Kelly Ann Shea v Brenton Ian Cox
[2014] ACTSC 7
•28 January 2014
KELLY ANN SHEA v BRENTON IAN COX
[2014] ACTSC 7 (28 January 2014)
APPEAL – GENERAL PRINCIPLES – Appeal against sentence – charges of burglary and theft – obligation of appellant to give appellate court information about sentencing ranges – difficulties in identifying sentencing ranges in Magistrates Court – failure to provide such information not an insuperable obstacle to successful appeal based on manifest excess or inadequacy of sentence.
APPEAL – GENERAL PRINCIPLES – Appeal against sentence – charges of burglary and theft – sentencing Magistrate not in error in rejecting suitability of periodic detention –sentencing Magistrate not in error in referring to number of adjournments before matter finalised – sentencing Magistrate not in error in determining what weight to give to appellant’s prospects of rehabilitation – limited scope for establishing a failure to give adequate weight to a sentencing matter as a House v The King error.
APPEAL – GENERAL PRINCIPLES – Appeal against sentence – charges of burglary and theft – whether sentence imposed was too short – whether objective seriousness of offence was properly taken into account – seriousness of offence justified longer term of imprisonment – reasons for imposing short sentence not consistent with obligation to set appropriate sentence for offence – offender liable to serve full term of imprisonment imposed – not appropriate to trade off length of sentence against immediate time in custody – error in setting short sentence all to be served in full-time custody – appellant warned that longer sentence would be imposed – appeal maintained – appeal allowed – appellant re-sentenced.
Crimes (Sentencing) Act 2005 (ACT), s 79
Dinsdale v The Queen (2000) 202 CLR 321
House v The King (1936) 55 CLR 499
Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
Pearce v The Queen (1998) 194 CLR 610
R v Campbell [2010] ACTCA 20
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 83 of 2013
Judge: Penfold J
Supreme Court of the ACT
Date: 28 January 2014
IN THE SUPREME COURT OF THE )
) No. SCA 83 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
KELLY SHEA Appellant
AND:
BRENTON IAN COX Respondent
ORDER
Judge: Penfold J
Date: 2 December 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be allowed.
The appellant be re-sentenced.
Introduction
Kelly Ann Shea has appealed against sentences imposed in the Magistrates Court for one offence each of burglary and theft.
The offences were committed in September 2010. It seems that Ms Shea entered a house in Fadden, through a broken glass sliding door, and removed a large number of items to a total value of around $1,500. She was linked to the burglary by DNA analysis of blood left in the house.
Police made contact with Ms Shea in December 2010, by which time she had travelled to Darwin. She did not return to Canberra in January 2011 as had been indicated to police, and in February 2011 a first instance warrant was sworn for her arrest.
Ms Shea was eventually charged in July 2012 and bailed. She pleaded guilty, after various adjournments including several resulting from the prosecution’s handling of the matter, on 11 July 2013, which her counsel identified as less than three weeks before the matter was listed for hearing in the Magistrates Court on 29 July 2013.
Ms Shea was eventually dealt with in the Magistrates Court in October 2013, and was sentenced to two concurrent sentences of imprisonment, four months for the burglary and two months for the theft, to be served in full-time custody. These sentences had been reduced by discounts for her guilty pleas from five months and three months, discounts of 20% and 33% respectively.
Appeal grounds
The sole ground of appeal identified in the original Notice of Appeal dated 9 October 2013 was that the sentence was manifestly excessive.
An amended Notice of Appeal was filed on 4 November 2013, but was not served on the respondent until shortly before the date set for the hearing of the appeal (20 November 2013). Nevertheless, counsel for the respondent agreed to the hearing proceeding on that date. The amended notice did not mention manifest excess, but set out the following grounds instead:
(a) His Honour erred in not properly considering alternatives to full-time custody
Particulars
(i)His Honour confused notions of eligibility concerning periodic detention with whether this was an appropriate order to make in the circumstances of the case.
(ii)The imposition of such a short term of imprisonment in all the circumstances of the case indicated error.
(b) His Honour erred in assessing the objective seriousness of the offence
Particulars
(i)His Honour assessed the objective seriousness of the offence not by reference to the circumstances of the case but by reference to the offence provisions that applied to the instant offences.
(c) His Honour erred in relying on the number of appearances that had been involved in the disposition of the case
Particulars
(i)His Honour erred in relying on the number of adjournments as either being an aggravating circumstance to the commission of the offence or a matter disentitling the appellant to any leniency in respect of her plea.
(ii)His Honour did not give the appellant notice that he intended to treat the number of adjournments as a significant matter in the sentencing process.
(iii)His Honour erred in attributing responsibility for those adjournments to the appellant.
(d) His Honour erred in failing to give weight to the appellant’s good prospects of rehabilitation
Particulars
(i) His Honour failed to acknowledge that offences of this type had not been committed by the appellant for many years.
(ii) His Honour did not acknowledge that the appellant had “called the warrant in” with a view to starting afresh.
(iii) His Honour did not acknowledge that alleged non-compliance with orders in the past had occurred many years ago.
(iv) His Honour acted on the misapprehension that the engagement with drug and alcohol services in recent years had been at the direction of Adult Corrective Services.
(v) His Honour did not consider appropriately the probable effect that any sentence or order under consideration would have on any of the appellant’s family or dependants.
Manifest excess and provision of information about comparative sentences
Despite the replacement of the original appeal ground, one of the respondent’s answers to the claim of manifest excess was argued, and is usefully commented on.
The submission was that, as noted by the Court of Appeal in recent cases, an appeal on the grounds of manifest excess or inadequacy would usefully be accompanied by information about other sentences that could help in identifying a sentencing range against which the challenged sentence could be assessed for excess or inadequacy. In R v Campbell [2010] ACTCA 20, the Court of Appeal said at [32] to [36]:
32.In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):
46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn [2010] ACTCA 10 (at [33]).
33.As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
34.It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
35.The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.
36.The appellant submitted that the error was that no custodial element was included in the sentence, either the head sentence or time served. The appellant referred to a number of cases, but they were all somewhat more serious than the circumstances of this case. They do, however, confirm the seriousness with which an offence such as this must be taken by sentencing courts.
For several reasons, however, I do not see the absence of such information as an insuperable obstacle to an appellant succeeding on a manifest excess or inadequacy ground, especially in an appeal from the Magistrates Court.
First, the distinction between Supreme Court sentences and Magistrates Court sentences must be recognised. To my knowledge, Magistrates Court sentences are rarely if ever published (except occasionally in the media). The Office of the Director of Public Prosecutions (DPP) (which in fact conducts the Magistrates Court proceedings despite the fact that they are brought in the name of the police informant) could presumably (subject to resources) maintain a set of records that would enable submissions to be made about sentencing ranges for the relevant offence when dealt with in the Magistrates Court. Legal Aid ACT might (also subject to resources) be able to maintain records of the outcomes in the significant proportion of Magistrates Court sentencing matters which that organisation handles. However, individual defendants in the Magistrates Court, even those represented by local solicitors, would realistically have no capacity to provide such information. In my view, the Court of Appeal cannot be taken to have intended that many or most defendants in the Magistrates Court would be effectively excluded from mounting an appeal against sentence based on manifest excess, but that the DPP would have an advantage over offenders if it chose to appeal against Magistrates Court sentences on the grounds of manifest inadequacy.
Consideration of new appeal grounds
I turn now to consider the new appeal grounds. Before doing so, it is useful to set out the test found in House v The King (1936) 55 CLR 499 for establishing error in the exercise of a discretion, including a sentencing discretion (Dixon, Evatt and McTiernan JJ at 504):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
Consideration of alternatives to full-time custody.
Under this heading, counsel argued that his Honour had not dealt properly with the option of periodic detention, but also, unusually for an offender’s appeal, that error was indicated by the fact that the sentence imposed was so short.
Periodic detention
His Honour said this about periodic detention:
I further note that you have been assessed as suitable for periodic detention. I have difficulty in accepting that as a basis by which you should be given the opportunity given that before this court a periodic detention order had to be cancelled and as a consequence of that you were given almost four months fulltime detention.
His Honour was clearly not obliged to take up the option of sentencing Ms Shea to periodic detention. If all his Honour intended by these comments was to explain that, despite the assessment of suitability, he did not propose to take up that sentencing option having regard to the previous cancellation of a periodic detention order, then he did not fall into error. If he was in fact suggesting that the periodic detention assessment was wrong (because of Ms Shea’s earlier failure to complete a term of periodic detention), that might have been an error on his Honour’s part. This is because the indicators of unsuitability for periodic detention (set out in Table 79 of the Crimes (Sentencing) Act 2005 (ACT)), do not appear to include a previous failure to comply with a periodic detention order. However, I see no reason to interpret his Honour’s comments about periodic detention as anything more than an explanation for rejecting that option, and accordingly I find no error in this aspect of his Honour’s approach.
Sentences too short
Counsel for the appellant argued that on the one hand the seriousness of the offence and the need for general deterrence would have justified a longer sentence than four months imprisonment for the burglary (even taking account of the starting point of five months imprisonment before the plea of guilty discount), but on the other hand the sentencing Magistrate did not explain why the full period of the unusually short sentence needed to be served in full-time custody.
His Honour’s thinking about this may well be explained in the following extract from his sentencing remarks:
In relation to the sentencing I want to point out particularly for you, Ms Shea, that I have taken into account the content of your PSR even though you may not think I have. I have taken into account your desire to reconnect with your son. I have taken into account those elements contained within the DOCS letter to me of 19 June because there is a real possibility, if you want it, for you to learn and to go through that supervision because one of the things the PSR recommended was that you go under close supervision and the term that you will have while in prison will enable you to do that and get you through that short period of time and then once released you will be able to reconnect with your son.
That is, it seems that his Honour might have sought to respond to Ms Shea’s wish to resolve her criminal matters and move on by imposing an unduly short sentence but requiring all of it to be served in custody, with a view to ensuring that at the end of that relatively short period she would be free of any continuing ACT legal obligations.
This approach to the exercise of the sentencing discretion was in my view erroneous, albeit understandable in the circumstances. In general terms, it seems to have been inconsistent with the requirement in Pearce v The Queen (1998) 194 CLR 610 at [45] to “fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality” and the recognition in Dinsdale v The Queen (2000) 202 CLR 321, in connection with the power to suspend a prison sentence, that a prison sentence once imposed creates a liability to serve that sentence in full-time custody (hence the expressed concern discussed in that case that suspended sentences have sometimes been used as if they were an appropriate alternative to a non-custodial sentence). In that case, Kirby J said at [76]:
Whatever the theoretical and practical objections, suspended imprisonment is both a popular and much used sentencing option in Australia. Courts may not ignore the provision of this option because of defects occasionally involved in its use. Nonetheless, the criticisms draw attention to the need for courts to attend to the precise terms in which the option of suspended sentences of imprisonment is afforded to them and to avoid any temptation to misapply the option where a non-custodial sentence would suffice. They also emphasise the need to keep separate the two components of such a sentence, namely the imposition of a term of imprisonment, and the suspension of it where that is legally and factually justified. [citations omitted]
If the appropriate sentence for the burglary offence would have been somewhat longer than five months, which in theory would have made the offender liable to serve that whole longer term in full-time custody, then the fact that the offender was to be immediately required to serve a shorter period in full-time custody does not seem to be a good reason to reduce the overall sentence. Equally, it seems inappropriate to permit the offender, in effect, to buy out the risk that an appropriately longer term might have in the end have been served in custody, by serving full-time a period that might not have been required to be served at all if the offender had, for an appropriate period, been of good behaviour and complied with other community-based obligations.
Assessment of objective seriousness of offence
In relation to the objective seriousness of the offence, his Honour said:
In looking at the objective seriousness of the assessment, burglary and theft of personal property is in the mid to high range of seriousness. It is reflected in the attached significant fines and the maximum terms of imprisonment which are applied by the legislature to those offences.
This is clearly not an assessment of the particular offences committed by Ms Shea but a reference to the position of burglary and theft offences in what is sometimes called the criminal calendar, as shown by the sentencing Magistrate’s references to the fines and maximum terms of imprisonment provided by the legislature rather than to the circumstances of Ms Shea’s offences. However, his Honour had previously commented about the circumstances of Ms Shea’s offences and the impact on the victims, saying:
Property damage to residence and breaking windows is an aggravating feature. You left the Murrays with no alternative to coming home at night time and finding that their property had been damaged, to have to come home to that, to experience the fact that their house had been violated, it is dark, it is night, that you had come into their home and they are left with trying to deal with that.
Although his Honour did not formally ascribe a measure of seriousness to the offences, I see no reason to find that he did not adequately consider that question.
Reliance on number of appearances before matter finalised
In relation to the number of appearances involved in disposing of Ms Shea’s matter, his Honour said:
So you were first brought up before the court on 27 July 2012 and it wasn’t until 27 August 2012 that – sorry, that you pleaded not guilty in August of 2012 and it was not until nine occasions later on 11 July that you pleaded guilty to both charges.
His Honour did not explicitly blame Ms Shea for the numerous adjournments, and nor did he explicitly treat them as an aggravating circumstance that disentitled Ms Shea to any leniency. Noting that he did in fact provide significant discounts for the guilty pleas, I do not see any basis for assuming that his Honour treated the information about the long-drawn-out nature of the process as disentitling Ms Shea to leniency. I am not sure of the significance of the claim made in the Notice of Appeal that his Honour “did not give [Ms Shea] notice that he intended to treat the number of adjournments as a significant matter in the sentencing process”, but since I have found that he did not penalise Ms Shea for these adjournments there is no need to pursue this issue.
Failure to give weight to prospects of rehabilitation
Counsel for the appellant identified several aspects of the evidence before his Honour that suggested that the appellant had prospects of rehabilitation, and argued that the sentencing Magistrate had failed to give them adequate weight.
It is generally difficult to bring within the House v The King requirements (noted at [12] above) for finding error in the exercise of a discretion a failure to give weight, or a failure to give adequate weight, to a particular matter, although a complete failure to advert to a relevant matter might amount to a failure to take account of a relevant consideration. It is not clear in this case that his Honour completely failed to take account of rehabilitation; rather the claim in substance is that he did not reach an appropriate result in considering that matter. This, as such, does not describe a House v The King error.
Conclusions
Having found one sentencing error, being that revealed by his Honour’s reasons for imposing an unusually short sentence, which in turn suggests that another sentence would be appropriate, the sentencing discretion was open to be re-exercised.
Because the finding of error relied on an assessment that the sentence imposed was in fact too low, I warned the appellant of this in accordance with Parker v Director of Public Prosecutions (1992) 28 NSWLR 282, while indicating that I also considered that an appropriate longer sentence could in the circumstances be suspended subject to a good behaviour order. The appellant declined to take advantage of the opportunity to withdraw her appeal.
Orders
Accordingly, I allow the appeal and will re-sentence the appellant.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 28 January 2014
Counsel for the appellant: Mr K Archer
Solicitor for the appellant: Aboriginal Legal Service (NSW/ACT) Limited
Counsel for the respondent: Ms M Moss
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 20 November 2013
Date of judgment: 2 December 2013
0
3
1