Nicholas Asher Raeyers v Julian John Casey
[2008] ACTSC 123
•18 November 2008
NICHOLAS ASHER RAEYERS v JULIAN JOHN CASEY [2008]
ACTSC 123 (18 November 2008)
APPEAL – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – sentencing error by Magistrate – Magistrates Court Act 1930 (ACT).
CRIMINAL LAW – sentencing principles – terms of imprisonment – nonparole periods not to be set for offences committed while in lawful custody – Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW – sentencing principles – terms of imprisonment – accumulation of sentences for offences committed while in lawful custody – special circumstances required for sentence not to be accumulated where offence involves harm done or threatened to corrections officer – whether relevance of personal deterrence, or imminent expiration of existing sentence, are special circumstances – Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW – sentencing principles – pre-sentence reports – whether reports prepared by NSW officers are pre-sentence reports for ACT purposes – whether periodic detention can be ordered in reliance on a report prepared by NSW officers – Crimes (Sentencing) Act 2005 (ACT).
EVIDENCE – pre-sentence reports – whether reliance can be placed on a report prepared by a NSW officer that is not a pre-sentence report for ACT purposes – Evidence Act 1995 (Cth).
Crimes Act 1900 (ACT), ss 24, 375
Magistrates Court Act 1930 (ACT), s 214
Crimes (Sentencing) Act 2005 (ACT), Part 5.2, Part 4.2, ss 33, 72, 41, subs 78(1), subs 89(1)
Legislation Act 2001 (ACT), Dictionary, Part 1
Evidence Act 1995 (Cth), subs 4(2)
Crimes (Sentencing Procedure) Act 1999 (NSW), s 65A
Crimes (Sentencing Bill) 2005 (ACT), Explanatory Statement
Lowndes v The Queen (1999) 195 CLR 665
Baxter v R [2007] NSWCCA 237
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357
Higgins v Fricker (1992) 63 A Crim R 473
R v Davis (1994) NSW CCA 60300/93, 4 February 1994
R v T (2005) ACTSC 274/2004, Connolly J, 13 September 2005
Hansford v His Honour Judge Neesham [1995] 2 VR 233
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 61 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 18 November 2008
IN THE SUPREME COURT OF THE )
) No. SCA 61 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:NICHOLAS ASHER RAEYERS
Appellant
AND:JULIAN JOHN CASEY
Respondent
ORDER
Judge: Penfold J
Date: 18 November 2008
Place: Canberra
THE COURT ORDERS THAT:
(a) the appeal is upheld;
(b) the appellant will be re-sentenced.
Introduction
This is an appeal from a sentence of imprisonment imposed in the Magistrates Court in relation to an offence of assault occasioning actual bodily harm, under section 24 of the Crimes Act 1900 (ACT).
Background
Circumstances of the offence
On 3 May 2007 the appellant had been sentenced to imprisonment for a total of 15 months for a series of offences including thefts, assault occasioning actual bodily harm, resisting or causing harm to Commonwealth officials, and various other dishonesty offences. That sentence (the earlier sentence), was backdated to 3 February 2007 and therefore expired on 2 May 2008. As a result of lodging an appeal against that sentence, the appellant remained in the Belconnen Remand Centre (BRC) where the offence the subject of this appeal was committed in June 2007.
The offence occurred in the course of an altercation between the appellant and Jason Russell, a custodial officer at the BRC. After a heated verbal exchange involving an accusation by the appellant that Mr Russell had been tampering with the appellant’s meals, Mr Russell ordered the appellant to return to his cell. The appellant replied “Go and get fucked, what are you going to do about it?”, whereupon Mr Russell took hold of the appellant’s sweater, intending to escort him to his cell. The appellant struggled, and the pair fell to the ground. The appellant scratched at Mr Russell’s face and mouth, and called to other inmates in the yard to help him. The altercation was broken up by other custodial officers, who restrained the appellant and placed him in a holding room.
Mr Russell suffered scratches to the left side of his face and a cut to his inner lower lip.
Court processes
The appellant was charged with assault occasioning actual bodily harm, and on 27 March 2008 was sentenced in the Magistrates Court to a term of 12 months imprisonment with an 8-month nonparole period. The sentence was to be served consecutively upon the earlier sentence, and was stated to commence on 2 May 2008 and to expire on 1 May 2009 (since the earlier sentence was to expire on 2 May 2008, this sentence should probably have been specified to start from 3 May 2008 and expire on 2 May 2009).
An appeal against sentence was lodged on 1 August 2008 after an extension of time was granted. The appellant remained in custody until released on bail on 20 August 2008, and has therefore served nearly 4 months of the sentence appealed against.
Principles for deciding the appeal
In determining this appeal, I have applied s 214 of the Magistrates Court Act 1930 (ACT) in conjunction with principles that can be summarised as follows:
(a)First, the sentence imposed by the learned Magistrate is not to be overturned simply because I might have imposed a different sentence in the first instance (Lowndes v The Queen (1999) 195 CLR 665 at 671-672).
(b)Secondly, the original sentence may be replaced if the exercise of the learned Magistrate’s sentencing discretion was affected by a specific error, but only if the appeal court, in re-exercising the sentencing discretion, considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal (rather than to allow the appeal and re-impose the same sentence). In some jurisdictions this approach is expressly provided for (eg subs 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237). Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324-325; Markarian v The Queen (2006) 228 CLR 357 at 371).
(c)Thirdly, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender), manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, by definition a different sentence is appropriate, and error may be inferred, given the finding that the sentence is excessive, unreasonable or unjust (Dinsdale v The Queen (2000) 202 CLR 321 at 340).
Grounds of appeal
The grounds of appeal set out in the notice of appeal are as follows:
(a) That the sentence was manifestly excessive in all respects.
(b)The sentencing Magistrate did not convert the sentence of full-time imprisonment into a partly or wholly community based sentence.
(c)The sentencing Magistrate did not properly consider alternative sentencing options, other than a sentence of full-time imprisonment.
(d)No proper allowance for total time spent in custody prior to sentencing occurred.
(e)The appellant was in effect punished twice for the same offence, in that he was as a result of the assault subject to punitive administrative action by Corrective Services staff, and sent to prison by the Sentencing Magistrate.
Apart from the notified grounds of appeal, counsel for the respondent advised the court that in preparing submissions for the appeal, he had noticed that the learned Magistrate had erred in purporting to impose a nonparole period in respect of the sentence of 12 months imprisonment. A sentence for an offence committed while in lawful custody is an “excluded sentence” for Part 5.2 of the Crimes (Sentencing) Act 2005 of the ACT (the Sentencing Act) (see par 64(3)(d)) and therefore there is no scope under the Sentencing Act for the setting of a nonparole period. The Explanatory Statement for the Crimes (Sentencing Bill) 2005 confirms an intention that nonparole periods are not to be set for excluded sentences.
10. The parties agreed that her Honour should be treated as having intended to impose a sentence of 8 months imprisonment (being the length of the purported nonparole period). The matter was therefore argued on the basis that even if the appellant was unsuccessful on the other appeal grounds, he would need to be re-sentenced, and the question of how much more of the period of 8 months he should be required to serve was the subject of further submissions.
11. I propose, however, to consider the original appeal grounds as well, since all the matters canvassed in the appeal may be relevant to the re-sentencing. The notified appeal grounds were also argued on the basis that the sentence under consideration was one of 8 months full-time imprisonment, although I note that, in the end, it is the sentence as imposed that will need to be replaced.
The cases
12. Several cases were drawn to my attention in the appeal hearing, and I have summarised below the facts and outcomes in order to simplify references to those cases in relation to particular appeal grounds.
Higgins v Fricker
13. Higgins v Fricker (1992) 63 A Crim R 473 (Higgins) was decided by the Supreme Court of South Australia. The case involved a prisoner serving a very long sentence who assaulted a correctional services officer in Yatala Labour Prison. The appeal court found that the assault was unprovoked. The officer suffered a badly bruised eye, laceration of an eyebrow and a fractured cheekbone for which he needed treatment in hospital. Before a special Magistrate, the prisoner pleaded guilty to assault occasioning actual bodily harm and was sentenced to three months imprisonment.
14. On appeal, a judge of the Supreme Court found the sentence manifestly inadequate and increased it to 2 years imprisonment. A Full Court in turn found that sentence manifestly excessive and imposed a sentence of 9 months imprisonment.
R v Davis
15. R v Davis (1994) NSW CCA 60300/93, 4 February 1994 (Davis) involved charges of riotous assembly and assault of a prison officer in the execution of his duties arising out of a “disturbance” at Bathurst Gaol. The prison officer was attempting to deal with other prisoners who were confronting him when Mr Davis apparently hit him on the right arm with a piece of wood that appeared to be a table leg; he suffered an injury, but no permanent harm. The Court of Criminal Appeal refused to interfere with the sentence (apparently covering both offences) of a minimum term of two years imprisonment, cumulative upon the sentences which Mr Davis was then serving.
R v T
16. R v T (2005) ACTSC 274/2004, Connolly J, 13 September 2005 (T), involved charges against a prisoner who had assaulted a Corrective Services officer while in the Magistrates Court cells in connection with a bail application. The assault consisting of head-butting the Corrective Services officer, apparently in the face. Connolly J described it as a fairly spontaneous attack at the lower end of the spectrum of assaults on Corrective Services officers.
17. Connolly J indicated that his starting points for the sentence were that the sentence would be cumulative on those already being served, and that 6 months imprisonment would have been a suitable penalty. Connolly J then reduced the 6 months to 4 months to take account of unquantified extra time spent on remand as a result of the offence.
Notified appeal grounds
18. For convenience, I shall deal with the grounds of appeal asserting specific errors before dealing with the claim of manifest excess.
Consideration of alternatives to full-time imprisonment (grounds (b) and (c))
19. This covers the claim that her Honour should have converted the sentence into a partly or wholly community-based sentence (ground (b)), and that she did not properly consider alternative sentencing options except full-time imprisonment (ground (c)).
20. It is apparent from the transcript of the sentencing hearing that her Honour did consider periodic detention, community service orders, and good behaviour orders (although by another description), and discounted all of them because of the appellant’s poor performance in complying with such orders in the past:
He has been ordered to do periodic detention, he failed to do that and that was cancelled.
He was ordered to do community service, he failed to do that and that was cancelled. He’s breached recognizances by re-offending. His record shows, in my view, an extremely blatant disregard of the law, and no fear of the consequences.
21. Counsel for the appellant mentioned in written submissions that the appellant appeared to have made some progress towards rehabilitation during the previous term in custody which was about to finish, in that there had been no further breaches of discipline and that before being sentenced he had been doing kitchen work at the BRC. She noted that a non-custodial sentence would have allowed him to return to the community and continue that rehabilitation with the benefit of supervision. Neither of these claims was challenged, but neither provides any basis for a finding that the learned Magistrate was in error in her consideration of alternatives to full-time imprisonment. The appellant has not established that either in failing to convert the sentence to a partly or wholly community-based sentence, or in her consideration of sentencing options other than full-time imprisonment, her Honour fell into error.
22. Accordingly, I find that neither ground (b) nor ground (c) provides a basis for upholding the appeal.
No proper allowance for time spent in custody before sentencing (ground (d))
23. Counsel for the appellant did not suggest that her Honour had overlooked, or miscalculated, a period spent in custody in respect of the offence before sentencing. Rather, she submitted that, on two separate grounds, the time in custody between the offence and the sentencing might have generated “special circumstances” for the purposes of subs 72(4) of the Sentencing Act.
24. Section 72 of the Sentencing Act requires a sentence imposed for an offence committed while in lawful custody and involving harm to a corrections officer to be served consecutively on the relevant “existing” sentence unless the court orders otherwise on the basis of special circumstances.
25. First, the argument was made that adding a sentence of 8 months imprisonment on top of the 15-month sentence that the appellant was then serving, especially since this happened only 5 weeks before the end of the 15-month sentence, resulted in a “crushing” sentence.
26. However, much of the extended delay in dealing with the matter seems to have resulted from the appellant’s initial plea of not guilty. It took nearly 3 months for the appellant to be charged initially, two weeks for a plea of not guilty to be entered, then nearly 5 months before the case came on for hearing. At that point the appellant pleaded guilty, and then another 4 weeks passed before sentence was imposed. Clearly, the appellant was entitled to plead not guilty, and he should not be punished for that choice, but it does not follow from the appellant’s right to plead not guilty that, having chosen a course which would inevitably delay the finalisation of the sentence, the appellant should have received some sort of concession for the fact that the sentence was ultimately imposed so close to the end of the earlier sentence.
27. The appellant also argued that by the time sentence was imposed, the appellant had spent a further 9 months in custody without committing any more offences, and therefore the sentence did not need to provide any personal deterrence.
28. However, without deciding whether there was in fact any need for personal deterrence, I note that the question of personal deterrence should have been one of the matters taken into account in determining the appropriate sentence initially (see par 7(1)(b) of the Sentencing Act), in particular, in deciding whether imprisonment was required and if so, how long the sentence should be and how it should be served. It is not clear to me that any of the standard matters required to be considered in sentencing, nor an assertion that one of those standard matters was not relevant in the sentencing decision concerned, could, without more, amount to special circumstances for the purpose of section 72.
29. Perhaps more significantly, neither of these claimed special circumstances was identified as such to the sentencing Magistrate. She commented on the scope for imposing the sentence to some extent concurrently in special circumstances, and noted that no such circumstances had been identified to her. I cannot see that her Honour was obliged to do more than raise the issue.
30. Accordingly I find that her Honour did not, in imposing the sentence to be served consecutively, as s 72 of the Sentencing Act required her to do in the absence of special circumstances, fall into any error arising from her treatment of the period the appellant spent in custody between the offence and the imposition of the sentence.
Appellant has been punished twice for the same offence (ground (e))
31. Following the assault, the appellant was disciplined within the BRC. Counsel for the appellant advised the sentencing Magistrate that he was instructed that for 28 days the appellant was locked in his cell except for one hour’s exercise each day and he was not permitted to watch TV, have visits except from legal advisers, make phone calls or buy personal items except tobacco.
32. While “double punishment” (claimed to be constituted by the disciplinary action taken in the BRC and the prison sentence imposed for the assault) was identified as an independent appeal ground, it was not argued at the appeal hearing on that basis but only as a basis for the claim that the sentence was manifestly excessive. Accordingly, I shall consider the double punishment argument in the context of manifest excess, but I can see no basis for finding that her Honour fell into specific error in her treatment of the punishment the appellant had already received in the BRC.
The sentence was manifestly excessive (ground (a))
33. At the hearing, counsel for the appellant focussed her submissions on the appeal ground of manifest excess, arguing that the sentence of, effectively, 8 months imprisonment cumulative on the 15-month sentence already being served was excessive. The argument was based on consideration of the cases summarised in paragraphs [13] to [17] above, some legal arguments, and the identification of various matters each of which might have influenced her Honour to choose a less severe rather than a more severe sentence.
Maximum penalty
34. Before dealing with the appellant’s arguments, I note the respondent’s submission about the maximum penalty available in this case. The penalty for assault occasioning actual bodily harm includes imprisonment for up to 5 years (ACT Crimes Act 1900, s 24), but the maximum penalty that could have been imposed by the learned Magistrate was 2 years imprisonment (ACT Crimes Act 1900, s 375). Counsel for the respondent submitted that the limit of 2 years on the penalty that her Honour could impose did not require her Honour to consider 2 years as the appropriate penalty for the worst possible case, and thus require her to scale down the penalty for the particular incident as if the offence carried a maximum penalty of two years.
35. Rather, he argued, her Honour was entitled to consider the appropriate penalty in this case having regard to the maximum penalty of up to 5 years imprisonment. If, having done so, her Honour considered that the maximum penalty she could impose (imprisonment for 2 years) was inadequate given the gravity of the particular offence, she could have referred the matter to the Supreme Court for sentence under section 375 of the Crimes Act 1900 (see subsections 375(7), (8) and (9) in particular). I accept the respondent’s submission (see Hansford v His Honour Judge Neesham [1995] 2 VR 233).
Legal arguments
36. Counsel for the appellant raised two arguments based directly on the Sentencing Act, namely that:
·the cases cited in support of the sentence (Higgins, Davis and T) all pre-dated the passing of the Sentencing Act in 2005 and are therefore distinguishable from the current case; and
·in the ACT, the fact that the victim is a corrections officer is not a statutory matter of aggravation, in contrast to the NSW sentencing regime (NSW Crimes (Sentencing Procedure) Act 1999, par 21A(2)(a)).
37. It is true that all three cases mentioned were decided before the commencement of the Sentencing Act, although the sentence in T was imposed between the introduction of the Crimes (Sentencing) Bill 2005 in April 2005 and its passage in November that year. However, there is nothing in either the Sentencing Act or the Explanatory Statement for the Bill to indicate an intention to depart from the earlier approach taken by Australian courts of appeal and referred to by Connolly J in T (while the Sentencing Bill was being considered by the Legislative Assembly) to the effect that assaults on custodial officers must be taken seriously by the courts. Acceptance of this position is expressly indicated by the inclusion in the ACT Sentencing Act of provisions already mentioned that prohibit the setting of a nonparole period for offences committed while in lawful custody (Part 5.2) and requiring that sentences imposed for offences committed in lawful custody are generally served consecutively and that, where harm has been caused or threatened to a corrections officer, this position can only be varied in special circumstances (s 72).
38. It is also true that the victim’s position as a corrections officer is not specified as an aggravating feature under ACT law. However, the provisions referred to in paragraph [37] above make it clear that any offence against a corrections officer is treated in the ACT as an especially serious example of the offence concerned.
39. Neither of counsel’s arguments furthers the appellant’s claim that the sentence was manifestly excessive.
Matters possibly entitling the appellant to leniency
40. Various other matters were raised in support of the claim of “manifest excess”.
41. Counsel argued that the assault was a spontaneous and short-lived reaction to the physical contact that was made by the victim (although counsel expressly disclaimed any suggestion that the physical contact was unlawful or that the assault was “provoked”), that it was not the most serious kind of assault (in particular it was less serious than those in Higgins, Davis and T), and that it did not result in serious injury. I accept that the assault was less serious than those in Higgins and in Davis, both in the circumstances of the assault and the results of the assault, but it is not so clear that this assault was less serious than headbutting a corrections officer as happened in T. I note that in T no injury was identified and the offender was only charged with common assault rather than assault occasioning actual bodily harm.
42. As mentioned above, the claim that the appellant had been subjected to double punishment was argued as part of the manifest excess ground. Counsel argued that the disciplinary action taken in BRC should have been accounted for in the sentence so as to avoid any double punishment. At most it seems that punishment imposed on the offender as part of the discipline within the custodial system might properly have influenced the sentence imposed to a minor degree.
43. The significance of other punishment was mentioned in all the cases summarised in paragraphs [13] to [17] above. In Higgins, the sentencing Magistrate had taken account of the disciplinary action but the single judge on appeal had taken the view that it was “only of little weight”, and the Court of Appeal agreed (at p 480) that the punishment “could not be regarded as of great significance in mitigation”.
44. In the case of T, Connolly J, without specifically identifying the relevant case but probably referring to Higgins which he had earlier mentioned, said to the offender:
I have regard to the fact that you had some certain losses of privileges while you were on remand as a consequence of this assault on a Corrective Services officer. But I am inclined to endorse the views of the Court of Criminal Appeal in South Australia that that is only a minor factor in influencing the degree of sentence that should be imposed because a custodial sentence is required for an assault on a prison officer.
45. In Davis, Wood J, with whom Gleeson CJ and Meagher JA agreed, said in response to the appellant’s submission that he had been held in segregation for a period of time:
That is an almost inevitable consequence of an offence involving a breach of gaol discipline, having regard to the extraordinarily difficult circumstances which prisoner officers face.
I am not persuaded that such fact justifies any adjustment in the minimum or additional term or otherwise is a factor attracting mitigation.
46. The matters raised in support of appeal ground (d), as special circumstances sufficient to justify a departure from the requirement of section 72 to accumulate the sentence, were also raised as indicators that the sentence was manifestly excessive. Those matters were that there was no need for personal deterrence having regard to the absence of further offences by the appellant in the 9 months after the offence, and that when the appellant was sentenced he was only 5 weeks away from release at the end of a 15 month sentence.
47. I was not persuaded, for the reasons set out at paragraphs [26] and [28] above that these were special circumstances, and nor am I persuaded that they render the sentence appealed from manifestly excessive. They may, however, be relevant in re-sentencing.
48. Counsel also pointed out that the assault occurred in a custodial environment, which involves significant stress, and should be understood in that context. It is of course correct that remand centres and prisons are stressful for prisoners, but such environments involve stress for the custodial officers too, and this is why the law regards assaults in such environments as particularly serious.
49. Counsel for the appellant noted in written and oral submissions that because the appellant has a conviction for escape he was held, while at the Junee Correctional Centre, in a relatively secure and restricted section of that Centre and was therefore deprived of some employment and rehabilitation opportunities. However, there was no evidence that the appellant was held in more restrictive circumstances in BRC, and in any case, it is hard to see why restrictive custodial conditions that the appellant has brought on himself should be seen as mitigating factors in relation to an assault on a corrections officer.
50. Counsel submitted that her Honour appeared to treat as an aggravating factor previous appeals by the appellant which resulted in him spending extended periods at BRC rather than in prison actually serving the sentences concerned. While it is true that her Honour did mention this on several occasions in the course of her sentencing remarks, there is nothing in her comments to indicate that she took this into account in deciding the sentence.
51. Counsel for the appellant noted that the discount applied for the appellant’s plea of guilty was one month’s reduction in the nonparole period (from 9 months to 8 months). By my calculations that was a discount of about 11%. Given that the plea of guilty was not entered until the day set for the hearing, and that the prosecution’s case would have been fairly strong, this discount, while not generous, does not seem to be unreasonably mean.
52. Counsel also noted the appellant’s subjective circumstances, in particular his troubled childhood including considerable time spent in institutions, a sexual assault suffered when he was 10 years old, a history of substance abuse from the age of 15, and a diagnosis of depression.
53. Several of the matters discussed above might appropriately have been put to the sentencing Magistrate in submissions in support of leniency for the appellant. However, in the context of an unprovoked and potentially dangerous attack on a corrections officer, none of them, and no accumulation of them, persuades me that the sentence of 8 months imprisonment was manifestly excessive.
54. However, if the appeal had been argued by reference to the head sentence of 12 months imprisonment, I would have found the sentence manifestly excessive. Since the appellant must in any case be resentenced, my determination on the claim of manifest excess has no immediate consequences, but my assessment of the original sentence will have implications for the re-sentencing.
Conclusions on appeal
55. In respect of the appeal grounds specified, I have not found that any of her Honour’s asserted errors (whether specific errors or errors to be inferred from a finding of manifest excess) can be made out in relation to the agreed 8-month sentence. However, the error identified by the respondent, that of purporting to impose a nonparole period on the specified sentence of 12 months imprisonment, requires me to re-sentence the appellant, and to do so having regard to the material that was before her Honour and the matters that have been argued before me.
Re-sentencing
56. For the purposes of re-sentencing the appellant, I need to have regard to the material available to the sentencing Magistrate as well as matters canvassed in the appeal hearing.
Pre-sentence reports
57. This means that the only “pre-sentence report” available to me is one supplied by a NSW authority described as Community Offender Services and signed by a person described as Unit Leader, Junee Parole Unit. This was prepared when the appellant was still serving his previous sentence in a NSW prison, and the preparation of the report by NSW authorities may well have been, as a practical matter, appropriate.
58. However, it is not clear to me that a report provided by NSW authorities is properly treated as a pre-sentence report for the purposes of the ACT Sentencing Act.
59. Part 4.2 of the ACT Sentencing Act provides for the preparation of pre-sentence reports. Under s 41 of that Act, a court may order a pre-sentence report (subs 41(1)), and must order a pre-sentence report before sentencing an offender to periodic detention or a community service order (subs 41(2)). Where a pre-sentence report is ordered, “[t]he Chief Executive must arrange for an assessor to prepare” the pre-sentence report (subs 41(5)).
60. An “assessor” is “a public servant whose functions include preparing pre-sentence reports” (subs 41(6)). A “public servant” is a person employed in the Australian Capital Territory Public Service (see the definitions of “public servant” and “public service” in the Part 1 of the Dictionary in the Legislation Act 2001).
61. It seems unlikely that a member of the Junee Parole Unit would be a member of the ACT Public Service, and no-one has asserted that he is. Nor, when I have raised this question in passing in other matters, has anyone drawn to my attention any kind of formal arrangements under which people employed in other jurisdictions have been empowered to prepare such reports for the ACT, or any arrangements by which an ACT public servant adopts, and takes responsibility for, material initially prepared by a person employed in another jurisdiction.
62. In the absence of any such arrangements, I cannot see how a report prepared by a person employed by a NSW authority could be a pre-sentence report as defined in s 41 of the ACT Sentencing Act (that is, a report ordered by the court and prepared as required by that section).
63. In some cases, the fact that the report provided to the court is not a pre-sentence report for the purposes of the ACT Sentencing Act (a compliant report) may not matter. Where there is no express requirement for a pre-sentence report before the court’s preferred sentencing approach is adopted, then the court can presumably take account of a non-compliant report in the same way that, in a sentencing exercise, it can take account of a variety of other material (subject to any order made under subs 4(2) of the Evidence Act 1995 of the Commonwealth). However, a compliant pre-sentence report is required, for instance, if a court proposes to provide for a sentence to be served as periodic detention (subs 78(1) of the Sentencing Act) or if a court proposes to include a community service condition in a good behaviour order (subs 89(1) of that Act).
64. There is another problem with the use of pre-sentence reports not produced by ACT assessors, which is that under s 46 of the Sentencing Act, the prosecutor, and the offender or his or her lawyers, are entitled to cross-examine the author of a pre-sentence report. I have in other matters been advised that the NSW authorities do not as a matter of course make available the authors of pre-sentence reports prepared in NSW for use in the ACT courts. I do not know how the NSW authorities would respond to an attempt by an ACT court to insist that the pre-sentence author appeared in the ACT, or made himself or herself available by telephone, for cross-examination.
65. If counsel sought to cross-examine on a NSW pre-sentence report, and the author of that pre-sentence report was not made available, the court would presumably not be able to rely on any contested matter in the pre-sentence report, which might make it effectively useless.
66. A further problem with NSW pre-sentence reports is that, while they tend to cover the same matters as are covered in a standard ACT pre-sentence report, there are some differences, and some of those differences may be significant in a particular sentencing exercise. For instance, the NSW report provided in relation to the appellant assesses his suitability for a community service order, and for periodic detention, by reference to the NSW legislation applying to those sentencing options, but in each case the NSW provisions differ from those in the ACT legislation. Periodic detention is not available in NSW to offenders who have served a sentence of imprisonment of more than 6 months in full-time detention for a single previous offence (s 65A of the Crimes (Sentencing Procedure) Act 1999 of NSW), but there is no such exclusion in the ACT.
67. Thus, even if a NSW pre-sentence report could be treated as a pre-sentence report for the purposes of the ACT Sentencing Act, the report’s recommendations in relation to sentencing options for which a pre-sentence report is required could not be relied on because they refer to NSW legislation that is substantively different from the applicable ACT legislation.
68. Abandoning the current practice of NSW employees preparing pre-sentence reports for the ACT courts would be undesirable from many perspectives. Clearly it is a better use of scarce resources for pre-sentence reports to be prepared by NSW employees located conveniently to offenders (whether those offenders are ACT prisoners serving their sentences in the NSW prison system or NSW residents on bail in respect of offences committed in the ACT) than for ACT employees to travel to NSW prisons, or for NSW residents on bail to be required to travel to the ACT, in order for compliant pre-sentence reports to be prepared. However, the current arrangements, at least those that have been brought to my attention, do not seem adequate either to ensure that NSW reports are compliant pre-sentence reports for the purposes of the ACT Act, or to ensure that such reports can be used in the ACT courts in the way that the ACT Act contemplates.
Re-sentencing options
69. My re-sentencing options are limited by the absence of a compliant pre-sentence report. In particular, the NSW report available to me assesses the appellant as unsuitable for periodic detention by reference to a NSW provision (s 65A of the Crimes (Sentencing Procedure) Act 1999) that has no equivalent in the ACT Sentencing Act. In the absence of a report that considers periodic detention for the purposes of the ACT Act, s 78 of that Act prohibits me setting a periodic detention period for the appellant.
70. Of course, the option of ordering a new pre-sentence report remains open, and this could be prepared more readily by the ACT authorities since the appellant is now on bail. However, this would probably delay re-sentencing until February 2009, which seems generally undesirable.
Re-sentencing considerations
71. In considering a new sentence, I shall take account of:
· the need to make it clear that attacks on corrections officers are taken seriously by the courts and to impose a sentence with an adequate deterrent effect;
· the circumstances of the offence and the relatively minor injury suffered by the victim;
· the appellant’s conduct in the BRC after the offence was committed;
· the appellant’s plea of guilty;
· the subjective circumstances of the appellant; and
· the sentences imposed in Higgins and T, in particular the sentence of 9 months ultimately imposed in Higgins for what was clearly a more serious assault than in this case.
72. I shall not place so much reliance on the sentence imposed in Davis, because the factual situation dealt with in that case is not clear, except for the fact that the assault took place as part of widespread threatening and violent conduct by prison inmates.
73. I shall note, but place little significance on, the disciplinary action taken in the BRC.
74. The sentence will be finalised after counsel are invited to make submissions on the time already spent in custody and the status of the NSW pre-sentence report.
Orders
75. The orders are:
(a) that the appeal is upheld;
(b)that the appellant will be re-sentenced.
I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour Justice Penfold.
Associate:
Date: 18 November 2008
Counsel for the appellant: Ms T Warwick
Solicitor for the appellant: Perkins and Saunders
Counsel for the respondent: Mr J Kellaway
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 17, 22 October 2008
Date of judgment: 18 November 2008
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