only add a further comment as to process.  No explanation has been provided to me as to why there was not tendered at the hearing of submissions as to the sentence to be imposed on the appellant and Harry, the victim impact statement that was tendered at the hearing of submissions as to the sentence to be imposed on Dick.
13. The effect of the sentence imposed on the appellant was to require the appellant to serve 12 months fulltime imprisonment between March 2010 and March 2011, to then provide for periodic detention for 15 months from March 2011 to June 2012, to then provide for a further 9 months supervision under a good behaviour order from June 2012 to March 2013.
14. I propose to provide outlines first of how the hearing of submissions to her Honour, on 9 June 2010, proceeded and then of the sentencing remarks of her Honour, on 21 July 2010. Mr Todd, who appeared to prosecute, tendered a pre-sentence report, the criminal records of the appellant and Gerri, and the transcript of the sentencing proceedings as to Dick.  He also referred her Honour to four ACT cases, without much elaboration.  On the hearing of submissions, the appellant was represented by Mr Archer but he had not appeared for the appellant at the contested hearing. He did however appear for the appellant before me.  Mr Archer tendered a statement from the mother of the appellant and a letter from a man, who was apparently a real estate agent. He then took her Honour comprehensively through submissions as to:

a)   the appellant’s record;

b)   the events of 14 July 2009, the seriousness thereof, the injuries to Gerri, with comments on three (Kennewell v Rand [2005] ACTSC 89, R v Quinlan (SCC 290 of 2009) and R v Madden (SCC 27 of 2008)) of the four ACT cases earlier referred to by Mr Todd, and the effect of there having been no guilty plea;

c)   the events of 11 March 2010, the seriousness thereof, and the effect of there having been a guilty plea;

d)   parity as to Gerri;

e)   sentencing principles applicable to children, with comments on the fourth case (R v PM [2009] ACTSC 24);

f)   the assessment of the relative seriousness of the sets of offences;

g)   matters going to the offender, including family support, education and maturity;

h)   time spent in custody, including at the Bimberi juvenile detention centre and AMC, and the impact on the appellant;

i)   possible sentence structuring, including the combination sentence option, and periodic detention; and

j)   remorse.

15. Mr Todd responded with submissions challenging what Mr Archer had put, particularly as to:

a)   parity as to Gerri;

b)   the assessment of the relative seriousness of the sets of offences; and

c)   remorse.

16. In her sentencing remarks, not surprisingly, her Honour commented at the start on the difficulty of the exercise. She then addressed:

a)   the circumstance that the appellant was a juvenile as to the offences in July 2009, and had to be sentenced accordingly;

b)   parity considerations as to Gerri, including her assessment that Gerri did not take the leading role relative to the appellant, and other factors distinguishing the appellant from Gerri;

c)   her assessment of the objective seriousness of the culpable driving offence as “particularly egregious”, with further comments including as to high moral culpability;

d)   the need for condign punishment as to the March 2010 offences;

e)   the relative absence of mitigatory factors, save for the appellant’s supportive family;

f)   the importance of giving priority to the rehabilitation of the appellant;  and

g)   the need to “take a final look at this whole matter”.

17. After going through the particular sentences imposed, her Honour provided a “practical summary” which included a comment that the fulltime custody would “most probably” be at the juvenile detention centre.
18. The last-mentioned comment by her Honour about the probability of custody being at the juvenile detention centre was not in my assessment, inappropriate, given that the matter of Bimberi was drawn to her attention by Mr Archer during his submissions, in a way that invited the response given.  Whether any part of the period of custody would be spent in Bimberi could only be the subject of speculation, as a decision on the matter is entirely beyond the power of the courts.  Perhaps, a preferable option would have been to make no mention of it, or to use “possible” rather than “probable”.
19. It was submitted to me that her Honour erred in failing to properly apply the totality principle.  I do not accept that that was so.  That her Honour was conscious of the need to respect the totality principle is clear from the use of the words, immediately prior to her detailing of specific sentence for specific offence: “I should say that, as the Supreme Court wants us to, and indeed I have taken, one final look at this whole matter.”  I do not accept, as Mr Archer submits, that amounted to a ritual form of, rather than a real and appropriate, recognition and respect.
20. Mr Archer contended for the appellant that the degree of disparity between the sentencing outcomes in respect of the 11 March 2010 justified intervention on appeal. As noted above, the matter of parity as between the appellant and Gerri, relative to the July 2009 offences, was the subject of quite detailed submissions to her Honour.  It was addressed by her at some length in her sentencing remarks.  She noted that Gray J had sentenced Gerri to prison for two years and six months with a non parole period of 15 months. He said he would have imposed a sentence of five years in prison, but for the need to discount by 50% for the guilty plea and extensive co-operation.  I cannot accept that there could be any justified sense of grievance as to parity as between the appellant and Gerri.  One ground of appeal raised the issue of the weight given to the appellant’s record, and specifically that it was undue.  Her Honour did refer in her sentencing comments to the prior record of the appellant being “slightly less” than that of Gerri.  The appellant had appeared twice with two good behaviour orders resulting. Gerri had appeared once, with one good behaviour order resulting, but for a longer period.  To refer to the difference being slight was not inappropriate in my assessment.
21. As noted in the appendix, on 5 August 2010, Dick was sentenced by Magistrate Doogan, as to the offences on 11 March 2010, to which he had pleaded guilty.  The sentencing date was shortly after Magistrate Fryar had sentenced the appellant, and Magistrate Doogan was, albeit briefly, given some information as to the sentencing of the appellant.  Dick was sentenced to prison for twelve months, with six months to be served by way of periodic detention and six months suspended for two years subject to compliance with good behaviour order for two years.  Dick had a record of appearances in the Children’s Court, but save as to one matter, had not received any conviction. I have reviewed the material placed before me as to what is relatively comparable.  That includes the record of the appellant.  I cannot accept that there could be any justified sense of grievance as to parity as between the appellant and Dick.
22. As noted in the appendix, on 5 August 2010, Harry was sentenced, as to the offences on 11 March 2010, as to which he had pleaded guilty, by me.  I recorded a conviction and placed Harry on a good behaviour order.  I did so, well aware of the sentence imposed on the appellant.  Indeed, as noted above, the delays in sentencing Harry and in finalising this judgment arose substantially from my perceived need to have the maximum information before me relative to parity.  In sentencing Harry, I was conscious of some important similarities but of certain very significant differences.  Both were 18.  Both pleaded guilty. Both had supportive families. Both had no drug or alcohol or mental health problems.  Both had received a good education.  Some differences went one way. Harry is a little older than the appellant. He accepted that he kicked in the door to gain entry to the first house burgled. 
23. The vast majority of differences went the other way.  Harry had no prior court appearances at all. He demonstrated remorse to an extremely high degree.  His future education plans were bright.  His character references were compelling.  What was clear as to Harry was that the need to allow for specific deterrence was minimal.  As to the appellant, the need for specific deterrence was high, essentially because of the level of seriousness of the three sets of offences, and because of the limited period of time separating them. 
24. There was another less important factor, in that, at the time of the offences in March 2010, the appellant’s offences were in breach of his bail conditions and an earlier good behaviour order.  His record revealed that he had been dealt with in the Children’s Court as to events occurring in August 2008 and August 2009. On both occasions, he was convicted, and released on accepting a good behaviour order for six months. I cannot accept that there could be any justified sense of grievance as to parity as between the appellant and Harry. 
25. Mr Archer put to me submissions as to periodic detention and cumulation. Those submissions were the closest that any submissions came to contending that her Honour had erred, in the whole of this complex sentencing exercise, in failing to comply with a provision of the Crimes (Sentencing) Act 2005 (“the Act”). Part 5.3 of the Act contains s 71 which sets out the general rule as to directions as to cumulation or concurrency. In short, the primary sentence must be served concurrently with the existing sentence unless the court directs that it be served consecutively. Her Honour did not adopt the approach of starting from the most serious matter. In short, that involves making an assessment, as between offences, of relative seriousness and making additional sentences concurrent with or consecutive upon the sentence assessed as the most serious. As to that, see R v JG [2005] VSCA 74 at [22]. Her Honour adopted the chronological approach. As to that see the commending words of Refshauge J in Saga v Reid and Collett [2010] ACTSC 59 at [109]. She started with the first aggravated burglary. She made other periods of sentences linked to the July 2009 offences consecutive or concurrent. When her Honour turned to the March 2010 offences and their sentences, she did not specifically link them in the same way to the first aggravated burglary. She did link them to each other with the use of the words consecutive and concurrent. However, importantly in my assessment, she made the link when directing that the total period of 15 months stemming from the March 2010 offences sentences could be served by periodic detention as from a specific date, namely 4 March 2011, which was the day that the period of imprisonment imposed as to the July 2009 offences was suspended. I do not accept that that part of the submission which suggests there was a non-compliance with the statute through the failure to expressly stipulate whether it was concurrent or consecutive.

17. However, there was another limb, or perhaps two closely inter-related limbs, to the submissions as to periodic detention.  One was linked to sentence structure in a general way.  The other was that to provide at all for periodic detention for the appellant was inappropriate.  As from 4 March 2011, the appellant can opt to serve 15 months by way of periodic detention, instead of full-time detention.  Mr Archer contended that the provision of that option was inappropriate in all the circumstances, and particularly having regard to the appellant’s age, the length of the period and the nasty consequences of a failure to comply strictly with the requirements of periodic detention.  When I reviewed the transcript of submissions made to her Honour by Mr Archer, I was initially intrigued to note that Mr Archer had urged on her Honour the imposing of a combination sentence with a term of periodic detention.  I took little time to appreciate that he had in mind a short term, rather than one of 15 months.  However, the seed was sown.  Periodic detention had been advanced as an appropriate option.   Moreover, I can appreciate why to specify a shorter term would not have been seen by her Honour as adequate in all the circumstances.  This is not the place to review the advantages and disadvantages of the availability of periodic detention, as distinct from its application for a particular person for a particular period.  It is available and, in my assessment, its availability should be taken advantage of by a sentencing judicial officer, who is looking to achieve a result more likely to enhance rehabilitation than could be expected to result from a like period of fulltime custody.  As Refshauge J noted in Ledson v Taylor & ors [2010] ACTSC 42 at [81], it is unarguable that periodic detention is a lenient form of punishment. If the only effective alternative to either fulltime custody or periodic detention is perceived to be punishment that is inadequate, in that it does not fit offence and offender, even a period of 15 months periodic detention is to be preferred.
18. I turn next to the submissions as to whether her Honour, as to the offences committed by the appellant as a child, gave sufficient weight to the requirements of Chapter 8A of the Act. As to the sentencing of children, the attention of her Honour was drawn to R v PM [2009] ACTSC 24. In R v PM Refshauge J made an extremely extensive review of the relevant provisions. After detailing the general provisions as to the purposes of sentencing, he noted the statutory modifications required to be observed as to young offenders, aspects of the common law approach, and the absence of a parole regime. That review, while extremely beneficial from my perspective, can only have been of benefit to her Honour. Reference is made in R v PM to R v Boudelah (1991) 28 FCR 176, in which Jenkinson J made some telling statements as to the special difficulties facing judicial officers in sentencing young men. What he said included:

the reduction of the period of actual imprisonment below what the crime merits in all the circumstances is, or in my opinion, should be, intended to serve the interest of the community rather than that of the offender by minimizing exposure of the youthful offender to influences and circumstances known to incline such offender to further criminal or otherwise socially harmful behaviour.

28. In her sentencing remarks, the first comment her Honour made was as to the difficulty of her sentencing exercise. The second was to note that the appellant was to be sentenced as a young offender, and then noting that the provisions of Chapter 8A of the Act applied. Those were among the provisions reviewed in R v PM.  I am unable to accept that her Honour did not give appropriate weight to the applicable statutory requirements.
29. I turn finally to the submissions that the sentences imposed were manifestly excessive. Relative to this exercise, Mr Archer appreciated the benefit likely to be gained by reference to statistics. On the other hand, he was ready to recognize the problem of getting access to appropriate statistics. What he provided served to indicate that very few young offenders serve fulltime custody in the ACT. The complex nature of this sentencing exercise also made difficult the provision of comparable cases. The one case of those provided to Her Honour and to me, that would have been of more than just a little assistance comparably, was Kennewell v Rand [2006] ACTCA 10. The appellant in that case was 19 at the time of the offences and had no prior convictions. He had pleaded guilty to two counts of culpable driving causing grievous bodily harm. He was sentenced to 18 months imprisonment in respect of each conviction. Initially, after a direction as to limited cumulation was made, he was given a head sentence of 30 months. On appeal, the two periods of 18 months were ordered to be served concurrently. This is not a case where it is possible to start from the basis of having a range of sentences that are comparable and considering whether the sentence imposed fell outside the range.
30. One is therefore thrown back to first principles, and a consideration relative to each set of offences of the objective circumstances of those offences, together with a review of the subjective circumstances of the offender. As noted in R v Dodd (1991) 57 A Crim R 349 at [354], after an analysis of what was said in Veen (No 2) (1988) 164 CLR 465, each crime has its own objective gravity meriting at the most a sentence proportionate to that gravity, taking account of the maximum sentence fixed by the legislature spelling out the limits of sentence for cases in the most grave category. As to the three sets of offences, her Honour made succinct remarks as to gravity or seriousness. As to the first set, she did so by noting how Gray J had dealt with Gerri. As to the third set, she spoke of them calling for condign punishment. As to the second set, which she clearly treated as the most serious, she commented on the driving being a particularly egregious example of this type of offending. She then listed the aggravating factors such as the speed, the erratic nature of the driving, the distance covered, the ignoring of warnings, and that the driving was to escape police pursuit.
31. There is one short passage in what her Honour said as to the relative seriousness of the third set of offences and the appellant’s involvement in them. I have read and re-read this passage several times.  After stating that the second set of aggravated burglaries deserved condign punishment, her Honour said:

They were committed not only in breach of a good behaviour order but also while the defendant was on bail for previous offences. The defendant in company with two other offenders went deliberately searching for homes to break into. Such an invasion and interference of a person’s privacy and security cannot be tolerated.

32. In my assessment, the appellant’s involvement in the second set of aggravated burglaries is very troubling.  I did note that Mr Archer more than once sought to downplay that involvement before her Honour.  Objective gravity considerations cannot lead to them being treated as the most serious of the three sets of offences.  However, there is in my assessment, in the second set of aggravated burglaries a particularly troubling indication of seriously wrong and premeditated criminal conduct at a time when rehabilitative considerations ought to have been uppermost in the mind of the appellant.   I found a reflection on that passage very helpful in appreciating the balance of the sentence overall and the wisdom of the 15 months periodic detention provision in particular. 
33. I recently handed down a decision on an appeal as to a sentence imposed by a magistrate, where I reviewed the applicable principles.  In that review, I noted that I should not overturn a sentence because I, on hearing the appeal, concluded that I might have imposed a different sentence.  I accepted that I could replace the original sentence only in limited circumstances such as that I was satisfied that the exercise of the discretion below was affected by a specific error.  I have reviewed carefully the sentencing remarks of her Honour in the light of the materials and submissions before her, and those before me. I was not satisfied that there was any specific error.  I did ponder long over the potential difficulties facing the appellant in getting through a period of 15 months periodic detention.  In the end, I concluded that I would not have imposed a different sentence.
34. For the above reasons, I dismiss the appeal.

I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Acting Justice Teague.

Associate:

Date: 22 February 2011

Counsel for the Appellant:  Mr K Archer   
Solicitor for the Appellant:  Darryl Perkins Solicitor

Counsel for the Respondent:  Mr J Lawton
Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  12 November 2010
Date of decision:  22 February 2011
Date of judgment:  22 February 2011