Joyce v Jevtovic
[2012] ACTSC 92
•May 16, 2012
SKYE BIANCA JOYCE v NIKOLA JEVTOVIC & ORS [2012]
ACTSC 92 (16 May 2012)
APPEAL – GENERAL PRINCIPLES – appeal against sentences imposed in Magistrates Court – sentencing Magistrate erred in not addressing impact of pleas of guilty – finding of error does not require or permit re-sentencing unless another sentence is appropriate and the re-sentencing would not involve tinkering with original sentence – totality – impact of sentence served by periodic detention between earlier and later offences – appellant has given birth since being bailed pending appeal – repeated adjournments to allow appellant to undergo urinalysis to support her claim to be abstinent from drugs – no submission to urinalysis until five days before date fixed for re-sentencing – unidentified substance detected – finding that appellant had no commitment to undertaking urinalysis – sentence reduced from 12 months to six months, but remaining four and a half months to be served in full-time custody.
Crimes (Sentencing) Act 2005 (ACT), ss 35, 37
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 60 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 16 May 2012
IN THE SUPREME COURT OF THE )
) No. SCA 60 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
SKYE BIANCA JOYCE
v
NIKOLA JEVTOVIC & ORS
ORDER
Judge: Penfold J
Date: 16 May 2012
Place: Canberra
THE COURT ORDERS THAT:
The appellant is re-sentenced to six months imprisonment, backdated to 2 April 2012, as follows:
(a) for the 18 October 2009 theft and assault (CC10/8070 and CC10/7368)—imprisonment for two months and three months respectively, to be served concurrently;
(b) for the 18 January 2010 theft (CC10/3291)—two months imprisonment, to be accumulated as to one month on the three-month sentence for CC10/7368;
(c) for the 20 September 2010 failure to appear (CC10/8364)—one month’s imprisonment concurrent with the two-month sentence for CC10/3291;
(d) for the 6 October 2010 theft (CC10/9072)—two months imprisonment, to be accumulated as to one month on the two-month sentence for CC10/3291; and
(e) for the November 2010 failure to appear (CC10/9808)—two months imprisonment, to be accumulated as to one month on the two-month sentence for CC10/9072.
Background
Skye Bianca Joyce has appealed against sentences of imprisonment imposed in the Magistrates Court in May 2011, as follows:
(a) There was an offence of an assault involving spitting and, on the same day, being 18 October 2009, a minor theft, which involved, apparently, a bag of Target Party Mix; for those two offences she was sentenced to four months and three months imprisonment concurrent.
(b) On 18 January 2010 there was a further minor theft, involving Cream Caramels; for that she received another sentence of three months, which was also concurrent with the two earlier sentences.
(c) On 20 September 2010 Ms Joyce failed to appear on a bail undertaking; for that she was sentenced to one month’s imprisonment, fully accumulated on the previous sentences.
(d) On 6 October that year there was a minor theft involving several bottles of wine, for which she was sentenced to a further accumulated four months of imprisonment.
(e) Then, on 3 November 2010, Ms Joyce failed to appear again, and for that she was sentenced to three months imprisonment, again fully accumulated.
The way those sentences were structured, as I have indicated, produced a total term of imprisonment of 12 months, and a non-parole period of seven months was set.
The appeal
There were initially eight grounds of appeal. One was abandoned before the hearing, but counsel for the respondent conceded that another ground had been made out. That ground was that the sentencing Magistrate had either not taken account of Ms Joyce’s pleas of guilty or that her Honour had not specified the sentencing discount given under s 35 of the Crimes (Sentencing) Act 2005 (ACT), as required by s 37 of that Act.
Ms Joyce’s pleas of guilty were not on any measure early, with most or possibly all of the six pleas coming on the day of the hearing. The Magistrate noted the lateness of four of the pleas and said, “Of course that lessens the benefit that the defendant derives from the pleas of guilty”. However, all the pleas had utilitarian value and, if that utilitarian value was not to be recognised in the sentence at all, her Honour should have made that explicit. Alternatively, if some sentencing discount was given, it should have been specified.
Once this error was conceded, it was unnecessary for me to consider any of the other appeal grounds, but that concession did not mean that there would necessarily be a resentencing. I may only resentence if, having found error, I am satisfied that another sentence is appropriate and that that other sentence would not involve mere tinkering with the original sentence.
Is another sentence appropriate?
The thefts involved two packets of sweets, each worth less than $3, and four bottles of wine, apparently valued at about $160. Counsel for the respondent put to me, in effect, that the theft of sweets, because it shows simply a desire for an immediate treat, is morally more culpable than the theft of a more expensive but necessary item would have been, but I do not think it is wise to assert a principle to this effect, certainly not without any evidence of Ms Joyce’s particular circumstances at the time. I understand, for instance, that sweets may be almost literally a lifesaver for people with certain conditions associated with diabetes and, on the other hand, theft of a healthier item, like a banana or a bag of nuts, may also reflect a mere desire for a treat to people with different tastes.
The assault was an unpleasant one, which involved Ms Joyce spitting at a security guard who was following her, having observed her stealing one of the bags of sweets. I do not accept that Ms Joyce’s spitting was justified, although it may be explained, by what was said to be her concern about the possibility that the security guard would touch the stroller in which her toddler was sitting.
The two failures to appear are each claimed by Ms Joyce’s counsel to have involved simple forgetfulness, and it does seem that, on one occasion, she did hand herself into the authorities later.
It seems to me, accepting that Ms Joyce has a long and unenviable record of minor offending of this sort, that a total sentence of 12 months with a non-parole period of seven months is too high, and that a significantly lower sentence would be appropriate. It does not really matter whether this is because some of the sentences were inappropriately high or because some of the sentences were inappropriately accumulated. Having concluded that the total sentence is too high, I must re-sentence Ms Joyce, and for that purpose I must consider the current circumstances.
Resentencing considerations
First, I note that Ms Joyce had served 37 days in full‑time custody before she was granted bail pending the determination of this appeal. I also note that she had spent a week in custody before sentence, so I shall backdate the new sentences by 44 days.
Next I mention that, after the assault and the first two thefts, Ms Joyce was sentenced to four months periodic detention for another theft, a sentence which she completed just before the first failure to appear. The totality principle requires me to have regard to that sentence in my resentencing.
When Ms Joyce was sentenced for these offences, she had recently conceived, and her baby was born on 23 December last year. That baby is now four months old and is both breast- and bottle-fed. Ms Joyce, who is currently 32, is a long-term drug user. She is currently on methadone and appears to be largely compliant with her methadone regime, but there have been serious and continuing failures to comply with directions to attend urinalysis given to her by her Corrections supervisor and by Care and Protection officers involved in supervising Ms Joyce’s care of her baby.
After it became apparent that Ms Joyce’s appeal would be upheld and that she would be re-sentenced, I adjourned the matter and ordered an updated Pre-Sentence Report. That was in November last year, before her baby was born. Since then, I have had to adjourn the matter three more times for further updated Pre-Sentence Reports, to give Ms Joyce repeated opportunities to attend urinalysis and to produce clean urinalysis results. The importance of that to her re-sentencing was emphasised to Ms Joyce by me and apparently also by her counsel.
On the last occasion, I warned Ms Joyce that, if she did not comply with the urinalysis directions, I would have no choice but to require her to serve her new sentence in full‑time custody. Since then, Ms Joyce has attended one urinalysis, only five days ago. The test detected something inappropriate in her urine, but further testing has not yet clarified what substance might be present.
Ms Joyce’s explanation for her repeated failures to attend for urinalysis seems to be that she is simply too busy. I accept that the various courses and other activities she is engaged in, all no doubt worthwhile, absorb a lot of her time, and that moving around Canberra, with her baby in a pram, by public transport is not easy, but I see nothing in her evidence to suggest that she had any commitment to attending for urinalysis, despite knowing that this was crucial in her resentencing. Indeed, her claim in evidence this morning that, in the past, her clean urinalysis results have been challenged as reflecting tampering confirms my view that she had no wish to comply with the repeated directions to attend urinalysis.
Ms Joyce’s counsel made general submissions that most of the sentences originally imposed were too harsh, but without any particular arguments in support of his submissions. Mr Drumgold, for the respondent, conceded that some of the sentences were in fact unnecessarily heavy and, more significantly, that they were probably accumulated more than appropriate.
Re-sentencing
The new sentences will be as follows:
(a) for the 18 October 2009 theft and assault—imprisonment for two months and three months respectively, to be served concurrently;
(b) for the 18 January 2010 theft—two months imprisonment, to be accumulated as to one month on the three-month assault sentence;
(c) for the 20 September 2010 failure to appear—one month concurrent with the January theft sentence;
(d) for the 6 October 2010 theft—two months imprisonment, to be accumulated as to one month on the January theft sentence; and
(e) for the November 2010 failure to appear—two months imprisonment, to be accumulated as to one month on the October theft sentence.
The reduction in sentences from those imposed by the sentencing Magistrate reflects a plea of guilty discount, and I have had regard to the four-month sentence served as periodic detention in accumulating each new offence by a maximum of one month. The new sentences amount to a total sentence of six months imprisonment, which will be backdated to 2 April 2012, to take account of time served.
I note Mr O’Keefe’s submission that Ms Joyce is being re-sentenced, for minor thefts and associated offences, not for being a drug-user or for failing to attend urinalysis. However, Ms Joyce’s approach to this re-sentencing, which I would describe as delaying the final sentencing while she builds up a separate portfolio of heart-tugging reasons why she should not be returned to prison, seems to me a cynical attempt to avoid having to make hard choices about her drug use. I cannot interpret her behaviour over the last six months as anything other than an attempt to manipulate the court processes to avoid returning to prison.
I note Mr O’Keefe’s submissions that Ms Joyce should be able to serve her sentence by periodic detention, despite the Pre-Sentence Report author’s assessment of her as unsuitable because of her young baby. That assessment was made several months ago and could be overridden if I was satisfied that, now that the baby is a bit older, periodic detention might in fact be manageable. However, in all the circumstances, especially the fact that periodic detention seems to be no kind of a deterrent to Ms Joyce (the third minor theft was committed within a few weeks after she finished the four months periodic detention already mentioned), I can see no basis for permitting Ms Joyce to serve her sentence that way.
For these reasons, and while I am concerned about the future of Ms Joyce’s baby and disappointed that Ms Joyce’s efforts with other forms of rehabilitation may seem in the short term to be wasted, I can see no choice but to require her to serve the rest of her sentence in full‑time custody.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 7 June 2012
Counsel for the appellant: Mr J O’Keefe
Solicitor for the appellant: John O’Keefe
Counsel for the respondent: Mr S Drumgold
Solicitor for the respondent: ACT Director of Public Prosecutions
Dates of hearing: 10 November 2011, 13 February, 13 March, 17 April, 16 May 2012
Date of judgment: 16 May 2012
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