Moore v Salter
[2018] TASSC 18
•24 April 2018
[2018] TASSC 18
COURT: SUPREME COURT OF TASMANIA
CITATION: Moore v Salter [2018] TASSC 18
PARTIES: MOORE, Luke (Senior Sergeant)
BONDE, Mike (1/Constable
GOSS, Ashlee (Acting Sergeant)
BARWICK, Kerryne Amanda
v
SALTER, Michael John
FILE NO: LCA 2869/2017
DELIVERED ON: 24 April 2018
DELIVERED AT: Hobart
HEARING DATES: 1 March 2018
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Orders and convictions – Sentence – Other miscellaneous orders – Suspended sentence of imprisonment – Whether "unjust" to activate suspended sentence – Respondent breached the terms of suspension on numerous occasions by committing a variety of offences over a period of approximately six months and showed a flagrant disregard for the terms of the suspended sentence – Magistrate erred by concluding it was unjust to activate the suspended sentence – Suspended sentence activated.
Sentencing Act 1997 (Tas), s27.
Justices Act 1959 (Tas), s 110(2A), (2AA) and (2AB).
Cannell v Hughes [2014] TASSC 41, followed.
Tanner v Brown [2011] TASSC 59; R v Hayes (1987) 29 A Crim R 452, cited.
Aust Dig Magistrates [1239].
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Appeal against sentence – Crown alleged sentence manifestly inadequate – Magistrate imposed probation order for a number of varied offences – Magistrate misjudged the respondent's prospects of rehabilitation – Magistrate erred in exercise of sentencing discretion – Sentence should have also emphasised specific and general deterrence – Probation order was manifestly inadequate.
Cannell v Hughes [2014] TASSC 41, cited.
Aust Dig Magistrates [1349]
Traffic Law – Offences – Procedure – Sentence and penalty – Crown alleged period of disqualification was manifestly inadequate – Magistrate focused on rehabilitation – Period of disqualification as part of overall sentence not manifestly inadequate.
Road Safety (Alcohol and Drugs) Act1970 (Tas), s 17.
Simon-Brown v Richardson [2011] TASSC 62, cited.
Aust Dig Traffic Law [1217]
REPRESENTATION:
Counsel:
Applicants: S Thompson
Respondent: F McCracken
Solicitors:
Applicants: Director of Public Prosecutions
Respondent: Grant Tucker
Judgment Number: [2018] TASSC 18
Number of paragraphs: 52
Serial No 18/2018
File No LCA 2869/2017
SENIOR SERGEANT LUKE MOORE, 1/CONSTABLE MIKE BONDE,
ACTING SERGEANT ASHLEE GOSS and KERRYNE AMANDA BARWICK
v MICHAEL JOHN SALTER
REASONS FOR JUDGMENT BRETT J
24 April 2018
This motion to review relates to sentencing orders made by Magistrate S Cure on 25 September 2017. On that day, her Honour imposed sentences on the respondent with respect to a number of offences committed between 16 August 2016 and 13 March 2017. The respondent had pleaded guilty to each of the offences. They included family violence offences, assault, offences related to the unlawful possession of a firearm, injuring property and three counts of driving a motor vehicle with a prescribed illicit drug present in blood. In respect of the three driving offences, her Honour imposed a global wholly suspended sentence of four months' imprisonment, and a driving disqualification for a period of nine months. In respect of the balance of the offences, the global sentence imposed was a probation order for a period of 18 months.
Each offence constituted the breach of the conditions of suspension of a sentence of six months' imprisonment, which had been imposed by another magistrate on the respondent on 3 September 2015. That sentence was suspended for a period of two years. All of the offences with which her Honour was dealing had been committed during that period. The prosecution applied for the activation of the said sentence, pursuant to s 27(4) of the Sentencing Act 1997. The fact that each offence constituted a breach of the suspended sentence was conceded by the respondent. However, her Honour declined to activate the sentence, noted that the period of suspension had lapsed, and decided to make no further order with respect to the sentence.
The applicants now move this Court to review each of the said orders. The amended grounds of review raise the following issues:
(a)Ground 1 asserts that the sentence imposed in respect of the offences other than the three driving offences is manifestly inadequate.
(b)Ground 3 asserts that the sentence imposed in respect of the driving offences is manifestly inadequate, in particular, having regard to the length of the disqualification period. No issue is taken with respect to the suspended sentence of four months' imprisonment imposed in respect of those offences.
(c)Grounds 4 and 5 relate to the application to activate the suspended sentence. Ground 4 asserts that no magistrate acting reasonably could have been of the opinion that it was unjust to activate the sentence. If it was not open to the magistrate to form this opinion, then, having regard to the provisions of s 27(4B) of the Sentencing Act, the only order which was then available was one activating the sentence and ordering the respondent to serve it. In the alternative, ground 5 asserts that, if it was open to the magistrate to form the opinion that it was unjust to activate the sentence, then the decision to make no order in respect of the sentence pursuant to s 27(4C)(d), was a manifestly inadequate exercise of the discretion afforded by s 27(4C).
Ground 2 was abandoned by the amendment.
The background and personal circumstances of the respondent
In order to place the respondent's offending in context, it will be useful, before considering the detail of that offending, to examine the material presented to the magistrate as to the respondent's background and personal circumstances.
At the time of sentencing, the respondent was 27 years of age. The magistrate had before her two pre-sentence reports, two reports from the Defendant Health Liaison Service, and information provided in submissions by the prosecutor and defence counsel. This material revealed that the respondent had had a dysfunctional upbringing and had left school without successfully completing year 9. He had two children from a previous relationship, aged 7 and 3. He had been diagnosed and treated for depression, and was a frequent user of cannabis. He had had previous relationships, including with the mother of his children. These relationships were described as volatile and had involved family violence. Some of the offences before the magistrate were family violence offences relating to the mother of the children. The respondent was unemployed at the time of sentencing, but had had employment in the past.
The respondent's record of prior offences was provided to the magistrate. It is a lengthy record. It includes a number of prior offences relating to breaches of family violence orders, assault, firearms and driving offences. Some specific features of the respondent's prior offending, as revealed by the record, are as follows:
· In 2009, when still a youth, he received a suspended sentence of imprisonment for driving whilst his driver's licence was suspended.
· There are seven prior convictions for breaching family violence orders, which are recorded between 2009 and 2010.
· There are prior convictions for common assault in 2009 and 2011, and a conviction for assaulting a police officer in 2011. There is a further conviction for common assault in 2014.
· There are a number of convictions for driving whilst suspended and driving whilst disqualified, which are recorded between 2009 and 2011.
· The respondent had two prior convictions for driving a motor vehicle whilst a prescribed illicit drug is present in his blood. These convictions were recorded in 2014 and 2015 respectively.
· In October 2014, a suspended sentence of imprisonment was imposed on the respondent for various offences which included possession of ammunition and a firearm part when not the holder of an appropriate licence.
· The respondent has been subject to a variety of sentencing orders, including actual and suspended sentences of imprisonment, community service and probation orders. On at least two prior occasions, suspended sentences have been activated because of breach of the terms of suspension, by commission of further offences.
The last sentence imposed prior to the commission of the offences with which her Honour was dealing, was the suspended sentence of six months' imprisonment imposed on 3 September 2015, which was the subject of the application. That sentence was imposed for two counts of assaulting a police officer and one count of threatening a police officer. The magistrate was provided with a document entitled "Facts for the Prosecutor", which was said to state the factual basis upon which the sentence had been imposed. The offences were committed on 29 March 2015, during the course of the respondent's arrest for obstructive conduct in relation to the arrest of another person, who was acting in a disorderly manner. The assaults consisted of the respondent kicking two police officers, each in the leg. He then threatened a number of police officers by telling them that he was going to "get a gun and shoot you all in the fucking head".
The offences
The offences with which her Honour was dealing can be summarised as follows:
· 16 August 2016 – common assault. This assault was perpetrated by the respondent and his brother on the complainant as he was sitting in his car in a carpark. The complainant's partner and a young child were also in the car. The attack seems to have been motivated by a prior family relationship. The respondent's brother punched the complainant to the head, face and upper body several times as he sat in the car. It was asserted that the respondent was liable "on the basis that he knew what his brother was going to do and stood beside him during the assault and made comments that were likely to encourage the offender". It was not asserted that the respondent had actually applied force to the complainant himself.
· 30 September 2016 – drive with prescribed illicit drug present in blood. This is the first of the three driving offences committed during the relevant period. There were no aggravating factors presented to the magistrate concerning the mode of driving in respect of any of those offences.
· 16 November 2016 – destroy property. This offence was committed during the course of an incident at a service station in the early hours of the morning. The incident involved an argument between the respondent and others in the shop at the service station. The female attendant had locked the glass door remotely and telephoned police. A male outside began kicking the glass door, and then the defendant kicked the door from the inside with enough force to crack it. The damage to the door was estimated to be of a value of $1,000. When arrested by police, the respondent admitted kicking the door but explained that he did so "in an attempt to get out of it".
· 27 November 2016 – two breaches of a police family violence order. The breaches were committed when the respondent went inside the residence of the protected person and, while there, abused her by calling her "a fat lying slut". A condition of the order restrained him from going within 50 metres of the house or abusing his former partner. He had gone to the house for the purpose of collecting some belongings.
· December 2016 – one count of breach of a police family violence order, possession of a firearm without a licence, possession of ammunition without a licence, possession of a shortened firearm, and unlawful possession of property. These offences arise from the location by police, during a search of the respondent's home, of a shortened 12 gauge shotgun and a box of ammunition. The firearm and ammunition were found under the mattress in the respondent's bedroom. He did not have a licence for the firearm, and it was suspected by police of having been stolen. His possession of the firearm also constituted the breach of a police family violence order. The respondent told police that he had swapped a car for the gun three or four years before, thought it was "cool" and used it to shoot bottles in the bush. In submissions, the respondent's counsel told the magistrate that it was "a stupid thing for him to do". He confirmed his instructions that the respondent had purchased and kept the firearm for the purpose of shooting in the bush with his friends.
· 2 and 4 January 2017 – two breaches of a family violence order. These two offences were committed by driving past the house of the protected person, which brought the respondent within a prohibited distance of the house.
· 22 January 2017 – injure property. The respondent committed this offence when he struck a glass panel of the Launceston Police Station causing damage to it valued at $187. The surrounding circumstances suggest that this occurred as a spontaneous act due to his frustration at being kept waiting by police when he was seeking the return of some property.
· 16 February 2017 – breach of family violence order and breach of bail. On this occasion, the respondent unexpectedly saw his son sitting in the back of a vehicle. He approached the child, told him that he loved him, and kissed him. He ignored his former partner when she told him to leave the vehicle. The approach to the child constituted the breach of both a family violence order and the conditions of a bail order.
· 27 February 2017 – drive with prescribed illicit drug present in blood.
· 13 March 2017 – drive with prescribed illicit drug present in blood.
The sentencing proceedings
The proceedings were somewhat protracted. It seems that at least some of the complaints were listed for hearing on 5 June 2017. On that day, the magistrate was told that discussions between the parties had resolved all matters. The resolution was that pleas of guilty would be entered to the offences which I have described above, and the prosecution would not proceed with other charges. In those circumstances, it is appropriate that the pleas of guilty are regarded as having been entered at the first reasonable opportunity: Cameron v The Queen [2002] HCA 6, 209 CLR 339.
The proceedings were adjourned to 20 July. On that day, the application relating to the breach of suspended sentence came before the magistrate for the first time. There was a further adjournment to 24 August, when the plea in mitigation was made. The proceedings were then adjourned to 25 September, when the sentencing orders were made. One of the reasons for adjournment was to facilitate the preparation of pre-sentence reports, and the magistrate's referral of the respondent to the Defendant Health Liaison Service. That service also provided the magistrate with reports.
Counsel for the respondent, during the sentencing proceedings, concentrated his submissions on persuading the magistrate that she should form the opinion that it would be unjust to activate the suspended sentence. The principal submission in this regard was the commitment by the respondent to rehabilitation. The matters relied on in relation to this submission were:
· The respondent had attempted to improve his chances of returning to the workforce by enrolling in and undertaking a TAFE course designed to provide him with qualifications to work in the motor repair industry. Defence counsel provided two letters from Tas TAFE which indicated that the respondent had enrolled in a Certificate I in Automotive Vocational Preparation on 24 July 2017. This was a few days after the second hearing, and some weeks after the pleas were indicated. It was stated that upon successful completion of this qualification, he would move on to a Certificate II, to be completed by 30 November 2017. There was no specific information as to the vocational opportunities which would be provided by successful completion of these courses.
· The respondent had complied with the magistrate's requirement to attend the Defendant Health Liaison Service. This service had referred the respondent to a course, designed to address his behaviour related to family violence. As at the time of the service's final report, he had not pursued the course, but the report noted the respondent's explanation that he believed that he was likely to be sentenced to a term of imprisonment, and was awaiting the outcome before undertaking the course. He had at an earlier time completed a course of a similar nature with a different organisation.
· He was assessed by the pre-sentence report as being eligible for the EQUIPS program and the Family Violence Offender Intervention Program.
It was also submitted that the magistrate should have regard to the respondent's early pleas of guilty and the fact that he had not committed any further offences since 13 March 2017.
The magistrate's sentencing comments
It is clear from the transcript that from the outset of the proceedings, her Honour was concerned to assess the prospects of the rehabilitation of the respondent. At the short initial hearing on 5 June 2017, when the pleas were indicated, her Honour referred the respondent to both Community Corrections for the preparation of pre-sentence reports, and to the Defendant Health Liaison Service. Her Honour noted that the parties had agreed that she should request a pre-sentence report in order to assess suitability of the respondent for the Family Violence Offender Intervention Program.
Comments made by the magistrate during the course of later proceedings, in particular on 25 September 2017, suggest that her Honour had concluded that rehabilitation was a particularly important factor. It is clear also that her Honour concluded that there was a clear "indication of reform and rehabilitation" and that the respondent was "quite committed to his rehabilitation". The magistrate noted that there were some "very strong indications of his own rehabilitation". It is not clear from her Honour's reasons as to what those indications were, but it is reasonable to assume that she had had regard to the matters that had been put before her by the respondent's counsel, and the contents of the reports.
Her Honour stated that the question as to whether she should form the opinion that it was unjust to activate the suspended sentence was difficult and finely balanced. Ultimately, her Honour did not make an express finding that she had formed the opinion that it would be unjust to activate the sentence, but that finding can be inferred from various comments. The most cogent expression of her Honour's reasoning in relation to this question is contained in comments made during the final hearing on 25 September:
"HER HONOUR: Yes. Having regard to all of this there have been without doubt some very strong indications of his own rehabilitation being – well, it has been undertaken by him. I don't think that sentence made sense. He is in the early stages of rehabilitation. He seems to me to be quite committed to his rehabilitation.
…
HER HONOUR: At this point to restore a sentence from two years ago would completely derail that and he ought be encouraged and I ought take the view that weighing up the Cannell v Hughes principle and the Tanner v Brown – I mean, they are all clear statements that you have regard to all of these factors. There is no doubt that he has committed quite a few breaching offences but I think the rehabilitation and reform indication outweigh the factors that might lead to me restoring the suspended sentence.
I have had regard to the fact that I think Ms Barwick made fairly forceful submissions on behalf of the prosecution that I should not find it unjust but having thought it through on balance I think it works in his favour, just."
Her Honour then noted that the suspended sentence had lapsed, and determined that she was "going to make no further order with respect to that".
Having determined that she did not intend to activate the suspended sentence or make any further order in respect of it, her Honour considered the question of sentence for the offences, and then imposed same. There is little to be taken from her Honour's sentencing comments except that she considered it appropriate in the light of the respondent's history of prior offending to separate the driving matters from the other offences. I will deal with her Honour's reasons in respect of disqualification when I consider the ground relevant to that sentence.
Ground 1
As already noted, this grounds relates to the sentence imposed by the magistrate in respect of all offences other than the three driving offences. The ground asserts that the sentence, a probation order, was a manifestly inadequate response to the offending constituted by those offences.
The principles applicable upon consideration of such a ground are well established. I may only interfere with the sentence if satisfied that the sentence "is so manifestly wrong that it could only be the result of some undefinable error in the exercise of the judicial discretion". See Cannell v Hughes [2014] TASSC 41 at [16].
The sentence in question was imposed in respect of all the relevant offending, except for the three driving charges. The magistrate made it clear in her reasons that she had imposed separate sentences in respect of the two groups of offences because she needed to be "very clear that the bar's now set for your driving". It is apparent from her Honour's comments that the purpose of imposing a suspended sentence of imprisonment in respect of the driving matters was because of her perception that there was a particular need for specific deterrence in respect of the respondent's driving behaviour.
Notwithstanding that separate sentences were imposed for each group of offences, when assessing whether any particular sentence is manifestly excessive, it is necessary to have regard to the overall effect of both sentences in order to ensure that the totality of the sentences is proportionate to the relevant offending (Mill v The Queen (1988) 166 CLR 59), and is not "a crushing sentence not in keeping with his record and prospects" (Postiglione v The Queen (1996) 189 CLR 295 at 304). In the event that the suspended sentence had been activated, it would be necessary to include this sentence in the overall assessment.
Bearing in mind the wide sentencing discretion entrusted to the magistrate, and the need to take into account the overall effect of the sentences in the manner just described, I am satisfied in this case that the sentence imposed in respect of the offences, other than the driving offences, was manifestly inadequate. Her Honour correctly took into account the need to encourage and support any steps taken by the respondent towards his rehabilitation, and correctly considered that a probation order was part of an appropriate sentencing response. Such an order had been recommended in the pre-sentence report, the need for ongoing supervision was clearly established, and in relation to the family violence offences, the probation order facilitated the respondent's attendance at various courses, including the Family Violence Intervention Program.
However, in the circumstances of this case, and in relation to the offences in question, rehabilitation was not the only sentencing consideration. The respondent had committed a number of varied offences over a prolonged period. The behaviour in question was of a serious nature, and it was clear that the respondent had not been deterred from committing these offences, either by previous sentencing orders or by the fact that he was then subject to a suspended sentence. The offending revealed an ongoing disregard for the law, and a propensity for criminal behaviour, including violent conduct. His involvement in the assault was a serious matter. The assault was perpetrated by him and his brother in company with each other, in a public area, and in the presence of a child. It was clear that it was a targeted attack, motivated by some form of ill-feeling towards the victim. The family violence offences were serious, particularly because they demonstrated an ongoing lack of insight by the respondent in respect of his obligations under a family violence order, and the impact of his conduct on the affected person, and in particular his children. The damage to property offences were also serious in that they represented a manifestation of an inability by the respondent to control his anger, and in that sense demonstrated his propensity for violence. Finally, the firearms offences were a serious example of the offences in question. Irrespective of his explanation for his ongoing possession of the firearm, it remains the case that, in deliberate defiance of the firearms laws, he retained a shortened firearm for ongoing use and in unsecure conditions. This was not a case of someone who has an old forgotten heirloom or some other form of firearm not subject to use. His possession of the firearm was aggravated by the fact that it was again conduct which occurred in breach of a family violence order.
Although he was not to be sentenced on his record, the conduct for which the respondent was being sentenced was conduct of a similar nature to that which he had committed, and for which he had been sentenced, before. It was particularly concerning that he had a number of prior convictions for breaching family violence orders. I accept that there had been a significant gap in offending, but his reversion to this type of conduct in the volume and variety for which he was being sentenced, was a matter of concern. All of these considerations mandated a sentence which emphasised, not just the rehabilitation of the respondent, but also general and specific deterrence.
I am also satisfied that her Honour misjudged the respondent's prospects of rehabilitation. There was certainly a need to foster and encourage such rehabilitation, and there was no doubt that there were some early signs that the respondent may have accepted the need for rehabilitation. However, it seems to me, that the evidence did not support the conclusion which her Honour seemed to reach, that the respondent had made, at the point in time of sentencing, a genuine commitment to rehabilitation. It was certainly appropriate for her Honour to have regard to his lack of offending since March 2017 and his pleas of guilty. However, her Honour seemed to place significant emphasis on the respondent's enrolment in the TAFE course. Whilst this was a positive step, and properly regarded as a starting point for change, the respondent had only enrolled in the course well after being charged with the offences, and shortly prior to his second appearance before the magistrate. There was little evidence that he had made a commitment to reform and rehabilitation which was unrelated to the immediate circumstances and consequences of the sentencing proceedings. His prior history of re-offending, despite sentencing orders clearly intended to promote rehabilitation, suggested that the process of rehabilitation was at a very early stage, and whilst I reiterate that it was a legitimate sentencing consideration, it was incumbent on the magistrate to carefully balance the various sentencing considerations without giving unwarranted emphasis to any of them.
In all of the circumstances, the serious nature of the offending and the need to emphasise specific and general deterrence, required a sentence which included a significant punitive element. A probation order, of course, does have some punitive impact. It places the subject under obligations to commit to supervision and directions from a probation officer and comply with other conditions, and in that sense imposes obligations and restricts freedom. However, it is a sentencing order primarily designed to foster rehabilitation, and is clearly and correctly seen as a more lenient alternative to other sentencing options. In my view, a probation order alone was a manifestly inadequate response to the respondent's conduct. In reaching this conclusion, I have had regard to the overall impact of the combined sentencing orders.
Accordingly, I infer that her Honour erred in the exercise of her sentencing discretion. Ground 1 will be upheld.
Ground 3
This ground complains that the period of disqualification imposed in respect of the driving offences was manifestly inadequate in all of the circumstances. In submissions, the applicants also note a technical difficulty with respect to the sentence. It is submitted that the magistrate imposed a global sentence across the three offences in respect of the suspended period of imprisonment, but imposed a separate disqualification in respect of each offence. If this was what was actually done, then such a sentence was not authorised by s 11 of the Sentencing Act: see Harper v Gordon [2003] TASSC 66, 12 Tas R 57. However, the argument is not raised in a ground of review and, in any event, I do not agree that this was the structure of the sentence adopted by the learned magistrate. When regard is had to the magistrate's sentencing comments, it is apparent that there was, in effect, a global disqualification of nine months imposed in relation to the group of the three offences. The reference to concurrent periods seems to me to simply be part of the explanation by the magistrate as to how she arrived at the relevant global term, after taking into account the system of minimum mandatory penalties prescribed by s 17 of the Road Safety (Alcohol and Drugs) Act 1970.
Under that section, the minimum penalty prescribed for each offence included a period of disqualification of six months. Of course, the sentencing court had the power to provide that each period of disqualification operate wholly or partially concurrent to other periods: Vehicle and Traffic Act 1999, s 17(4)(b). In my view, the imposition of a cumulative period of disqualification across multiple offences, in respect of which minimum periods are prescribed by s 17 of the Road Safety (Alcohol and Drugs) Act, complies with the requirements of that section. In respect of each offence, it can be seen that a period of disqualification has been imposed which exceeds the minimum mandatory period. In such a case, the complaint about the inadequacy of the sentence will not be determined by reference to its technical compliance with the provisions of s 17, but rather with respect to whether the overall sentence, having regard to the various sentencing considerations, including the requirement of proportionality with respect to the combined offending, is within the bounds of a reasonable exercise of discretion by the sentencing magistrate.
In assessing the overall length of the period of disqualification for these driving offences, a matter of particular concern is that the sentence not undermine the system of minimum mandatory penalties prescribed by s 17: Simon-Brown v Richardson [2011] TASSC 62 at [23]. Clearly, that legislation is intended to impose minimum punishment in respect of each act of driving covered by the section. In this case, there were three separate acts of driving with prescribed illicit drug in the blood. The acts occurred on separate days. It is arguable that the intent of the provision is that there should be an overall disqualification of not less than 18 months.
On the other hand, the principles of totality are applicable to this consideration. In relation to the driving disqualification, in particular, it has been held that a very long period of disqualification can discourage rehabilitation and may serve no better purpose in respect of specific deterrence than a shorter period: see the discussion by Tennent J in Simon-Brown v Richardson at [19]-[20].
In this case, I am not satisfied that the selection by her Honour of a global period of nine months' disqualification demonstrates error in the exercise of the sentencing discretion. The period of disqualification was part of an overall sentence which included a period of imprisonment, albeit wholly suspended. It is acknowledged that the respondent had two prior convictions for the same offence, and had committed other serious driving offences in the past. However, it was appropriate for her Honour to pay some regard to the question of rehabilitation. Given that a central element asserted by the respondent with respect to his rehabilitation was the commencement of a course of study directed to providing him with qualifications to enter the automotive industry, it can be seen that an overly long disqualification period might adversely impact on those aspirations, and hence, his potential for rehabilitation. Further, in those circumstances, a disqualification period of nine months was likely to have a more severe impact than might otherwise be the case.
I am not satisfied that the imposition of the said disqualification period rendered the sentence manifestly inadequate. Ground 3 is rejected.
Grounds 4 and 5
These grounds will be considered together. They both relate to the manner in which her Honour dealt with the application for breach of suspended sentence. The argument raised by these grounds is that no magistrate acting reasonably could have been of the opinion that an order activating the sentence was unjust, and, in the alternative, that even if such an opinion was reasonably open to the magistrate, her Honour erred in the exercise of her discretion by making no further order, rather than one of the other orders available under s 27(4C) of the Sentencing Act.
As has been pointed out in a number of prior decisions of this Court, for example Tanner v Brown [2011] TASSC 59 and Cannell v Hughes, the discretion to make orders upon the breach of a suspended sentence must proceed in accordance with the prescription contained in that section. Accordingly, the first step is a threshold evaluation of whether it would be unjust to activate the sentence. Unless as a result of that evaluation, the court forms the opinion that it would be unjust to do so, then the activation of the sentence is mandatory: s 27(4B). It is only where the court has properly formed the relevant opinion that the court's discretion pursuant to s 27(4C) is enlivened.
The said cases have also dealt comprehensively with the considerations which will be properly taken into account in that threshold evaluation. As was noted by Pearce J in Cannell v Hughes, those factors will include the following:
· the nature and circumstances of the offences for which the sentence was originally imposed;
· the nature and gravity of the breach in comparison to the original offences, and whether activation of the suspended sentence may represent a disproportionate response;
· the lapse of time between the imposition of the suspended sentence and the breach;
· whether there is any, and if so what, indication of reform and rehabilitation. That is, whether the suspended sentence may be having its desired effect.
This selection of relevant considerations is apposite to the circumstances of this case.
As is also noted in the said cases, the evaluation as to whether it would be unjust to activate the sentence must be assessed in the light of the clear legislative intent that there will be a presumption in favour of activation of the suspended sentence. As Pearce J said in Cannell v Hughes: "Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and the extent to which they may deter future offenders."
Of course, a court reviewing an opinion reached by the magistrate that it would be unjust to activate the sentence, must proceed on the basis of the principles of appellate review described in House v the King (1936) 55 CLR 499 at 505. See Chaplin v Godfrey [2013] TASSC 70; Tanner v Brown; Cannell v Hughes. Accordingly, I should only interfere with that evaluation if satisfied that error is plainly apparent because the outcome "is manifestly unreasonable or plainly wrong". It is not a matter of merely substituting my own opinion for that of the learned magistrate.
Having regard to the material which was before the magistrate, I have concluded that no magistrate acting reasonably could have formed the opinion that it would be unjust to activate this suspended sentence. The respondent breached the terms of suspension on numerous occasions by committing a variety of offences over a period of approximately six months. Some of the offending occurred in circumstances which suggested that it was a spontaneous reaction to those circumstances, but much of the offending was either premeditated or committed with sufficient time for contemplation and reflection. All of it was serious, and constituted a flagrant disregard for the terms of the suspended sentence. Much of the offending demonstrated an ongoing pattern of conduct of a nature which was consistent with the prior criminality of the respondent. A number of the offences related to actual or potential violent conduct, and in that sense related to conduct of a similar nature to the conduct for which the suspended sentence had been imposed. Some of the offences, the family violence offences in particular, demonstrated an ongoing refusal to be bound by the terms and conditions of lawfully imposed orders, and in that sense resonated with the breach of suspended sentence. All of these considerations suggested that the activation of the suspended sentence was not unjust.
The only matters which were argued as properly forming the basis of an opinion that it would be unjust to activate the sentence were the time which had elapsed between the imposition of the sentence, and the commission of the offences, and the respondent's prospects of rehabilitation. These considerations are closely related. Indications of reform and rehabilitation, and a lack of ongoing offending for a significant period of time, may each provide some indication that the suspended sentence is having its desired effect. The commission of an isolated offence, or offences, some time after the imposition of the sentence, may not, in all of the circumstances, detract from that conclusion. However, such a conclusion was not reasonably open in the circumstances of this case. With due respect to the view of the learned magistrate, there was little, apart from the respondent's enrolment in the TAFE course, which demonstrated a practical commitment to rehabilitation. Although he had not committed a further offence between 3 September 2015 and the assault committed on 16 August 2016, the period of suspension which had been imposed was for a period of two years. The number and seriousness of the offences committed between 16 August 2016 and 27 February 2017, suggested a clear disregard for, if not repudiation of, the conditions of suspension, and a reversion to prior criminal behaviour, over a lengthy period.
It is true that the learned magistrate was not told that there had been any further offending since the commission of the driving with a prescribed illicit drug present in blood on 13 March 2017, and proceeded on the basis that there had been no further offences committed by the respondent in that period. However, this was a relatively modest break in offending. Its significance needed to be assessed in the light of the overall history. The breaches were significant and protracted, and there was nothing else which supported the formation of the relevant opinion. A strong factor against the formation of the opinion was the presumption in favour of the activation of the suspended sentence in circumstances of breach by further offending, and the need to maintain the integrity of the system of suspended sentences. In view of the ongoing pattern of flagrant offending in breach of the conditions of suspension, it could not be said that it was unjust to activate the sentence, and the learned magistrate fell into error by so concluding.
Accordingly, ground 4 will be upheld. It is therefore unnecessary to consider ground 5.
The residual discretion and resentencing
On the basis that it was not reasonably open to form the opinion that it was unjust to activate the sentence, the magistrate was required to do so. However, before the review is upheld, it is necessary to consider the provisions of s 110(2AA) and (2AB) of the Justices Act 1959. Those provisions are as follows:
"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.
(2AB) Despite subsection (2AA) , the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."
It would seem clear, having regard to the relevant authorities, that the requirement to ignore "any element of double jeopardy" will relate only to the question of re-sentencing, having regard to my determination in relation to ground 1, but not to the question of the activation of the suspended sentence: see Cannell v Hughes at [19]. Further, it would appear, in the light of s 110(2AA), that I may take into account any matter "relevant to sentencing, that has occurred between" the orders made by the learned magistrate and my determination. The question of "double jeopardy" is therefore relevant to the question of whether I should, in fact, uphold the motion in relation to the activation of the suspended sentence. This consideration relates to the unfairness and additional anxiety and stress which the respondent may have undergone by having his liberty put in jeopardy a second time: R v Hayes (1987) 29 A Crim R 452 at 469, Kirby J. In my view, however, this consideration, of itself, is not sufficient to avoid the activation of the suspended sentence. The clear statutory presumption and the flagrant breach of the order make it clear that the only possible outcome is the activation of that sentence.
However, I should also take into account any matter placed before me in relation to what has occurred between the sentence under review and now. I raised this issue during the course of submissions, and provided counsel with the opportunity to place such material before me. It seemed to me that such material would be relevant in the following ways:
(a)Given that the only possible basis for a finding of unfairness was the question of rehabilitation, any matter relating to this question which has occurred in the intervening period would be relevant to the determination of the motion.
(b)Having regard to the finding in relation to ground 1, it is necessary to reassess the appropriate sentence. Any such material would be relevant to that question.
I have been provided with the following information by counsel for the respondent:
(a)The respondent has been charged with a number of further offences. He has pleaded guilty to committing a breach of a police family violence order by harassment of his current partner. This was found by a magistrate after a disputed facts hearing, to have been committed on 1 October 2017. He has also pleaded guilty to one count of possession of a controlled plant or its products. This offence was committed on 26 August 2017. He has pleaded not guilty to charges of unlawful possession of property, alleged to have been committed on 26 August 2017, and one count of stealing, alleged to have been committed on 14 September 2017. He has not yet entered a plea to four charges of breach of bail and one charge of driving whilst disqualified.
(b)The respondent was remanded in custody on 1 October 2017 in respect of the family violence offences. He was held in custody until being granted bail on 16 November 2017.
(c)Community Corrections confirm that the respondent has been largely compliant with the probation order made on 25 September 2017. He has been attending supervision appointments, and has completed a significant portion of the Family Violence Offender Intervention Program.
(d)The respondent has re-engaged with TAFE Tasmania, and commenced a course in Certificate II in welding and fabrication.
This material does not significantly affect the evaluation of whether it is unjust to activate the suspended sentence. There is nothing in what has occurred since the sentencing by the learned magistrate which would suggest that, with the benefit of hindsight, the respondent had commenced on a path of rehabilitation which would make it unjust to activate the suspended sentence. Accordingly, this information does not affect the conclusion that ground 4 should be upheld, and the motion allowed accordingly. The only possible result of that decision is that the suspended sentence must be activated.
With respect to re-sentencing for the offences to which ground 1 relates, I am satisfied that a proper response to this offending is the imposition of a sentence of imprisonment. However, I also consider that it is appropriate that some provision be made for the respondent's rehabilitation. I think this can best be achieved by the imposition of a suspended sentence which will have as a condition, supervision by a probation officer for the period contemplated by the magistrate in the original probation order. Given that service of the suspended sentence will significantly interfere with that period, it is appropriate, I think, to provide for a period of supervision of 12 months after the respondent's release from prison.
The final matter for consideration is the date from which the activated sentence should take effect. It may well be that it is reasonable to backdate that sentence to take account of time which the offender has spent in custody on remand for other offences, but for which he has not yet been either found guilty or sentenced. I will hear counsel as to this question before making the formal orders.
Subject to this one matter, the orders which I contemplate are as follows:
1 The motion to review insofar as it relates to the application in respect of the breach of suspended sentence, and the sentence imposed in respect of complaints 30627/17, 35396/16, 31821/17, 36242/16, 31114/17 and 31202/17, is allowed.
2 The sentence of six months' imprisonment imposed on the respondent on 3 September 2015, will be activated, and is to be served by the respondent.
3 In respect of the said complaints, the sentence imposed by Magistrate Cure on 27 September 2017 is set aside. The respondent is sentenced to a term of four months' imprisonment, which will be wholly suspended for a period of 12 months calculated from the date of the respondent's release from prison, on the following conditions:
(a)that the respondent is not to commit an offence punishable by imprisonment during that period; and
(b)the respondent will be subject to the supervision of a probation officer during that period.
The conditions of probation and supervision will include the usual core conditions together with special conditions, as follows:
(a)that the respondent must attend educational and other programs as directed by the court or a probation officer;
(b)that the respondent must undergo assessment and treatment for alcohol or drug dependency as directed by a probation officer;
(c)that the respondent must submit to testing for alcohol or drug use as directed by a probation officer;
(d)that the respondent must submit to medical, psychological or psychiatric assessment or treatment as directed by a probation officer;
(e)that the respondent must attend and complete the Family Violence Offender Intervention Program and the EQUIPS program as directed by a probation officer.
4 The motion is otherwise dismissed.
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