Kay v Hickey
[2002] TASSC 108
•9 December 2002
[2002] TASSC 108
CITATION: Kay v Hickey [2002] TASSC 108
PARTIES: KAY, Lindsay Edward Campbell
v
HICKEY, David John
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 66/2002
DELIVERED ON: 9 December 2002
DELIVERED AT: Hobart
HEARING DATES: 19 November 2002
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law - Jurisdiction, practice and procedure - Judgment and punishment - Sentence - Recognizances, probation and other non-custodial orders - Recognizances - Breach - Generally - Discretion to order community service instead of imprisonment.
Crimes Act 1914 (Cth), s20A(5)(c)(ic).
Aust Dig Criminal Law [885]
REPRESENTATION:
Counsel:
Applicant: I M Arendt
Respondent: S J Bender
Solicitors:
Applicant: Director of Public Prosecutions (Commonwealth)
Respondent: Avery Partners
Judgment Number: [2002] TASSC 108
Number of Paragraphs: 13
Serial No 108/2002
File No LCA 66/2002
LINDSAY EDWARD CAMPBELL KAY v DAVID JOHN HICKEY
REASONS FOR JUDGMENT BLOW J
9 December 2002
The applicant contends that a sentence of 70 hours' community service imposed upon the respondent was manifestly inadequate. The respondent had some sort of mental block about completing and lodging income tax returns. That alone is not unusual, but this was an extreme case, as can be seen from the following history of the matter.
The respondent used to be a public servant. He should have lodged income tax returns in 1990, 1991, 1992, 1993, 1995, 1996 and 1997 but he failed to do so. He was prosecuted. On 14 September 1998 a magistrate made orders under the Taxation Administration Act 1953 (Cth), s8G, requiring him to furnish those returns on or before 19 October 1998. He did not comply with those orders. He was prosecuted again. He was charged with seven counts of failing to comply with a court order contrary to the Taxation Administration Act, s8H. He was served with a summons requiring him to appear before a magistrate on 5 February 1999. He did not appear. A warrant was issued for his arrest. It was not executed promptly. He was arrested and brought before a magistrate on 28 August 2000. He was granted bail. The matter was adjourned. He pleaded guilty on 11 September 2000. Over the following 12 months, the matter was listed for mention before the Magistrates Court on 12 occasions. The twelfth occasion was on 10 September 2001. On that day the respondent failed to appear, and a warrant for his arrest was issued. He was brought before the court on 11 October 2001, and bailed again. On 19 October 2001, he was sentenced on the seven charges to two months' imprisonment, subject to an order under the Crimes Act 1914 (Cth), s20(1)(b), that he be released forthwith upon giving security by recognizance in the sum of $500 (i) to be of good behaviour for a period of 12 months, and (ii) to lodge with the Deputy Commissioner of Taxation on or before 16 October 2001 income tax returns for the years in question. On the day that that sentence was imposed, his counsel told the learned magistrate that he would have the documentation that he needed in order to complete the returns by the following Tuesday at the latest. The deadline fixed by the learned magistrate in the s20(1)(b) order gave the respondent four weeks.
The respondent did not lodge the returns within that period. On 12 December 2001 the applicant swore a complaint for the purposes of the Crimes Act, s20A(1), alleging that the respondent had, without reasonable cause or excuse, failed to comply with the condition of the s20(1)(b) order. A summons was issued the following day, returnable on 29 January 2002. The respondent was served, but failed to appear. A warrant was issued for his arrest. He was arrested, but granted police bail, requiring him to appear before a magistrate on 15 March 2002. He did not appear. Another warrant was issued for his arrest. He was brought before the court on 22 March 2002 and granted bail with his father as a surety. After a couple more adjournments, he pleaded guilty on 13 May 2002. Arrangements were made for him to be represented by Mr Bender, and the matter was adjourned to 23 May 2002. Mr Bender obtained another adjournment. On 26 June 2002, the income tax returns were lodged. Their completion had been delayed because the respondent had lost his group certificates, and his former employer had had difficulties establishing the information contained in the group certificates. On 28 June 2002, the learned magistrate ordered a pre-sentence report, particularly in relation to the respondent's suitability for community service orders. On 19 July 2002, he made an order pursuant to the Crimes Act, s20A(5)(c)(ic) revoking the s20(1)(b) order of 19 October 2001 and making an order under s20AB for the respondent to perform 70 hours' community service. The applicant contends that the s20AB order was manifestly inadequate, and that the only appropriate course was for the learned magistrate to order pursuant to s20A(5)(c)(i) that the respondent be imprisoned for two months.
A conditional release order under s20(1)(b) is the Commonwealth equivalent of a suspended sentence. In this case, the order was the equivalent of a wholly suspended sentence, the learned magistrate having ordered that the respondent be released forthwith upon entering into a recognizance. When a condition of a s20(1)(b) order is breached, the alternatives available to a magistrate are those set out in s20A(5)(c), which reads as follows:
"(5) Where, in accordance with this section, a person who has been … released in pursuance of an order made under subsection 20(1), appears or is brought before the court by which the order was made, the court … if it is satisfied that the person has, without reasonable cause or excuse, failed to comply with a condition of the order, may:
(a)…
(b)…
(c)in the case of a person who has been released by an order made under paragraph 20(1)(b):
(ia) impose on the person a monetary penalty of not more than $1000; or
(ib) subject to subsection (5A), amend the order so as to extend the period for which the person is required to give security to be of good behaviour; or
(ic) revoke the order and make an order under section 20AB; or
(i) revoke the order and deal with the person for the offence or offences in respect of which the order was made by ordering that the person be imprisoned for that part of each sentence of imprisonment fixed under paragraph 20(1)(b) that the person had not served at the time of his or her release; or
(ii) take no action."
In this case, it would obviously have been inappropriate for the learned magistrate to have taken no action, imposed a pecuniary penalty, or extended the operation of the recognizance requiring the respondent to be of good behaviour. In my view it is very significant that s20A(5)(c)(i) gave the learned magistrate no scope to order that the respondent be imprisoned for a period of less than two months. He had no power to substitute a shorter term of imprisonment, or to order part of the sentence to be served and the balance re-suspended. If he desired to be a little lenient, he was not able to give effect to that desire except by making a community service order. That is what he did. In my view an order under s20(1)(b) should be seen as an order which, if not complied with, can result in either imprisonment for a fixed period or a community service order.
Given the respondent's appalling history of failing to lodge his income tax returns and failing to attend court in relation to them, it would certainly have been open to the learned magistrate to have ordered his imprisonment for two months. I think the respondent was very lucky that such an order was not made. It may be that the learned magistrate erred by treating the proceedings as little more than an antidote to the respondent's inertia, but no such ground of appeal was argued.
The principles enunciated in relation to Crown appeals in cases such as Everett v R (1994) 181 CLR 295 and Griffiths v R (1977) 137 CLR 293 apply to a prosecutor's appeal against a sentence imposed by a magistrate: Hrasky v Boyd (2000) 9 Tas R 144 at 151; Police v Cadd (1997) 69 SASR 150.
Counsel for the applicant, Mr Arendt, relied on the following comments by King CJ in R v Buckman (1987) 47 SASR 303 at 304:
"There is a clear legislative policy that in general a breach of a condition of a recognisance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law-abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non-law-abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."
His Honour repeated that comment in R v Marston (1993) 65 A Crim R 595 at 596. In Marston, Perry and Duggan JJ agreed with those observations. Both Buckman and Marston were appeals which succeeded on the basis that there was a marked disproportion between the seriousness of the breaching offence and the length of the sentence to be activated if the suspension was revoked. Perry J observed in R v Lawrie (1992) 59 SASR 400 at 403 and in Marston at 598 that the power not to implement a suspended sentence should be exercised sparingly, and only in cases where proper grounds have clearly been made out, because the exercise of that power has a tendency to undermine the integrity of the sentencing process. The principles discussed in those cases are very important in the present context, but they are not the only important principles.
On the material before the learned magistrate, there were a number of factors that weighed in favour of a lenient order. The respondent had at last completed and lodged his income tax returns. His breach involved inertia, rather than an unlawful act. He had no prior convictions unconnected with his failure to lodge his tax returns. There was no suggestion that, by delaying their lodgement, he had avoided paying a large amount of tax. There was every reason to think that he was a muddler, rather than someone who was pursuing a strategy to avoid tax. He had had an alcohol problem. He had been distracted by a marriage breakdown, "battles with the Child Support Agency" and "further relationship problems". Once he embarked on the task of gathering the necessary information, it appears that he encountered delays on the part of his former employer that were longer than he had originally anticipated.
The Crimes Act, s17A requires a court not to "pass a sentence of imprisonment on any person for a federal offence … unless the court, having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case." An order under s20A(5)(c)(ic) ordering a person to be imprisoned does not amount to the passing of a sentence of imprisonment within the meaning of s17A(1) in my view. However I think the legislative policy underlying s17A(1) should be borne in mind when considering whether it was reasonably open to the learned magistrate to proceed as he did rather than ordering the respondent to be imprisoned for two months. Plainly, the underlying policy is that imprisonment should not be resorted to unless no other course is appropriate in all the circumstances.
Having regard to the factual matters I have referred to, and to the relevant provisions of the Crimes Act, I think it was reasonably open to the learned magistrate to make a community service order, rather than an order requiring the respondent to spend two months in prison, despite the seriousness of his delay in lodging the returns, accompanied as it was by failures to attend court when required to do so. It follows that I should consider whether, by ordering the respondent to perform 70 hours' community service, the equivalent of ten days' work, the learned magistrate chose a number of hours that was manifestly so inadequate that a prosecution appeal should succeed. The order for 70 hours' community service was certainly very lenient in the circumstances but, having regard to the principles applicable to prosecution appeals, I do not think it would be appropriate to tinker with the learned magistrate's order by increasing the number of hours.
If I had taken the view that a community service order was a manifestly inadequate penalty, this would not have been an appropriate case to order the respondent's imprisonment upon re-sentencing. For the reasons I have explained, it would not have been possible to order that he be imprisoned for any period other than two months. A more lenient sentence would have been called for, for a number of reasons. First, it would have been my duty in re-sentencing to take into account relevant events occurring after the imposition of sentence by the learned magistrate: R v Maniadis [1997] 1 Qd R 593; Plumstead v R 157/1997. In this case, the respondent has completed the 70 hours' community service, and it would have been my duty somehow to take that into account. I would also have had to take into account that his liability to income tax has now been assessed with the result that he has received a refund. Secondly, it would have been my duty to make allowance for the double jeopardy involved in the respondent facing the prospect of sentencing and possible loss of liberty for a second time: R v Allpass (1993) 72 A Crim R 561 at 562; R v Clarke [1996] 2 VR 520 at 522; Lowndes v R (1999) 195 CLR 665 at 671; R v Harland-White 23/1997; R v Meers and Moles 32/1998; Attorney-General v B [2002] TASSC 63. Thirdly, it is common for moderation to be observed, and for a somewhat lenient sentence to be imposed, when the original sentence has involved the extending of excessive leniency to the offender: Dindsale v R (2000) 202 CLR 321 per Kirby J at 341; R H McL v R (2000) 203 CLR 452 per Kirby J at 497. In consequence of those matters, any re-sentencing would have involved no more than an increase in the number of hours of community service.
The motion to review is dismissed.
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