Mussen-Bell v Wilson
[2014] ACTSC 294
•24 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Mussen-Bell v Wilson & Anor |
Citation: | [2014] ACTSC 294 |
Hearing Date: | 24 October 2014 |
DecisionDate: | 24 October 2014 |
Before: | Burns J |
Decision: | The appeal is dismissed and the sentences imposed by the Magistrate on 3 July 2014 are confirmed. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Particular Offences – minor theft – breach of good behaviour order APPEAL – Appeals From and Control Over Magistrates – whether Magistrate had regard to the principle of totality – whether Magistrate failed to consider a sentence other than full time imprisonment – whether Magistrate failed to consider concurrent or partially concurrent sentences – appeal dismissed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 110 Crimes (Sentencing) Act 2005 (ACT) s 71 |
Cases Cited: | Mill v The Queen (1988) 166 CLR 610 |
Parties: | Sarah Mussen-Bell (Appellant) Mark Wilson (First Respondent) Paul Ronald Yates (Second Respondent) |
Representation: | Counsel Mr Jorgensen (Appellant) Ms MacKenzie (Respondents) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 55 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Doogan Date of Decision: 3 July 2014 Case Title: Mark Vorn Wilson v Sarah Mussen-Bell Court File Numbers: CC14/4836; CC14/6047; CC14/6134; CC14/6133; CC14/6135 |
Burns J:
Background
On 3 July this year, a magistrate sentenced the appellant to imprisonment with respect to a number of offences. First, for an offence of minor theft which was committed on 14 April this year, the appellant was sentenced to three months’ imprisonment (CC14/4836). Secondly, for a further offence of minor theft committed on 29 May this year, the appellant was sentenced to a further term of three months’ imprisonment (CC14/6047), which was to be served consecutively upon the first term imposed, meaning that the total sentence at that point was one of six months’ imprisonment.
The offences of minor theft committed by the appellant on 14 April and 29 May this year meant that the appellant was in breach of Good Behaviour Orders imposed on 21 November 2013 with respect to three offences of minor theft. On 3 July this year, the Magistrate dealt with those offences pursuant to the provisions of s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT). For a breach of a Good Behaviour Order imposed on 21 November 2013, as part of a suspended sentence for a minor theft offence on 24 July 2013, the Magistrate cancelled the Good Behaviour Order and imposed the suspended sentence of two months (CC14/6134). She made that consecutive upon the earlier two sentences to which I have referred, meaning that the aggregate total at that point was one of eight months’ imprisonment.
Her Honour then dealt with a breach of a Good Behaviour Order imposed on 21 November 2013 as part of a suspended sentence for a minor theft which occurred again on 24 July 2013 (CC14/6133). Her Honour took the same approach, cancelling the Good Behaviour Order and imposing the suspended sentence of two months’ imprisonment which she made consecutive upon each of the earlier sentences, meaning at that point that there was an aggregate sentence of 10 months’ imprisonment.
Finally, her Honour dealt with a breach of a Good Behaviour Order imposed again on 21 November 2013 as part of a suspended sentence for minor theft which occurred on 5 April 2013 (CC14/6135). Her Honour cancelled the good behaviour order and imposed the suspended sentence of one month’s imprisonment which again was made consecutive with all of the previous sentences, meaning that the aggregate final sentence was one of 11 months’ imprisonment. Her Honour made an order that the appellant be released after serving six months of that sentence of imprisonment upon entering into a Good Behaviour Order, the terms of which I need not consider here.
Whilst the sentences imposed by a different magistrate on 21 November 2013 are not before me in the present proceedings, I cannot help but express a degree of concern about the way in which sentencing occurred on 21 November 2013. Granted, the appellant on that occasion was appearing before the Magistrate with respect to five offences of minor theft. Two of those occurred on 26 December 2012, one on 5 April 2013 and finally two on 27 April 2013. They were all dealt with on the same day so that the Magistrate imposed sentences with respect to all five matters at the one time. With respect to the offences on 26 December 2012, he convicted the appellant and imposed Good Behaviour Orders for a period of 18 months. With respect to the one offence on 5 April 2013, he convicted the appellant and imposed a sentence of one month’s imprisonment suspended with a Good Behaviour Order of 18 months. Finally, on the two offences that occurred on 27 April 2013, he convicted the appellant and on each matter sentenced her to two months’ imprisonment which was to be suspended with a Good Behaviour Order for a period of 18 months.
The progression of the sentences imposed by that Magistrate seems extraordinary for offences that, whilst committed on three separate occasions, were all subject to sentencing on the same day. Some increase for later offending may be expected, but this was not a case where the Magistrate was sentencing for offences that had occurred after the appellant had earlier been sentenced for the same type of offending. As such, it could not be said that there was some need to increase the penalty by reason of personal deterrence as demonstrated by the failure of the appellant to be deterred by earlier sentences imposed by the court. As I said, that gives me some disquiet, but it is not before me today.
The appeal
The appellant in these proceedings appeals against the sentence imposed by the Magistrate on 3 July this year. I say the sentence because it is clear that the appellant does not, in effect, complain that any of the individual sentences were unavailable to the Magistrate or inappropriate in terms of the sentence before her. Rather, the appellant’s complaint is the way in which the sentence was structured. There are four grounds which are relied upon by the appellant.
The first ground is that her Honour failed to have any regard to the principle of totality when sentencing the appellant. Mr Jorgensen, who appears on behalf of the appellant, has accepted the proposition, and I think rightly so, that the high point of his argument is that the Magistrate simply did not mention the principle of totality in the course of sentencing the appellant with respect to these offences. The argument which is advanced on behalf of the appellant is that the Magistrate was obliged to have one last look at the sentence she was proposing to impose in order to determine whether the aggregate sentence properly reflected the criminality involved in the appellant’s offending and, as such, whether it was necessary to make any of the sentences concurrent or partially concurrent in order to reflect appropriately the level of criminality involved in the offending.
It is well recognised that in sentencing an offender with respect to multiple offences, it is inappropriate to simply arrive at an appropriate sentence with respect to each of the offences, and then to accumulate each of those sentences. In doing so, the ultimate sentence may exceed that which would be appropriate for the overall criminality as revealed by the offending. As such, it is quite clear from authorities such as Mill v The Queen (1988) 166 CLR 610 that the court must take a final look at the sentences which would be appropriate with respect to each of the offences to determine whether they should be served concurrently or partially concurrently in order to reflect the overall criminality of the offender.
In the present case, I am satisfied that this ground of appeal must fail in that the fact that the sentences were ordered to be served partially suspended indicates that the Magistrate did in fact turn her mind to the question of the principle of totality, in addition to which there were, as far as I can see, no common elements with respect to the offending which would have dictated that her Honour would impose partially concurrent or indeed fully concurrent sentences with respect to any of these offences. I am not satisfied that the Magistrate failed to have regard to the principle of totality in sentencing the appellant.
The second ground raised is that her Honour failed to consider a sentence other than full-time imprisonment with respect to the matters then before her. As I understand it, that ground relates only to the charges of minor theft on 14 April and 29 May this year, because effectively a similar ground is raised, which I will refer to in a moment, with respect to the breach of Good Behaviour Order matters. This ground, being that the Magistrate failed to consider a sentence other than full-time imprisonment, must fail. It is clear that her Honour did consider sentences other than full-time imprisonment. It is clear that her Honour considered both periodic detention and community service. Her Honour considered that those sentences were inappropriate and gave reasons for considering them to be inappropriate. As such, it cannot be said that her Honour did not turn her mind to that aspect of the case. A different Magistrate may have taken a different approach. That is not the test. I can only interfere with the sentencing discretion of the Magistrate if some error is demonstrated on the part of the Magistrate. Such an error would be constituted by, for example, failing to take into account a relevant consideration. The Magistrate did not fail to take into account a relevant consideration. She turned her mind to the question of whether some sentence other than full-time imprisonment was appropriate, and she concluded that it was not and she gave reasons for doing so. As such, that ground of appeal must fail.
The third ground of appeal alleges that her Honour failed to consider resentencing the appellant for breaches of the Good Behaviour Orders rather than imposing the suspended sentences. It is common ground that in dealing with the good behaviour order breaches, her Honour was applying the provisions of s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) which provides that where an offender has breached the terms of a good behaviour order which is imposed as part of a suspended sentence, then the court dealing with the breach essentially only has two options. The first option is to cancel the good behaviour order and to impose the sentence which had previously been suspended. The second option is to cancel the good behaviour order and then to resentence the offender. I note that, before her Honour, counsel then appearing for the appellant submitted that her Honour should adopt a similar course to that adopted by the original magistrate who had sentenced the appellant and imposed the suspended sentences. As such, it was clear that the submission made to her Honour was that she should impose terms of imprisonment and then suspend those terms. Effectively, that is what her Honour did because the suspended sentences total some five months’ imprisonment when looked at as sentences to be served consecutively.
The way in which her Honour imposed those sentences after cancelling the Good Behaviour Orders meant that the final five months of the aggregate sentence that she imposed was effectively the five months made up of the suspended sentences that had been imposed in November 2013. Her Honour then suspended that five months of the sentence so that her Honour has effectively accepted the proposition or submission put to her by counsel then appearing for the appellant that the sentences should further be suspended. In my opinion, this ground of appeal must also fail.
The final ground of appeal is that her Honour failed to consider concurrent or partially concurrent sentences. I accept the submission put forward by the respondent that it is clear that her Honour did consider the question of how the sentences were to be served; that is, whether they were to be served concurrently, partially concurrently, or entirely consecutively. That is clear from the fact that her Honour made the order that they were to be served consecutively. Section 71 of the Crimes (Sentencing) Act 2005 (ACT) provides that all sentences are to be served concurrently unless the court orders otherwise. On this occasion the court did order otherwise, which established that her Honour did turn her mind to the question of the way in which those sentences were to be served. There appears to have been no reason, either by way of the principle of totality or the application of the principle of totality, or based upon any question of the sentences being manifestly excess, which of course has not been agitated in the present proceedings, why her Honour would have needed to make the sentences either concurrent or partially concurrent. That ground of appeal must also fail.
Decision
I am satisfied that the appeal should be dismissed and the sentences imposed by the Magistrate confirmed.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: |
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