Leaman v Tasmania
[2016] TASSC 36
•27 July 2016
[2016] TASSC 36
COURT: SUPREME COURT OF TASMANIA
CITATION: Leaman v Tasmania [2016] TASSC 36
PARTIES: LEAMAN, Peter David
v
STATE OF TASMANIA
FILE NO: 208/2016
DELIVERED ON: 27 July 2016
DELIVERED AT: Hobart
HEARING DATE: 1 July 2016
JUDGMENT OF: Tennent J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Whether manifestly excessive – Driving and dishonesty offences – Global sentence imposed on numerous complaints – Long history of persistent offending of similar nature - Offending commenced shortly after release from custody.
Barrett v Wilson [2015] TASSC 3, (2015) 69 MVR 333, referred to.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicant: N/A
Respondent: S Nicholson
Solicitors:
Applicant: Unrepresented
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 36
Number of paragraphs: 13
Serial No 36/2016
File No 208/2016
PETER DAVID LEAMAN v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
27 July 2016
On 11 November 2015, the applicant, Peter David Leaman, was sentenced by Magistrate Mollard on his plea of guilty to numerous offences. His Honour imposed global sentences totalling 29 months' imprisonment, and ordered the applicant be eligible for parole after serving 16 months of that total. The sentence was backdated to 13 October 2015. On 21 January 2016, a notice to review that sentence on the sole ground that it was manifestly excessive in all the circumstances of the case was filed in this Court on behalf of the applicant by the Legal Aid Commission of Tasmania (the Commission).
The Commission subsequently filed papers in support of the application, but did no more. The matter was brought on for a directions hearing at which counsel appeared on behalf of the applicant at the request of the Commission. Directions were made for the filing of contentions by each party. That directions hearing was held on 6 June 2016. On 8 June, the Court received a letter from the Commission advising that, due to an error, it had not been made clear that there was no grant of aid for the applicant beyond the preparation and filing of the notice to review and judge’s papers. The Court was advised that someone from the Commission would contact the applicant to tell him that.
It was assumed by the Court this had been done. The respondent's submissions were filed, but nothing was received from the applicant. The matter was brought on for hearing. The applicant was unrepresented, and did not seem to believe he had been told by the Commission that he had no aid. He was advised of what the Court had been told. The applicant was given the option of adjourning the matter so that he could follow up issues with the Commission, or proceeding on his own. He indicated that he had no idea what to do. He was given an opportunity to talk to his family about how he should proceed, and he did so. He then elected to proceed on the basis that the Court would deal with his notice on the basis of papers filed.
Prior to the hearing, I raised with the respondent the fact that it appeared the notice of review prepared by the Commission had omitted to refer to one of the complaints upon which the applicant had been sentenced. As a consequence, there was no copy of the complaint and the record of proceedings sheet from the Magistrates Court relating to it in the papers supplied. The respondent provided a copy of the material to the Court, and acknowledged that it should have been referred to. At the hearing, this was explained to the applicant, and his notice to review was amended to include reference to the complaint, and a copy of it and the record of proceeding sheet were formally placed before the Court.
The matters in respect of which the applicant was sentenced were as follows:
Complaint Number
Offence
Date of
Offence
Sentence
6764/15
Drive unlicensed
5/6/15
Global sentence of 10 months in respect of this complaint and 4319/15(c1), 6070/15(c1), 6763/15, 6765/15(c1), 8585/15, 6852/15, 7936/15 and 90889/15
6665/15A
Burglary x 6
Stealing x 8
Trespass x 1
Aggravated burglary x 1
July 2015
Global sentence of 18 months in respect of this complaint and 3697/15
8585/15
Drive unlicensed
Breach of bail by driving
20/9/15
Global sentence of 10 months in respect of this complaint and 6764/15 and others
91128/15
Breach of bail (curfew)
12/9/15
Global sentence of 1 month in respect of this complaint and 7965/15
7965/15
Breach of bail (fail to appear)
22/9/15
Global sentence of 1 month in respect of this complaint and 91128/15
6765/15
Drive unlicensed
Use unregistered motor vehicle x 2
Use uninsured motor vehicle x 2
12/6/15
C 1 – Global sentence of 10 months in respect of this count and 6764/15 and others
6763/15
Drive unlicensed
13/5/15
Global sentence of 10 months in respect of this and 6764/15 and others
6070/15
Drive unlicensed
Dishonestly alter plate
7/7/15
C 1 – Global sentence of 10 months in respect of this and 6764/15 and others
4319/15
Drive unlicensed
Use unregistered motor vehicle
Use uninsured motor vehicle
13/5/15
C 1 – Global sentence of 10 months in respect of this and 6764/15 and others
6852/15
Drive unlicensed
2/5/15
C 1 – Global sentence of 10 months in respect of this and 6764/15 and others
7220/15
Unlawful possession of property
May 2015
Global sentence of 18 months in respect of this and 3697/15 and others
90889/15
Drive unlicensed
12/6/15
Global sentence of 10 months in respect of this and 6764/15 and others
7936/15
Drive with illicit drug in blood
Possession of amphetamine
13/5/15
Global sentence of 10 months in respect of this and 6764/15 and others
3697/15
Destroy property
21/4/15
Global sentence of 18 months in respect of this and 7220/15 and 6665/15
The sentences in the above table refer only to the sentences of imprisonment. The applicant raised no issue about the periods of disqualification which were also imposed. The sentences of imprisonment were all to be cumulative.
At the time the applicant was sentenced, he was aged 31 and already had an unenviable record of prior matters which began when he was only 14. His first conviction was however not imposed until 14 November 2001. From that date, the applicant was convicted of:
- more than 30 counts of driving without a licence,
- more than 13 counts of breaching bail or failing to appear,
- numerous counts of driving unregistered and uninsured motor vehicles,
- more than 27 counts of burglary,
- more than 40 counts of stealing,
- at least five counts of driving while disqualified,
- at least 13 counts of receiving or possession of stolen property,
- at least two counts of aggravated burglary,
- one count of arson
and numerous other offences. He had also been dealt with by the courts in respect of breaches of probation orders, community service orders and suspended sentences.
I have referred to there being "more than" or "at least" certain numbers of convictions because at one point before I reached the end of the record I stopped counting. Offending of all types occurred regularly over the period from 2001 to 2015. While the applicant could not be sentenced on his poor record, two factors from it are relevant. The first is the persistence of particular offending over a long period which no amount of non-custodial sentencing options appears to have curbed, and the second is that on 13 November 2014, the respondent was sentenced to serve 156 days in prison from that day. I do not have the date of his release from custody. However, very roughly 156 days equates to about five months, and the applicant is likely to have served at least three of those. That should have seen him released about the middle of February 2015. The applicant began re-offending in April 2015.
The applicant was represented by counsel at the time he was sentenced. In mitigation his counsel said the following:
"Yes, thank you, your Honour, the defendant is 31 years of age now. He is in a relationship and has been for a short period of time. I've spoken at some length with his partner, who's in the back of the Court. Essentially, they commenced a relationship earlier this year but then broke up for a period of time and have been back together again for a two month period, approximately, and the intervening period is essentially where the offending has taken place.
He certainly describes her as a good influence upon him. She indicates that she doesn't use any illicit substances. She has held employment in the past, in the New Norfolk area. She's also from New Norfolk. She's been employed at the service station there which her grandparents used to own and only lost that employment because they sold it and has been looking for some work. She's also just recently pregnant. She indicates that she's approximately seven weeks pregnant at the moment to the defendant and so they're expecting their first child together and it's her first child.
The defendant has four other children and essentially he had, well he certainly wants a relationship and has been close to all of the children and – sorry, your Honour, if I can just have one minute – so he has contact with those children and one of the reasons why the offending occurred was that when he was released from custody on the last occasion, he was actually given one of the children to live with him and had sole custody with that child and, essentially it was a situation where he was released from custody, the mother of the children attended his address, left the child with him and indicated that he could have the child, essentially.
He was really enjoying that. He was enjoying having the child living with him. He had the child settled in school and everything, as far as he was concerned, was going well. He also wasn't using drugs at that point in time, which, if your Honour looks through his history, he has had quite a significant history with drugs in the past, he has been on a Drug Treatment Order in 2014. It wasn't successful and he was re-sentenced in November of 2014 and he was released from custody in 2015 in February but when he was released, as I said, he was given this son and he, essentially was finding that the looking after the son, being occupied with that, was, I guess occupying his time so that he wasn't feeling as if he needed to use drugs and he felt that everything was going really well in his life.
He also had some employment. He was doing some logging. He had been working with his father who was doing wood hooking in the New Norfolk area and has been for many years. He, through that, then found employment logging in the New Norfolk area and he moved up to a property in Ouse, essentially so that he could be away from everyone and any influences that he'd had in the past. He's also from the New Norfolk area, knows many people there, has relatives in the area and that certainly has been a difficulty in the past in terms of his offending, in that he's come in to contact with family members which, again, has occurred in relation to Complaint 6665 and I'll get to that in a minute, but again, it was family members that drew him into that offending.
So, he was living on this property in Ouse, he was working, he had his son and as I said, as far as he was concerned everything was going really well. The difficulties started when the mother of the child decided that she now again wanted to have the child in her care and simply attended the school on one day and took the child from school and that was the last that the defendant saw of the child and she indicated that she wouldn't be returning the child to the defendant. Then we have the offending, essentially, after that period of time.
In relation to the dishonesty matters, I'd ask your Honour to take into account that they, essentially occur over a one-night period, between the 15th and the 16th of July and, as I said, in relation to those it was relatives that he was with and he's pleaded guilty and certainly made admissions to the police in relation to the matters when he was spoken to the police. He describes, at that period of time, being very depressed. He didn't have any money and does, though, indicate that in the main, apart from odd use, didn't actually go back to using illicit substances and certainly describes these dishonesty matters as not being drug motivated.
He essentially says he was with family members, they were talking about it, he went with them and he got led into the offending, well it's not even right to say he got led in to it. He was with them and he went and offended with them but his motivation wasn't so that they could get money for drugs, which is a significant factor and change from any previous motivation that he has for other dishonesty matters.
He has now been in custody since the 13th of October and I would ask your Honour to backdate any sentence to that time. In relation to the driving matters, again, they are unlicensed driving matters so I certainly can't suggest that he doesn't have a significant history in terms of driving without a licence and driving whilst disqualified.
HIS HONOUR: 30 plus 9.
MS BAUMELER: Yes, I know and I've certainly explained to him the difficulties in relation to that. I think I'm correct in saying that, again, though most, if not all of them are in the New Norfolk area. They're isolated areas. He's obviously well known to the police, some are even on the same day and it almost appears as if he was caught every time that he essentially go in to a car. In relation to the vast bulk of them, it is only the, well all of them, I think, it's only the fact that he was driving. He's not committing any other offences apart from the fact that the car's unregistered at some period of time and there was a dishonest number plates but there's nothing in the manner of his driving or anything like that and there's certainly, I think there was one matter –
HIS HONOUR: There's one – the police haven't bothered to charge him with the unlicensed but the illicit drugs –
MS BAUMELER: Yes, and then he's got the one with the illicit drug and that was, as I said where he certainly accepts that there was the odd occasion of drug use but it wasn't the previous drug use that he's had in the past. He does have some prospects in terms of what the future holds for him. He isn't sure about the job that he had logging, whether that would still be available for him. He thinks that it probably would be but he certainly can't guarantee that it will be and but regardless of that he still has employment with his father.
He can always work with him and his father was actually helping him in terms of transport on occasions in terms of the employment that he did have when he was out. He's also indicated that he wants to go to TAFE and undertake a building course there and so that he can get himself some skills up in that area and so that he can find some other forms of employment. In relation to the matters, there's obviously a significant number of matters that are before the Court and he's obviously also got a significant number of prior convictions in relation to matters that are not dissimilar. However, I would ask your Honour to take in to account the plea of guilty. Obviously I'd ask that you backdate it until when he went into custody.
In relation to the offending generally, I'd ask that you take into account that it hasn't been motivated by drug use which, in the past, has been a significant factor in his offending and in the reasons why he's come before the Courts, that in the main, since his release from custody, on this occasion, he has been able to avoid the culture and the associates that had led him into offending in the past, that in relation to the dishonesty matters, the majority of the property was recovered and that it was over a one-night period that that offending occurred, that he was cooperative with the police in relation to most of the matters.
It certainly appears as if admissions have been made and that there wasn't any difficulties in terms of taking him in to custody and the like and I guess his cooperation with the police is probably reflected by the fact that he was continually being bailed while offending in relation to the driving matters and it appears that, I think your Honour made comment when he first appeared before the Courts, that he just seems to have been let go and let go and let go in relation to the offending, so –
HIS HONOUR: I didn't say it, I thought it –
MS BAUMELER: Maybe you said it in relation to someone else that I appeared for, thought, actually I think you did, it was in relation to someone else, but it is reflective of the fact that he is generally cooperative with the police. He doesn't create a nuisance of himself beyond the fact that he's driving when he shouldn't be on the road. He now has his partner, he is committed to this relationship. They're expecting a child and beyond that, I'd ask your Honour to take into account the totality principal in relation to all the matters that he's pleaded guilty to.
He's also, in the main, I think, pleaded guilty to most of them at a relatively early stage. It's certainly never been suggested that he was going to plead not guilty to anything or anything like that and has been quite cooperative with the Court process to have the matters resolved and I'd ask that you take –
HIS HONOUR: Well, he's been anxious to the point of considerable irritation and matters haven't been able to be done on, yes.
MS BAUMELER: And, so I'd ask that you take that into account as well, that he's obviously wanting to get his sentence over and done with and obviously wants to, as I said, get on with his life and try and continue on the path that he's started on at least, in terms of his rehabilitation.
HIS HONOUR: Look, it's a pretty bleak picture, I have to say and I, in my Draft Reasons I have made some reference to the fact that in the past short and/or suspended sentences or DTO processes have just made no apparent difference to his willingness to continue in his lawless ways both in relation to crimes and offences of dishonesty and in relation to driving. I know that there have been some exceptions to the approach that I just summarised.
For instance, in October 2010, he received 18 months half suspended and I think there are one or two other examples of that sort but I just can't help but think to myself that he's got to the point where he's effectively used up his chances for that sort of a approach to be taken and there just now needs to be the imposition of a much heavier sentence that he would need to be served up to whatever non-parole period is specified in the hope that finally that'll get through to him and I note that if that is the approach that I take today, he's going to suffer terribly during the time that his child's born.
MS BAUMELER: Mm, and as I said, I mean, you can't help but think, exactly as your Honour has said, it is a particularly bleak picture. You've got 56 pages of prior convictions and you now have him on a whole host of offending but when, as I said, you sit down and discuss it with him, there really has been that stability. He hasn't returned to the drug use, which, in the past has been the main factor that's been bringing him before the Courts and, despite the fact that he was unsuccessful in terms of the drug treatment order, the program still has quite clearly assisted him insofar as giving him some skills to avoid going back along that path.
He hasn't been using, his partner doesn't use at all and never has, so in terms of the home life and the relationship there, he's not in that environment that he previously was in where, even his partners in the past have been using drugs and have been part of the pro-criminal social environment, I guess, so – and the way that he's talking, he isn't talking like someone who wants to continue to commit crimes. He isn't looking at this as just another stop along the way of his offending path.
He is talking about the positive things that occurred while he was out of custody and he's also talking about the future and how he wants to have a positive future which certainly in the times that I've been dealing with him is a different perspective from the way that he's been engaging in the past, so, certainly on the face of it I can't disagree with what your Honour is saying and, if you look at it in terms of the fact that he is now before the Courts yet again on a whole host of matters, it is bleak but when you listen to him the drivings are – they're bad because of his record but they're not ones where he's committing other offences with them, in the main and they're in that isolated area where he was living and clearly, I mean transport is an issue.
It's not an excuse for why he's driving and in terms of the dishonesty, it wasn't drug motivated for once, which is totally different to the normal pattern of offending and it also isn't a situation where he's essentially fallen off the wagon, committed those offences and then gone on to a whole host of other offending as well. He seems to have stopped himself and pulled himself out and only went that one night and committed those offences which, again, in comparison to the past is a totally different response to offending.
He generally has been, 'I've committed one, I might as well just keep on going,' and they all have been drug-motivated, so yes, I mean, he – I can certainly understand why your Honour is saying what you're saying and why you were you thinking what you were thinking but, on taking instructions, he certainly seems to be in a different position to where he was last time round and even last time round when he was placed on the Drug Treatment Order.
HIS HONOUR: Well, you know, I think that's a perfectly reasonable submission for you to make but I'm thinking, I suppose, in addition, there's his conduct in relation to her. You know, she's going to get charged with receiving or possession of stolen property.
MS BAUMELER: No, that was the other, no, that's his brother's girlfriend that was with them, yeah, no, no, she, different female, yeah, no she wasn't with them that night at all, she, that the time where they also weren't seeing each other, where they'd split up. As I said they'd started the relationship at the beginning of the year, then when things fell apart with his son, they had separated for a period of time.
That's when this happened and, having spoken to her today, she's very anti-criminal behaviour, anti-drug use and that whole environment, so, yeah and - well, and I suppose the other thing is, and is sensible enough to remove herself from him when he's not being pro-social, so, yeah."
His Honour's sentencing remarks which followed were as follows:
"Yes, I'll just preface my prepared remarks by observing that, regrettably I've not often, in fact, I have only rarely felt quite as pessimistic about a defendant's prospects other than that he will continue to offend, in the whole of my career as a Magistrate, which is now over two and a half decades long and it's an almost desperate situation for a sentencer to have reached to have to say that rarely the only prospect of rehabilitation here is that one would hope that the sentence actually served could be long enough to inspire Mr Leaman to change his attitudes.
Attitudes that are reflected in so many different ways by the various crimes and offences for which he stands for sentence now. I think that the defendant's record is quite possibly the most lengthy – and I'm talking about page numbers – that I have ever seen but I note the fact that there's some repetition in that record, particularly in the form of the repetitiveness with which the matters that were subject of the Drug Treatment Order are reflected on the latter pages and the re-sentencing and sanction days have added to that repetition and, taking in to account the reassessment of his record, bearing those factors into account, I'd have to say that it's probably not of the first worst order that I originally started out by saying that I thought that it was.
Amongst other convictions, the defendant has accumulated 30 unlicensed driving convictions and nine for driving while disqualified. The defendant has never held a licence and it's worth observing that at least one or during the time he committed at least one of the unlicensed driving charges for which he's for sentence today, he was at the same time the subject of an (indistinct) suspension.
The crimes of offences of dishonesty, including motor vehicle stealing are just too numerous for me to have troubled to count. It is a truly disgraceful record through which the defendant is condemned as a grossly irresponsible citizen, driver, burglar and thief. A great deal of effort and expense has been invested in the defendant recently in the hope that he may have reached the stage where, with help, he could overcome one of the main contributing factors, the scourge of drug abuse.
Well, I'm now told that that may have enjoyed some success but it is deeply depressing that that is not reflected in cessation of that kind of offending, that is to say the kind of offending that all too often is seen along with drug abuse and addiction and, in any case, I take the submission into account with some caution because, after all, the defendant was caught driving on the 13th of May with both methamphetamine and THC in his blood.
The efforts to which I just referred were finally abandoned a year ago and the defendant was re-sentenced to the equivalent of about five month's imprisonment. So, although I take Ms Baumeler's submission into account and I make the following statement in turn with some caution, it really does seem that those efforts have come to naught in the sense that they haven't worked to assist the defendant to stay out of that sort of trouble and the defendant has re-commenced the cycle of crime relatively soon after he was released from custody.
Now, I do note the submission that was made in relation to the contributing factor of his disappointment that his child was taken from him by, without notice, his or her mother collecting the child from the school but if the defendant is going to resume the life of crime quite that easily, then that is no cause for optimism. Society deserves better of its judiciary and law enforcement than for this Court to impose sentences which do not adequately reflect the need for a deterrent sentence for the need to protect and, I think in the circumstances of this case, to express its profound distaste for the defendant's continuing behaviours.
He has pleaded guilty and deserves a significant discount for the presumed remorse and for saving the expense of trials and I take into account, in that context, the fact that the defendant has plainly been anxious to have these matters finalised and I would think to myself that one of the motivating factors for his anxiety to get them finalised, is the fact that his girlfriend is pregnant and, as I said to his counsel, he will suffer grievously because of the fact that he will not be able to fully share the joys of that event because of where he will be.
The extent of the discounts are reflected in the figure below the ground figures of, in the context of driving, one year, and in the context of other criminality, two years. I'll deal with the driving matters first. Complaints 4319, count 1, 6070 count 1, 6763, 6764, 6765, count 1, 8585, 6852, 7936 and 7889 – they're all unlicensed or drug-drive matters except for an associated offence against the Misuse of Drugs Act. In respect of those matters, the defendant is sentenced to 10 months imprisonment. The sentence is backdated to commence on the 13th of October.
The balance of the counts on all of those complaints which I haven't mentioned, convictions recorded. The defendant is disqualified from holding or obtaining a driver's licence, entitlement cancelled, for a period of three years. That three years is to commence to run upon his release from prison. Complaint 91128, which is a bail breach, the defendant is sentenced to one month's imprisonment, cumulative.
I now turn to Complaint 6665 of 15 and Complaint 3697 and 7220. I've made enough comment about these matters already. I do take the totality principle into account and I have taken into account to a considerable extent, the defendant's criminality could have led to a far greater term of imprisonment than this but I make no apology for the fact that the sentence is a severe as it is.
On those complaints, the defendant is sentenced to a period of eighteen months imprisonment cumulative to the sentence just imposed. Non-parole – the defendant, rather, I specify a non-parole period of sixteen months. I have deliberately chosen what I think is a comparatively short non-parole period in order to make sure, insofar as I can, that all hope is not extinguished and the defendant will have the opportunity of being admitted to parole if it's otherwise thought fit that he should be paroled in order to give him the opportunity of demonstrating that his counsel's words are worth the weight that they deserve.
There are victims of crime levies of $340 on my count. There are 28 days to pay after his release. There is no question of the suspension of any part of those sentences. I think, sorry, I have failed to mention 6227 of 15, convictions recorded. Generally speaking that would not be the approach taken to Family Violence matters. That completes the matters, Mr Leaman, please go with the security officer."
Discussion
Counsel for the respondent referred to statements by Pearce J in Barrett v Wilson [2015] TASSC 3, (2015) 69 MVR 333, where his Honour said at [9]–[11]:
"A court determining a motion to review a sentence imposed by a magistrate on the grounds of manifest excess or inadequacy must not interfere unless a clear case of error is shown. The appellate court may not substitute its own opinion for that of the sentencing magistrate merely because it would have exercised the sentencing discretion in a different way: Whittle v McIntyre [1967] Tas SR (NC 6) 263; Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]. A ground contending that the sentence was manifestly excessive can only succeed if it is established that the sentencing order is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion: Bresnehan v The Queen [1992] TASSC 55; (1992) 1 Tas R 234 at [13]; Visser v Smart [1998] TASSC 151; Lusted v Kenway [2008] TASSC 47; (2008) 50 MVR 533 at [38]. This Court must be persuaded of error of the second type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, that is, that the sentence imposed by the sentencing judge is 'unreasonable or plainly unjust'. The applicant must show that the sentence is so obviously excessive that the sentencing discretion must have miscarried; or to put it another way, the sentence is plainly outside the proper limits of the wide discretion vested in the magistrate: Allen v Kerr [2009] TASSC 10; (2009) 19 Tas R 132; (2009) 193 A Crim R 262. A sentencing court has a wide measure of latitude that is to be viewed with respect and restraint by appeal courts: Postiglioni v The Queen [1997] HCA 26; (1997) 189 CLR 295 per Kirby J at 336–337. In Visser v Smart (above) Crawford J (as he then was) summarised the function of an appeal court in dealing with an appeal on the grounds of manifest inadequacy of sentence. The comments apply equally to an appeal on the ground of manifest excess:
'An appellate court must not interfere with the exercise of the sentencing discretion except in a clear case of error. A magistrate is vested with a very wide discretion. Whittle v McIntyre [1967] Tas SR 263 (NC6). It is not sufficient to set aside a sentencing order just because a more severe sentence would have been imposed by the appellate court. In the circumstances of this case, the motion must fail unless the Court is satisfied that the sentence was manifestly wrong in its inadequacy, as to amount to a clear error in the sentencing process. Such principles have been stated by courts of this State on a great many occasions and come from the High Court in cases such as House v R [1936] HCA 40; (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R [1954] HCA 51; (1954) 90 CLR 652. Notwithstanding the wide sentencing discretion in the court below, it is the duty of the appellate court to interfere where it is necessary to do so to avoid such manifest inadequacy in sentence or inconsistency in sentencing standards that the error is of such gravity that it is essential in the administration of justice that the error be corrected. It is not necessary to identify any particular error of law made. The error can be implicit in the excessive leniency in the sentence imposed.'
The expression of manifest excess or manifest inadequacy is a conclusion formed by giving regard to all the matters that are relevant to determining the sentence: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520 at 539."
I endorse the statements of principle stated by his Honour.
Applying those principles to the present case, there is no doubt that the head sentence imposed on the applicant was a lengthy one, and one which on the face of it may appear harsh. However, the sentence must be viewed in context. It was ameliorated by a non-parole period which would likely see the applicant serve a little over 55% of the total sentence. It was also imposed against the following background:
- credit being given for pleas of guilty,
- a consideration of the applicant's personal circumstances which included a new relationship and a partner newly pregnant,
- a consideration of persistent and consistent offending of the same type over many years which was repeated, despite attempts to assist the applicant to move away from possible causes of his offending, within weeks of release from custody,
- a need to impose a sentence which adequately reflected the need for deterrence in such circumstances.
Outcome
I am mindful that the applicant made no submissions in relation to his notice to review because he felt ill-equipped to do so. I have however taken into account the matters in respect of which he was sentenced, his counsel's plea in mitigation, the sentencing remarks of the learned magistrate, the applicant's prior record and the statements of principle outlined above in respect of reviews such as this one. In my view, having considered all that material, I am not satisfied that the applicant has demonstrated that the sentence imposed upon him was manifestly excessive. The review is dismissed.
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