Maynard v Lane
[2011] TASSC 33
•1 July 2011
[2011] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: Maynard v Lane [2011] TASSC 33
PARTIES: MAYNARD, Justin Richard
v
LANE, Richard
FILE NO/S: 378/2011
DELIVERED ON: 1 July 2011
DELIVERED AT: Hobart
HEARING DATE: 29 June 2011
JUDGMENT OF: Evans J
CATCHWORDS:
Criminal Law – Sentence – Sentencing procedure – Concurrent, cumulative and additional sentences – Date of commencement – Pre-sentence custody period unrelated to offences for which sentenced – Backdating sentence.
Geale v Tasmania [2009] TASSC 28, followed.
Aust Dig Criminal Law [3327]
Criminal Law – Appeal and new trial – Appeal against sentence – Grounds for interference – Absence of reasonable precision.
R v Bugmy [2004] NSWCCA 258, applied.
Aust Dig Criminal Law [3519]
REPRESENTATION:
Counsel:
Applicant: G A Richardson
Respondent: L A Mason
Solicitors:
Applicant: G A Richardson
Respondent: Director of Public Prosecutions
Judgment Number: [2011] TASSC 33
Number of paragraphs: 10
Serial No 33/2011
File No 378/2011
JUSTIN RICHARD MAYNARD v RICHARD LANE
REASONS FOR JUDGMENT EVANS J
1 July 2011
On 17 May 2011, following a defended hearing in the Court of Petty Sessions, the applicant was convicted of a number of offences committed between 7 and 11 August 2009. It was not disputed that the applicant was thereby in breach of a condition of the suspension of a sentence of three months' imprisonment that had been imposed on him on 14 May 2009. It accordingly fell to the learned sentencing magistrate, Chief Magistrate Hill, to both sentence the applicant for his August 2009 convictions, and deal with an application by the prosecutor to invoke the suspended sentence of three months' imprisonment.
As recorded in the documents of the Court of Petty Sessions, his Honour found that a condition of the suspended sentence had been breached, and ordered that the sentence of three months' imprisonment be put into effect, commencing on 17 May 2011. With respect to the August 2009 convictions, his Honour imposed a sentence of two months' imprisonment, concurrent with that sentence of three months' imprisonment.
On the face of the above it was, at first glance, surprising that the applicant filed a notice to review the concurrent sentence of two months' imprisonment imposed on him. However a perusal of the comments made by his Honour when imposing that sentence shows that there is good reason for the notice to review. Before setting out relevant portions of those comments I mention that in the course of the sentencing hearing, Mr Richardson, counsel for the applicant, told his Honour that the applicant had been held in custody in respect of outstanding charges, unrelated to those being dealt with by his Honour, from 15 April 2010 until 9 December 2010, which is a period of 238 days, or six days less than eight months. Mr Richardson cited the decision of the Court of Criminal Appeal in Geale v Tasmania [2009] TASSC 28 to his Honour as being authority that any prison sentence to be imposed should come out of the time that the applicant had spent in custody. His Honour responded, "I don't need any persuasion that those matters should be taken into account".
Consistent with Geale, par[63], when sentencing the applicant it was incumbent upon his Honour to take into account the 238 days that the applicant had spent in custody, and, again consistent with that decision, pars[45], [53], [54] and [56], the only appropriate way of doing so was by backdating any sentence of imprisonment that was imposed.
The following extract from his Honour's comments when sentencing the applicant demonstrates the confusion he created by adopting an approach that did not heed the authority of Geale:
"HIS HONOUR: … The question of sentencing in these matter is a somewhat difficult one, particularly complicated I think, by the lengthy period that this defendant served on remand as I have just discussed with his counsel, for a matter unrelated …
Dealing with [the August 2009 offences] … My own view is that … a period of imprisonment would be appropriate … I think in the general context of this offending those offences which were found proved against him were, I would think, serious ones worthy of a period of imprisonment.
… I think the suspended sentence falls into a different category and I will come to it in a minute, but so far as the offences are concerned that are found proven, … I would have thought that a period of about 6 months imprisonment would have been appropriate if he had been on bail continuously without interruption.
Now, he's served that period, effectively, by being in custody on those other matters As I understand it, he's served 7 months effectively, nearly eight – and that would have been, I would have thought, something in the area of the imprisonment that would have been provided if that hadn't occurred.
So, that leaves the Court in a somewhat difficult position as far as sentencing is concerned. I think the best I can do in relation to those matters is impose a penalty which takes into account effectively that the relevant penalty has almost already been served.
Now, I'll just leave that for a moment and come back to it because I want to deal with the point about the suspended imprisonment. …
I think that period of suspended imprisonment should be imposed. …
So if I deal with that application first, … that sentence is imposed.
That leaves me with the situation of the other matters which I don’t think the defendant should serve additional imprisonment other than that three months, but I do think that the seriousness of the offending should be marked by a period of imprisonment. Mr Richardson, have you got any submissions about the running concurrently of a sentence of imprisonment, taking into account time served and the –
MR RICHARDSON: Well your Honour, in relation to the breach of suspended sentence, is your Honour taking into account the time served?
HIS HONOUR: Yes, I am, but it still – I am and I didn’t want to substitute the sentence because of the period of time –
MR RICHARDSON: No, I understand that –
HIS HONOUR: So my view would be that a period of imprisonment much less than would otherwise have bee imposed to run concurrently with the breach period. Now I am aware that there are some difficulties with that. Do you submit that that’s an order that I can make? It would not exceed the three months for the –
MR RICHARDSON: Your Honour, in my submission an appropriate order would be three months, plus a month or two, taking into account the three months, all of which I take would then have been served.
HIS HONOUR: He will serve the three months.
MR RICHARDSON: So that’s over and above the seven months he’s already served?
HIS HONOUR: Yes, that’s the suspended sentence breach. He will serve that, but he won’t serve any additional imprisonment. Now what I am intending to do, or what I am hoping to do, so that there is no technical difficulty with the sentence is to impose a brief period of imprisonment of say, two months, but run it concurrently.
…
So In relation to the balance of the matters the defendant – and this is because he spent so much period on remand – he is sentenced to a concurrent period of imprisonment of two months."
In result, in relation to the August 2009 offences, it is not clear whether the sentence imposed by his Honour upon the applicant was intended to reflect his comment:
· "that a period of about six months' imprisonment would have been appropriate"; or
· that seven months, nearly eight months, would have been "something in the area of the imprisonment that would have been provided".
Moreover, from the exchange that occurred between his Honour and Mr Richardson towards the end of the above extract, it may be that his Honour imposed a sentence that reflected the time that the applicant had spent in custody, plus two months, that is, a sentence of six days short of ten months.
Plainly the course followed by his Honour was in error, and counsel for the respondent does not suggest otherwise. All aspects of a sentence must be spelt out with reasonable precision, see for example R v Bugmy [2004] NSWCCA 258, par[61], R v JJS [2005] NSWCCA 225, pars[21] – [22], Moefili v Parole Authority of New South Wales (2009) 76 NSWLR 555, par[98], Williams v Marsh (1985) 38 SASR 313, at 319, and Macpherson v Beath (1975) 12 SASR 174, at 180.
With respect, the task faced by his Honour in sentencing the applicant was far from somewhat difficult and particularly complicated. All that was required was for his Honour to determine with precision the period of the sentence to be imposed for the August 2009 convictions and backdate it as appropriate. If the period decided on was more than 238 days, then the sentence should have been backdated 238 days. If the period decided on was less than 238 days, it should have been backdated for that period. This course would have ensured that the court record and the record of the applicant's convictions accurately recorded the penalty imposed on him. There is a marked difference between a sentence of two months' imprisonment to be served concurrently with another sentence, and a sentence of ten months' imprisonment, two months of which is to be served concurrently with another sentence. The course adopted by his Honour created the false impression that an almost nominal penalty was imposed for the August 2009 offences. As to the desirability of preserving the integrity of sentencing records, see Geale, pars[53] and [54]. More significantly, it is most unfair to an offender to fail to specify the precise period of a sentence of imprisonment and backdate it when appropriate. In the absence of this, in the event that the offender later falls to be sentenced for another offence, it is not possible to determine how much of the time the offender had spent in custody had been applied to previous sentences. Moreover, as explained in Geale, par[56], if a sentence is simply shortened rather than backdated, an offender may be wrongly disadvantaged in relation to remissions and parole. Another problem with shortening a sentence without specifying what it would otherwise have been is that the parties are left in a quandary as to whether the sentence should be appealed.
These reasons explain why I allowed this notice to review. The sentence of two months' imprisonment that is the subject of the notice to review is quashed and it is ordered that the sentencing of the applicant be remitted to the learned sentencing magistrate for resentencing.
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