Kringle v Tasmania
[2020] TASSC 39
•31 July 2020
[2020] TASSC 39
COURT: SUPREME COURT OF TASMANIA
CITATION: Kringle v Tasmania [2020] TASSC 39
PARTIES: KRINGLE, Jarod Lee
v
STATE OF TASMANIAFILE NO: LCA 506/2020
DELIVERED ON: 31 July 2020
DELIVERED AT: Hobart
HEARING DATE/S: 12 June 2020 and 3 July 2020
JUDGMENT OF: Wood J
CATCHWORDS:Criminal Law – Particular offences – Miscellaneous offences and matters – Other offences – Corrections Act 1997 – Offence to bring an item into a prison that is not authorised – Meaning of "bring" – Intention to bring item into a prison an element of offence – Applicant arrested for breach of bail in possession of a knife and transferred to remand centre to be detained for court – Remand centre a prison – Applicant not informed to be taken to a prison – In light of prosecution facts plea of guilty was not unequivocal.
Corrections Act 1997 (Tas), s 24(1).
Criminal Law (Detention and Interrogation) Act 1995 (Tas), ss 13(1), and 16(2)(c).
He Kaw Teh v The Queen (1985) 157 CLR 523; Rosas v Cahill [2013] NTSC 65, 235 A Crim R 451; Beechey v McDonald [2010] TASSC 47; Maxwell v The Queen (1996) 184 CLR 501; Marlow v The Queen [1990] Tas R 1, considered.
Aust Dig Criminal Law [2671]Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Whether sentence manifestly excessive – Two offences of driving with illicit drug in oral fluid attracting four months and six months' imprisonment and individual sentences for other offending including unlicensed driving and breaches of bail – Individual sentences amounting to a total period of 14 months and 8 weeks' imprisonment with a non-parole period of 10 months and 8 weeks cumulative to activated suspended sentence of four months – Applicant had prior convictions for driving with illicit drug in oral fluid but sentenced globally – Previously not had benefit of parole – Manifestly excessive.
Sentencing Act 1997 (Tas), ss 11 and 17(2A)(c).
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 6A.
Bonde v White [2017] TASSC 30, referred to.
Aust Dig Magistrates [1349]REPRESENTATION:
Counsel:
Appellant: K Baumeler
Respondent: V Dawkins
Solicitors:
Respondent: Director of Public ProsecutionsJudgment Number: [2020] TASSC 39
Number of paragraphs: 80Serial No 39/2020
File No LCA 506/2020
JAROD LEE KRINGLE v STATE OF TASMANIA
REASONS FOR JUDGMENT WOOD J
31 July 2020
1On 18 February 2020, Jarod Lee Kringle was sentenced by Magistrate R Webster to imprisonment for driving offences, an offence of unlawfully bring an unauthorised thing into a prison, breaches of bail and bail conditions. Additionally, his Honour activated a suspended sentence of imprisonment of four months. The cumulative terms amounted to a total of 18 months and 8 weeks, with a non-parole period of 13 months and 8 weeks. A notice to review was filed appealing the total term of imprisonment on five grounds:
1The learned magistrate erred in fact and/or in law in his assessment of the objective seriousness of the offences that the applicant pleaded guilty to.
2The learned magistrate erred in fact and/or in law by failing to take into account the proportionality principle in imposing sentences that the applicant pleaded guilty to.
3The learned magistrate erred in fact and/or in law by failing to have regard to the totality principle when imposing sentences that the applicant pleaded guilty to.
4The learned magistrate erred in fact and/or in law by imposing a non-parole period that was manifestly excessive in all the circumstances.
5The learned magistrate erred in fact and/or in law by imposing sentences that were manifestly excessive in all the circumstances.
2Essentially, the grievance is that the sentences both in terms of the head sentences and non-parole periods, and particularly in their cumulative effect, are manifestly excessive. The assertion is that in both respects the sentence was "unreasonable or plainly unjust" and that there was latent error of the kind mentioned in House v The King (1936) 55 CLR 499 at 505. It is plain from the arguments advanced that in reality the first three grounds are merely particulars of the ground that the sentence was manifestly excessive and they will be considered accordingly: Dinsdale v The Queen (2000) HCA 54, 202 CLR 321 at [5]; Carroll v The Queen [2009] HCA 13 at [8]-[9]; Bugmy v The Queen [2013] HCA 37, 249 CLR 571 at [22].
3There is a further ground of review that the conviction for an offence of unlawfully bring an unauthorised thing into a prison contrary to s 24(1) of the Corrections Act 1997 should be set aside as the learned magistrate erred in accepting the applicant's plea of guilty, as the assertions made by the applicant were inconsistent with that plea. As this is the only ground of appeal against conviction it is convenient to begin with a consideration of this ground.
Conviction on bring a thing that is not authorised into a prison
4As noted, one of the offences dealt with at the sentencing hearing before the learned magistrate was a charge of "unlawfully bring unauthorised thing into a prison" contrary to s 24(1) of the Corrections Act. The particulars of the charge are as follows:
"You are charged with on the 20th August 2019 bringing into a prison, namely the Hobart Remand Centre situated at Hobart in Tasmania, a knife being an article the Director has not authorised to be brought into the prison."
5It is argued that the offence involves a mental element and requires a voluntary and intentional act and yet, it was apparent from the facts provided to the court that the entry of the knife into the prison was unintended. The argument relies upon the facts provided by the prosecutor rather than the matters raised by the applicant as the ground of review would suggest. Indeed, it is conceded that there was no reference to this charge in the plea in mitigation. The facts as stated by the prosecutor during the sentencing hearing are as follows:
"Tuesday, the 20th August the defendant was intercepted travelling on Derwent Park Road, Derwent Park at 3:56 a.m. The defendant was identified as being a passenger in the vehicle. The defendant advised police he was on curfew, however was in Hobart for a funeral, which had been held at 3:30 pm that day. When asked why he didn't come down after his curfew time had finished the defendant advised he wasn't able to give a lift later in the day and paid a friend a hundred and fifty dollars to pick him up. The defendant stated he advised the Burnie Police that he was going to be absent that night, however, had not changed his bail reports.
The defendant was arrested. Prior to being placed in the police car the defendant was given a pat down search and asked he had anything he wished to produce, to which he stated that he did not. He was conveyed to the Glenorchy Police Station where he was charged. Further conveyed to the Hobart Remand Centre where a strip search was conducted. Located during this search was a knife in a sheath, which was found down the defendant's underwear. The defendant stated that he uses this knife on the farm. The knife was seized. A property seizure receipt was issued and placed into the defendant's property. The defendant was held for court."
6Section 24(1) provides:
"A person who brings into a prison an article or thing that the Director has not authorised to be brought into the prison is guilty of an offence.
Penalty: Fine not exceeding 20 penalty units or imprisonment for a term not exceeding 12 months."
7The "Director" is defined in the Corrections Act as the Director of Corrective Services appointed under s 5 of the Act. "Prison" is defined as:
"prison includes a place of detention irrespective of the title by which it is known, and includes the whole area, whether or not walled or fenced, established as a prison."
8It was implicit in the facts that the strip search of the applicant occurred within prison premises, and the Hobart Remand Centre is a prison. A proclamation under the Corrections Act dated 14 December 1998 (notified in the Gazette on 23 December 1998) provides that the premises described in Sch 1 to the proclamation are a prison. Schedule 1 describes "Those premises known as the Remand Centre in Liverpool Street, Hobart, indicated as bounded by heavy black lines on Plan Nos 4281 – 1, 2, 3, 4 and 5 in the Central Plan Register."
9As to things that are not authorised, this does not have a statutory definition. In the absence of a statutory definition, a thing that is not authorised can only mean any item that the Director has not authorised to be brought into a prison. In other words, nothing can be brought into a prison unless it is authorised. I was informed by counsel at the hearing of the review that the Director has issued a Standing Order of a list of contraband, and while the list is not available to the public there is information available on the prison website about some items on that list. Weapons and drugs are on the list and so are items such as cigarettes, watches and mobile phones. I note that, subject to the terms of the Standing Order, if an item is not contraband, that would not necessarily convey it is authorised because the implications of the offence provision are that any item at all is prohibited unless it is authorised by the Director.
10The contentions for the applicant drew various matters to the Court's attention to establish two points. The first point is that the facts disclosed that the entry of the knife into the prison was not as a result of a voluntary and intentional act by the applicant. The second is that the broader legislative context beyond the Corrections Act is that there are statutory provisions which provide for thorough searches before detainees reach a prison. It was submitted that the offence provision is not intended to capture cases of detainees who are not properly searched by police.
11The facts of this matter were highlighted including that the applicant was arrested for breaching his bail conditions and the police only carried out a "pat down" search. The police had power to search the applicant pursuant to s 58B of the Police Offences Act 1935, and that search can include a frisk or strip search. The applicant was asked if he had anything he wished to produce and said he did not and he was conveyed to Glenorchy Police Station where he was charged. He was then conveyed to the Hobart Remand Centre where a strip search was conducted and the knife was discovered in his underwear. The Tasmania Police Manual provides in 7.3.4 that police officers are to ensure that persons in custody are "thoroughly searched" prior to being detained in a police custodial facility or a reception prison. If the police search had been more thorough, the knife would have been discovered at the time of his arrest, at which time the applicant would only have been liable to conviction of the offence of possess a dangerous article in a public place, which would merely have attracted a fine. That thorough search did not occur which resulted in the applicant being in custody with the knife still on his person.
12The respondent contended that an interpretation of s 24 of the Corrections Act that promotes routine strip searches when people are arrested is inconsistent with notions of preserving personal dignity reflected in 7.3.4 of the Police Manual "(1) a police officer who conducts a search of a person must not use more force or subject the person to greater indignity than is reasonable and necessary in order to conduct the search."
13The Criminal Law (Detention and Interrogation) Act 1995 makes provision for the Police Commissioner to designate the police stations in the State which are to be used for the purpose of detaining arrested persons: s 13(1). Once someone is taken into custody, they may be detained at a designated police station or transferred to the custody of a correctional officer of a reception prison by virtue of s 16(2)(c) of the Act and they are then under the authority of the prison. Pursuant to s 17(1) of that same Act, any person transferred is to be dealt with in accordance with the correctional standing orders. The Director of Corrective Services has power to make standing orders under s 6(3) of the Corrections Act and under s 17(2) of the Criminal Law (Detention and Interrogation) Act. The Director has power to make standing orders in relation to persons in custody who have been transferred in accordance with s 16(2)(c).
14The Director's Standing Order 1.10 at 8.1.3 requires that personal searches must be conducted on all prisoners upon their initial reception to prison in order to "maintain the safety and security of the prison and to prevent suicide, self-harm and contraband from entering the prison." The same Standing Order specifically addresses the search of detainees described as "watch-house detainees". Watch-house detainees is a term defined in the Standing Order and includes a person detained in custody by a police officer pending an interview, bail decision or court appearance. The applicant was a watch-house detainee. Interestingly, the Standing Order states the following about Watch-house Detainee searches:
"8.1.7.1The Criminal Law (Detention and Interrogation Act) 1995 Act allows for the transfer of custody of an arrested person to the custody of a correctional officer of a reception prison, which therefore allows for detainees to be managed under the provisions of the Corrections Act 1997.
8.1.7.2All Watch-house detainees are required to undergo a personal search on admission to the watch-house.
8.1.7.3Pat-down searches and personal searches (compliant and non-compliant) must be recorded in the facility's personal search register (for requirements see Director's Standing Order 1.35 – Watch-house Detainees)."
15According to 8.1.7.2 the applicant should have been searched before "admission to the watch-house". Unfortunately, the term "watch-house" is not defined, and its location and whether it is within the Remand Centre cannot be discerned. The Director's Standing Order 1.35 – Watch-house detainees may shed light on the question but it is not publicly available. This point is noted but it does not have significance to my consideration of the offence provision.
16There is merit in the argument that the offence provision has been applied in a way that was unlikely to have been intended by Parliament. The logical implications of the stance taken by the prosecution in this case and that the searching of detainees takes place within the "prison walls" is that the offence casts a very wide net. Anyone in police custody transferred to a reception prison and who has a thing that is not authorised by the Director (whether it be a thing that the public are unaware of as contraband, or one of the items publicly disclosed as contraband such as a packet of cigarettes, a watch, a mobile phone, or one of the more obvious items like drugs and weapons), who is searched on reception, and the item is discovered, commits an offence. It is inherently unlikely that Parliament intended that a detainee in those circumstances would be treated as bringing into a prison a thing that was not authorised. It was also probably not anticipated that the comprehensive search of detainees for the purpose of transferring them into the prison environment would occur within the prison complex.
17It is necessary to have regard to whether the provision operates in this way. It will not operate in this way if the applicant's argument is correct and that the terms of the section convey that the bringing of the thing into a prison must be voluntary and intentional.
18The first question is whether this regulatory offence involves an element of guilty knowledge or intention. The principles of criminal responsibility under the Criminal Code applicable to a crime are applicable to a summary offence involving a like act or omission: s 36 of the Acts Interpretation Act 1931. There is no equivalent crime for this offending. The question of the applicable mental element involves a task of statutory construction of the provision having regard to text, purpose and context and established rules of statutory interpretation. The provision has to be read in light of the general principles of the common law which govern criminal responsibility: He Kaw Teh v The Queen (1985) 157 CLR 523. There is a common law presumption that mens rea is required before a person can be held guilty of an offence: He Kaw Teh. The presumption may be displaced having regard to the words of the statute creating the offence, the subject-matter with which the statute deals, and whether displacement of the presumption would assist in the enforcement of the offence provision: He Kaw Teh at 529-30 per Gibbs CJ; see also Gow v Davies (1992) 1 Tas R 1 and Cannell v G [2018] TASSC 55.
19The respondent submits that the section does not provide a mental element but rather, it is an offence of strict liability with an exculpatory defence of honest and reasonable mistake of fact.
20First, the section must be construed to see what the elements are. Having regard to the text, the words of the provision, it can be seen that s 24 of the Corrections Act does not expressly provide for a mental element. The section does not contain words such as "knowingly" or "intentionally". However, some words have been held to convey knowledge, such as "possession": He Kaw Teh at 539 per Gibbs CJ, at 585 per Brennan J, at 598 per Dawson J. Possession implies a state of mind with respect to the thing possessed. The question is whether the word "bring" conveys a mental element and if so, what kind of mental element.
21The ordinary meaning of the word "bring" includes "to cause to come with oneself; take along to the place or person sought; conduct or convey": Macquarie Dictionary, 8th ed (2020), vol 1 at 195, "bring". So, the question is whether the word "bring" carries its own connotation of intention or knowledge.
22In He Kaw Teh, consideration was given to the word "import" in the context of s 233B(1)(b) of the Customs Act 1901 and the offence of importing narcotic goods. It was noted that the word simply means "to bring into the Commonwealth from abroad". Gibbs CJ stated at 528 that the word "import" does not carry its own connotation of knowledge or intention, however, a limited mens rea was regarded as inherent in the meaning of importing. Gibbs CJ at 531 referred to R v Bull (1974) 131 CLR 203 at 220 and 254, and noted that if goods are carried in a ship which sails within territorial waters or into an Australian port, or in an aircraft which flies over Australian airspace, or lands at an Australian airfield, with no intention that the goods should be unloaded in Australia and they are not unloaded, they will not be imported in the ordinary sense of the term. That decision did not answer the question whether it is enough that the offender intended to import a bag or parcel, even though he did not know what it contained or whether knowledge of the nature, and possibly of the quality, of the prohibited thing imported is an element of the offence. Gibbs J at 530 considered that Parliament did not intend that the offence should be an absolute one, and at 537, that the presumption of mens rea had not been displaced and the prosecution bears the onus of proving that the accused knew that he was importing a narcotic substance.
23Mason J agreed with Gibbs CJ. Wilson J dissented and concluded that the offence of importing did not contain an element of guilty knowledge but that the defence of honest and reasonable mistake of fact was available. Brennan J at 584 considered the mental element required in respect of the physical movement of goods into Australia that is involved in importing them, and referring to R v Bull at 220 and 254, stated that it is the voluntary bringing in of the goods with the intention of landing them here (see also R v Bull at 215). Brennan J went on to consider whether knowledge of the nature of the object was required as the relevant state of mind and concluded that Parliament intended that a person should not be criminally responsible unless he intended to import narcotic goods. The presumption that mens rea is an element was seen as strengthened by the gravity of the offence and the maximum penalty of life imprisonment: He Kaw Teh at 583. Brennan J noted at 585 that "possession" is a term which implies a state of mind with respect to the thing possessed, whereas importing does not.
24Dawson J also referred to the authority of R v Bull and the proposition that if the goods are merely passing through en route to some place outside the country, they are not imported. Dawson J noted that in R v Bull, it was held that goods are not imported into Australia within the meaning of s 233B(1)(b) of the Customs Act until they are landed or brought within the limits of a port with the intention of landing or discharging them. His Honour went on to make other observations, and concluded, "It seems to me that it is not possible as a matter of language to speak of importation without introducing some element of purpose or intention". Dawson J concluded at 596 that intent must go not only to the act of importation but also to the nature and quality of the goods imported.
25The concept of "bring" is akin to import. The ordinary meaning of importing involves a "bringing". The consideration of the meaning of the word "importing" in He Kaw Teh, provides support for the proposition that bringing in the sense of "bringing to" connotes an intention to take along to a place, a destination, and at least in this limited sense connotes a form of mens rea.
26It is emphasised that the reasoning in He Kaw Teh, that there is a limited form of mens rea implicit in the meaning of importing, and similarly here in the meaning of bringing, does not rely upon the broader question of the application of the presumption of mens rea and considerations of whether it has been displaced. While it does not arise, I make a few observations about this question. It may be argued that the application of the presumption in the statutory context is weak given the statutory purpose of the Corrections Act to discourage anyone from bringing into a prison an item without the authority of the Director. As pointed out by the respondent, displacement of the presumption would seem consistent with the subject matter with which the statute deals and the objectives of "appropriate levels of security and control": s 4(c). On the other hand, I note, as I did during legal argument, that if no awareness or knowledge is required, and the offence is one of strict liability with only the exculpatory ground of an honest and reasonable mistake of fact available, then there are unsatisfactory consequences. A police officer who failed to adequately conduct a search, or failed to cause a search of a detainee to be conducted, would be unlikely to be able to rely on an honest and reasonable mistaken belief. In those circumstances, any belief that a person did not have a thing that was not authorised would not be based on reasonable grounds. It is to be remembered that the meaning of "bring" does not require possession but may involve causing an item to be brought to a prison. In this case, the police officer who brings the detainee to the reception prison (and anything being carried by the detainee) may be liable if the search of the detainee within the prison revealed items that had not been authorised by the Director. This consequence of an interpretation that the offence provision is a strict liability provision with only a defence of honest and reasonable mistake of fact available, weighs in favour of an interpretation that knowledge or awareness of the thing is required. I do not need to resolve these competing considerations. I do not need to decide whether knowledge of the nature and quality of the item as an item not authorised by the Director or knowledge of the item as particularised in the charge is an element of the offence. In this case, the facts before the learned magistrate were such that the only sensible inference was that the applicant was well aware of the item found by police during the search.
27Before leaving the judgments in He Kaw Teh, it should be noted that while the majority judgments support the contention that the word "import" connotes a limited intention, they do not support the proposition that the word inherently connotes knowledge of the nature and quality of the item. Similarly, it may be argued that the word "bring" does not convey a knowledge of the nature and quality of the item. However, as I have said, that question does not arise in this case.
28Ms Dawkins helpfully referred me to the case of Rosas v Cahill [2013] NTSC 65, 235 A Crim R 451 which considered the word "bring" in the context of an offence of bringing liquor into a prescribed area. The alcohol involved was two bottles of rum which were on the back seat of a car owned by the appellant. She was a passenger in the car driven by her friend. The grounds of appeal concerned the mental element for the "bringing liquor" offence. It was argued that the prosecution would be obliged to prove the appellant intended to bring the alcohol into a prescribed area.
29Blokland J at [20] considered that there was no need for the prosecution to prove intention to bring the liquor into a prescribed area, stating: "In my opinion there was no need for the respondent to prove intention to bring the liquor into a prescribed area as s 31 of the Criminal Code (NT) is excluded, however, the act of 'bringing' must be a voluntary act and inherently requires proof of 'knowledge' as that term is understood by the law of (here) the two subject bottles of rum".
30Blokland J considered the meaning of the word "bringing":
"[23] In common with the possession charge where knowledge is required to be proven, to prove the prohibited act of 'bring liquor', knowledge is similarly required. It is a matter of language and common usage. A person does not generally speak of 'bringing' an item unless they have knowledge of that item. The word 'bring', like 'possession', in its ordinary sense connotes knowledge or awareness of the thing being brought. Although 'possession' has a lengthy historically developed common law definition that includes proof of 'knowledge', in my view, in the context of this statutory offence, the same applies to the offence 'bring liquor'. It follows that only those persons who know they are bringing liquor into a restricted or prescribed area would be guilty of an offence. In this context 'knowledge' and 'awareness' may be used interchangeably."
31Her Honour went on to consider what that knowledge involved with regard to the judgments in He Kaw Teh. It was held by Blokland J that the elements that were required to be proven were that the appellant by her voluntary acts or by causing others to act on her behalf, brought (that is knowingly brought or knew it was likely that she brought) two bottles of rum into a prescribed area.
32It can be seen from the quoted passage in Rosas that the reasoning as to the meaning of "bringing" relies on the ordinary meaning of the word and its common usage and the particular statutory context. The case concerned an interaction of Commonwealth and Northern Territory legislation which does not need to be explored here. The determination in Rosas that "bring" involves knowledge supports the general proposition that bring does involve a mental element of some kind and in that regard provides some support for the conclusion I have reached. We are apart on the type of mental element inherent in the word "bring". Ultimately, I find the reasoning in He Kaw Teh supports the conclusion that "bringing" to a place involves an intention which encompasses that destination, an intention to take to that place. For the reasons given by Blokland J, and having regard to the presumption of mens rea, "bringing" may also involve knowledge of the nature of the item but, again as I have said, I do not need to decide that.
33For the reasons I have given, I reach the conclusion that the offence contrary to s 24(1) of the Corrections Act involves an intention to bring the item in question into a prison. The facts as stated by the prosecutor gave rise to uncertainty about whether the applicant had that intention.
34It is apparent from the facts stated, that wherever the applicant was going was interrupted when he was arrested for breach of bail and taken into custody. He was then taken to a police station and to a prison. There was no suggestion on the facts that he was informed he was being taken to a prison, and the facts do not give rise to an inference that he was aware of that and thought to take the knife there. The respondent submitted that I should assume, as the learned magistrate was entitled to assume, that the police officers would have told him that he was being taken to a prison. I do not see that as a sound assumption to make. It is just as feasible that the police told him he was going to the watch-house or, the cells or the remand centre.
35It is worth pointing out that there was no inevitability about prison as a destination for the applicant once he was arrested. He had not committed a heinous offence. He could have been released on police bail or, taken to a designated police station and from there to the Magistrates Court. If he had, he would not have committed this offence.
36The facts as stated by the prosecutor raised real questions about whether he had the requisite mental element and his guilt. The learned magistrate should have resolved this uncertainty by making an enquiry: Beechey v McDonald [2010] TASSC 47. In so concluding, I am not being critical of the learned magistrate. This offence provision has not been the subject of any prior judicial determination that I am aware of. At face value, the offence could be one of absolute liability or strict liability, with no suggestion on the facts of an honest and reasonable mistake of fact. However, in light of the elements of the offence as determined on this review, the learned magistrate was presented with facts that appeared to be inconsistent with the plea of guilty. In light of this, the plea of guilty was not unequivocal as it must be: Maxwell v The Queen (1996) 184 CLR 501 at 511. In failing to identify and resolve the uncertainty, there was error. The proper course would have been for the learned magistrate to clarify the situation by informing the prosecutor of the apparent inconsistency and the uncertainty about the plea in light of the facts, and inviting further clarification about those facts from the prosecution and ascertaining the position of the defence regarding the applicant's intention. Depending on the clarification provided, it may have been appropriate to invite a change of plea: Maxwell (above); Marlow v The Queen [1990] Tas R 1.
37I uphold this ground. This will result in the quashing of the applicant's conviction and sentence. I will permit a change of plea and order that the charge be reheard. This course has implications for the offence of breach of bail conditions on the same complaint. A global penalty of three weeks' imprisonment was imposed across both offences. This sentence together with the other sentences imposed are subject to review, and the result of that review will have a bearing on the correct approach to be taken.
Manifestly excessive
The offending
38The applicant was sentenced in relation to the following offences. There were two charges of "drive a motor vehicle whilst a prescribed illicit drug is present in your oral fluid" contrary to s 6A of the Road Safety (Alcohol and Drugs) Act 1970. The first offence was committed on 11 August 2019. Associated with that was one offence of drive whilst not the holder of a driver licence and one offence of breach of bail conditions involving a breach of curfew.
39The second was committed on 19 October 2019 and associated with that act of driving was an offence of drive whilst not the holder of a driver licence, one offence of give particulars likely to mislead, and two offences of breach of bail requirements involving failing to comply with his curfew and driving a motor vehicle in contravention of an order for bail.
40Additionally, the applicant pleaded guilty to 14 charges involving breaches of bail or bail conditions. Twelve charges involving 12 occasions of failing to sign in at the Burnie Police Station committed in September 2019. Further, a single count of breach of bail involving a breach of curfew on 25 April 2019, and a further single count involved failing to appear at court on 26 September 2019. Further, the applicant committed the offence of unlawfully bringing an unauthorised thing into a prison, being a knife, on 20 August 2019, considered above.
41The activated sentence related to offending that attracted a term of one year imprisonment with four months suspended. The sentence was imposed on 7 August 2017 and the period of four months was suspended on condition that he not commit an offence punishable by imprisonment for a period of three years. The sentence was imposed as a global penalty in relation to multiple offences of drive whilst not the holder of a driver licence, use unregistered motor vehicle, using a motor vehicle with no premium cover, offences of drive a motor vehicle whilst a prescribed illicit drug is present in blood, drive whilst disqualified and an offence of unlawfully possess dangerous article in a public place.
42The facts provided to the learned magistrate of the new offending the subject of the sentences under review were as follows.
43On 2 April 2019, the applicant was granted bail with conditions including a residential condition and a curfew condition to remain at his residence between 6pm and 7am. On 23 April, a check by police revealed that the applicant was not at his home address at 9:50pm. After a short time, the applicant returned home and told police he had been helping his neighbour with a dog that had escaped.
44The applicant was granted bail by the Supreme Court on 19 June 2019 with a residential and curfew condition. He was intercepted on 11 August at approximately midnight driving a motor vehicle. He was unlicensed. He told police he was in breach of his curfew because he could not live with his mother as they fight too much. A breath and fluid test was administered. An oral fluid test produced a positive result and an analysis of the sample detected methamphetamine and amphetamine.
45The facts of his offending on 20 August involving breach of bail and bringing an unauthorised item into a prison are set out above at [5].
46On 19 October 2019, at 5:15am the applicant was intercepted driving a motor vehicle on the Brooker Highway. He provided a false name, he was unlicensed and he provided an oral fluid test which was analysed and shown to have methylamphetamine.
47On 27 August 2019, he had been admitted to bail in the Magistrates Court on condition that he attend the Burnie Police Station and there sign the register of persons reporting. As noted, he failed to "sign in" on 12 occasions in September 2019.
The circumstances of the applicant
48The applicant was 26 years of age at the time of offending. His prior history shows a very lengthy record for similar offending. Having regard to his offending from 2016 when it begins in earnest, his offending was the subject of sentences on two court dates, the 17 March 2017 and 7 August 2017.
49On 17 March 2017, he received a global sentence of four months' imprisonment commencing 3 February 2017 with the balance suspended for 18 months for offences including the following: four charges of drive a motor vehicle whilst a prescribed illicit drug is present in blood, 17 charges of drive whilst not the holder of a driver licence, six charges of use unregistered motor vehicle, four of use a motor vehicle with no premium cover, two of drive an uninsured vehicle, four charges of breach of bail or bail requirements, one offence of stealing, and one charge of evade police.
50It is also noted that on that date, he was sentenced for other offences not the subject of the term of imprisonment including one offence of drive without due care and attention and one offence of unlawfully possess dangerous article in a public place.
51On 7 August 2017 the partially suspended sentence of two months and two weeks' imprisonment imposed in March was activated and a cumulative term of one year imprisonment with the last four months suspended was imposed for new offending. Additionally, a period of six weeks' imprisonment wholly suspended was imposed for new offending involving breach of bail conditions. The new offences the subject of the sentence of one year imprisonment, four suspended, include the following: seven charges of drive a motor vehicle whilst a prescribed illicit drug is present in blood, eight of drive whilst not the holder of a driver licence, eight charges of use unregistered motor vehicle, six of use a motor vehicle with no premium cover, two of drive an uninsured vehicle and four charges of drive whilst disqualified. As can be seen, this previous offending did not attract discrete terms of imprisonment, but rather was the subject of global sentences.
52In mitigation, it was highlighted by the applicant's counsel that almost all of the offences before the court for sentence had occurred in a three month period from August to October 2019. He had been subject to Supreme Court bail without incident since December 2018. Initially, he abided by his bail condition which required that he live with his mother in a remote location. The only exception was the occasion when he was assisting his neighbour find his dog. However, as the months went by, he began to experience difficulty living with his mother. They frequently argued and he began feeling depressed, compounded by the fact that his Supreme Court matter was not progressing. Preliminary proceedings were adjourned five times between April and December. Tensions arose with his mother and in that context he committed the offences.
53He has been in custody since October 2019. He was educated to year 10 in Hobart. He was an apprentice panel beater for two years before moving to Queensland for five years where he worked in roofing before returning to Tasmania. He has a young daughter who lives in Queensland.
54No cause was shown in relation to the application to activate the suspended sentence of four months.
The sentences imposed by the learned magistrate
55The learned magistrate observed that there was a recent decision handed down by the Supreme Court the day before, which he had become aware of that morning regarding the imposition of non-parole periods. His Honour indicated that it was relevant and he would adjourn sentence to consider the decision. The magistrate then adjourned sentence for a few days until 18 February.
56On 18 February, the learned magistrate clarified the applicant's licence status and was informed that the applicant had never held a licence and he had served all court imposed periods of licence disqualification.
57After setting out the offences that the applicant had pleaded guilty to, the learned magistrate referred to the maximum penalties for each of the offences. His Honour then summarised the offending and the applicant's personal circumstances.
58The magistrate noted the applicant's prior history, one prior conviction for exceed 0.05 in 2010, 11 prior convictions for breach of s 6A of the Road Safety (Alcohol and Drugs) Act which occurred in a period of 14 months from early 2016, and four for drive whilst disqualified. It was noted he had around 25 convictions for drive whilst not the holder of a licence and they occurred over a 21 month period from November 2015. His Honour noted 11 breaches of bail and one for failing to comply with a police bail notice and then stated:
"So given that history you don't have a good record of complying with Court orders, driving whilst disqualified or bail conditions for conditions actually attached to a suspended sentence (indistinct words) as well (indistinct words) poor record of complying with traffic laws and laws generally.
In relation to driving without a licence, that's the most prolific offending, and it seems from what I was told by Ms Phillips you have never had a licence. You never got beyond your learner's licence, so I need to take into account the fact that you're not an experienced driver and public safety is an important issue in relation to someone in your position who continues to drive without a licence.
Now, as you know there are two applications for breach of a suspended sentence."
59His Honour then dealt with an application to activate a suspended sentence of two months. He gave reasons for concluding it would be unjust to activate it. He then gave reasons for activating the four month sentence. These reasons are not impugned by the motion to review. The four month sentence was backdated to 19 October 2019.
60His Honour then proceeded to impose convictions on all charges, costs, and victims of crime levies. He imposed 12 months' disqualification on each of the offences contrary to s 6A to be served concurrently, to commence from his release from prison and cancelled his licence.
61The learned magistrate made a brief reference to Murray v State of Tasmania [2020] TASSC 1. This decision was delivered on 13 February 2020 and evidently it was the judgment which his Honour wanted to take time to consider. In Murray, Pearce J considered the language and scheme of the Sentencing Act 1997 and the Corrections Act and concluded that if there is to be provision for parole for more than one term of imprisonment, there should be separate non-parole orders for each order imposing a term of imprisonment rather than a single non-parole period across multiple sentences. The learned magistrate adopted that approach and imposed the following terms of imprisonment:
· Suspended sentence of four months' imprisonment activated from 19 October 2019, non-parole period three months.
· Breach of bail (curfew) on 25 April 2019: a cumulative term of one week, not eligible for parole.
· Breach of bail conditions and drive unlicensed on 11 August 2019: a cumulative term of three weeks, not eligible for parole.
· Drive a motor vehicle whilst a prescribed illicit drug is present in oral fluid on 11 August 2019: a cumulative term of four months, non
-parole period three months.· One count of breach of bail conditions (curfew) and one count of bringing an unauthorised thing into a prison on 20 August 2019: a cumulative term of three weeks, not eligible for parole.
· 12 breaches of bail (failing to 'sign in' to police station): a cumulative term of three months, non-parole period two months.
· Breach of bail (failing to appear on 26 September 2019): a cumulative term of one week, not eligible for parole.
· Two charges of breach of bail requirements, and one charge of drive whilst not the holder of a driver licence on 19 October 2019: a cumulative term of one month, not eligible for parole.
· Drive a motor vehicle whilst a prescribed illicit drug is present in oral fluid on 19 October 2019: a cumulative term of six months, non-parole period 4 months.
62The learned magistrate having carefully outlined the terms of imprisonment then noted that the total period the applicant was liable to serve was 20 months from 19 October 2019 and that the total period that he was not eligible for parole was 15 months from that date.
The submissions on review
63One of the submissions made on behalf of the applicant was that it was incorrect for the learned magistrate to announce the sentence as 20 months' imprisonment when the head sentence was 18 months and 8 weeks. The principal submission was that the sentences were generally excessive and that the non-parole period was unnecessarily harsh. It was conceded that there was no error in activating the four month suspended sentence or in imposing a non-parole period greater than the minimum except in light of the total effect of the sentences imposed. There was complaint regarding the disposition of the new offences and the "piece meal way" in which the sentencing orders were formulated.
64It was submitted that by imposing sentences individually for each offence and individual non-parole orders on some but not all of the sentences imposed, the totality principle was not sufficiently taken into account generally and specifically when considering whether or not to impose non-parole periods or not. It was pointed out that the offences could have been adequately dealt with by two global sentences which would have meant that parole periods would only need to have been imposed for the two sentences.
65In relation to the charge of bringing an unauthorised thing into a prison it was argued that, if the conviction remains undisturbed, a prison term of three weeks for that offence and a breach of bail conditions was particularly harsh. It would seem likely given the sentences imposed for the other breaches of bail, that the part of the sentence attributed to the breach of bail was one week. A sentence of two weeks was said to be harsh in the case of a person who was arrested with a knife and was taken to a prison without exercising any choice about that. The applicant did not intend to take a knife into a prison.
66The respondent's submissions highlighted that aside from the applicant's admissions and pleas of guilty, there were no significant mitigating factors; the pleas of guilty were of limited value, given the strength of the prosecution case on each charge; the applicant had no explanation for his driving or for the other offences which provided any mitigation; and the applicant had a significant and relevant criminal history. Aggravating factors were that the offending was committed while he was on bail for an indictable offence and that the second instance of driving offences were committed when he was subject to a bail condition not to drive. The learned magistrate made provision for parole, which provides an opportunity for rehabilitation. It was contended the sentences in their cumulative effect are not manifestly excessive.
Manifestly excessive?
67I can see no merit in the proposition that the learned magistrate was incorrect in stating that the sentence was one of 20 months, with a non-parole period of 15 months, and that he should have described the sentence as 18 months and 8 weeks and a non-parole period of 13 months and 8 weeks. It is acknowledged 20 months is slightly longer than 18 months and 8 weeks by approximately five days.
68His Honour carefully and with clarity, pronounced sentence when he set out the individual sentences and non-parole periods. Those were the sentencing orders. When his Honour totalled them up as 20 months with 15 months non-parole, his Honour was taking the time to provide the applicant with the combined effect of the individual sentences in terms that would be easy to grasp. Understandably, most defendants are anxious to know the "bottom line" in terms of gaol time and eligibility for parole and his Honour was providing that. The fact that it was slightly rounded up was neither here nor there, and had no bearing on the sentencing orders. Of course, in relation to a formal record of the sentencing orders kept by a court and any summary of those orders, the record should accurately reflect the sum of the sentences in terms of the months and weeks actually imposed. The memorandum of sentence of imprisonment is included in the review papers and the total sentence is correctly described in terms of months and weeks.
69There is also no merit in the criticisms of the approach taken to the formulation of the sentences. Sentencing magistrates and judges have a discretion to impose a global sentence or separate sentences for each offence or a group of offences: s 11 of the Sentencing Act. Regardless of the approach taken, the overall sentence must be proportionate to the total criminality involved. The totality principle requires that when sentencing judges and magistrates impose individual sentences they must review the aggregate sentence and consider whether the aggregate is "just and appropriate": Mill v The Queen (1988) 166 CLR 59.
70I can see no indication that the learned magistrate failed to have regard to the totality principle. Clearly, he had in mind that the aggregate was effectively 20 months and 15 months non-parole because, having passed sentence he explained that to the applicant. In reality, the complaint about formulation is no more than the contention that the sentence was so heavy that it reveals error. If the sentences had not been so heavy, in terms of the head sentence and eligibility for parole, there would be no complaint about formulation of individual sentences rather than a global sentence.
71In fact, there is much to commend the approach taken by the learned magistrate and the imposition of individual sentences in cases such as this. Important objectives of sentencing are general deterrence, deterrence of the individual offender and denunciation. These objectives may be more effectively met when a discrete sentence is fixed and attributed to the charge. Here, it meant the applicant could have been in no doubt about the relative severity of his various offences and he was also on notice of what sentence he might expect if he reoffended.
72The applicant's prior convictions provide a contrast. He had received two global terms of imprisonment in 2017 for a conglomerate of offences, including 11 prior convictions for driving with an illicit substance in his oral fluid. For each of those convictions, it is unknown what apportionment of his term of imprisonment is attributed to that conduct. It is unknown whether he received heavier punishment for his subsequent offences. It can be seen that it was conduct which warranted a gaol term, but beyond that the message is vague.
73The sentencing orders imposed by the learned magistrate resulted in a very lengthy term of imprisonment, both in terms of the total cumulative effect of the head sentences and the non-parole period. The question is whether any of the individual sentences or the total effect of them are manifestly excessive. I regard the activation of the four month sentence and the three month non-parole period as beyond criticism. I should note though that in the event that the review in relation to other sentences is upheld and the applicant is resentenced, there may be a need to review the non-parole order for the activated sentence. As for the new offences, undoubtedly, a heavy sanction was required. The applicant had a bad record for similar offending. However, some of the sentences struck me as particularly punitive.
74The sentence of three months' imprisonment for 12 breaches of bail conditions of failing to sign in during the month of September was harsh. The cumulative effect of the sentences imposed for the other breaches of bail and bail conditions produced a heavy penalty, particularly given the lack of provision for parole. Overall in relation to his breach of bail matters, there was an absence of aggravating factors and it seems that during the period of offending there was intermittent compliance with his bail conditions.
75The sentences imposed for drive a motor vehicle whilst a prescribed illicit drug is present in his oral fluid were four months' imprisonment for the first offence and six months for the second. These offences against s 6A(1) of the Road Safety (Alcohol and Drugs) Act attract the penalty regime provided for in the Table of Penalties set out at the end of s 17. Noting that the applicant is a subsequent offender because he has prior convictions for this offence, he is subject to the maximum term of imprisonment of six months. In Bonde v White [2017] TASSC 30, a review of sentencing orders brought by the prosecution, Pearce J considered the offence and at [15] noted the long title of the Act to "protect the public against the risks inherent in the driving of vehicles after consumption of intoxicating liquor or drugs", stating that "Protection of the public, punishment and deterrence of offenders and deterrence of others who may be minded to risk driving after drinking alcohol or using illicit drugs, are primary sentencing factors." Of course, as his Honour's reasons acknowledged at [16], rehabilitation is also a sentencing objective and it may be noted that his Honour made allowance for reform when resentencing the respondent.
76Speaking generally, for a 12th and 13th offence, a sentence such as four months and six months' imprisonment might be appropriate, depending on the circumstances of the offence and the offender. Here, a relevant factor is that, having regard to the sentences imposed for his past offending, the applicant had received no warning of such a penalty. Importantly, there was the prospect that a shorter term of imprisonment than four or six months may be an effective deterrent.
77The rationale for increasing the penalty imposed for the later of two offences is less compelling when the two offences are being dealt with by the court at the same time. As noted, the applicant had not previously received a sentence anywhere approaching the order of four months' imprisonment for an offence contrary to s 6A. To impose a sentence of six months for the subsequent offence does not take account of the potential deterrent effect that a term of four months' imprisonment (or less) may have. This case can be distinguished from others where an offender received a substantial term of imprisonment and having served that sentence, reoffended.
78The length of the non-parole periods is severe. The minimum non-parole period that a judicial officer can impose is half of the sentence: s 17(2A)(c) of the Sentencing Act. The overall percentage the applicant received was 75% of his head sentence. He is not someone who has ever had the benefit of parole in the past and it cannot be said of him that he is someone who has squandered that opportunity. Parole may prove to be an effective means of promoting his rehabilitation.
79I am very conscious of the width of the learned magistrate's sentencing discretion, this was a case where the learned magistrate was justified in taking a stern approach, and that this Court has no charter to tinker with sentences. However, I have found that the sentences in their cumulative effect, and some sentences individually, were heavy to the point of error, particularly having regard to the following considerations:
· The total cumulative effect of the sentences imposed for his new offences (effectively 16 months with a non-parole period of 12 months to be served cumulatively to the activated sentence) was heavy having regard to the total criminality involved in the nature of the offending. Without diminishing legitimate concerns about public safety concerning the driving offences and the blatant nature of his offending generally, this was a heavy sentence for what were essentially two incidents of illegal driving, breaches of bail matters and, on the facts, a comparatively minor contravention of s 24(1) of the Corrections Act.
· The imposition of a lengthy non-parole period when the applicant had never had a parole order in the past.
· The two acts of driving with illicit drug in oral fluid attracted cumulative sentences of four months and six months' imprisonment when prior sentences had not conveyed that he was in jeopardy of a gaol sentence of that order.
80I uphold grounds four and five with respect to the sentences imposed on the new offending the subject of terms of imprisonment.
81The motion to review is allowed. The sentences of imprisonment imposed on complaints 11439/2019, 53162/2019, 9721/2019, 9709/2019, 52035/2019, 7722/2019, 53817/2019, 53953/2019 will be quashed. I will allow an opportunity for submissions with regard to s 110(2AA) of the Justices Act 1959, before resentencing. As indicated, the resentencing may have a bearing on the order regarding parole with respect to the activated sentence.
82In relation to the offence contrary to s 24(1) of the Corrections Act, charge 2 on complaint 7722/19, I will make an order quashing the applicant's conviction. I will hear from counsel in relation to an application for the plea of guilty to be amended or vacated and as to whether the charge should be remitted for rehearing.
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