Moore v Marks
[2016] TASSC 33
•11 July 2016
[2016] TASSC 33
COURT: SUPREME COURT OF TASMANIA
CITATION: Moore v Marks [2016] TASSC 33
PARTIES: MOORE, Luke
PARKER, John
v
MARKS, Aaron Michael
FILE NO: 845/2016
DELIVERED ON: 11 July 2016
DELIVERED AT: Hobart
HEARING DATE: 30 June 2016
JUDGMENT OF: Blow CJ
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Custodial orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Application that offender be ordered to serve suspended sentence of imprisonment – Whether "unjust" to activate suspended sentence.
Sentencing Act1997 (Tas), s 27.
Tanner v Brown [2011] TASSC 59, referred to.
Aust Dig Criminal Law [3388]
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentencing – Whether manifestly inadequate – Domestic violence, driving and drug offences – Partly suspended and otherwise concurrent sentence of imprisonment.
Aust Dig Magistrates [1349]
REPRESENTATION:
Counsel:
Applicants: S Thompson
Respondent: E G Hughes
Solicitors:
Applicants: Director of Public Prosecutions
Respondent: Rae & Partners
Judgment Number: [2016] TASSC 33
Number of paragraphs: 24
Serial No 33/2016
File No 845/2016
LUKE MOORE and JOHN PARKER v
AARON MICHAEL MARKS
REASONS FOR JUDGMENT BLOW CJ
11 July 2016
This is a motion for the review of some sentencing orders made by a magistrate, Ms S Cure, on 8 March 2016. On 4 December 2015 she sentenced the respondent, Aaron Marks, to four months' imprisonment, wholly suspended on condition that he commit no offence punishable by imprisonment for a period of 18 months thereafter. On 20 December 2015 and 12 January 2016 the respondent breached that condition by committing offences punishable by imprisonment. On 8 March 2016, he pleaded guilty to those new offences. The prosecutor sought the activation of the earlier suspended sentence. However the learned magistrate concluded that its activation would be unjust, and instead imposed a substituted sentence of four months' imprisonment, backdated to commence on 19 January 2016, with two months thereof suspended. For the new offences, she sentenced him to six months' imprisonment, backdated to 19 January 2016, with four months thereof suspended. She ordered that the two sentences be served concurrently.
The applicants are police prosecutors. Their contentions are as follows:
· That the sentence for the new offences (a concurrent sentence of six months' imprisonment with four months thereof suspended) was manifestly inadequate.
· That the learned magistrate erred in concluding that it would be unjust to activate the earlier suspended sentence.
· That the substituted sentence (four months' imprisonment with two months thereof suspended) was manifestly inadequate.
The first group of offences
The suspended sentence imposed on 4 December 2015 related to 16 offences committed between December 2014 and August 2015. The most serious charges were four counts of driving whilst disqualified, one count of assault, and three counts of driving with a prescribed illicit drug present in the respondent's blood. Details of the 16 offences, in chronological order, are as follows:
· On 22 December 2014 the respondent committed four offences: driving while disqualified, using an unregistered motor vehicle, using a motor vehicle with no premium cover, and dishonestly using a plate to create the false impression that the vehicle's use on public streets was authorised. Police officers observed him driving a car in Kings Meadows. He had been disqualified from driving by magistrates for 18 months as from 29 November 2013, and for 6 months as from 3 October 2014. The vehicle's registration had expired. The registration plates did not belong to the vehicle he was driving. He told the police that they were on the car when he bought it. He said he was driving to McDonald's to get some food.
· On 4 March 2015 the respondent argued with his partner, Ms Marshall. She threw some coffee at his back. He retaliated by punching her to the left upper arm with a clenched fist. Their child, who was 2 months old, was in the house, but Ms Marshall had moved the child to another room before the assault. There was no need for medical attention. The respondent left the house. When interviewed by the police he admitted what he had done.
· On 30 March 2015 the respondent drove whilst disqualified again. This time he was in Bridport.
· On 7 April 2015 the respondent committed two offences: driving while disqualified, and driving with a prescribed illicit drug present in his blood. The police intercepted him when he was driving through Kings Meadows at 11.40pm. There was THC in his blood.
· On 16 April 2015 the respondent committed a breach of bail by failing to appear in the Launceston Court of Petty Sessions when required to do so.
· On 15 May 2015 the respondent committed three offences: driving while disqualified, driving an unregistered vehicle, and driving with a prescribed illicit drug present in his blood. The police intercepted him when he was driving through Prospect. There was THC in his blood.
· On 20 May 2015 the respondent failed to appear in the Launceston Court of Petty Sessions, in contravention of a notice that he had been served with.
· On 2 August 2015 the respondent committed two offences: driving while unlicensed, and driving with a prescribed illicit drug present in his blood. His disqualification had expired, but he has never held a licence, and he was not eligible to hold one because of unpaid fines. THC was again found in his blood. He was intercepted by police officers who were conducting a random breath test in Prospect. He said that he was going to the shops to get tea.
On the charges of using an unregistered motor vehicle, using a motor vehicle with no premium cover, and dishonestly using a plate, the learned magistrate simply recorded convictions. In relation to the other 12 charges, she imposed the sentence of four months' imprisonment, wholly suspended on condition that he not commit another offence punishable by imprisonment within 18 months. She also ordered him to complete the Family Violence Offender Intervention Program, fined him $500, and disqualified him from driving for 18 months with effect from 19 October 2015.
The second group of offences
The respondent committed further offences on and about 20 December 2015 and 12 January 2016.
On and about 20 December 2015 he committed nine offences: destroying property, assault, breach of a family violence order, driving while disqualified, using an unregistered motor vehicle, using an uninsured motor vehicle, riding a motorcycle without a helmet, using cannabis, and selling cannabis. On that day he had an argument with Ms Marshall at her home. She began to phone the police on her mobile phone but, because of fear, she handed it to the respondent. He took it outside, smashed it, came back in, said nothing, kicked her to the stomach, and then punched her to the stomach. Their child was in her arms. Her sister arrived and took the child to a neighbour. The respondent rode off on an unregistered uninsured motorcycle, without a helmet. The police intercepted him. He had a backpack which the police searched. It contained 24 individually packaged foils of cannabis. Their total weight was 48 grams, but that included the weight of the foil. The police examined the respondent's mobile phone, and found messages from people asking to purchase cannabis during November and December. He made admissions as to using and selling the substance. On the day in question he was a disqualified driver as a result of the disqualification imposed by the learned magistrate on 4 December. A family violence order had been made on 4 March 2015 and was still in force. That order required him not to assault Ms Marshall.
The respondent was granted bail on 21 December 2015. There was a bail condition requiring him not to contact or approach Ms Marshall, directly or indirectly, except for the purposes of arranging contact with his child through his mother. On the same day, a new interim family violence order was made. It required the respondent, amongst other things, not to go within 20 metres of the boundary of the premises where Ms Marshall was living, and not to assault her.
On 12 January 2016 the respondent committed five more offences. He breached his bail conditions, first by sending text messages to Ms Marshall, and then by approaching her to discuss arrangements for contact with their child. He breached the interim family violence order by going to her home. He went in uninvited, and assaulted her by attempting to stomp on her toes, and by striking her to the face. That assault also amounted to a contravention of the interim family violence order.
All of the offences committed by the respondent on and about 20 December 2015 and 12 January 2016 were offences punishable by imprisonment, except for the offence of riding a motorcycle without a helmet. Thus the respondent had committed 13 breaches of the condition of the suspended sentence imposed on 4 December 2015. However, as I have said, the learned magistrate decided that it would be unjust simply to activate that sentence. Instead, by way of imposing a substituted sentence under s 27(4C)(b) of the Sentencing Act 1997, she made orders as follows:
· A sentence of four months' imprisonment as from 19 January 2016, with two months thereof suspended for a period of 18 months.
· A probation order, for a period of 18 months, with special conditions, including a condition that the respondent be assessed for, and if suitable complete, the Family Violence Offender Intervention Program.
The learned magistrate then proceeded to sentence the respondent for the new offences. Her orders were as follows:
· A conviction on the charge of riding a motorcycle without a helmet.
· The sentence of six months' imprisonment, backdated to 19 January 2016, with four months thereof suspended, and with the effective two months of the sentence to be served concurrently with the effective part of the substituted sentence.
· An order disqualifying him from driving for 18 months as from 8 March 2016.
The respondent
When the orders under review were made, the respondent was 20 years old. Before December 2015 he had been dealt with by magistrates, from about the age of 13, for dozens of offences, including three assaults, two offences of driving while disqualified, 18 offences of driving while unlicensed, one crime of aggravated armed robbery, one crime of attempted aggravated armed robbery, eight burglaries, including aggravated burglaries, 13 crimes of stealing, 23 offences of motor vehicle stealing, and one charge of possessing a controlled plant or its products. He committed all sorts of other offences, but I need not mention them all. I have drawn no distinction between offences for which convictions were or were not imposed. He had been the subject of a number of probation orders, community service orders, and sentences of detention, suspended and otherwise, under the Youth Justice Act 1997. He had not previously been sentenced to imprisonment as an adult.
The learned magistrate was provided with a pre-sentence report dated 30 November 2015. It revealed the following things. The respondent had a turbulent childhood, receiving limited parental guidance and discipline. He commenced abusing alcohol and cannabis when aged 11. His mother had overcome a drug problem and become a stable, positive influence in his life during the past year. The respondent and Ms Marshall were said to be maintaining amicable relations, with the respondent having regular access to their child. He was hoping for a reconciliation with Ms Marshall. He had returned home to live with his mother and two younger brothers. He had made a conscious effort to make changes to his choice of associates in the preceding six months. He had been employed only once – for four months in 2013 as a renderer. The business closed down. He said he was motivated to work for the first time in years. He was dependent on Centrelink benefits, which he spent on cannabis and cigarettes. He had been diagnosed as suffering from attention deficit hyperactivity disorder at age 10, had taken medication for that disorder for a time, and had ceased its use. His mother said he had problems managing his anger, and had symptoms of depression, but he was seeing a doctor about those matters. He had sought an appointment with an Alcohol and Drug Services social worker. He had been buying and selling cars since age 15, but no longer had access to a car, and was using public transport for the first time in his life. He considered that he had matured, and realised that he needed to make changes to his behaviour and his attitude. He did not want to go to prison, or to become comfortable in the prison environment. He had not committed any dishonesty offences for some time. He had a history of non-compliance with court orders. His performance in relation to the completion of community service orders had deteriorated. He required a high level of intervention by the probation service. He appeared to have made some positive changes in recent months, and was "at a crossroads".
When sentenced, the respondent had been in custody since 21 January. His sentences were backdated to 19 January to give credit for days spent in custody in December 2015. His counsel told the learned magistrate that he had shown a dramatic improvement during the period from 21 December, when he was granted bail, to 21 January, when he was remanded in custody. She provided the learned magistrate with a letter from a social worker confirming that he had re-engaged with Alcohol and Drug Services. She provided a copy of an email from the respondent's previous employer, saying that he was willing to employ him again on his release from custody. She told the learned magistrate that the respondent was in fear in relation to imprisonment at Risdon, and wanted to pursue his rehabilitation; that on 12 January Ms Marshall had invited him to come to her home and told him that he could take the child out for his first birthday, but had changed her mind when he arrived there; that on 20 December, after the respondent started to ride away on the unregistered motorcycle, he turned around and went back so that the police would find him at the property; and that it was the respondent who phoned the police on that occasion.
Unjust to activate the suspended sentence?
The relevant provisions of the Sentencing Act concerning suspended sentences can be summarised as follows:
· "If a court makes an order suspending the whole or a part of a sentence of imprisonment, the order is subject to the condition that the offender does not commit another offence punishable by imprisonment during the period the order is in force": s 24(1).
· If an offender breaches a condition of a suspended sentence, an application may be made for an order activating the suspended sentence: s 27(1).
· As a general rule, if the court is satisfied that the offender has been found guilty of a new offence punishable by imprisonment, "the court must activate the sentence of imprisonment that is held in suspense and order the offender to serve it": s 27(4B).
· If the court is of the opinion that such an order would be "unjust", the court may instead activate part of the suspended sentence, impose a substituted sentence, vary the conditions relating to the suspension of the sentence, or make no order: s 27(4C).
The considerations that may be relevant when a court has to determine whether the activation of a suspended sentence would be unjust include "the offender's attempts at rehabilitation, the seriousness of the offences giving rise to the breach, whether those offences are similar in character to that which gave rise to the suspended sentence, and the time lapse from the imposition of the suspended sentence to when the offences were committed": Tanner v Brown [2011] TASSC 59 at [95].
The following matters weighed against a determination that the activation of the suspended sentence would be unjust:
· The suspended sentence related in part to an assault on Ms Marshall and four offences of driving while disqualified. The subsequent offences included two assaults on Ms Marshall and one offence of driving while disqualified.
· The offences committed on 20 December, which included assault and driving while disqualified, were committed only 16 days after the suspended sentence was imposed. The sentence was to have been held in suspension for 18 months.
· The offences committed on 12 January, which included another assault, were committed less than six weeks after the suspended sentence was imposed, and while the respondent was on bail in relation to the 20 December offences.
· The assaults were serious in that they involved contraventions of family violence orders, contraventions of bail conditions, repeat offending, and exposure of an infant to domestic violence.
· The information as to the possession and sale of cannabis in November and December suggested that, at least in relation to cannabis, the respondent had made little progress towards rehabilitation by 20 December 2015.
In my view it is very significant that the clear policy of the legislation is that suspended sentences should ordinarily be fully activated when an offender re-offends by committing an offence punishable by imprisonment. Departures from that general rule tend to reduce the effectiveness of suspended sentences as a form of deterrence, and to erode public respect for the courts. In this case, I consider that the learned magistrate failed to give proper weight to those considerations. It is true that there was material before her which indicated a desire for rehabilitation on the part of the respondent, substantial progress in relation to offences of dishonesty, the initiation of contact with Alcohol and Drug Services, and prospects for help from his mother and an employer. However, having regard to the nature of the original offences and the breach offences, and the seriousness and timing of the breach offences, I consider that it was not reasonably open to the learned magistrate to conclude that it was unjust to activate the suspended sentence of four months' imprisonment.
The sentence for the new offences
As I have explained, the sentence of six months' imprisonment, with four months thereof suspended, related to 13 of the 14 offences committed by the respondent on 20 December 2015 and 12 January 2016. I need not repeat all that I have said as to the circumstances of those offences and the circumstances of the respondent. The applicants contend that that sentence was manifestly inadequate. It is therefore necessary for me to consider whether it was "unreasonable or plainly unjust": House v The King (1936) 55 CLR 499 at 505.
Section 27(6)(b) of the Sentencing Act provides that, "If a court orders an offender to serve a term of imprisonment that has been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served … cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court."
The learned magistrate circumvented that subsection by imposing a substituted sentence for the original offences and then imposing a concurrent sentence for the breach offences. However the subsection indicates an underlying legislative policy that suspended sentences, when activated, should not ordinarily be served concurrently with other prison sentences. If activated sentences are made concurrent with other prison sentences, then the effect of suspended sentences as a means of deterrence will be eroded, and the public will tend to lose respect for the courts.
In my view the sentence in question, if it had not been a concurrent sentence, could not be regarded as manifestly inadequate. The head sentence of six months was not out of proportion to the seriousness of the offending. The suspension of four months of the sentence was appropriate having regard to the respondent's prospects of rehabilitation.
However I think the learned magistrate erred by ordering that the sentence for the new offences was to be served concurrently with the substituted sentence for the old offences. The practical effect of that order was to place the respondent in the same position that he would have been in if she had imposed a wholly suspended sentence of four months' imprisonment for the new offences. In my view the new offences, in all the circumstances, were so serious that some additional period of incarceration was called for. That is to say, I consider that it was unreasonable for the learned magistrate not to have imposed a cumulative prison sentence. The prison sentence that she imposed, because it was partly suspended and otherwise concurrent, was manifestly inadequate.
Conclusion
In my view justice will be done if I quash the substituted sentence, make no order in relation to the sentence for the new offences, and now activate the suspended sentence pronounced on 4 December 2015. The period that the respondent spent in prison in January, February and March will then be treated as service of the unsuspended two months of the six-month sentence pronounced on 8 March. The respondent will have to go back into custody today, and serve the four-month sentence that was pronounced but suspended on 4 December.
For these reasons, I have decided to make the following orders:
1 The motion to review is allowed.
2The order that the two sentences of imprisonment imposed on 8 March 2016 be served concurrently is quashed.
3The substituted sentence of four months' imprisonment, with two months thereof suspended, imposed on 8 March 2016, is quashed.
4I activate the suspended sentence of four months' imprisonment imposed by the learned magistrate on 4 December 2015 and order the respondent to serve it, commencing immediately.
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