Jackson Allred v Joshua Kyle Burnett, Grant Matthew BLUETT and Brent Andrew Gall
[2014] ACTSC 22
•14 February 2014
JACKSON ALLRED V JOSHUA KYLE BURNETT, GRANT MATTHEW BLUETT AND BRENT ANDREW GALL
[2014] ACTSC 22 (14 February 2014)
APPEAL – GENERAL PRINCIPLES – appeal against nonparole period – discretion miscarried - appeal upheld - resentenced.
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes (Sentencing) Act 2005 (ACT)
Magistrates Court Act 1930 (ACT)
Bugmy v The Queen (1990) 169 CLR 525
DPP (Vic) v Josefski (2005) 158 A Crim R 185
Hill v The Queen (2010) 242 CLR 520
House v King (1936) 55 CLR 499
Inge v The Queen (1999) 199 CLR 295
Lowe v The Queen (1984) 154 CLR 606
Lukatela v Birch [2008] ACTSC 99
Muldrock v The Queen (2011) 244 CLR 120
Saga v Reidand Collett [2010] ACTSC 59
REASONS FOR DECISION
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 60 of 2013
Judge: Ross J
Supreme Court of the ACT
Date: 14 February 2014
IN THE SUPREME COURT OF THE )
) No. SCA 60 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:JACKSON ALLRED
Appellant
AND:JOSHUA KYLE BURNETT
GRANT MATTHEW BLUETT
BRENT ANDREW GALL
Respondent
ORDER
Judge: Ross J
Date: 14 February 2014
Place: Canberra
THE COURT:
allowed the appeal; and
confirmed the individual sentences imposed by the Magistrates Court, her Honour’s orders in respect of cumulation and concurrency and the total head sentence; and
set aside her Honour’s orders in respect of the appellant’s nonparole period and resentenced the appellant to a nonparole period of 4 years.
Background
On 22 July 2013, the Magistrates Court sentenced the appellant in relation to 5 separate series of matters. The appellant had previously been sentenced to a term of imprisonment by His Honour Justice Nield and accordingly s.66 of the Crimes (Sentencing) Act 2005 (the Act) required the sentencing Magistrate to reset a nonparole period, which her Honour did.
Section 66 of the Act reads as follows:
1) This section applies if-
a) the offender is serving a sentence of imprisonment (the existing sentence);
andb)the offender is sentenced to a further term of imprisonment (the primary sentence).
2)Section 65 (Nonparole periods- court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
3)The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.
4)Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.
On 5 June 2013 Nield AJ sentenced the appellant to serve a term of imprisonment of 5 years and 6 months commencing on 6 January 2013. A nonparole period of 3 years was set, making the appellant eligible for parole on 5 January 2016. For the purposes of s.66, this was the ‘existing sentence’.
The sentence imposed by the sentencing Magistrate was the ‘primary sentence’ which, by the operation of s.66(3), cancelled the nonparole period set by Nield AJ and must be accumulated on the sentence imposed by Nield AJ (as required by s.66(2)). Section 66(4) required her Honour to set a new nonparole period which could not make the appellant eligible for parole before 5 January 2016.
The following table provides a summary of the relevant matters and sentences imposed:
Sentence imposed by Nield AJ
The offences for which the sentencing Magistrate imposed sentences on 22 July 2013 were committed whilst the appellant was on bail for the offence for which Nield AJ sentenced him on 5 June 2013. Further, the offences committed by the appellant between 24 August 2012 and 20 November 2012 placed him in breach of two Good Behaviour Order's imposed on him by Magistrate Dingwall on 22 November 2011 and 8 July 2011.
In her reasons for sentence the Chief Magistrate said:
“By virtue of the convictions that I now record in respect to each of these matters you are in breach of the two suspended sentence orders.... I am satisfied that it is appropriate to impose those suspended sentences”
Her Honour then purported to act in accordance with s.110 of the Crimes (Sentence Administration) Act 2005, which reads, relevantly, as follows:
(1) This section applies- if
a) an offender's good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12(3) (Suspended sentences) on the offender's conviction for an offence; and
b) a court is satisfied the offender has breached any of the offender's good behaviour obligations.
(2) The court must cancel the good behaviour order and either-
a) impose the suspended sentence imposed for the offence; or
b) re-sentence the offender for the offence.
As has been noted, her Honour proceeded to act in accordance with s.110(2)(a) and imposed the sentences imposed by Magistrate Dingwall. Those sentences were:
·8 July 2011 (the assault occasioning actual bodily harm matter) - imprisonment for 6 months with the appellant being released after serving 2 months; and
·22 November 2011 (the common assault matter) - imprisonment for 4 months with the appellant being released after serving 2 months and 13 days.
10.In her reasons for sentence her Honour noted that:
“So on charge number 8412 which is the suspended sentence order for the common assault, I impose the remaining period of time. You will therefore serve the remaining one month and 18 days ... On charge number 2468/13, the suspended sentence for the assault occasioning actual bodily harm, again pursuant to section 110 of the Crimes (Sentencing) Act, finding the breach proved by conviction I impose that sentence. There are four months remaining. I will impose those to run concurrently, so the two suspended sentences will run together.”
11.In Saga v Reidand Collett[1] Refshauge J considered the order that suspended sentences ought to be imposed. His Honour made the following comment at paragraph [115]:
[1] [2010] ACTSC 59
“... it seems to me that the better approach is to find the offender guilty of the offence which constitutes the breach (or convict him or her of that offence)1 cancel the good behaviour order, impose the imprisonment which was suspended or re-sentence, this is unless the subsequent offence or offences (or one or some of them) are more serious, when the sentence for it should be imposed first and then sentence for the balance of the offences, and then make the sentence cumulative or concurrent (wholly or partially) as required by the usual principle of totality for multiple offences.”
12.The other offences for which the her Honour sentenced Mr Allred were more serious than those for which Dingwall M had imposed a suspended sentence. Accordingly, adopting the approach favoured by Refshauge J in Saga, her Honour should have first sentenced the appellant for obtaining property by deception offences before imposing any of the other sentences. But in the end nothing turns on the approach adopted by her Honour. Irrespective of the methodology adopted any additional sentence or sentences of imprisonment would have to be accumulated upon the sentence imposed by Nield AJ, with allowances for concurrency, and then a fresh nonparole period had to be considered.
13.It is common ground that the effect of her Honour’s sentence was to increase the appellant’s head sentence by 18 months (from 5 and a half years to 7 years) and to increase the nonparole period by 21 months (from 3 years to 4 years and 9 months).
The Appeal
14.The appellant appeals her Honour’s sentence on the following grounds:
(i) The sentence was manifestly excessive
(ii)Her Honour erred in failing to impose a sentence that properly reflects the principles of totality;
(iii)Her Honour erred in the determination of concurrency and cumulation of sentences;
(iv) Her Honour erred in that the sentence is crushing.
15.During the course of oral argument the scope of the appeal was confined to the nonparole period set by her Honour. There was no challenge to the sentences imposed in respect of any individual matters or to any of her Honour’s orders with respect to cumulation and concurrency. Nor did the appellant press the appeal in relation to the head sentence. The appeal reduced to a short point - that in the circumstances her Honour failed to properly have regard to the principle of totality and in consequence the nonparole period set was manifestly excessive.
16.Part 3.10.02 of the Magistrates Court Act 1930 governs appeals from the Magistrates Court to the Supreme Court in criminal matters. It is common ground that the nature of an appeal under this Division is an appeal by way of re-hearing on the evidence below. It is not a hearing de novo. A court entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied there was error on part of the court below.[2]
[2] Lukatela v Birch [2008] ACTSC 99
17.Sentencing judges have a wide discretion in the setting of a nonparole period. It is not to be assessed mathematically by reference to some ‘norm’ or ‘usual’ ratio to the head sentence.[3] The sentencing task is to set an appropriate relationship between the head sentence and the nonparole period[4]. In Inge v The Queen[5] Kirby J discussed the requirement of a relationship between the nonparole period and the head sentence, in these terms;
[3] Hill v The Queen (2010) 242 CLR 520 at 532 - 534; Muldrock v The Queen (2011) 244 CLR 120 at 131 - 132
[4] Lowe v The Queen (1984) 154 CLR 606 at 610 per Gibb CJ, Wilson J agreeing; Brennan J and Sawson J making similar comments at 620 and 625 respectively.
[5] (1999) 199 CLR 295 at 316
“In the ordinary case, where a head sentence comprises a determinate period in the prison, the nonparole period will constitute a substantial part of that sentence. . . The achievement of a proper proportionality between the head sentence and the nonparole period is a judicial obligation. However, even in the majority of cases where the head sentence is one for a determinate period it is recognised that proportionality is something that cannot be reduced to a mathematical formula (footnotes omitted).”
18.The considerations which the sentencing judge must take into account when fixing nonparole will be the same as those applicable to the setting of the head sentence. Though, the weight to be attached to these factors and the way in which they are relevant, will differ due to the different purposes behind each function[6]. As their Honours Mason CJ and McHugh J observed in Bugmy v The Queen;[7]
[6] See Bugmy v The Queen (1990) 169 CLR 525 at 531-2 per Mason CJ and McHugh J.
[7] Ibid.
“A prisoner’s prospects of rehabilitation will be relevant to the fixing of a minimum term, both by way of mitigation and because the community benefits from the reformation of one of its members. Conversely, the community needs to be protected from a violent offender, especially one whose prospects for rehabilitation are bleak. Likewise, the nature of the crime will be relevant because a more serious offence will warrant a greater minimum term due to its deterrent effect upon others. But the nature of the offence does not assume the importance which it has when the head sentence is determined. There, the sentence must be proportionate to the gravity of the offence Veen v The Queen [No. 2], whereas the minimum term represents a portion of the head sentence during which the offender will not be considered for parole. In one sense, that portion must itself bear a proportionate relation to the crime. Generally speaking, the perceived prospects of rehabilitation will make a significant difference. Among other things, those prospects will affect what is required by way of protection of the community. Release on parole is a concession made when the Parole Board decides that the benefits accruing by way of rehabilitation and the recognition of mitigating factors outweigh the danger of the community of relaxing the requirement of imprisonment (citations omitted).”
19.The present matter has a number of unusual features.
20.In the proceedings before her Honour both the defence and the Crown referred to the importance of the principle of totality,[8] having regard to the sentence which had already been imposed by Neild AJ. Both counsel also referred to the offender’s youth (he was 20 years of age at the time of sentencing) and the importance of rehabilitation. In this regard the Crown submitted:
[8] Transcript of proceedings at first instance p9 lines 37-40 and p13 lines 21-23.
“I also agree with my friend that the defendant is still very young and should be given some light at the end of the tunnel, as it were, given that his already facing a 5 year sentence of imprisonment on his Supreme Court matters. There were early pleas of guilty to all of these matters and obviously general and specific deterrence are factored in here, given the prior offending and the offences that are before you Honour today”[9]
[9] Ibid at p14 lines 37 - 42.
21.At the conclusion of the Crown’s submissions her Honour proceeded ex tempore to sentence the appellant. In the course of her sentencing reasons her Honour dealt with rehabilitation and the imposition of a nonparole period in the following passages:
“I have skipped one of the important principles when I listed those from section 7 because it is something that has particular relevant to you, and that is to promote the rehabilitation of the offending. Why is it particular relevant to you? Not because you deserve a first chance, because you have had so many chances it is almost getting ridiculous. You had had so many opportunities through the court to be on a good behaviour order, to be supported for rehabilitation. That is not why rehabilitation is important for you, because you squandered those chances. But it is important for you because you are only 20. You are a man, you are not child, but you are a young man, and you still have some prospects of developing and growing into a reasonable person who has a different choice for the future, and it is for that reason that rehabilitation still has a role to play in my sentence here. . .
The upshot of this, Mr Allred, is that you are now sentenced, taking into account the previous sentence that was imposed by Neild AJ that commenced on 6 January 2013. Your sentence originally ended on 5 July 2018, it now ends of 5 November 2019. The upshot of that is 6 years, 9 months, 4 weeks and 2 days in total is your sentence. As part of this process I am now required to reset the nonparole period, having regard to the parole period that was set previously by his Honour and the circumstances reflected by this new sentencing exercise.
I have determined it is appropriate to set that period at 4 years and 9 months. It will be taken to have commenced on 6 January 2013. You therefore will become eligible for parole if you do the right thing whilst you are in prison from 5 October 2017. If you do not do the right thing and therefore are not assessed as eligible for parole you have the potential to remain in prison until 5 November 2019.Now, is there anything you do not understand about what I have said to you today?
THE PRISONER: Just the last bit about when I can go for parole.
HER HONOUR: Yes, the date which you will be eligible to apply for parole is 5 October 2017. So I have extended that out by one year and 3 months from the original nonparole period in light of these further matters[10].”
[10] Ibid at p20 lines 16-28 and p23 lines 21-45.
22.As I have mentioned, her Honour’s sentence increased the appellant’s head sentence by 18 months and whereas his nonparole period was increased by 21 months (not the 15 month extension referred to by her Honour in the passage above). A decision to increase the appellant’s nonparole period by an amount in excess of the increase in the appellant’s head sentence was not inconsistent with the terms of s.66 of the Act, but on any view of it such an outcome is unusual. Section 66(4) of the Act provides a limitation on the nonparole period set on resentencing pursuant to that section, but it is directed at preventing the setting of a new nonparole period which is shorter than that set out in the existing sentence. Nothing in s.66 prevents the nonparole period in the primary sentence being increased upon resentencing. While her Honour’s decision did not offend s.66, it was unusual. Had her Honour’s sentence been confined to the new offences before her, unencumbered by any consideration of the sentence earlier imposed by Nield AJ, it would plainly not have been open to impose a nonparole period that was longer than the total head sentence imposed. In this regard it is relevant to note her Honour’s observation that she had extended the appellant’s nonparole period in ‘light of these further matters’.
23.Three other points are also relevant. The first is the absence of reasons for her Honour’s decision to increase the nonparole period by an amount that exceeded the increase in the head sentence. Where a sentencing judge decides to fix a nonparole period that is unusual, reasons for taking that course should ordinarily be given. The failure to give reasons in such circumstances invites appellate scrutiny[11].
[11] DPP (Vic) v Josefski (2005) 158 A Crim R 185 at 194-195 per Callaway J A).
24.The second point, which also serves to emphasise the first, is that neither party invited her Honour to adopt the course she did. Indeed, to the contrary, Counsel for both the appellant and the Crown emphasised the appellant’s youth and the importance of rehabilitation as a sentencing objection.
25.Finally, her Honour’s reasons refer to the effect of her decision being to increase the nonparole period by 15 months, when in fact it was increased by 22 months. This suggests that her Honour’s intention may not have translated into the order ultimately made.
26.In making these observations I am mindful of the fact that Her Honour was delivering her decision ex tempore and that the sentencing task was complicated by the existing sentence and the operation of s.66 of the Act.
27.In the circumstances I am satisfied that in setting the nonparole period her Honour made an error of the last kind mentioned in House v King[12] in that it is to be inferred from the result that there was a ‘failure properly to exercise the discretion which the law reposes in a court of first instance’. I will uphold the appeal in respect of the nonparole period, quash that aspect of her Honour’s decision and resentence the appellant. I would resentence the appellant by increasing his nonparole period by 12 months. The nonparole period starts on 6 January 2013 and ends on 6 January 2017.
[12] (1936) 55 CLR 499 at 505
28.In my view the extension to the appellant’s nonparole period bears an appropriate relationship with the increase in the appellant’s head sentence. That relationship differs from that imposed by Nield AJ in the existing sentence because of the appellant’s subsequent offending and his past unsuccessful engagement in rehabilitation, including failing to remain at a residential rehabilitation facility.[13] Rehabilitation remains an important consideration as does the fact that the appellant is still a young man. I have had regard to the material before her Honour at first instance and the considerations referred to in sections 7 and 33 of the Act.
[13] See transcript of proceedings at first instance p6 lines 10-25 and p7 lines 38-39
29.In conclusion I am also satisfied that he appellant’s new nonparole period (4 years) bears an appropriate relationship to the total head sentence (7 years) having regard to the existing sentence and the matters to which I have referred.
I certify that the preceding twentynine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Ross.
Acting Associate:
Date: 14 February 2014
Counsel for the appellant: Mr A Doig
Solicitor for the appellant: Ms Poulton
Counsel for the respondent: Mr Hiscox
Solicitor for the respondent: Office of the Director of Public Prosecutions
Date of hearing: 7 February 2014
Date of judgment: 14 February 2014
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