Kirby v Ali
[2021] ACTSC 95
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kirby v Ali |
Citation: | [2021] ACTSC 95 |
Hearing Dates: | 29 April and 12 May 2021 |
DecisionDate: | 25 May 2021 |
Before: | Robinson AJ |
Decision: | See [70] |
Catchwords: | CRIMINAL LAW – APPEAL FROM MAGISTRATES COURT – Crown appeal against sentence – review appeal – failure to comply with bail undertaking – whether Magistrate erred in accounting for pre-sentence custody attributable to other offences – specific error established – sentence manifestly inadequate – appeal allowed – resentenced CRIMINAL LAW – STATUTORY INTERPRETATION – construction of Division 3.10.3 of the Magistrates Court Act 1930 (ACT) – interaction between the Crown appeal sentencing discretion and “substantial miscarriage of justice” – discretion to not intervene where no miscarriage of justice is occasioned by an error |
Legislation Cited: | Bail Act 1992 (ACT), s 49(1) Criminal Appeal Act 1912 (NSW), s 5D(1) Supreme Court Act 1933 (ACT), ss 37E, 37O(7) |
Cases Cited: | CMB v Attorney General(NSW) [2015] HCA 9; 256 CLR 346 Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503 Wronski v Raue [2012] ACTSC 87 |
Parties: | Joel Kirby ( Appellant) Haider Ali ( Respondent) |
Representation: | Counsel K McCann ( Appellant) P Edmonds ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Paul Edmonds & Associates ( Respondent) | |
File Number: | SCA 59 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Lawton Date of Decision: 21 December 2020 Case Title: The Police v Haider Ali Court File Number: CC 10819 of 2019 |
ROBINSON AJ:
Jurisdiction
In this proceeding the Crown appeals from orders made by Magistrate Lawton in sentencing Mr Ali (the respondent) consequent upon his plea of guilty.
The Supreme Court has jurisdiction to entertain the appeal pursuant to Division 3.10.3 of the Magistrates Court Act 1930 (ACT). The appeal is brought by way of a review appeal pursuant to s 219D(e) contending that the sentence or penalty was manifestly inadequate or otherwise in error.
At the commencement of the hearing the parties were agreed in respect of the principles which apply in respect of a Crown appeal and the circumstances where, even if error is established justifying the resentencing of an offender, the Crown must also negate any reason why the “residual discretion” of the court not to interfere should be exercised. The parties took these principles from cases such as the High Court’s decision in CMB v Attorney General(NSW) [2015] HCA 9; 256 CLR 346 (CMB). For convenience only, I will refer to these principles as Crown sentencing appeal jurisprudence or discretion.
For reasons which I set out below, I am not convinced that Division 3.10.3 adopts this body of law. As I shall explain, the relevant discretion for when it is appropriate to resentence an offender after error is found is set out in the text of s 219F(5) of the Magistrates Court Act. This test differs from the Crown sentencing appeal jurisprudence.
Narrative of events
It is convenient in this case to set out in chronological order, a narrative of events leading up to the sentencing of the offender.
In 2017 the respondent faced a trial in which he was charged with committing three acts of indecency and one charge of sexual intercourse without consent. On 6 November 2017 this trial commenced before Justice Burns and a jury. On 8 November 2017, towards the end of the trial but prior to the close of the Crown case, the respondent did not appear and fled overseas. The trial continued in the respondent’s absence. The respondent was acquitted in respect of one offence of committing an act of indecency; however, the jury was unable to return a verdict with respect to the remaining charges. The respondent remained overseas and attempted to gain permanent employment. Between March 2019 and June 2019, the respondent had booked a flight to Hong Kong and a flight from Hong Kong to Melbourne. On 21 July 2019, the respondent was arrested at Gatwick International Airport in the United Kingdom. The respondent was later extradited and returned to Australia. On 4 October 2019, the respondent was returned to custody in the ACT.
On 5 October 2019, the respondent appeared before the ACT Magistrates Court and was charged with a breach of his bail undertaking. He was remanded in custody.
Between 6 and 12 October 2020, the respondent was tried before Justice Mossop and a jury on the remaining charges of two acts of indecency and sexual intercourse without consent.
On 12 October 2020, the jury returned verdicts of guilty.
On 17 December 2020, the respondent was sentenced by Justice Mossop to an aggregate sentence of 25 months’ imprisonment, commencing on 21 July 2019 and ending on 20 August 2021. A non-parole period of 17 months was imposed, commencing on 21 July 2019 and ending on 20 December 2020. It will be noted that 21 July 2019 was the date of the respondent’s arrest at Gatwick International Airport.
On 13 November 2019, the respondent entered a plea of guilty to the offence of failing to appear on 8 November 2017 in accordance with his bail undertaking, contrary to s 49(1) of the Bail Act 1992 (ACT). That offence carries a maximum penalty of two years’ imprisonment, a fine of 200 penalty units or both.
The sentencing hearing occurred before Magistrate Lawton on 21 December 2020. It was not in dispute between the parties that, in respect of the plea of guilty, the respondent was entitled to a discount of 20% on his sentence. The Magistrate found also that there must be some aspect of accumulation on the sentence imposed by Justice Mossop in relation to the sexual offending, to reflect the independent nature of the breach of bail offending.
In respect of the offending itself, the Magistrate found that the appropriate starting point for the sentence for the matter was a period of 12 months’ imprisonment. The Magistrate rounded out that calculation to 10 months’ imprisonment after the 20% discount for the plea of guilty.
The part of the Magistrate’s reasoning, delivered ex tempore, to which issue is taken, appears in the following passages:
That reduces it to 10 months’ imprisonment. Then I have to factor into account the fact that he in actuality has spent some 14 and a half months’ imprisonment in respect to this offence.
Ultimately, it is my view that there should be some cumulation of the sentence imposed but I propose to further reduce the period that I would have otherwise imposed of 10 months to a period of four months, which I will make cumulative upon the sentence imposed by his Honour Mossop J.
It seems to me, having regard to the instinctive synthesis exercise that I have to engage in, I agree with the prosecution that there must be some aspect of cumulation to reflect the independent nature of this offence but I am of the view that totality would not necessarily require me to impose the entire 10 months as a cumulative matter upon the sentence imposed by his Honour Mossop J when I have to also consider the time that he has spent in custody, the nature of the time in custody given that he has limited, if any, familial contacts and certainly the covid-19 pandemic has made any sort of familial contact impossible, certainly for the last at least nine months.
Accordingly, I propose to make that four months cumulative.
On the offence of failing to appear on 8 November 2017, I convict you. I sentence you to 4 months’ imprisonment to commence on 21 August 2021 and expire on 20 December 2021.
That requires me to cancel the non-parole period and reimpose one that I consider appropriate. Having had regard to the circumstances in which you have already served a significant period of time in custody in respect to this offence as well as the sexual assault offences, I am of the view that it is appropriate to impose the same non-parole period.
Accordingly, I order that the non-parole period that you serve commences on 21 July 2019 and expires on 20 December 2020.
(Underlining added)
Grounds of appeal
The notice of appeal contains two grounds. Counsel for the Crown in her summary of argument dealt with the grounds under three headings. These were as follows:
(a)His Honour erred with respect to the application of s 63 of the Crimes (Sentencing) Act 2005 (ACT).
(b)His Honour erred in reducing the sentence on the failing to appear charge to account for the respondent’s pre-sentence custody; and
(c)The sentence imposed in all the circumstances was manifestly inadequate.
His Honour erred with respect to the application of s 63 of the Crimes (Sentencing) Act
His Honour erred in reducing the sentence on the failing to appear charge to account for the respondent’s pre-sentence custody
The first two contentions can be taken together.
Section 62(1)(a) provides for the usual position that a sentence of imprisonment starts on the day on which it is imposed. However, as per s 62(2)(a)(ii), that usual position is subject to the operation of s 63 which provides:
Start of sentences—backdated sentences
(1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
(2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.
(3) However, subsection (2) does not apply to—
(a) a period of custody of less than 1 day; or
(b) a sentence of imprisonment of less than 1 day; or
(c) a sentence of imprisonment that is fully suspended; or
(d) the suspended part of a partly suspended sentence of imprisonment.
(4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender's arrest.
(5) Subsection (4) applies even if the offender is not convicted or found guilty of—
(a) the offence for which the offender was first arrested; or
(b) any particular offence or offences in the series.
The Magistrate found that the offender had been held in custody in relation to the offence since 5 October 2019. It is mandatory to take that fact into consideration in any sentence under s 63(2). From this consideration s 63(3) removes some short term or suspended sentences. Sub-sections 63(4) and (5) complement sub-s(2).
Unaided by authority, I take the sequence of reasoning from ss 62 and 63 to be as follows:
(a)Section 62(1)(a) is the starting position. The sentence starts on the day it is pronounced.
(b)Section 63(1) contains a discretion to commence a sentence earlier than the date in s62(1)(a).
(c)The discretion is to be exercised in relation to determining an appropriate sentence applicable according to the Crimes (Sentencing) Act.
(d)On the present facts, s 63(2) is engaged, in that the custody commenced on 5 October 2019.
(e)The fact of the commencement of the custody on this date is a mandatory consideration in determining an appropriate sentence under the Crimes (Sentencing) Act.
(f)The significance and influence of that fact will be dependent upon what other factors need to be considered in determining an appropriate sentence under the Crimes (Sentencing) Act.
(g)Section 63(2) does not specify any particular outcome to be derived from taking account of the fact that the custody commenced on 5 October 2019.
In the parties’ written submissions, I was referred to a number of the authorities where s 63 has been considered. Those authorities included Wronski v Raue [2012] ACTSC 87 and Massey v Naspe [2012] ACTSC 161. I do not consider that those authorities’ approach the question any differently than I have above.
In paragraph [14] above I have underlined the passage from the Magistrate’s ex tempore reasons:
Then I have to factor into account the fact that he in actuality has spent some 14 and a half months’ imprisonment in respect to this offence.
These words have an ambiguous quality about them centring on the word “account”. It is correct for the Magistrate to bring into account (but in the sense of take note of) the fact that the respondent had been in custody for some 14 and a half months for this offence as at the day of his sentence. That would give rise to a possible exercise of the discretion to backdate the commencement of an appropriate sentence for breach of the bail undertaking.
The Crown drew attention to the exchange between the prosecutor and the Magistrate in the transcript as throwing light on the meaning of the above passage. It was:
Magistrate:But I still have to take into account that he was remanded in custody. I accept that I may not necessarily back date it, but he has effectively spent 17 months in custody in respect of this offence.
Prosecutor: Yes. However, that has all been attributed to the sexual offending.
Magistrate: I still have to take it into account.
Prosecutor: Again, I would say your Honour would be determining a sentence ---
Magistrate:I am not saying that I would back date it but I have to take into account he has spent 17 months in custody in respect of this offence as well
Prosecutor: I would say that your Honour would ---
Magistrate: How can I not? He has been remanded in custody in respect of this offence.
Prosecutor: But he has also been remanded in custody in respect to the sexual offences.
Magistrate Yes, but he has spent 17 months in custody in respect to this offence.
Prosecutor:Yes, but all of that time in custody has already been attributed to the sexual offending.
Magistrate:Where is the authority that says if it’s been used for another matter, I cannot take it into account?
Prosecutor: Well, I certainly don’t have an authority, your Honour, to that effect.
Magistrate: What does the Act say? Section 63(2):
For subsection (1) the court must take into account any period during which the offender has already been held in custody in relation to the offence.
I accept section 63(1) has a discretion but I must take it into account. I cannot simply say all that has been used for another offence.
Prosecutor:What I would say is that your Honour will be taking into account when your Honour considers the totality of the sentence.
From this exchange, the Crown identified the Magistrate’s erroneous approach as being, a requirement he set for himself, to account for the pre-existing custody in his sentence, notwithstanding that the sentence would not be backdated.
The Crown correctly reminded me of two factors in making this submission. First, care must be taken not to scrutinise the extemporaneous reasons given by a judicial officer with an eye keenly attuned to the detection of error. Second, that exchanges during the course of submissions would generally not to be taken as necessarily reflecting a concluded view of a judicial officer unless the substance of what was said is later incorporated into the reasons given.
The submission by the Crown on erroneous approach was developed:
Not only is there no requirement to account for the pre-sentence custody, as opposed to, taking it into account (cf Wronski), section 63 had no application in the circumstances. Although Part 5.1 and 5.3 are not mutually exclusive, in the present matter the obligation to take into account any period the respondent had been held in custody in relation to the offence of failing to appear pursuant to s 63(2) only would have arisen had his Honour directed, in accordance with s 63(1), that the sentence was to start on a day before the sentence was imposed. His Honour did not backdate the sentence. Section 63 therefore had no application in the present circumstances. Rather, the issue for his Honour was simply to impose an appropriate sentence for the offence of failing to appear, and then consider questions of totality and whether the sentence should be served concurrently, consecutively (or both) having regard to the aggregate sentence.
(Italicisation in original)
In my opinion, the Magistrate did not approach his task correctly. His task was to impose an appropriate sentence for the offence of failing to appear, and then consider questions of totality. He was not required to account for the period of custody leading up to the disposition of the case. He was required to determine whether he would backdate the sentence in order to determine a proper sentence in conformity with the Crimes (Sentencing) Act. I regard the Magistrate’s approach to the fixing of the sentence to contain a specific error, even if the result of an additional four months to the aggregate head sentence could, for other reasons, happen to be justified at law.
That conclusion renders the respondent liable to be resentenced.
There is a difference between a sentence of 10 months’ imprisonment backdated by six months and a sentence of four months’ imprisonment to run from the date of its pronouncement. The difference does not lie, however, in the time that the offender will serve. I regard the orthodox position (referred to below at paragraph [33]) as having compelling reasons for its adoption but I hesitate to describe a departure from it as an error of law. Rather, I think the error was in the adoption of the approach of having “to account” for the time as I have set out above.
The sentence imposed in all the circumstances was manifestly inadequate
In case I am in error above, I will consider contention (c).
One matter that the Magistrate had to take into account was the fact that the offending with which Justice Mossop dealt was distinct from the offending with which the Magistrate was to deal. In these circumstances, it was very unlikely that the sentence imposed by Justice Mossop could itself reflect the total of the criminality of both offences. Structuring of the two sentences would be needed so that the overall sentence would be just and appropriate to the totality of the respondent’s offending behaviour.
There were a number of approaches that the Magistrate might consider, each of which could produce a sentence conforming to the Crimes (Sentencing) Act. Particularly in this case, there would be no one correct sentence.
Where there has been a period of pre-sentence custody or its equivalent, orthodox sentencing practice usually requires that the commencement of the sentence should be backdated to take account of that presentence custody. That approach is to be preferred to a process of assessing the proper sentence and then deducting from it a period of pre‑sentence custody but, in consequence, not backdating the commencement of the sentence obtained this way. This is a rule of practice only but has become orthodoxy. It has the imprimatur of the High Court where “practicable” (Mill v The Queen (1988) 166 CLR 59 at 63.) It has been stressed by NSW Courts since at least R v McHugh (1985) 1 NSWLR 588 at 591 where it is pointed out that “the desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order”. Numerous cases followed to the same effect.
Let us assume for the present moment, that the Magistrate was to employ an orthodox approach on his own figures. He might have structured an aggregate sentence for the offence by imposing his existing determination of a period of imprisonment of 10 months but commencing that sentence on 21 February 2021 so that it would expire on 20 December 2021, to match his existing determination as to the appropriate sentence. The Magistrate would then be required to set a new non-parole period.
The Magistrate’s determination, as to the non-parole period, was that it should not change. He reimposed the same period as was set for the offending by Justice Mossop.
In Knight v Victoria [2017] HCA 29; 261 CLR 306 at 318, the High Court restated the purpose of specifying a parole period. At paragraph [8]:
When sentencing Mr Knight in the Supreme Court, Hampel J correctly characterised a minimum term not as a period at the end of which the prisoner was to be released but rather as “a period before the expiration of which, having regard to the interests of justice, he cannot be released”. His Honour noted that the nature and purpose of a minimum term was that stated in Power v The Queen: “to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence”.
(Footnotes omitted)
Given that the Magistrate sentenced the respondent to imprisonment for this offence so as to reflect the criminality involved, it is surprising that the Magistrate would also not adjust a minimum term being the minimum term that justice requires to be served for that offence. That is so even if the Magistrate takes into account, in relation to that offence, that imprisonment will be burdensome because of factors outside of the control of the respondent, such as “limited, if any, familial contacts.” An analogy may be drawn here with the situation that imprisonment may be unusually burdensome because of the offender’s physical condition. There is no mention in the Magistrate’s remarks referring to increased prospects of say, rehabilitation, owing to changed circumstances justifying no increase in the non-parole period.
The sentence imposed by Justice Mossop reflected the criminality involved in the first set of offences. That is not open to debate or challenge. It may be that there are cases where the non-parole period was not increased for a second unconnected offence for good reason. However, there is no such reason set out in the Magistrates remarks. It does not appear to me that the Magistrate approached his task in the correct manner. He was required to set an aggregate period of imprisonment which would reflect the criminality involved in the offences. He was then required to set a non‑parole period which would be the minimum term which justice required to be served in respect of that criminality before he was eligible for parole. The Magistrate does not give any indication that he reflected upon the totality of the criminality before setting a non-parole period to reflect it. As it turned out, the date on which the respondent was eligible for parole occurred one day prior to the Magistrate announcing his sentence.
It is clear that a sentence of four months’ imprisonment for failure to comply with the bail undertaking displays a manifest error. Even if that sentence can be evaluated by saying that it is the equivalent of a sentence of 10 months’ imprisonment but backdated by six months, such a sentence still fails, in my view, to reflect the objective circumstances of the offending. That is so after taking account of a starting position of 12 months’ imprisonment.
Those objective circumstances would include the stage of the proceedings when the defendant did not attend, the impact of the failure to attend, the reasons for failure to attend, the degree of planning undertaken to affect the non-attendance and the degree of planning to evade his obligation consequent upon his non-attendance.
In her written submissions, counsel for the Crown summarised the offending from the materials available to the Magistrate (omitting footnotes):
· The respondent’s absconding was clearly pre-planned. The respondent was due to return to Court for the continuation of his trial on 8 November 2017. On the afternoon of 7 November 2017, the respondent booked an international airfare and drove to Sydney before departing Australia on the morning of 8 November 2017. The respondent made no contact with his legal representatives, nor close friends regarding his departure.
· The stage at which the respondent absconded was significant. The respondent was facing serious charges of sexual assault and was part-way through a trial in the ACT Supreme Court. A jury had been empanelled and had heard the majority of the Crown case.
· Although it might be accepted that one of the reasons for the respondent’s failure to appear was his father’s ill health, the circumstances overwhelmingly established that the respondent fled to avoid the consequences of his trial, and the likelihood, due to the strength of the case against him, that he would be found guilty and face a term of imprisonment. As much was evidenced by the respondent’s comments to the pre‑sentence report author, and in the material referred to in [Ali (No 2)] at [18].
· Despite material suggesting the respondent expressed an intent to return, there was ample material to reject any such assertion. The respondent had no intention to return to the jurisdiction and did not return willingly. As much was evidenced by:
- After an arrest warrant was issued on 8 November 2017, there were unsuccessful attempts to apprehend the respondent overseas after the respondent evaded authorities. As acknowledged in [Ali (No 2)], “these actions…suggest an attempt by him to make it difficult to locate him in Pakistan, casting significant doubt on the proposition that he intended to return to Australia to face these charges”;
- The significant period in which he was away from the jurisdiction and the requirement for an extradition process – involving multiple law enforcement agencies to secure his return to the country;
- Resigning from his employment in Australia, and attempting to gain permanent employment in the United Kingdom; and
- The comments to the pre-sentence report author that he did not intend to return to the ACT.
· Although the trial continued in the respondent’s absence, as a result of the jury being hung with respect to the remaining counts, a re-trial was not possible until the latter half of 2020. Whilst the victim’s evidence was recorded, the delay undoubtedly caused anxiety and uncertainty to her, and other witnesses involved, who faced the prospect of having to give evidence of events a number of years later.
There were materials before the Magistrate to make good the above submissions. I refer particularly to the two judgements of Justice Burns, R v Ali [2017] ACTSC 366 and R v Ali (No 2) [2019] ACTSC 356.
The Magistrate did not give an elaborate recitation of the facts surrounding the offence. He said:
The circumstances of that failure to appear were significant for two reasons. The principal failure reason Mr Ali put forward for his failing to appear was the ill health of his father, who indeed passed away within two days of him leaving the country to attend upon him.
The second is of course that Mr Ali was facing trial on charges of sexual assault and acts of indecency without consent.
…
Mr Ali did leave the jurisdiction, attended upon his father. Significantly, he did not immediately return to the jurisdiction but in fact spent some time overseas apparently looking for employment.
In July of 2019 when it appeared the defendant was preparing to depart the UK and was on a flight to Hong Kong and from Hong Kong to Australia, he was arrested by UK authorities and ultimately extradited to Australia where his Honour Burns J refused bail.
…
It is of course a matter where both parties have submitted, and entirely appropriately, that a custodial sentence should be imposed, although the impact on Mr Ali’s departure from the jurisdiction was relatively minimal upon the trial process from which he had departed.
Nonetheless, [the prosecutor] submits that that inconvenience meant that there was uncertainty for the victim will of the matter. Although she did not have to give evidence again in the matter when the matter came for retrial, as I understand it, there was in fact the uncertainty for her caused by the delay in the proceedings being able to recommence until Mr Ali came back to the jurisdiction.
There are a number of factual discrepancies between the facts found by the Magistrate and the materials before the Magistrate. It is not necessary to resolve all of those conflicts for the purposes of this appeal. Even on the facts found by the Magistrate, I am of the view that he mischaracterised the objective circumstances of the offending. For example, I do not regard it as accurate to state that the impact of Mr Ali’s departure from the jurisdiction was relativity minimal upon the trial process. In my view, the sentence imposed was manifestly inadequate.
Construction of Division 3.10.3
The researches of counsel have not found any cases directly focussing on the interaction of the Crown appeal sentencing discretion and the concept of “substantial miscarriage of justice” concerning a Crown appeal from a magistrate’s decision on a sentence appeal.
The starting point is the text of the legislation containing the right to a review from a magistrate’s decision. Division 3.10.3 of the Magistrates Court Act is headed “Review appeals in criminal matters”. The first matter to note is that the Division does not differentiate between the rights accorded to the Crown to review and the rights accorded to the offender to review under the Division. (That includes the right of the Crown to review a dismissal of an information).
This case is concerned with a reviewable sentence or penalty under s 219B(f) and the ground of that review is contained in s 219D(e). If error is found in this review then the power of the Supreme Court is enlivened by s 219F(2)(c)(i). It is instructive to set out s 219F for its structure and contextual implications.
219F Powers of Supreme Court
(1)On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court—
(a)dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or
(b)set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.
(2)If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may—
(a)for a decision mentioned in section 219B (1) (d)—order that the Magistrates Court commit the person to whom the decision relates to the Supreme Court for sentence under section 92A; or
(b)for a decision mentioned in section 219B (1) (e)—order that the Magistrates Court continue the committal hearing of the person to whom the decision relates in accordance with part 3.5; or
(c)for a decision mentioned in section 219B (1) (f)—
(i) impose the sentence or penalty the Supreme Court considers appropriate; or
(ii) by order, exercise any power that the Magistrates Court might have exercised; or
(d)in any other case—
(i)remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or
(ii)make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order.
(3)For the purpose of—
(a)correcting any defect or error in the proceeding before the Magistrates Court; or
(b)enabling the matter to be decided on the merits;
the Supreme Court may make the amendments of the proceeding in the Magistrates Court it considers appropriate.
(4)For subsections (1) (b) and (2) (c), the Supreme Court must not—
(a)vary a sentence or penalty such that the sentence or penalty as varied could not have been imposed by the Magistrates Court; or
(b)impose a sentence or penalty that could not have been imposed by the Magistrates Court.
(5)The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.
(6)On the dismissal of an appeal, the decision of the Magistrates Court appealed from may be enforced, executed or given effect to as if the appeal had not been instituted.
(7)If, in relation to a sentence or penalty mentioned in section 219B (1) (f), the Supreme Court—
(a)varies a sentence or penalty under subsection (1) (b); or
(b)imposes a sentence or penalty or makes an order under subsection (2) (b);
the sentence or penalty as varied or imposed or the order made has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
(8)On an appeal under this division from an order, decision, sentence or penalty mentioned in section 219B (1) (a), (d), (e) or (f), the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant.
(9)Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.
Under the section the Supreme Court must consider the evidence, form a degree of satisfaction and then take course in subsection 1(a) or 1(b). In the event that the Supreme Court determines to take course in 1(b) then, relevantly, it is to impose the sentence or penalty that the Supreme Court considers appropriate. It is to do so unless s 219F(5) is engaged. That sub-section requires the Supreme Court to consider whether no substantial miscarriage of justice has happened.
The concept of substantial miscarriage of justice, in the criminal appeal context, has a long history. It is closely associated with the proviso in criminal appeal statutes but it has a wider meaning. One aspect of the wider meaning is, for example, often applied to a situation where procedural irregularities have prevented a proper trial or hearing at law. I do not consider that “no substantial miscarriage of justice” is at all congruent with the “residual discretion” as explained in CMB.
One contention that could be held is that the legislature has put in place a discretionary criterion for dealing with reviews under the Division. It applies to all reviews equally. It fixes the criterion for non-intervention by the court as “no substantial miscarriage of justice”. The holder of that contention would also contend that there is no necessary implication that there should be a further discretionary criterion applied only to Crown appeals.
It needs to be noted that the Division does not mirror the conventional criminal appeal statute applicable to criminal proceedings above the magisterial level. There is a right to appeal against the dismissal of an information. There is a costs jurisdiction whereby the appellant, (whether the Crown or defendant) is to pay the costs of and incidental to the review, whether or not the review is successful.
The appeal provisions of the Supreme Court Act 1933 (ACT) contain an example of a “conventional appeal statute”. Sections 37E and 37O(7) provide for an appeal against sentence. Section 37O(7) is as follows:
In a criminal matter, the powers of the Court of Appeal in an appeal against sentence (whether by the prosecution or defendant) include the following powers:
(a) to increase or decrease the sentence;
(b) to substitute a different sentence.
There is no specified criterion applied to criminal appeals generally. The usual proviso provision is applied to convictions appeals. There is no specified criterion applied to sentencing appeals. There is no mandatory provision for the costs of criminal appeals.
The High Court has pronounced on the approach to statutory construction on many occasions. It is enough to refer to Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503. The Court said in that case at [39]:
“This court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
(Footnotes omitted)
The historical context requires taking note of the early references to Crown appeals on sentence and how the Crown appeal sentencing jurisprudence became part of the current Supreme Court Act. A large part of this history is detailed in the majority judgement in R v Ralston [2020] ACTCA 47. The Crown sentencing appeal jurisprudence was grafted onto the statute by judicial activity, but it needs to be remembered that this statute did not itself contain any fixed criterion for discretionary non-intervention in sentencing appeals.
The Magistrates Court Act was amended in 1990 to give a right of review to the prosecution in respect of a sentence or penalty imposed by the Magistrates Court for an offence on the grounds that the sentence or penalty was manifestly inadequate or otherwise in error. The criteria for discretionary non-intervention of “no substantial miscarriage of justice”, already in place, was simply extended to this amendment. That amendment was made at a time when Crown appeal jurisprudence was well recognised and could have been expressly incorporated into the Act.
The case of CMB itself provides a contrast in the description of the discretion in terms of the fixing of a criterion. This was a case decided on s 5D(1) of the Criminal Appeal Act 1912 (NSW).
Section 5D(1) provides for an appeal only by the Director of Public Prosecutions or the Attorney-General. It was introduced in 1986 and is in these terms:
The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any sentence pronounced by the court of trial in any proceedings to which the Crown was a party and the Court of Criminal Appeal may in its discretion vary the sentence and impose such sentence as to the said Court may seem proper.
(Underlining added)
For relevant purposes, the High Court held in CMB that the Attorney-General must first demonstrate error in the sentence under appeal and secondly must negate any reason why the residual discretion of the Court of Criminal Appeal not to interfere should be exercised, the onus of proof to do so being on the Attorney-General. CMB also is instructive as to what matters are relevant to take into account in determining the residual discretion and the significance of those matters. The concept of miscarriage of justice is not mentioned in CMB.
There is judicial warrant going back to the observations of Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 310 to interpret criminal appeal statutes, such as the one considered in CMB, as being brought by the Crown only to establish some matter of principle and to afford an opportunity for a Court of Criminal Appeal to perform its proper function to lay down principles for the governance and guidance of courts having the duty of sentencing convicted persons.
I am not, however, persuaded that it is appropriate to add a gloss to the statutory criterion which the legislature has laid down for the determination of the review process in Division 3.10.3. I consider that, as a matter of construction, the better view is that the Division is self-contained and that it is to be applied by the courts in accordance with the explicitly expressed criterion. Unless there is no substantial miscarriage of justice occasioned by an error, then if error is found, it is to be corrected. Expressing this another way, the application of a further discretionary consideration under Division 3.10.3, in addition to the explicit criterion, would be antithetical to the process contained in the Division.
I decline to dismiss the appeal under s 219F(5), on the basis that no substantial miscarriage of justice has occurred.
In case I am wrong in my view as to the construction of Division 3.10.3, I have considered whether the Crown has negated the discretion not to interfere in the sentence even though error has been demonstrated in that sentence. I find there was no delay in the lodging of the appeal, the prosecution of the appeal was not delayed by the Crown, the increase in the sentence cannot be described as “tinkering”, the offender has not been released from serving a custodial sentence, no conduct on the part of the Crown in presenting the case before the Magistrate contributed to any error and some guidance may be available from the decision.
On the matters I was asked to take into account on the residual discretion (some matters were raised from the bar table but these were not taken further), the Crown has discharged its onus.
Resentence
I have come to the view that the appropriate head sentence for the failure to comply with the bail undertaking is a period of imprisonment of 15 months. This is to be seen against the statutory maximum of two years’ imprisonment for the offence.
In coming to this view, I have regarded the objective circumstances as rising well above mid-level seriousness.
I would also allow a 20% discount for the plea of guilty, reducing that sentence to a period of 12 months’ imprisonment.
I have taken account of the offender’s subjective case. I agree with the analysis made by Justice Mossop at paragraphs [23]-[32] in R v Ali (No 4) [2020] ACTSC 350 and repeat it. In addition, I take note of the further affidavit evidence tendered on the appeal showing the respondent has taken advantage of the courses and employment available to him at Alexander Maconochie Centre throughout his incarceration, in the course of what appears to be his demonstrated progress towards rehabilitation. I have also taken into account that the respondent, isolated from his family, would find incarceration more difficult than most.
Justice Mossop imposed a period of imprisonment of 25 months with a non-parole period of 17 months. The offence for which I am resentencing the respondent is relevantly unconnected with the previous offending. As the sentencing judge, I am required to impose an appropriate sentence for each offence and to structure the sentences such that the overall sentence is just and appropriate to the totality of the respondent’s offending behaviour. See, for example, Nguyen v The Queen [2016] HCA 17; 256 CLR 656 and Mill v The Queen (1988) 166 CLR 59.
I propose to structure a sentence for the failure to appear offence so that the respondent serves an aggregated sentence of 32 months’ imprisonment, when considered with the sexual offending. I propose to set a new non-parole period of 21 months. In my view that will give effect to the criminality involved in the offending and also will be structured so as to take account of the progress made by the respondent in his rehabilitation efforts.
Order
The orders of the Court are:
1. Appeal allowed.
2. For the offence of failing to comply with a bail undertaking pursuant to s 49(1) of the Bail Act 1992 (ACT), I sentence the respondent to a period of imprisonment of 12 months after allowing a discount for his plea of guilty.
3. I order that the above sentence commence on 21 March 2021 and finish on 20 March 2022.
4. The non-parole period commences on 21 July 2019 and expires on 20 April 2021.
5. I order that the appellant pay the respondent’s costs of and incidental to the appeal.
6. I grant liberty to apply in relation to the quantification of the costs of and incidental to the appeal.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Robinson. Associate: Date: 25 May 2021 |
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