Lewis v Rigby
[2021] NTSC 50
•30 June 2021
CITATION:Lewis v Rigby [2021] NTSC 50
PARTIES:LEWIS, Jessica Louise
v
RIGBY, Kerry Leanne
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:LCA 6 of 2021 (22013305) and LCA 7 of 2021 (21823908)
DELIVERED: 30 June 2021
HEARING DATES: 13 April 2021
JUDGMENT OF: Blokland J
CATCHWORDS:
APPEAL – SENTENCING – APPEAL FROM LOCAL COURT – Breach of
suspended sentence by re-offending – breach towards end of operational
period – operational period concluded by the time plea taken – significant
indications of rehabilitation including employment – continued drug use
during suspended sentence – prosecution submitted re-offending could be
dealt with by suspended sentence – full restoration of suspended sentence –
imprisonment for re-offending – appeal allowed – appellant dealt with
pursuant to 177(2)(b) of the Local Court (Criminal Procedure) Act 1995
(NT).
AK v The Queen [2021] NTCCA 04; Brown v The Queen [2014] NSWCCA
335; Bukulaptji v The Queen [2009] NTCCA 7; Court v Armstrong [2019]
NTSC 38; Davies v Deverell (1992) 1 Tas R 214; Dinsdale v The Queen
[2000] HCA 54; Emitja v The Queen [2016] NTCCA 4; 39 NTLR 159;
Federal Commissioner of Taxation v Arnhem Aircraft EngineeringPty Ltd
(1987) 47 NTR 8; Fejo v Sims and Anor [2014] NTSC 9; Forrest v The
Queen [2017] NTCCA 5; Hasan v The Queen (2010) 31 VR 28; JF v The
Queen [2017] NTCCA 1; Latu v McPherson [2010] NTSC 14; Lawrie v
Stokes (1951) NTJ 65; Lorenzetti v Brennan, LCA 14 of 2020; R v Buchman
(1988) 47 SASR 303; R v Henry (1999) 46 NSWLR 346; R v Perry [1975]
TAS SR 62 at 75; The Queen v Roe [2017] NTCCA 7; Warford v Firth
[2017] NTSC 75; Whitehurst v The Queen [2011] NTCCA 11; Wilson
v Taylor (1997) 113 NTR; referred to.
Hogan v Hinch [2011] HCA 4; House v The King; Markarian v The Queen
[2005] HCA 25; [1998] 4 VR 588; R v Miceli; R v Whyte [2004]
VSCA 5; applied to.
Local Court (Criminal Procedure) Act1928 NT, s 168.
Sentencing Act 1995 (NT)
REPRESENTATION:
Counsel:
Appellant:S McMaster
Respondent: D Castor
Solicitors:
Appellant:Maley’s Barristers and Solicitors
Respondent: Office of the Director of Public Prosecutions
Judgment category classification: C
Judgment ID Number: BLO2104
Number of pages: 28
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINLewis v Rigby [2021] NTSC 50
No. 21823908 & 22013305
BETWEEN:
JESSICA LOUISE LEWIS
Appellant
AND:
KERRY LEANNE RIGBY
Respondent
CORAM: BLOKLAND J
REASONS FOR JUDGMENT
(Delivered 30 June 2021)
Introduction
This is an appeal from the Local Court against both the full restoration of a suspended sentence and the imposition of a sentence of actual imprisonment for offending which breached the same suspended sentence.
As the appeal is against both the full restoration of the sentence imposed on file 21823908 (imprisonment for four months) and the sentence on file 22013305 (imprisonment for two months, to be served concurrently with the restored term on file 21823908) counsel for the respondent raised the preliminary point that a separate Notice of Appeal should have been filed with each Local Court file. A copy of one Notice of Appeal was filed on each file. The one Notice of Appeal refers to both files. The grounds of appeal set out in both Notices of Appeal state simply: “Error [of] law; Error of fact and law; Manifestly excessive.”
Counsel for the respondent was prepared to argue the appeal notwithstanding the potential procedural irregularities. He pointed out that there has been significant judicial comment on the question of whether separate Notices of Appeal need to be filed for each discrete Local Court file.[1] Further, he asked the Court to note that the question of whether it was necessary to file a single Notice of Appeal on each discrete Local Court file was one of a number of questions before the Full Court.[2] Since the hearing of this appeal, the Full Court has held that separate notices of appeal are required for each sentence being appealed against, however identical notices of appeal filed on each file may suffice, depending on the number of orders which are the subject of appeal.[3]
A further preliminary issue concerned the generalised nature of the grounds of appeal. While I agree with counsel for the respondent that the grounds of appeal do not specify any “error of law” or “error of fact and law”, the essence of the particulars of those grounds have been provided in the “Appellant’s outline of submissions” filed on 19 March 2021. It is appreciated that Local Court appeals against sentence are often filed in haste given the time constraints, particularly as bail pending an appeal is unavailable until a Notice of Appeal is filed.[4] Urgency may be required to file an appeal against short sentences because of the likelihood of the appeal effectively losing utility if the appellant is required to serve time in custody before the appeal is heard. Nevertheless, particulars of generally expressed grounds should be provided to the respondent as soon as possible, if they are not included in the Notice of Appeal.
Counsel for the respondent in this matter generously acknowledged that no prejudice was suffered by the respondent given that particulars were effectively provided in the written submissions. Accordingly, the appeal hearing proceeded.
Proceedings in the Local Court
File 21823908
On 4 December 2018 the appellant pleaded guilty in the Local Court to one count of obtaining a benefit by deception and one count of stealing. The offending took place on 24 and 25 February 2018.
For the charge of obtaining a benefit by deception the appellant was convicted and sentenced to imprisonment for two months. For the charge of stealing she was convicted and sentenced to imprisonment for three months, concurrent as to one month and cumulative as to two months on count one. The total effective term of imprisonment was four months.
The Local Court ordered that she be released immediately on a suspended sentence. Pursuant to s 40(6) of the Sentencing Act1995 (NT) the operational period fixed was 18 months commencing on 4 December 2018. A condition of the suspended sentence was that she not possess, purchase or consume any illicit drug or substance or any medication requiring prescription unless prescribed by her medical practitioner, and not possess anything for the administration of a dangerous drug, and to submit to urinalysis at the request of police.[5] No supervision report was requested from Correctional Services to consider supervision or the appropriateness of the condition ordered. No therapeutic style of order was made, such as counselling or rehabilitation. The intention may be readily inferred that the Local Court Judge wanted to ensure the appellant was monitored by police for drug use, or deter her from drug use, which was associated with her offending. From the submissions made on her behalf to the Local Court during the subsequent breach hearing, it was apparent the appellant’s drug use had at times continued in breach of the order, although the use of drugs was never the subject of a breach application. There was no material to indicate that her continued drug use was detected by police during the operational period. There was no appeal from the sentence on file 21823908.
The facts of the offending on file 21823908 were not exhibited before this Court as the subject of this appeal was the decision to fully restore the sentence on the basis of the breach by offending. The facts on file 21823908 are relevant however, at least indirectly, to the question of whether the sentence held in suspense should have been fully restored in the light of the breach by re-offending. The sentencing Judge referred to the facts of offending from file 21823908 in his remarks on sentence when dealing with file 22013305 and the question of restoration in the following terms:[6]
On the 25 February 2018 - so getting on for 3 years ago - Jessica Louise Lewis, then 27 years of age, stole property that was a deliberate dishonesty, not a bare stealing. She signed the lease to rent a residence. She then sold the washing machine which was part of that leased residence; it didn't belong to her. She then vacated the premises and the owner of the premises found not only the washing machine missing but also a refrigerator. And basically, the defendant before the court, Jessica Lewis thought it was entirely appropriate for her to behave that way.
And what was particularly aggravating about the behaviour back then was that she had taken a [series] of steps to affect her criminal purpose. She had advertised the goods which didn't belong to her. She had then attended upon persons answering the advertisement. She had then received the money. So, there's nothing impulsive; there's nothing drug driven about such behaviour in that one sells it on the spur of the moment to gain money to buy drugs; nothing like that. This was a planned course of conduct.
She was convicted by me for that offence. And just trying to see whether it was an early plea or not. Yes, it was an early plea. And I imposed a sentence of 4 months' prison, taking into account her prior dishonest criminal history in 2017 in Western Australia. But I suspended that 4 months fully with an 18-month period – an operational period – within which Ms Lewis was not to commit any further offences.
The appellant was also ordered to pay restitution to the victim in the sums of $350 and $580 respectively.
The appellant had three previous convictions for dishonesty offences and two previous drug offences in Western Australia in 2017.[7] For all of those offences she was fined by the Magistrates Court in Western Australia. At the time of the offending on file 21823908 she had no previous convictions in the Northern Territory.
File 22013305: The re-offending constituting the breach of the suspended sentence on file 21823908
On 27 November 2020 the appellant pleaded guilty to one count of stealing groceries, valued at $407.50, the property of Woolworths. The date of the offending was 15 February 2020. This offending was within, but towards the end of the operational period fixed on file 21823908. The operational period ended in June 2020. The offending took place 14 months into the 18 month operational period.
The facts on file 22013305 were that the appellant entered Woolworths supermarket in Nightcliff and proceeded to obtain groceries. She was observed at the front of the supermarket with a shopping trolley full of unpaid groceries to the value of $407.50. A security guard followed the appellant to the car park and asked her if she had a receipt. She replied that she did not. He asked the appellant to accompany him to the customer service desk to confirm whether the groceries were paid for. She declined to accompany him. She was asked again if she had paid for the groceries and she replied, “Yes” and shortly after said, “My friend paid for it and she gave me the trolley”. She then pushed the trolley in the direction of the security guard and said, “You know what, you can have it” and jumped quickly into a four-wheel drive and drove away.
Checks later revealed the appellant had hired the four wheel drive. She was identified on CCTV footage. On 16 August 2020 police spoke to the appellant. She declined to participate in a record of interview.
Further items of evidence before the Local Court were the appellant’s Northern Territory Information for Courts,[8] her Western Australian Criminal History,[9] a statement of her employment with BreastScreen NT,[10] a notice of assessment at Strong Steps[11] and a grocery receipt which detailed the items stolen.[12]
Submissions of the parties before the Local Court
The submissions made on the appellant’s behalf may be summarised as follows. Since July of 2020 she had been working as an administrative officer at BreastScreen NT. This fact was verified by a letter from her employer tendered to the Court as Exhibit D3. She had also attended Strong Steps for an assessment for treatment, which was verified by Exhibit D4. Further, it was pointed out that between the date of the offending on 15 February 2020 and the matter being dealt with in the Local Court, 10 months had elapsed with no further offending.[13]
The sentencing Judge was told the following about the appellant’s subjective circumstances. She was 29 years old at the time of the offending and she was born and raised in Broome, where she had completed year 12 at school. She came to Darwin shortly after leaving school. She obtained employment quickly in the retail sector where she worked for about five years. She moved to Perth in 2017, which according to her counsel was when “the rot starts to set in”.[14] She was mixing with people who were all using methamphetamine. She then commenced using methamphetamine herself. Her criminal history in Western Australia reflected convictions consistent with using illicit drugs at that time. There was a hiatus in drug use, however in February 2020, before the theft from Woolworths, she was not working, she was effectively homeless and she was using drugs again. His Honour remarked that the appellant was unemployed and homeless, and yet had hired a car. In response, her counsel told the Court that when affected by various substances, the choices a person makes are not always the wisest choices. Her counsel described the contents of the trolley as primarily groceries, including hygiene products, beauty products, underwear, hair dye and similar items.[15]
The appellant’s counsel addressed her prospects of rehabilitation as follows. At the beginning of 2020, the appellant attended Strong Steps for some time but rehabilitation was not achieved because she was still using drugs. She was assessed again, by Strong Steps on 25 October 2020, approximately one month before the Court hearing. The appellant knew she had a jail sentence hanging over her head at the time of the theft but was completely at rock bottom.
On a positive note the sentencing Judge was told she independently tried to turn her life around and commenced full-time employment on 15 July 2020. She also obtained a residence, re-engaged with family, re-commenced going to the gym and began to lead a pro-social, positive and law-abiding life for the first time in many years. After she received the summons to attend the Local Court she contacted Woolworths and offered to pay restitution but was told the matter was now before the courts. She was ready to pay restitution.[16]
Her counsel submitted there had been a complete lifestyle rejuvenation on the part of the appellant. He emphasised the appellant had gone 14 months into an 18 month operational period and therefore the breach should not be characterised as a contumelious breach as she was still struggling at the time. Her motivation for stealing was to consume the products herself and share some with various associates. While the theft was not at the lower end of stealing offences, it was not towards the upper end in terms of its objective seriousness.[17]
Her counsel submitted that as the suspended sentence had expired in June 2020 and the new charge was heard in November 2020, it was appropriate the breach be proven but that no action be taken. Given the turnaround in the appellant’s life, for the offence of stealing from Woolworths any prison sentence should be suspended, or if more was required, then home detention should be considered.
The Crown submitted the following. The facts demonstrated the appellant had the full intention not to pay for the groceries and to deprive the supermarket of them. The quantum of groceries was not insignificant. In her history there were several stealing or property offences which illustrated a degree of recidivism, consequently specific deterrence was required to be a factor.[18]
Although a term of imprisonment was warranted, on the question of whether such a term needed to be actually served or suspended, counsel for the Crown told the Local Court that he agreed with the defence submissions that a suspended sentence was within discretion given that the offending took place in February 2020 and the positive steps taken by the appellant since that time.[19]
The sentencing remarks
The sentencing Judge observed that the offending on file 21823908 took place just under three years ago and constituted deliberate dishonesty.[20] In terms of the breaching offence, the sentencing Judge observed the following. The offending was of a similar kind to file 21823908. The appellant was more than halfway through the operational period. Another five months remained. It had not been explained through submissions how she came to hire a car.
Commenting on the $407.50 worth of goods, the sentencing Judge said that at first blush $407.50 did not appear a great deal of money but it covered dozens of items.[21] It was not a shopping list of a young woman suffering poverty. It was “a very middle class and self-indulgent shopping list that one might expect from someone in regular employment”.[22] The case was one of deliberate stealing after spending considerable time in Woolworths amassing dozens of items.[23]
The sentencing Judge said that in terms of the explanation given for the continued offending, namely that the appellant was involved with the wrong people and took drugs, there was no direct link between taking drugs and stealing groceries. He said there had to be a more complete description and explanation for the offending when there was four months imprisonment hanging over her head for similar offending.[24]
The Judge noted that the previous offending in Western Australia took place in 2017 when the appellant was 26 years old, that she was 27 years old when she was placed on the suspended sentence and 29 years old when she committed the offence constituting the breach. After noting the appellant’s submission in respect of rehabilitation, his Honour concluded:[25]
Sometimes people do dishonest things because they choose to do them, not because they’re driven to them by forces of drug addiction or somebody pointing a gun at their head. And Ms Lewis, I’m not satisfied that you have behaved on this occasion for any reason other than that you could and that you chose to do so; in a blatant, conscious breach of the suspended sentence which I had imposed on you back on 4 December 2018.
Ground 3: Errors of fact and law
It is convenient to deal with this ground first. Section 163(1) of the Local Court (Criminal Procedure) Act 1928 (NT) permits an appeal to be brought on a ground which involves sentence or a matter or question of both fact and law.
While expressed in general terms, this ground in effect contends errors were made in the assessment of certain facts or that underlying factual errors were made which resulted in the misapplication of sentencing principles. Counsel for the appellant highlighted the point that submissions made on the appellant’s behalf in the Local Court were unchallenged by the respondent.
The first contended error concerned the sentencing Judge’s rejection of any connection of drug dependency or drug use with the offending.[26] The second error was the apparent adverse inference drawn by the Judge from the fact the appellant used a hire car.[27] The third error was the characterisation of many of the groceries in the trolley as luxury items and therefore a “middle class self-indulgent shopping list” motivated by greed.[28] The fourth error was the apparent disregard of the Strong Steps reference as a commitment to change without simultaneously or additionally taking into account the other efforts the appellant had made towards rehabilitation, including employment.[29]
As to the first error alleged under this ground, the respondent argued the appellant did not put her submissions in terms of drug dependency or drug use and its connection to the offending at first instance any further than her counsel observing that people do not make the “wisest choices” when they are affected by drugs.[30] Further, that any contention that the sentencing Judge was bound to proceed on the basis that the offending was directly attributable to drug use should be rejected when that proposition was not specifically advanced on behalf of the appellant. In addition, intoxication will rarely operate as a mitigating factor.[31] The Court of Criminal Appeal observed in The Queen v Roe[32] that “self-induced addiction at an age of rational choice establishes moral culpability for the predictable consequences of that choice”.
There can be no disagreement with the sound principles put forward on behalf of the respondent however, the plea hearing below did include material of some worth relevant to the appellant’s subjective circumstances which included drug use at the material time. Of more importance was the relevance of her rehabilitation since that time. If the fact of her drug use was accepted, the steps the appellant had taken towards rehabilitation, especially that she had obtained employment and had been working for a number of months before entering the plea for the breaching offence assumed some real significance. Although drug use at the time of the offending is clearly not mitigating, strong evidence of rehabilitation generally is.[33]
The combination of the time that had passed since the offending which was not of the appellant’s making and the steps taken to restore a law abiding life were relevant mitigating factors. On appeal the Court was told there was a delay due to the time needed to trace the appellant because she drove off in a hire car. It was not a delay that was the fault of either party. Delay is a mitigating factor when an offender has demonstrated rehabilitation during the period of delay or when the delay is indicative of favourable prospects of rehabilitation.[34] In R vMiceli,[35] Tadgell JA said, “The matter of delay between the commission of an offence and the imposition of a sentence [is] to be taken into account when rehabilitation is a real prospect”.
When an accused’s own conduct, such as not answering bail causes delay, any claim to mitigation will be substantially weakened, however this does not mean that any rehabilitation achieved should be ignored or given no weight in the sentencing calculus. In R v Whyte,[36] Winneke P said:
Where, however, the delay cannot be sheeted home to the prosecution or the system, but can be fairly attributed to the accused, such as absconding from bail, fleeing the jurisdiction or otherwise avoiding being brought to justice, delay must necessarily become of less significance, even to the point of giving less credit for rehabilitation established during that period.
While the appellant’s use of a hire car may have had some impact on the investigation, it was not to the level that she was fully to blame for the time lapse between offending and appearing in Court. As indicated, the rehabilitation achieved should have been given reasonable weight.
It was not merely the point that the appellant was using drugs, but additionally the Court was told that at the time of the offending, she was not working and was effectively homeless as well as using substances. Faced with no objection to those submissions, save for a question about the use of a hire car by the sentencing Judge, the conclusion that there was no direct link between taking drugs and stealing groceries in one sense, was beside the point. The conclusion of the sentencing Judge that there was no direct link and that the behaviour was not “for any reason other than you could” ignored the significant associated circumstances of practical homelessness, being unemployed and importantly what had occurred since the day of the offending. While these factors may also be characterised as issues of weight and therefore could appropriately be dealt with as particulars of the manifestly excessive ground, the conclusion of the sentencing Judge that the appellant offended for no other reason than she could, was contrary to the uncontested material and submissions before the Court. In my view, the conclusion of the Local Court on this point does constitute error which is relevant to both the question of whether it was unjust to fully restore the suspended sentence and whether the sentence for the re-offending was unreasonable or unjust.
There was one matter which in my view lessened the force of the appellant’s submissions. The sentencing Judge was clearly sceptical of the fact the appellant had used a hire car. When counsel for the appellant was asked about this in the Local Court he answered in terms of the appellant not making wise choices when affected by substances.[37] Like the sentencing Judge, I do not think this was a satisfactory answer. However a review of the transcript of the proceedings indicates that counsel may well have thought it was a satisfactory explanation, given there appeared to be acceptance, express or implied, of the history of drug use associated with the appellant’s offending, because well before the offending constituting the breach she was previously on an order not to consume illicit drugs.
Counsel for the appellant pointed out that there was no evidence or material before the Local Court indicating who had paid for the hire car and thus his Honour should not have drawn an adverse inference against the appellant. I do not find any error in the sentencing Judge’s approach to the hire car, which is effectively the second error alleged by the appellant. In my view the sentencing Judge could have expected some further material from counsel on that point, however that one unsatisfactory point does not justify a finding that effectively rejected the balance of the remaining and prevailing uncontested mitigating material before the Court.
The store receipt, Exhibit P5 contained a list of the items stolen which counsel for the appellant characterised as groceries, including hygiene products, beauty products, underwear, hair dye and similar items.[38] The sentencing Judge characterized the list as “a very middle class and self-indulgent shopping list… ”.[39] The sentencing Judge identified a number of items which appeared to be mostly foodstuffs, dog food and some of the other items described above by the appellant’s counsel.[40] While the nature of the goods may have been a neutral matter in terms of assessing the gravity of the offending, in the face of no facts or submissions to the contrary, there is little or no material on which to make a positive finding of greed, if that was what the sentencing Judge meant by the finding of “a very middle class and self-indulgent shopping list.”
Counsel for the respondent on appeal pointed out that during one exchange between counsel for the appellant and the sentencing Judge, her counsel said, “Objectively, these are groceries for somebody – and I hear what your Honour says about the hire car, so I’m not jumping on the violin in terms of need rather than greed.”[41] In the context it would be wrong to treat those words as a concession that the offending was motivated by greed.
Those words were said after an acknowledgment by counsel that the sentencing Judge was unimpressed with the hire car and in that light counsel would not take that issue further. Counsel was communicating to the sentencing Judge that whatever the case, he would not take the matter further.[42]
As to the final suggested error, if the only material supporting rehabilitation was the Strong Steps letter, it would be reasonable to readily agree with the sentencing Judge’s conclusion that a letter which merely confirmed her attendance for assessment, was “difficult to see [that] as a powerful commitment to a life of sobriety of any sort”.[43] The uncontested additional matters relevant to rehabilitation, namely employment since July 2020, finding housing, re-engagement with family and taking on a pro-social and healthy lifestyle were far more significant than how they were characterised by the sentencing Judge, as a “potential for rehabilitation; but that’s all.”[44] Between February and November 2020, there was clearly demonstrated rehabilitation or factors indicative of favourable prospects which was acknowledged by the prosecutor in the Local Court, who referred to the “positive steps that have been taken since the offending that has occurred in February.”[45] These were factors relevant to both the full restoration of the suspended sentence and the sentence for the breaching offence.
The rejection of the identified and uncontested matters put in mitigation lead me to the conclusion that this ground is made out. I acknowledge however, some incomplete material before the sentencing Judge or some miscommunication with respect to the hire car. The errors identified are not however of a kind that could be said to make no difference to the outcome, such that the appeal should be dismissed in any event under s 177(2)(f) of the Local Court (Criminal Procedure) Act.
I have considered whether to remit the matter to the Local Court to be re-heard by another Judge, however given the strong overlap between all of grounds which also inform the manifestly excessive ground, in the interests of finalising the matter I will mitigate the penalty as provided by s 177(2)(b) of the Local Court (Criminal Procedure) Act.
Ground 2: Error of Law
This ground principally refers to an alleged failure by the sentencing Judge to apply the principles established by Bukulaptji v The Queen (‘Bukulaptji’)[46] which apply when a court is determining whether to restore the sentence held in suspense. The ground further alleges failing to impose a sentence which is just in all of the circumstances.
As the respondent points out, central to the exercise of the discretion upon a finding of a breach of a suspended sentence is s 43(7) of the Sentencing Act which directs a court to restore the sentence “unless it is of the opinion that it would be unjust to do so”. As emphasized in Bukulaptji and applied in subsequent cases,[47] Riley J explained the provision as follows:[48]
Section 43(7) discloses a clear legislative policy that the starting point for a court dealing with a breach of a condition of a suspended sentence is that the offender should serve the sentence which was suspended. The fact that the sentence is suspended and hangs over the head of the offender provides an inducement to the offender to comply with the terms of the order and maintain a law-abiding life. The sanction for failure is the restoration of the obligation to serve the suspended term of imprisonment. That being so a court “will not lightly interfere with the ordinary consequence of a breach.” For a court to fail to respond appropriately to breaches would be to undermine the integrity of the sentencing regime and reduce the deterrent impact of such sentences upon others [citations omitted].
The non-exhaustive list of considerations which may be taken into account to determine whether it is unjust to restore the sentence, bearing in mind s 43(7) requires consideration of whether it would be unjust to do so “in view of all the circumstances which have arisen since the suspended sentence was imposed” were listed by Riley J in Bukulaptji:[49]
(a) the nature and terms of the order suspending the sentence;
(b)the nature and gravity of the breach and, particularly, whether the breach may be regarded as trivial;
(c)whether the breach evinces an intention to disregard the obligation to be of good behaviour or to abandon any intention to be of good behaviour;
(d)whether the breach demonstrates a continuing attitude of disobedience of the law;
(e)whether the breach amounted to the commission of another offence of the same nature as that which gave rise to the suspended sentence;
(f)the length of time during which the offender observed the conditions;
(g)the circumstances surrounding or leading to the breach;
(h)whether there is a gross disparity between the conduct constituting the breach and the sentence to be restored;
(i)whether the offender had been warned of the consequences of a breach; and
(j)the level of understanding of the offender of his obligations under the terms of the order suspending the sentence and of the consequences of a breach.
This could not be said to be a trivial breach. It was offending of a similar kind involving dishonesty and property. The stolen goods were immediately recovered. The appellant had continued to struggle with drugs and at times since the suspended sentence was imposed had consumed them, hence although not charged with a conditional breach, drug use was not totally irrelevant. There were no therapeutic conditions such as counselling or rehabilitation attached to the suspended sentence, hence it was perhaps unsurprising that her attempts to deal with her drug use may have initially failed, nevertheless she continued to fail to comply with that term of the suspended sentence for some of the time.
By the time the breach was dealt with in November 2020, much had changed from 2018 when the suspended sentence was imposed and from February 2020 when the appellant re-offended. The offending was 14 months into the 18 month period which while not contumelious, taken in isolation could be viewed as a continued attitude of disobedience of the law.[50] By the time the re-offending was dealt with, the suspended sentence was no longer in force. As well as the factors pointed out by Riley J in Bukulaptji, s 43(7) of the Sentencing Act requires consideration of “all of the circumstances that have arisen since the suspended sentence was imposed.” To have regard to the “circumstances that have arisen” here includes having appropriate regard to the lapse of time, the practical steps taken towards rehabilitation or the increased favourable prospects. In my view this ground is made out, both in respect of the decision to fully restore the sentence and the decision to impose a sentence of imprisonment, to be actually served.
Ground 1: Manifestly Excessive
The relevant principles applicable to this ground are well known. It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in the exercise is shown. The presumption is that there is no error. The appellate court does not interfere with the sentence imposed unless it is shown that the sentencing Judge was in error. It must be shown that the sentence was clearly and not just arguably in error.[51]
Counsel for the appellant emphasized how Gleeson CJ, Gummow and Callinan JJ explained the principles of appeal against a discretionary judgment in Markarian v The Queen:[52]
As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well-known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King, itself an appeal against sentence. Thus is specific error shown? (Has there be some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender’s appeal, as “manifest excess”, or in a prosecution appeal, as “manifest inadequacy.” (citations omitted)
Given my conclusions under Grounds 2 and 3, I have come to the conclusion that the resulting sentence was unreasonable and unjust.
Clearly the appellant had a history of this type of lower level property offending associated with a period on drugs and a number of related features such as lack of housing, estrangement from family and financial difficulties. None of that excused the criminal behaviours she exhibited by the offending.
Re-offending in the same way while on a suspended sentence will as a matter of principle generally lead to restoration, however s 43(7) of the Sentencing Act requires that all of the circumstances since the imposition of the suspended sentence be considered. As discussed already in relation to the other grounds this includes having regard to the prospects of or demonstrated rehabilitation, especially after the time frame set out already. The fact the appellant used a hire car should not engulf all other relevant considerations to the level that it has. These principles of prospects apply, with appropriate modifications of context to both types of orders that were made.
Although a term of imprisonment was within discretion, when considering whether to suspend the sentence or a part of it, a court is required to consider again all of the same factors to determine whether the sentence should be suspended.[53]
Section 40(3) of the Sentencing Act enshrines the principle that a suspended sentence cannot be imposed unless the sentence of imprisonment, if unsuspended, would be appropriate in the circumstances. The Court must then be satisfied that “it is desirable to do so in the circumstances”.[54] The rationale for imposing a suspended sentence has been explained in terms of giving an offender “a last chance to avoid imprisonment by leading a law abiding life”.[55]
There may be a variety of reasons which a court thinks it appropriate to suspend a sentence in whole or in part, including to provide an inducement to the offender to reform.[56] The appellant had been given a chance by way of a suspended sentence for the offending dealt with in file 21823908. That remains a significant consideration, but it is not the only consideration. The Local Court was still obliged to have regard to the overall circumstances of the case, the gravity of the offending and all that had occurred since. As already discussed, many of the overall circumstances were favourable to her actual and potential rehabilitation. In emphasizing the importance of rehabilitation, in Hogan v Hinch,[57] French CJ, said “Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interests.”
Had not so much time elapsed, I may have made different orders, including obtaining assessments before sentence, however I must sentence according to the current context. As the appellant now has greatly improved prospects, I will not order supervision but ensure she is on the same order as the previous sentence, which may of course be varied by application if necessary.
Orders
1. The appeal is allowed.
2. The restoration of the sentence of four months imprisonment on file 21823908 is quashed.
3. The sentence of imprisonment for two months on file 22013305 is quashed.
4. Pursuant to s 177(2)(b) of the Local Court (Criminal Procedure) Act, the breach on file 2182908 is found proven but no further action is taken.
5. On file 22013305 the conviction remains, and the appellant is sentenced to two months imprisonment to be suspended forthwith. There will be an operational period of one year from today, during which she is not to commit another offence punishable by imprisonment or she may serve up to two months.
6. The appellant will be subject to the following condition:
She is not to consume illegal drugs and is to comply with any request from a police officer or a probation and parole officer to be tested for the presence of illegal drugs. The test may be in any manner deemed appropriate by the police officer or the probation and parole officer.
7. Due to the current restrictions, both counsel have agreed to accept this judgment and the orders set out above by email. If either party is seeking costs, application may be made in writing within 14 days from 30 June 2021 by forwarding an application or consent order to my Chambers. If necessary, further directions will be made about costs. The appellant is to sign the suspended sentence within 14 days from 30 June 2021.
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[1] For example see Lawrie v Stokes (1951) NTJ 65; Federal Commissioner of Taxation v Arnhem Aircraft EngineeringPty Ltd (1987) 47 NTR 8; Warford v Firth [2017] NTSC 75; Court v Armstrong [2019] NTSC 38.
[2] Respondent’s summary of submissions, 7 April 2021 at [4], citing Lorenzetti v Brennan, LCA 14 of 2020 (22013327); LCA 15 of 2020 (22014875) and LCA 16 of 2020 (2206657).
[3] Lorenzetti v Brennan [2021] NTSCFC 3.
[4] Local Court (Criminal Procedure) Act 1928 NT, s 168.
[5] Notice of Suspended Sentence of 4 December 2018, Police v Jessica Louise Lewis (Local Court of the Northern Territory, file 21823908).
[6] Transcript of Proceedings, Police v Jessica Louise Lewis (Local Court of the Northern Territory, 27 November 2020) (‘Transcript’) at 11.
[7] Transcript, Local Court, 27 November 2020 at 4, Exhibit P3.
[8] Transcript, Local Court, 27 November 2020 at 4, Exhibit P2.
[9] Transcript, Local Court, 27 November 2020 at 4, Exhibit P3.
[10] Transcript, Local Court, 27 November 2020 at 4, Exhibit D3.
[11] Transcript, Local Court, 27 November 2020 at 4, Exhibit D4.
[12] Transcript, Local Court, 27 November 2020 at 7, Exhibit P5.
[13] Transcript, Local Court, 27 November 2020 at 5.
[14] Transcript, Local Court, 27 November 2020 at 5.
[15] Transcript, Local Court, 27 November 2020 at 5-6.
[16] Transcript, Local Court, 27 November 2020 at 6-7.
[17] Transcript, Local Court, 27 November 2020 at 7.
[18] Transcript, Local Court, 27 November 2020 at 8.
[19] Transcript, Local Court, 27 November 2020 at 10.
[20] Transcript, Local Court, 27 November 2020 at 11.
[21] Transcript, Local Court, 27 November 2020 at 11.
[22] Transcript, Local Court, 27 November 2020 at 12.
[23] Transcript, Local Court, 27 November 2020 at 12.
[24] Transcript, Local Court, 27 November 2020 at 12.
[25] Transcript, Local Court, 27 November 2020 at 12-13.
[26] Appellant’s outline of submissions, 19 March 2021 at [41]-[42].
[27] Appellant’s outline of submissions, 19 March 2021 at [43].
[28] Appellant’s outline of submissions, 19 March 2021 at [44]; Transcript, Local Court, 27 November 2020 at 12.
[29] Appellant’s outline of submissions, 19 March 2021.
[30] Respondent’s summary of submissions, 7 April 2021 at [37]; Transcript, Local Court, 27 November 2020 at 10.
[31] Hasan v The Queen (2010) 31 VR 28 at [20]-[21]; Forrest v The Queen [2017] NTCCA 5; 267 A Crim R 494 at [42]; The Queen v Roe [2017] NTCCA 7; 40 NTLR 187.
[32] [2017] NTCCA 7; 40 NTLR 187 at [58].
[33] Brown v The Queen [2014] NSWCCA 335 at [29]; R v Henry (1999) 46 NSWLR 346; 106 A Crim R 149.
[34] Mirko Bagaric et al, Sentencing in Australia (Thomas Reuters, 6th ed, 2018) at 448-451; R v Whyte [2004] VSCA 5, 7 VR 397 at 404 per Winneke P; R v Katsoulas [2008] VSCA 278; Scook v The Queen [2008] WASCA 114; 185 A Crim R 164; Gok v The Queen [2010] WASCA 185; R v Law; Ex parte Attorney-General (QLD) [1995] QCA 444; 84 A Crim R 142 at 145; R v Todd [1982] 2 NSWLR 517 at 519-520 per Street CJ.
[35] [1998] 4 VR 588; 94 A Crim R 329.
[36] [2004] VSCA 5; (2004) 7 VR 397 at 404.
[37] Transcript, Local Court, 27 November 2020 at 5.
[38] Transcript, Local Court, 27 November 2020 at 5.
[39] Transcript, Local Court, 27 November 2020 at 12.
[40] Transcript, Local Court, 27 November 2020 at 11.
[41] Transcript, Local Court, 27 November 2020 at 6.
[42] Transcript, Local Court, 27 November 2020 at 6.
[43] Transcript, Local Court, 27 November 2020 at 12.
[44] Transcript, Local Court, 27 November 2020 at 13.
[45] Transcript, Local Court, 27 November 2020 at 10.
[46] Bukulaptji [2009] NTCCA 7; (2009) 24 NTLR 210.
[47] See, for example, Latu v McPherson; Latu v Marshall [2009] NTSC 67; Latu v McPherson [2010] NTSC 14.
[48] Bukulaptji [2009] NTCCA 7; 24 NTLR 210 at [33].
[49] Bukulaptji [2009] NTCCA 7; 24 NTLR 210 at [35].
[50] Fejo v Sims [2014] NTSC 9 at [27].
[51] AK v The Queen [2021] NTCCA 04; Whitehurst v The Queen [2011] NTCCA 11; Emitja v The Queen [2016] NTCCA 4; 39 NTLR 159 at [39]; JF v The Queen [2017] NTCCA 1 at [49].
[52] [2005] HCA 25; 228 CLR 357 at [25].
[53] Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [74]-[81].
[54] Sentencing Act, s 40(1).
[55] R v Buckman (1988) 47 SASR at 303-304 per King CJ.
[56] Wilson v Taylor (1997) 138 FLR 186 at 194, R v Perry [1975] TAS SR 62 at 75; Davies v Deverell (1992) 1 Tas R 214 at 218-220; Bukulaptji v The Queen [2009] NTCCA 7; 24 NTLR at [31].
[57] [2011] HCA 4; 243 CLR 506 at [32].
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