Kelly v Ashby
[2015] ACTSC 346
•12 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kelly v Ashby |
Citation: | [2015] ACTSC 346 |
Hearing Date(s): | 6 February 2015 |
DecisionDate: | 12 November 2015 |
Before: | Refshauge J |
Decision: | 1. The appeal be upheld in part. 2. The convictions be confirmed 3. The sentences be directed to commence on 10 November 2015. 4. The non-parole period be directed to commence on 11 June 2014 and end on 24 November 2015. 5. The sentence is suspended on 24 November 2015 and Ian William Kelly is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 9 months with a probation condition that he be under the supervision of the Director-General or her delegate for 9 months and that he obey all reasonable directions of the person supervising him as to where he lives and any vocational, psychological, mental health or other courses and treatment or counselling, especially as to drug and alcohol use, which the person supervising him may consider desirable or necessary for him to undertake or undergo. 6. Otherwise the appeal is dismissed and the sentences, including the orders for disqualification be confirmed. |
Catchwords: | APPEAL – Jurisdiction, practice and procedure – appeal from Magistrates Court – appeal against sentence – manifestly excessive – totality – accumulation – appearance of double punishment – concurrency – discretion to backdate sentence – calculation of non-parole period – end date of non-parole period – stay of sentence pending appeal CRIMINAL LAW – Jurisdiction, practice and procedure – dishonestly driving someone else’s motor vehicle without consent – driving whilst disqualified – repeat offender – failing to stop when signalled by a police officer – driving at a speed dangerous – extensive criminal history – health problems – history of breaching court orders and recognizances – breach of parole |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), ss 116ZP 145, 149, 161 Criminal Code 2002 (ACT), ss 318(1), 318(2) Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), reg 109(2) |
Cases Cited: | Ashdown v The Queen (2011) 219 A Crim R 454 Barnes v The Queen [2014] NSWCCA 224 |
Texts Cited: | Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT) ACT, Parliamentary Debates, Legislative Assembly, 3 August 2004, Presentation Speech, Crimes (Sentencing) Bill 2005 (ACT) |
Parties: | Ian William Kelly (Appellant) Bevan Ian Ashby (Respondent) |
Representation: | Counsel Mr K Archer (Appellant) Ms K McKenzie (Respondent) |
| Solicitors Legal Aid (ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 82 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 3 September 2014 Case Title: Bevan Ian Ashby v Ian William Kelly Court File Number(s): CC 6165 of 2014 |
REFSHAUGE J:
At about 11 pm on 17 June 2014, Ian William Kelly, the appellant, got into a stolen car which was parked at a 7-Eleven Service Station on Ashley Drive, Wanniassa, and drove it away.
Police on mobile patrol had already identified the car parked at the service station as a stolen car and, when Mr Kelly drove away, they followed and activated the emergency lights and sirens on the police vehicle. Mr Kelly, however, did not stop and, indeed, accelerated away with police in pursuit.
Mr Kelly was ultimately apprehended and arrested. He was shown to have been disqualified indefinitely from holding or obtaining a driver licence on 29 November 2010.
He was charged with four offences, as follows:
· dishonestly driving someone else’s motor vehicle without consent, an offence against s 318(2) of the Criminal Code 2002 (ACT), for which the maximum penalty is 500 penalty units (that is a fine of $75,000) and five years imprisonment;
· as a repeat offender, driving whilst disqualified, an offence contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), which provides for a maximum penalty of 100 penalty units (that is a fine of $15,000) and imprisonment for one year;
· failing to stop when signalled by a police officer, an offence prohibited by regulation 109(2) of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), attracting a maximum penalty of 20 penalty units (that is a fine of $3,000); and
· driving at a speed dangerous, an offence under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), rendering him liable to a maximum penalty of 200 penalty units (that is a fine of $30,000) and imprisonment for two years.
Mr Kelly pleaded guilty to these offences, the first three on his first appearance in court and the fourth on his second court appearance.
On 3 September 2014, he was sentenced to a total period of twenty-six months imprisonment with a non-parole period of seventeen months commencing on 25 June 2014 and ending on 24 November 2015.
He has appealed against the sentence.
Jurisdiction
This court has jurisdiction under the Magistrates Court Act 1930 (ACT) to hear and determine appeals from judgments, convictions, orders and sentences imposed or made in the Magistrates Court.
When the appeal is in a criminal matter from a conviction or sentence, Div 3.10.2 of that Act regulates those appeals.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They are well-established and not in doubt. They may be summarised as follows.
Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong. I note that I shall apply these principles in this case.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
Notice of Appeal
The Notice of Appeal was filed on 1 October 2014. The appeal was from the sentence imposed on the following grounds:
(i)The sentences imposed were manifestly excessive in all the circumstances;
(ii)The Learned Magistrate failed to properly apply the principle of totality in circumstances where the offending involved the one course of conduct.
The facts
On 15 June 2014, a blue Ford Falcon sedan was stolen from a residence in Canberra.
Police on mobile patrol were driving on Ashley Drive, Wanniassa, ACT, on 17 June 2014, when they saw the stolen vehicle parked at the 7-Eleven Service Station on Ashley Drive. They saw it leave the service station and followed it.
After passing Sulwood Drive, police activated the emergency lights and siren on their police car and signalled the driver of the stolen vehicle to stop. He did not do so.
In fact, the driver accelerated away, continuing along Erindale Drive with police in pursuit.
The Ford sedan drove about one kilometre along Yamba Drive, Farrer, reaching a speed of 174 km/h in an 80 km/h zone.
Other police deployed stop sticks on Yamba Drive, which struck three of the four tyres of the vehicle. The vehicle, however, continued to be driven along Yamba Drive and turned into Numeralla Crescent, O’Malley. It had a significant amount of smoke and latex rubber coming from the tyres as a result of the deployment of the stop sticks. Police continued to follow the car.
The vehicle drove onto Julia Flynn Drive, back onto Yamba Drive and back onto Erindale Drive to the intersection with Sternberg Crescent. The left tyre came away from the rim and the car mounted the gutter, travelled a short distance and then stopped at the northern side of Ashley Drive.
The male driver got out of the car and ran towards the Erindale Shopping Centre but was pursued by the police who had been following him. They apprehended him and handcuffed him at the rear of the 7-Eleven Service Station.
The drive identified himself as Ian Kelly. He is the appellant. He was, at the time, the subject of an arrest warrant to secure his attendance before the Sentence Administration Board for an alleged breach of parole. I was not informed of the nature of the alleged breach.
Mr Kelly was also shown to have been disqualified by Magistrate Doogan from holding or obtaining a driver licence until a court otherwise ordered. The police Statement of Facts asserts that this was done on 29 November 2010. The criminal record, however, shows no court entry on that date, but an appearance before Magistrate Doogan in August 2008 when he was disqualified from holding or obtaining a driver licence until the court otherwise ordered. The actual date is not important, but that error can raise an issue of the reliability of the documentation.
During the police pursuit, there was minimal traffic on the roads and all the roads travelled were dry and in good condition.
Mr Kelly appeared in the Magistrates Court on 18 June 2014. As noted above (at [5]), he pleaded guilty to driving someone else’s vehicle dishonestly without consent, being a repeat offender driving whilst disqualified and not stopping when signalled by a police officer. He did not enter a plea of driving at a speed dangerous on that day.
The proceedings were adjourned to 2 July 2014 when he entered a plea of guilty to the remaining charge of driving at a speed dangerous.
The proceedings were adjourned on a number of occasions until Mr Kelly was sentenced on 3 September 2014.
Subjective circumstances
A Pre-Sentence Report and Mr Kelly’s criminal record were tendered. The author of the Pre-Sentence Report was cross-examined. This material was before the learned Magistrate. His Honour did not make findings other than in relation to Mr Kelly’s criminal record and by reference to the comments in the Pre-Sentence Report relating to Mr Kelly’s attitude to the offending and the author’s opinion.
I can make the following findings from this material.
Mr Kelly is a 50 year old man with a long criminal history. I had no, and neither did the learned Magistrate have any, information about Mr Kelly’s early personal history as the Pre-Sentence Report was a “Summary” Report. In the light of the principles articulated in Bugmy v The Queen (2013) 249 CLR 571 at 594-5; [43]-[44], this may be a significant matter in sentencing of which the sentencer should ordinarily be informed.
Mr Kelly began using cannabis and amphetamines when he was 16 years old and became a regular heroin user from 27 years of age. He says that he has ceased heroin use, giving up about 8 years ago, but still uses cannabis and amphetamines.
During a period of full-time custody, he completed the Solaris Therapeutic Community Program in the Alexander Maconochie Centre. I have described that program in R v JM [2014] ACTSC 380 at [26] and I rely on what I there said.
Despite this, a drug use screening tool was administered to Mr Kelly on 1 August 2014 and it showed that he uses illicit substances at a substantial level. He has been prescribed pharmacotherapy and refused further drug interventions. He maintains a denial that his drug use is problematic.
Mr Kelly suffers from chronic coronary heart disease. Indeed, whilst in custody in 2008, he had a major coronary attack which required hospitalisation. He has since experienced fainting and chest pain. There are, it would appear, some limitations on his activities as a result.
Mr Kelly has expressed suicidal ideation in the past and was seen by Forensic Mental Health staff but apparently has not co-operated with further consultations.
His criminal history is a most extensive one. He has been found guilty of about 225 offences, over half of which are dishonesty offences, mainly burglary or equivalent offences and theft. I found some of his criminal history difficult to interpret accurately. He has spent many years in custody. He has also been found to have breached court orders or recognizances on 15 occasions. He has been found guilty of 38 traffic offences, including, relevantly to these proceedings, six offences of driving whilst disqualified or suspended from holding or obtaining a driver licence and eight offences of driving whilst intoxicated. He also has a conviction for dangerous driving.
Despite this shocking record, it is important to note that Mr Kelly cannot be punished again for this offending. The purpose of having regard to his criminal record is carefully explained in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477-8 as follows:
There are two subsidiary principles which should be mentioned. The first is that the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [[1970] AC 642, at p 650]. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner's claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community's understanding of what is relevant to the assessment of criminal penalties.
This is a well-known passage to which reference is often made, but it is as well from time to time to quote what the court said to be reminded of what the principles actually are.
Mr Kelly has been assessed as at a high risk of re-offending, related to substance abuse, financial pressures, poor familial relationships, antisocial attitudes and peer associations and his mental health issues. There was no direct evidence of some of these factors which were not expressly addressed in the Summary Pre-Sentence Report. That makes it difficult to fashion a sentence that addresses them with a view to reducing his risk of re-offending.
Mr Kelly was assessed as not suitable for a community service work condition to a Good Behaviour Order or to serve a period of imprisonment by periodic detention because of his unaddressed substance dependency issues. He was, also, serving a period of imprisonment at the time of assessment. In oral evidence, the author of the Pre-Sentence Report added that his heart condition would also impact on his capacity to undertake community service work.
Custodial circumstances
On 5 June 2012, Mr Kelly had been convicted and sentenced for three offences of burglary, two offences of unlawful possession of stolen property, two offences of theft, two offences of possessing drugs, one offence of going equipped for theft and one offence of minor theft. He was sentenced to imprisonment. He appealed against some of the sentences.
The appeal was upheld and Mr Kelly re-sentenced. See Kelly v Vickers [2013] ACTSC 39. Unfortunately, the remarks on the upholding of the appeal are devoid of any explanation that would have been helpful to the parties or to the learned Sentencing Magistrate as to why the appeal was upheld and what error it was that the learned Sentencing Magistrate in that case had made. They are of no use to me in the consideration I have as to how to respond in this appeal, which is unfortunate for there is an interaction between those issues and the consideration of this appeal.
In any event, the effect of upholding the appeal was that Mr Kelly was sentenced to imprisonment for two years and 9 months from 8 October 2012 and a non-parole period of 22 months was set to commence on 8 April 2012 and end on 7 February 2014. He was, in fact, released on parole on 11 February 2014.
These offences constituted, if proved, a breach of his parole. Once Mr Kelly pleaded guilty, as he did to three of the four offences on 18 June 2014, he admitted to the commission of the offences, justifying the Sentence Administration Board taking action on what thus became a breach of the conditions of his parole order. Indeed, it appears he actually requested the Board to revoke his parole. This seems to have been sought because he had been remanded in custody when arrested for the current offences.
His parole was revoked on 25 June 2014 and he was returned to custody as required under s 161 of the Crimes (Sentence Administration) Act 2005 (ACT). Had the Board not done so, the conviction of Mr Kelly by the Magistrates Court would have automatically cancelled the parole order under s 149 of the Crimes (Sentence Administration) Act and the Court would have, under s 161 of the Magistrates CourtAct, been itself required to return him to custody.
Thus, at the date of his sentencing, he was serving the balance of 11 months of the sentence previously imposed. This required the Magistrates Court to re-set a non-parole period for the total of the sentences that Mr Kelly was serving: s 66 of the Crimes (Sentencing) Act 2005 (ACT).
Sentencing submissions
It was submitted on behalf of Mr Kelly that he had pleaded guilty at the earliest opportunity, which justified a discount for his willingness to facilitate the course of justice.
Mr Kelly’s counsel submitted that a non-parole period would have to be re-set, though the learned Sentencing Magistrate resisted that suggestion, taking an arguably logical approach, but not one consistent with the legislation. His Honour did ultimately reset a non-parole period.
It was submitted that, having regard to Mr Kelly’s criminal history, the offending was at a low level of seriousness. As a comparison, that may perhaps be accepted, but it cannot be said to reduce the actual gravity of the offences. It was also submitted that a number of aggravating features were not present: there was no accident or injury. Again, that does not reduce the gravity of the offences, though it means the seriousness is not aggravated.
It was further submitted that the principle of totality was relevant and that consideration should be given to Mr Kelly’s age and deteriorating health. It was submitted that his performance in custody showed that he had made some efforts to address the causes of his offending, in particular by completing the Solaris Program.
His Honour noted that, since his remand, Mr Kelly had rejected further interventions, but Mr Kelly’s counsel pointed to the common experience that offender's with long-term drug issues do relapse and need to undergo rehabilitation time and again.
I did point out in Saga v Reid [2010] ACTSC 59 at [89], that this was common, though I did add:
The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.
This might suggest that Mr Kelly’s failure to seek further interventions was aggravating or, at the very least, not mitigating and undermining of his previous efforts.
It was conceded that general deterrence was relevant.
Prosecuting counsel submitted that the “circumstances and multiplicity of the defendant’s offending” had “placed the community at greater risk than if the offences had occurred separately in isolation” so that the court should consider the conduct “in totality” both for consideration of the principle of totality but also in assessing the gravity of the offences.
The offences constituted, it was submitted, a course of conduct. His failure to stop when signalled by police to do so, his continued driving despite the deflation of the tyres and his speed all put other users of the road, including police, at risk. Counsel noted, however, that the road conditions were good and there was minimal traffic on the road, but that it all happened at 11 pm. It is not entirely clear what was intended by that submission.
Prosecuting counsel also noted in her submissions that the total journey of the pursuit was about 11.5 kilometres and that Mr Kelly had travelled through three suburbs, driving dangerously. It was submitted that the vehicle stopped because it lost a tyre and had mounted the gutter, not because Mr Kelly chose to do so. The facts were not clear about this and the learned Sentencing Magistrate may not have been able to make a finding of that fact, if it was an aggravating factor, beyond reasonable doubt: R v Carney [2013] ACTSC 266 at [149], points out that this is the standard of proof required for aggravating factors to be relied on in sentencing.
It was submitted that Mr Kelly’s continued driving, despite being pursued by police, was an indication of “consciousness of guilt”.
This is a somewhat odd submission, for the notion of “consciousness of guilt” is used in connection with reliance on lies as proof of the commission of an offence. See Edwards v The Queen (1993) 178 CLR 193 at 210. It may have been intended to submit that Mr Kelly’s driving away was to avoid arrest for the offending behaviour in which he was engaged, namely driving a stolen car and driving whilst disqualified. That may constitute an aggravating feature, but I was not favoured with any submissions as to that. I cannot make any finding on that issue either.
It was, however, as prosecuting counsel submitted, a significantly serious aggravating feature that Mr Kelly was on conditional liberty at the time of the offending. See R v Readman (1990) 47 A Crim R 181. Nevertheless, care must be taken to avoid double punishment: Hillier v Director of Public Prosecutions (NSW) (2009) 198 A Crim R 565 at 574; [30].
In relation to the offence of dangerous driving, it was accepted that it was an aggravated form of the offence because Mr Kelly had not complied with the police signal to stop: s 7A of the Road Transport (Safety and Traffic Management) Act.
It was submitted that the offences were discrete offences from those for which Mr Kelly was currently serving a sentence and the sentence should reflect this. This, presumably, was intended to submit that cumulation of the two sentences was required.
Mr Kelly’s prior criminal record was also mentioned. In particular, it was noted that he had been convicted of this offence on six previous occasions in this Territory (one being, in fact, an attempt to do so), for which he was, on each occasion, imprisoned, and at least ten previous occasions interstate (including one attempt offence also) for which imprisonment was also imposed in most cases.
It was also noted by prosecuting counsel that Mr Kelly had been convicted of dangerous driving in 2006 and that that was also a case of a police pursuit. He was also, on that occasion, on conditional liberty at the time and was sentenced to imprisonment as a result.
Other aspects of his antecedents were also mentioned. These included a reference to the various sentencing options that had been imposed to assist his rehabilitation or to deter him, all without success. His behaviour on parole, including the admitted use of drugs, a breach of a condition of the parole order, was also mentioned.
Sentencing
His Honour then proceeded to sentence Mr Kelly. His Honour set out the facts broadly, as set out above (at [15]-[25]).
His Honour was then appropriately careful to identify the relevant aggravating factors which he proposed to take into account and those that he did not and which served to increase the objective seriousness of the offending. His Honour said:
In relation to the offence of driving a motor vehicle without consent I treat as an aggravating factor that in the course of driving the vehicle you engaged police in a pursuit in an attempt to avoid apprehension. That you did so knowing that you were facing breach action for failing to comply with parole conditions and that damage to the vehicle was caused in the course of you doing so.
I do not take into account as an aggravating factor that you fail to stop the vehicle when signalled by police, or that you were driving while disqualified because those things are the subject of separate charges. In relation to the charge of driving at a dangerous speed I treat as aggravating factors that the speed recorded by police was a little under 100 kilometres and hour over what was the posted speed limit, and that the speed was recorded while the vehicle was travelling on Yamba Drive. Yamba Drive is a major multi-lane road, but it could not be described as a highway or freeway.
...
The offence of dangerous driving carries a maximum penalty of 12 months imprisonment, unless it is an aggravated offence, within the meaning given to that term in section 7A of the Act. Your circumstances fall within that definition because you drove at a speed more than 30 per cent over the speed limit and because you failed to stop when signalled by police. As a result the maximum penalty for the offence committed by you is two years imprisonment.
Prosecuting counsel had referred to it as “a matter of major aggravation” that Mr Kelly was on conditional liberty at the time he committed these offences. Separately, his Honour did note this as making these offences “more deserving of punishment”. He did not, however, mention that one of the offences was an offence of dishonesty, as were the offences for which the sentence had been imposed, which included the parole period he had been serving at the time he committed the offences.
His Honour referred to the maximum penalties and to the present custodial situation of Mr Kelly, as I have referred to earlier (at [42]-[47]). His Honour then referred to the sections in the Summary Pre-Sentence Report about “Attitude to Offence” and “Opinion”, in particular, Mr Kelly’s knowledge of the action for breach of parole and his poor attitude to his obligations when subject to statutory orders and his high risk of re-offending. His Honour referred to the oral evidence of the author of the Report which, he said, “has not persuaded me that the conclusions – have changed in any way”.
His Honour referred to Mr Kelly’s heart disease, which he found was or could be properly treated while he was in custody. His Honour noted that his criminal record left little room for leniency and that the fact the offences were committed while Mr Kelly was on parole was an aggravating factor.
His Honour then proceeded to impose the following sentences:
· for driving someone else’s motor vehicle dishonestly without consent – convicted and sentenced to 22 months imprisonment, discounted by 11 months for the plea of guilty;
· for dangerous driving – convicted and sentenced to eight months imprisonment, discounted by 4 months for the plea of guilty;
· for driving whilst disqualified – convicted and sentenced to four months imprisonment discounted by 2 months for the plea of guilty;
· failing to stop when signalled by police – convicted and fined $700 with no time to pay.
His Honour also made licence disqualification orders which I do not have to consider.
His Honour directed that 2 months of the sentences for each of the second and third sentences be cumulative on the first sentence, making a total sentence of imprisonment of two years and two months. His Honour directed that the sentence commence on 10 November 2015 to take into account the time spent in custody on these offences. His Honour then reset the non-parole period to expire on 24 November 2015. Since it becomes an issue in the appeal, I set out his Honour’s reasoning.
The original term imposed for the offending sentenced in 2012 was three years and three months and the balance term you were required to serve was a little less than 17 months. If the whole of the aggregate sentence imposed today is added to that sentence the total term becomes five years and five months and the aggregate of the balance of the original and this new term today becomes a little less than three years and seven months. I have considered whether the principle of totality requires any concurrency between the new sentences and the existing balance term and I conclude that it does not.
The term imposed today will, however, be ordered to commence on 10 November 2015 to take into account the time spent in custody on remain before your parole was revoked. The sentence imposed today, therefore, commences on 10 November 2015 and ends on 9 January 2018. I need to reset the non-parole period. On appeal the non-parole period was set at 22 months of a head sentence of three years and three months. That is about 56 per cent. I note that on appeal the head sentence was actually increased, although the non-parole period was reduced. ...
Somewhat ironically the effect of your appeal has been that the balance term you are now serving is greater. Your fresh offending took place within a matter of months of your being released on parole. That justifies being somewhat less generous in the approach to setting a non-parole period now. Having said that it is important that the effect of the sentence is not crushing and that you are given an incentive for good behaviour and rehabilitation whilst in custody. In all the circumstances I reset the non-parole period at a period of 17 months, commencing from the date that you were returned to custody. That is 24 June 2014. The non-parole period, therefore, ends on 24 November 2015.
Setting the non-parole period to end on 24 November 2015 means that you will be required to serve about three years and three months of the total notional sentence of five years and five months. That is about 60 per cent of the aggregate sentence and leaves a balance term of just under two years and two months. The difference between what was served under the original non-parole period for the original sentence and what will have been served before you are entitled to parole under the new non-parole period set today is 17 months and eight days. In other words the sentence of 22 months imprisonment imposed on you today has resulted in another 17 months in custody – about – before you are again eligible for parole.
The effect of the refusal to give time to pay the fine is that it becomes, in effect, a concurrent sentence, for s 116ZP of the Crimes (Sentence Administration) Act provides that, for a fine defaulter (which, effectively, Mr Kelly became when he was given no time to pay) who is in prison, the liability to pay the fine is reduced at the rate of $300 per day he or she is in prison. This was, in the circumstances of the offending, especially being part of the one enterprise and with overlapping elements between that offence and the offence of dangerous driving, exactly appropriate.
The contentions on appeal
(a) Manifest excess
The first ground of appeal is that the sentences were manifestly excessive.
So far as the offence of dishonestly driving someone else’s motor vehicle without consent (the driving without consent offence) is concerned, the length of that sentence was challenged. The length of the other sentences was not challenged.
Thus, the challenge of manifestly excessive had two aspects: in the first place, there was the challenge to the length of the sentence for the driving without consent offence; secondly, it was submitted that the accumulation with the sentence then being served breached the principle of totality.
I shall deal with each ground in turn. Accordingly, I turn first to the sentence for the driving without consent offence.
The sentence, before the discount for the plea of guilty, was two years and nine months. That was reduced to 22 months for the plea of guilty. His Honour considered that the offence was aggravated by the manner of driving and, generally that it was committed while Mr Kelly was on parole.
Mr K Archer, counsel for Mr Kelly, submitted that the learned Sentencing Magistrate was in error in taking into account the manner of driving of Mr Kelly as an aggravating factor when considering the driving without consent offence. He relied on some passages in the judgment of Murrell CJ in Monfries v The Queen (2014) 68 MVR 385 at 410; [102]-[106]. In effect, what her Honour held was that, when considering a charge under s 318(1) of the Criminal Code of dishonestly taking someone else’s vehicle without consent, a sentencer who
[takes] into account the subsequent manner of driving when assessing the objective seriousness of the offence of dishonestly taking the motor vehicle ... may well ... [fall] into error.
With respect, I agree with that finding. This, however, is not applicable in this case, for the offence to which Mr Kelly pleaded guilty was a different offence, namely under s 318(2) of the Criminal Code, that is of driving, not taking, the subject vehicle.
It seems to me, however, that what might be called the “using offence”, as opposed to the “taking offence”, does entitle the sentencer to consider the manner of driving. That is because the using offence includes that element, namely driving, which, when it is someone else’s motor vehicle, raises separate issues. Thus, a person dishonestly driving someone else’s motor vehicle has a degree of protection from being subsequently identified for breaches of the road rules. Identification of the vehicle by the number plate, for example, is unlikely to lead back to the driver where the car is dishonestly driven by someone else. Further, a driver in that situation is less likely to be concerned about damage caused to or by the car as it is someone else’s car. That was shown in this case, where Mr Kelly continued to drive despite the deflation of the car’s tyres by the stop sticks.
There is, in this, clearly some overlap between the offence of driving without consent and dangerous driving, but his Honour dealt with that by making the sentences concurrent other than for two months. His Honour could have imposed a lesser sentence for the offence of driving without consent and a longer sentence for the offence of dangerous driving. That, however, would likely to have required a greater cumulation of the sentences given the relevant factors. Either approach is acceptable. See Johnson v The Queen (2004) 78 ALJR 616 at 624; [26].
Thus, it is relevant that the learned Sentencing Magistrate did not refer to the fact of the police pursuit as an aggravating feature of the offence of dangerous driving, as his Honour could have done, and which would have made that offence more serious. This was, arguably, a proper exercise in the application of the totality principle.
The real question is the total culpability of Mr Kelly for the offending. This was high. It was not near the worst case of such offending, but the sentence for the driving without consent offence, even before the discount for the plea of guilty, was just over half the maximum period of imprisonment, much less the maximum penalty.
Certainly, severe sentences have been imposed for this kind of offence. See, for example, Woodham v Mills (1986) 4 VR 255 (SA Supreme Court), R v Chevalley (1986) 4 MVR 384 (Qld Court of Criminal Appeal), Hume v The Queen (2000) 33 MVR 203 (WA Supreme Court). Of course, it is to be noted that these refer to sentences imposed in other jurisdictions where the legislative provisions and, in some cases, maximum penalties are different, but the relevant principle is that this is a serious offence and is to be so regarded and, in appropriate cases, to be visited by a serious sentence of imprisonment.
Mr Archer also submitted that an investigation of the range of sentences imposed for the offence in this Territory showed that the sentence was too high. He referred to the sentencing statistical information shown on the ACT Sentencing Database.
Of course, sentencing statistics must be treated with caution: R v Bloomfield (1998) 44 NSWLR 734 at 739. In Ashdown v The Queen (2011) 219 A Crim R 454 at 511– 512; (30)-(31), Ashley JA said as to the use of sentencing statistics:
None of this is to deny that sentencing statistics throw some light on sentencing patterns for a particular offence, and thus provide some window on the accumulated experience of sentencing judges. Of course they do, to the extent that such information can be of assistance. But the assistance is limited, and too much emphasis upon statistics by sentencing judges may well lead to error, for the reasons indicated above.
Distinct from sentencing statistics are sentences passed in so-called ‘comparable cases’. This Court has had occasion, recently, to pass upon the permissible and impermissible use of such cases: Hudson v The Queen. I refer to, but do not repeat, what the Court said at [24]-[36]. In principle, it coincided with the judgment of the plurality in Hili v The Queen with the gloss that in Hili their Honours specifically pointed out that whilst sentences passed in other cases provide an historical record, they do not fix sentencing boundaries.
(footnotes omitted)
The statistics were problematic in any event, for they related apparently to the offence under s 318(1) of the Criminal Code (the taking offence), not that under s 318(2) (the using offence) with which Mr Kelly had been charged.
Nevertheless, they showed that of the 57 sentences recorded, 54% or 31 were of full-time imprisonment. Of those 31 sentences, only one was for a term of 24 months and all the rest were for lesser terms, indeed with 75% being for terms of 12 months imprisonment or less.
The sentence here imposed was clearly at the upper end of sentencing practice but still well below the maximum for the offence.
There were serious matters to take into account. The manner of driving, including the failure to stop when signalled and the continued driving with obvious damage to the car after the deployment of the stop sticks, the speed and distance driven all were matters relevant to the seriousness of the offences and showed that it was a very serious offence. It was also an offence committed while Mr Kelly was on parole.
The fact was, also, that Mr Kelly had a significant number of convictions for the offence or cognate offences, which had resulted in imprisonment.
While it may be accepted that these dated back as far as 1984 and the most recent was in 2002, the number of offences still renders the prior record relevant as part of the assessment of the seriousness of the offence. Clearly, this would not have the same effect as if the prior offences were more recent, but they cannot and should not be ignored.
I have carefully considered the sentence imposed in the light of the circumstances of the offending and Mr Kelly’s personal circumstances and I do not consider that the sentence is manifestly excessive, save in one respect.
Mr Archer submitted that the period of concurrency with the period of the sentence revoked was too short and the period should have been made wholly concurrent. This was because the revocation of the parole was caused by the commission of these offences.
As I noted above (at [61]), Basten JA has cautioned in Hillier v Director of Public Prosecutions (NSW) that the consequences of the revocation of parole should not be double punishment.
There is substantial jurisprudence in New South Wales on this issue since at least R v Kaiva (Unreported, New South Wales Court of Criminal Appeal, 9 November 1998), in which David Kirby J said:
[H]is Honour expressly took into account, as a circumstance of aggravation, the fact that the offence was committed whilst the applicant was on parole. That was entirely appropriate...Having taken that matter into account, to then not backdate the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter. That, it seems to me, is...undesirable.
What is important to note is the reference here to the appearance of double punishment, not necessarily the actuality.
This may be of more significance where, as in this Territory, so-called “street time” (that is, the period actually spent on parole) does not count as time served under the sentence, where the parole order is revoked.
Some doubt has been expressed as to whether this is a principle of sentencing or rather a matter on which a sentencer may exercise a discretion. See R v Ravet [2001] NSWCCA 535 at [34]. Nevertheless, the approach has been followed in many cases. See, for example, R v Turner [2004] NSWCCA 260 at [33], R v MacBain [2005] NSWCCA 358 at [18], R v Petterson [2009] NSWCCA 91 at [28].
In Callaghan v The Queen (2006) 160 A Crim R 145 at 149; [19]-[20], Simpson J noted to the reference to this practice as “the usual principle” but considered that it was always a matter of discretion. Her Honour then set out at 149-50; [22]-[24], the following guidelines:
21That the matter is discretionary appears to be the prevailing view of members of this Court. Even in Andrews and Kelly, the court accepted that a judge might backdate a sentence where parole had been revoked by reason of the offence for which the offender is then to be sentenced.
22I maintain the view that a discretion exists. There is no clear rule which will govern all cases. The circumstances that bring an offender before a court for sentence after parole has been revoked are far too varied to permit a single absolute rule.
23It would, in my opinion, in some cases be unfair not to backdate to some point (not necessarily the date of revocation of parole) before the expiration of the earlier parole period. It is always open to an offender to seek and be granted parole even after a revocation; to sentence in such a way as to commence the subsequent sentence only on the date of expiration of the whole of the previously imposed head sentence is to assume that, absent the subsequent offences, the offender would not have been granted a second chance at parole.
24However, I am also of the view that, particularly where, as here, the re-offending has occurred within a very short time of release on parole, and the balance of term to which the offender is exposed is quite short, it may be appropriate to proceed on the hypothesis that the whole of the period spent in custody up to the expiration of the parole period is, as Hunt CJ at CL said, referable to the earlier offences and not to the subsequent offences.
That approach has been followed more recently. See Ith v The Queen [2013] NSWCCA 280 at [48]-[50]; Barnes v The Queen [2014] NSWCCA 224 at [21]-[31].
The general approach has been followed in this jurisdiction in Hodgson v Frame [2006] ACTSC 82 at [9]-[10].
In this case, neither counsel drew his Honour’s attention to these considerations, and there is nothing in the transcript that suggests that his Honour addressed the issue, which was an important one. Indeed, the comments of his Honour merely that Mr Kelly’s “parole was revoked on 25 June this year for breaches of your parole order” was fair and sufficient justification for Mr Archer’s comment that
His Honour seems to have been under the impression that the revocation of parole was not related to the commission of the instant offences.
It seems to me that his Honour did not turn his mind to the discretion he had to backdate the sentence to avoid the appearance of (or actuality of) double punishment, when, as his Honour did, taking into account the aggravating feature of committing the offences whilst he was on parole.
It is not a case, as it was in Barnes v The Queen, of consideration of whether the learned Sentencing Magistrate’s discretion had miscarried, which would have required consideration of the matters referred to in House v The King (1936) 55 CLR 499. It was a case of his Honour not adverting to the matter at all.
His Honour expressly addressed this matter, though not in the very strong terms used by prosecuting counsel, as I have mentioned above (at [69]). The severity of the sentence for the driving without consent offence suggests some significant account has been taken of that aggravating factor. I consider that this aspect justifies some intervention.
(b) Non-parole period
There were two challenges to the setting by the learned Sentencing Magistrate of the non-parole period. The first is that his Honour proceeded in a “mathematical” way which was improper. The second is that the start date for the non-parole period was improperly set. I shall deal with each of these in turn.
As can be seen from the extract of the remarks on sentence by the learned Sentencing Magistrate above (at [73]), his Honour considered the length of the non-parole period by reference to the relationship of the earlier non-parole period set by the Supreme Court on appeal in Kelly v Vickers to the head sentence there imposed. That, it was said, breached the proper approach to setting a non-parole period.
Most recently, this has been addressed in R v Flowers [2014] ACTCA 13. In that decision, Ross J, with whom Penfold J and I agreed, cited from the judgment of Mason CJ and McHugh J in Bugmy v The Queen (1990) 169 CLR 525 at 531-2:
[T]the considerations which the sentencing judge must take into account when fixing a minimum term will be the same as those applicable to the setting of the head sentence. Obviously, 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.
In the same decision, I said at [2]:
I agree that it is not appropriate to assess whether a non-parole period has been appropriately set by mere attention to the mathematical relationship it bears to the head sentence. That not only fails to give effect to the obligation of sentencers to set a sentence by an instinctive synthesis of all the relevant factors and circumstances, as required by the High Court in decisions such as Wong v The Queen ((2001) 207 CLR 584 at 611; [75], it fails to recognise the particular requirements that the setting of a non-parole period requires the sentencer to take into account. See Bugmy v The Queen 169 CLR 525 at 536-7. It is also, as Ross J notes, expressly disapproved by the High Court in Hili v The Queen(2010) 242 CLR 520 at 535; [43].
Having said that, it is clearly not inappropriate to have regard to the relevant relationship between a non-parole period and the head sentence when, for example, a sentence is reconsidered on appeal. See Director of Public Prosecutions (Acting) v Crosswell [2015] TASCCA 22 at [38].
In my view, this is what the learned Sentencing Magistrate did. His Honour noted that the relevant percentage was 56%. That was, in the circumstances, an arguably lenient non-parole period, having regard to Mr Kelly’s antecedents. A 50 year old man with 225 offences on his record is unlikely to a good candidate for rehabilitation, which is often a significant, though not the only, factor to be considered in setting the period: see R v Shrestha (1991) 173 CLR 48 at 62-3. In this case, clearly the re-offending and while on parole meant that the likelihood of rehabilitation became even more problematic.
It is to be accepted that, as was pointed out in R v Flowers, the considerations for the setting of a non-parole period are very much the same considerations as for the sentence as a whole, but given a discrete consideration. It is clear, however, as pointed out by Callaway JA, with whom Winneke P and Brooking JA agreed, in R v Bernath [1997] 1 VR 271 at 278, that it is not necessary to set out this discrete consideration in the sentencing remarks, though that can be helpful to an appeal court. Where the non-parole period is unusual, however, the sentencer should give reasons: Director of Public Prosecutions (Vic) v Josefski (2005) 158 A Crim R 185 at 194-5; R v Flowers at [54].
As can be seen from the extract of the remarks of the learned Sentencing Magistrate, consideration was given, not just to the numerical relationship between head sentence and non-parole period, but to other expressed reasons his Honour gave making the provision that was made.
I do not consider this challenge has been made out.
The final point related to the date given for the start of the non-parole period. This is governed by s 65(3) of the Crimes (Sentencing) Act which provides:
(3)When the court sets the non-parole period, the court must state when the non-parole period starts and ends.
It is clear why it is necessary to specify when a non-parole period ends. That date is operative and, indeed, very important. The same cannot be said for the start date. Neither the Explanatory Statement for the Crimes (Sentencing) Bill 2005 nor the Presentation Speech for the Bill throw any light on that question.
Where the periods of imprisonment are continuous, the start date is likely to be the date of the earliest of the continuous sentences. This is completely artificial, however, when there have been interrupted periods of imprisonment, such as by periods of parole (sometimes revoked and then re-granted).
I addressed this problem in R v Steen [2015] ACTSC 259 at [54]-[56], as follows:
54..... Obviously the non-parole period should start when the sentence of imprisonment starts. It cannot start earlier, it should not start later. It seems to me that, in principle, the non-parole period in the case of sentences, including periods of parole, should start when the custodial portion of the sentence commences at a point where it is continuous with the period from that date to the end of the non-parole period.
55.In cases, however, where the sentence is backdated to take account of pre‑sentence custody and that period has been fragmented, such as when bail is revoked for breach and perhaps later re-granted and sometimes further revoked, the backdating is usually specified to commence on a date prior to sentence, calculated on the sum of the periods of pre-sentence custody, even if discontinuous, thus introducing an element of fiction, but nevertheless justifiable. In my view, the start date of the sentence in that case should be the start date for the non-parole period.
56.Here Mr Steen went into custody again on 8 July 2014 when his parole was revoked. That should be the start date for the non-parole period, not the date of the sentence imposed by Gray J in R v Steen (2008), even though part of the sentence he is currently serving may well be attributable to that sentence.
His Honour’s decision was consistent with that approach by setting the start of the non-parole period to be when Mr Kelly was returned to custody. It probably strictly should have been from 17 June 2014 when Mr Kelly was first taken into custody for these offences.
Mr Archer submitted that it should have commenced on 8 April 2012, when Mr Kelly’s original sentence commenced. There is a falsity in this, for there have been periods during that time when Mr Kelly was not in custody.
In the circumstances, I consider that this challenge has not been made out, though I will adjust the period to coincide with his actual return to custody. I do not think that this requires an adjustment to the length of the non-parole period.
Regrettably, the business of the Court has delayed the finalisation of this appeal so that it is close to the end of the non-parole period. That will be too late for Mr Kelly’s parole to be properly considered.
For reasons set out below (at [141]-[144]), I consider alternate management should be made, but that is not because of any error in the sentence imposed by the learned Sentencing Magistrate, other than as already identified.
Conclusion
None of the substantive complaints about the sentence have been made out. The sentence was a heavy one, though not even close to the maximum penalty for the offences.
In my view, it was not manifestly excessive, though one basis of that submission has been made out and I will address it below.
I also consider that the non-parole period was set in accordance with relevant principles and was set in accordance with the legislation. One minor adjustment should also be made.
In my view, the challenge to the setting of the non-parole period was not made out.
As a result, the appeal must be allowed in part only and otherwise dismissed.
Nevertheless, I need to address the effect of the stay under s 216 of the Magistrates Court Act. I set out the general approach in Schwalm v The Queen [2012] ACTCA 43 at [16]-[17]. See also Re Osman (2010) 244 FLR 397 at 400; [17]-[19].
One matter is the date on which the sentence should start, to take into account the fact that the revocation of the parole was referrable to these offences, the subject of the sentencing before the Magistrates Court.
The facts are not entirely clear. Mr Kelly was, at the time he committed these offences, subject to a warrant issued by the Sentence Administration Board which, it would appear, must relate to a breach of parole (s 145 of the Crimes (Sentence Administration) Act), alleged to have been committed prior to these offences.
Nevertheless, Mr Kelly pleaded guilty to these offences and, immediately thereafter, requested the Board to revoke his parole on that basis.
I do not know, as the evidence is unclear, whether the Board also considered the alleged breach or breaches and whether they considered that they were serious enough to justify revocation of his parole. In the circumstances, I am not prepared to hold that they were or that the Board relied on them. Accordingly, in the absence of evidence about that aggravating feature to enable me to find it beyond reasonable doubt, I am prepared to find that the revocation of Mr Kelly’s parole order was solely attributable to the commission of these offences.
Mr Kelly was released on parole on 11 February 2014. He committed these offences on 17 June 2014, just over four months later. In my view, there is a reasonable basis for some further back-dating than that specified by the learned Sentencing Magistrate to avoid the appearance of double punishment, but it must be modest. While his Honour did refer to the aggravating factor that the offences were committed while Mr Kelly was at liberty on parole, the offences, serious offences, were committed relatively soon after he was admitted to parole.
Further, given the serious nature of the re-offending, showing a continued disobedience to the law and the unlikelihood of rehabilitation, I do not consider that it requires an adjustment to the actual non-parole period set by the learned Sentencing Magistrate.
I consider that two months concurrency is sufficient to meet the appearance that, otherwise, there may have been double punishment. I will so order.
This will also address the issue of the stay and how it should be addressed.
One further adjustment that I consider may be made to deal with the course of the appeal is to address the question of the proximity of Mr Kelly’s release.
Given that the parole period is relatively short, namely 9 months, I consider that there is no criminological reason why a suspended sentence would not be reasonably equivalent and permit the appropriate level of supervision and oversight, though this would be transferred to the court rather than being administered by the Sentence Administration Board.
I will, accordingly, suspend the sentence on 24 November 2015 on appropriate terms. This does not, however, mean that I should not re-set the non-parole period, for the legislation mandates it. Since, however, the only sentence on which it will now operate has been served, it will have no actual effect.
I recognise that the court has not obtained the usual pre-parole information that would be provided to a hearing of the Sentence Administration Board. I do not, by my decision, intend to minimise the appropriateness of that procedure. I merely consider that the interests of justice in this case warrant another decision.
I will make orders to give effect to these reasons.
| I certify that the preceding one hundred and forty-five [145] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 12 November 2015 |
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