Nicholls v Police
[2007] SASC 142
•27 April 2007
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
NICHOLLS v POLICE
[2007] SASC 142
Judgment of The Honourable Justice Kelly
27 April 2007
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - ORDERS AND CONVICTIONS - SENTENCING
Appeal against sentence - appellant pleaded guilty to multiple offences of dishonesty and offences contrary to the Motor Vehicles Act - in addition appellant pleaded guilty to 19 breaches of bail for which one one sentence of ten months imprisonment imposed pursuant to s18A Criminal Law (Sentencing) Act - total head sentence of 3 years, 11 months and 16 days - whether sentencing remarks were adequate in relation to explaining credit given for pleas of guilty - whether appellant was wrongly deprived of an opportunity to re-enter the Mental Health Diversion program - whether Magistrate erred in declining to give any credit for the period spent on home detention bail - whether Magistrate erred in failing to calculate separate and distinct sentences for each of the 19 breaches of bail before determining a suitable single sentence - whether sentence excessive - whether Magistrate erred in failing to take into account time spent in immigration detention by the appellant - HELD - appeal dismissed.
Criminal Law (Sentencing) Act 1988 (SA) ss 10(1), 18A, 19C; Motor Vehicles Act 1959 (SA) ss 9, 74, 91, 102; Bail Act 1985 (SA) s 17(1); Correctional Services Act 1982 (SA) s 75, referred to.
R v Becker (2005) SASR 498; R v Place (2002) 81 SASR 359; R v Sutherland Unreported judgment S3705 16 November 1992; R v Sladic [2005] SASC 210; Strugnell v Police [2007] SASC 33; R v Malesevic (1999) 2004 LSJS 32; Darter v Diden [2006] SASC 152, applied.
H, T v Police (2005) SASC 143; Zainudin [2005] 190 FLR 149; Yusup [2005] NTCAA 19, distinguished.
NICHOLLS v POLICE
[2007] SASC 142Magistrates Appeal
KELLY J The Appellant Martin Terrence Nicholls appeals against a sentence imposed in the Magistrates Court on 1 November 2006. The Sentencing Magistrate imposed a head sentence of three years eleven months and sixteen days with a non-parole period of eighteen months effective from 1 November 2006.
In order to understand how that sentence was arrived at, it is necessary to understand exactly what matters were before the Magistrate.
Summary of Charges and Penalties Imposed
For convenience I set out a schedule of the charges and penalties imposed below.
Magistrates Court File No 06-4045
Count Date Charge Maximum Penalty
Penalty Imposed 9 16/2/ & 19/4/2000 Receiving 8 years imprisonment 6 months cumulative upon the unexpired parole of 1 year 5 months and 24 days. 2 19/5/ & 14/12/2000 Receiving 8 years
imprisonment6 months cumulative upon the sentence imposed in respect of count 9. 5 8/9 & 14/12/2000 Receiving 8 years
imprisonment6 months cumulative upon the sentence imposed in respect of count 2. 6 1/9 & 6/10/2000 False Pretences 4 years
imprisonment4 months cumulative upon the sentence imposed in respect of count 5. 10 16/2/ & 19/4/2000 False Pretences 4 years
imprisonment4 months cumulative upon the sentence imposed in respect of count 6. Magistrates Court File No 01-6310
5 29/12/2000 Unlawful Possession 2 years imprisonment or $10,000 4 months cumulative upon the sentences imposed in respect of the charges in Magistrates Court file number 06-4045. Magistrates Court File No 04-41
1 26/12/2003 Breach of Bail 2 years imprisonment or $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 2 28/12/2003 Breach of Bail 2 years imprisonment or $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 03-5961
1 11/11/2003 Drive Unregistered
s9 Motor Vehicles ActAn amount equal to twice the prescribed registration fee applicable for 12 months or $750, whichever is the greater Conviction without penalty. 2 11/11/2003 Drive Uninsured s102 Motor Vehicles Act $2,500 fine and disqualification from holding or obtaining a driver’s licence for a period of not more than 12 months Conviction without penalty. 3 11/11/2003 Drive whilst Disqualified s91 Motor Vehicles Act 6 months imprisonment for a first offence or 2 years imprisonment for a subsequent
offence28 days imprisonment cumulative upon the penalties imposed in respect of Magistrates Court file number 01-6310. Magistrates Court File No 03-6347
1 15/11/2003 Drive whilst Disqualified s91 Motor Vehicles Act 6 months imprisonment for a first offence or 2 years imprisonment for a subsequent
offence28 days imprisonment cumulative upon the penalty imposed in respect of Magistrates Court file number 03-5961. 2 15/11/2003 Drive whilst Suspended Conviction without penalty Magistrates Court File No 04-161
1 14/01/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 2 14/01/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 04-574
1 29/01/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 04-1296
1 27/02/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 2 27/2/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 3 28/2/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 04-2921
1 10/5 & 13/5/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 2 12/05/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 05-1531
1 28 & 29/10/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 04-6393
1 4/12/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 2 6/12/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 3 19/12/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. 4 20/12/2004 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 04-6395
1 11/12/2004 Drive whilst Disqualified 6 months imprisonment for a first offence or 2 years imprisonment for a subsequent
offence28 days imprisonment cumulative upon the penalties imposed in respect of Magistrates Court file number 03-6347. Magistrates Court File No 04-6394
1 21/12/2004 Drive whilst Disqualified 6 months imprisonment for a first offence or 2 years imprisonment for a subsequent
offence28 days imprisonment cumulative upon the penalty imposed in respect of Magistrates Court file number 04-6395. 2 21/12/2004 Resist Police $2,500 fine or imprisonment for 6 months Conviction without penalty Magistrates Court File No 05-1095
1 26/02/2005 Driving a vehicle while not Authorised s74 Motor Vehicles Act $1,250 fine when not currently authorised to drive Conviction without penalty. Magistrates Court File No 05-6464
1 29/11/2005 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 06-3026
1 06/05/2006 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 06-4340
1 06/07/2006 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 06-4237
1 30/07/2006 Breach of Bail s17 (1) Bail Act 2 years imprisonment or a fine of $10,000 One penalty imposed under the provisions of s18A of the Criminal Law (Sentencing) Act. Magistrates Court File No 05-2106
There was also an amount of nine thousand six hundred and seventy seven dollars and eighty cents ($9677.80) after levies in unpaid fines owing by the appellant, which was referred to the Magistrate for an alternative penalty.
In respect of the nineteen breaches of bail the Magistrate imposed one sentence under s18A of the Criminal Law (Sentencing) Act 1988 (SA) of ten months imprisonment cumulative upon the sentence he imposed in respect of the charge of driving whilst disqualified in Magistrates Court file number 04/6394. Although there were nineteen breaches of bail before the Magistrate he referred to only seventeen breaches of bail.
As at 16 February 2000 which was the date of the first offence before the sentencing Magistrate there was an outstanding balance of unexpired parole of one year, five months and twenty four days. Under the provisions of s75 of the Correctional Services Act 1982 (SA) the sentences imposed by the Magistrate for the offences before him had to be cumulative upon that unexpired term of parole.
The Magistrate also took into account the fact that the Appellant had served 60 weeks in custody in respect of the current offences. He gave the Appellant credit for that period by deducting the 60 weeks from the head sentence. It is not entirely clear from the Magistrate’s remarks that there was any precise mathematical deduction of the same period from the non-parole period, although he stated at the conclusion of his sentencing remarks that he had taken this period into account when fixing the non-parole period.
He also stated that he had applied a discount for the pleas of guilty in respect of all of the charges before him somewhere in the range of 10% to 20%. After adding the outstanding balance of unexpired parole, the Magistrate arrived at the final head sentence of three years, 11 months and 16 days in respect of which he fixed the non-parole period at 18 months.
The Grounds of Appeal and the Arguments at the Appeal
There were fifteen grounds of appeal in all: -
1.That the Learned Magistrate erred in ordering the head sentence which was in all the circumstances manifestly excessive.
2.That the Learned Magistrate erred in ordering the non-parole period which was in all the circumstances manifestly excessive.
3.That the Learned Magistrate erred in failing to suspend the term of imprisonment.
4.That the Learned Magistrate erred in that the sentence imposed in relation to the 17 charges of breach of bail was manifestly excessive.
5.In the alternative the Learned Magistrate erred in sentencing in respect to the Breaches of Bail by imposing a single sentence pursuant to section 18A of the Criminal Law (Sentencing) Act 1988 (SA) without first considering and determining separate sentences for the individual offences.
6.In the alternative the Learned Magistrate erred in sentencing in respect to the Breaches of Bail by placing too much weight to the number of offences and insufficient regard to the individual nature of the offences.
7.That the Learned Magistrate erred in sentencing by failing to consider or take into account or give any weight to that extraordinary period of home detention served by the appellant or alternatively the nature of the home detention.
8.That the Learned Magistrate erred in sentencing by failing to take into account time spent in Immigration detention by the appellant.
9.That in the circumstances the Learned Magistrate erred in sentencing by deducting time spent in custody from the head sentence, rather than the non-parole period.
10.That the Learned Magistrate erred in sentencing by failing to make proper allowance for the appellant’s plea of guilty. In particular, the Learned Magistrate failed to;
a. precisely state the degree of credit given to the appellant as a consequence of his guilty plea.
b. explicitly state in his sentencing calculations the deductions made as credit for the guilty pleas in relation to;
i) the sentence for the individual offences
ii) the head sentence.
11.That the Learned Magistrate erred in sentencing by failing to take into account or disregarding the appellant’s current psychological/psychiatric and or physical state or the evidence thereof and assessing the effect of any imprisonment thereupon, as required by section 10 (1) (1) of the Criminal Law (Sentencing) Act 1988 (SA).
12.That the Learned Magistrate erred in sentencing by failing to refusing to allow the appellant the opportunity of an assessment in respect to a Diversion Program.
13.That the Learned Magistrate erred in sentencing by failing to take into account that the appellant successfully completed part of the Mental Health Diversion program, which was of itself unlawfully interrupted by improper detention in Baxter Immigration Detention Centre.
14.That the Learned Magistrate erred in sentencing by failing to take or adequately take into account the effect of the appellants known psychological/psychiatric and or physical conditions in assessing whether the offences of Breaches of Bail were contumacious examples or otherwise less serious examples of the offences.
15.That the Learned Magistrate erred in sentencing by failing to take into account or adequately take into account that since the year 2000 the appellant has not committed any further serious offending, has undergone part of a diversion program, is currently, permanently, partially incapacitated and therefore unlikely to re-offend by committing serious offences.
It is fair to say that a number of the amended grounds of appeal really amount to particulars of the Appellant’s main complaint that both the head sentence and the non-parole period are in all of the circumstances manifestly excessive.
At the hearing of this appeal, counsel for the Appellant developed the Appellant’s complaints that: -
1.The Magistrate erred in failing to take into account the Appellant’s, at least partially, successful attendance at the Mental Health Diversion program and his wrongful refusal to allow him to participate any further in respect of that program;
2.Although the Magistrate stated that he would give credit for the Appellant’s pleas of guilty in the range of 10 to 20% for each of the pleas, in fact, he did not make any proper allowance for those pleas and it is impossible to glean from his sentencing package how in fact he did apply the discount;
3.The Magistrate was wrong in failing to take into account the period of three months which the Appellant spent in Immigration detention and in any event he was wrong in failing to take into account the extraordinary period of home detention of some one thousand two hundred and thirty two (1,232) days served by the Appellant; and
4.The Magistrate was wrong to impose a single sentence of ten months for the nineteen breaches of bail which in all the circumstances was plainly excessive.
Before dealing with these arguments, I make some general observations. The Magistrate was dealing with some thirty four offences which were committed over a six year period between February 2000 and July 2006. Some of these offences were much more serious than others. The Appellant’s criminal history was not good. He was, at the date of the first offence, still on parole for an offence of attempted robbery for which he had received a head sentence of four years and two months and a non-parole period of two years and six months.
The sentencing process for the Magistrate in this case was complicated by the fact that the trial of the most serious matters with which the Magistrate had to deal (the dishonesty matters committed in 2000) seems to have taken an inordinate amount of time to be finalised. Indeed, the matter was in the Supreme Court for some time before Perry J, the trial judge referred those matters back to the Magistrates Court after the Appellant belatedly entered his pleas in 2006. It can be seen from the court record that these delays appear to have been occasioned by the investigation as to the Appellant’s fitness to stand trial. Once this issue was resolved, the matter was transferred back to the Magistrates Court for sentencing. Much of the delay appears to be attributable to the Appellant’s own non-attendance at hearings and it seems that this also accounts for some of the time spent in custody (which the Magistrate took into account) and why the Appellant was ultimately placed on home detention bail for an extended period totalling some one thousand two hundred and thirty two (1,232) days.
It is well established that sentencing remarks do not need to deal with every matter which may be relevant to the final determination. Nor is it necessary that a full or detailed statement of reasons be given in every case. It is sufficient if the sentencing remarks enable an Appellate court to identify and understand the reasoning of the judge so that it may properly perform its appellate duties: R v Becker[1]. These remarks are particularly apposite to magistrates who operate in the busiest sentencing court in South Australia.
[1] R v Becker (2005) 91 SASR 498 at 503
The Credit for the Appellant’s Pleas
In his sentencing remarks the Magistrate specifically addressed the question of the credit he would give for the appellant’s guilty pleas. He concluded that the Appellant was not entitled to credit for pleas at the earliest opportunity, however he was prepared to give some credit for those guilty pleas, albeit not at the first available opportunity. He said: -
Some credit for guilty pleas of course must be recognised and taking the submissions into account I have decided that the credit to be extended to the defendant will vary between 10 and 20%.
The Magistrate did not set out in the penalties he imposed, figures identifying the precise discount he applied in respect of each sentence or group of sentences that he imposed. He imposed some individual sentences and in respect of the breaches of bail he utilised the provisions of s18A of the Criminal Law (Sentencing) Act and imposed one global penalty.
For some time the Court of Criminal Appeal has encouraged sentencing courts to indicate in sentencing remarks the extent of any discount given for guilty pleas. However, the failure to identify a precise reduction is not in itself an error of principle, nor in itself is it a ground for interference with a sentence of imprisonment: R v Place[2].
[2] R v Place (2002) 81 SASR 395 at 411 – 413, 424 - 425
In R v Sutherland[3] King CJ stated:-
It does not follow, of course, that merely because the learned judge did not indicate the extent to which he took the plea of guilty into account, that he did not give it appropriate weight. That can only be judged by assessing what would have been a reasonable sentence if there had been no plea of guilty, and comparing it with the sentence actually imposed.
[3] Sutherland unreported judgment S3705, 16 November 1992 at 4 - 5
To the extent that the Magistrate said he would give credit in each matter before him, somewhere between 10% - 20%, the Magistrate did identify a specific reduction.
It is not difficult to discern the process of reasoning which led to that decision. It appears that he intended to apply a discount which varied in the stated range according to the lateness or otherwise of the entry of each of the pleas or groups of pleas before him.
The approximate starting point prior to the deduction for the pleas can be calculated by adding the period of 60 weeks from the head sentence arrived at by the Magistrate before he accumulated the unexpired balance of parole. Whether or not a figure of 10% or 20% is used, the starting point must have been within the range of 52 to 54 months (four years and four to six months).
When that starting point is assessed against the Appellant’s prior history, the fact that the current offences were committed on parole for another very serious offence, the fact that the breaches of bail were contumacious, and the fact that the Appellant had served prior terms of imprisonment for similar offending, it can be seen that a head sentence within that range is not excessive.
In a case such as this, where the Magistrate chose to utilise the provisions of s 18A of the Sentencing Act for some of the offences and to accumulate individual sentences for others, I do not consider that the omission to indicate specific reductions in respect of every single offence to be an error of principle.
Credit for time spent in custody
Closely allied to this ground of appeal was the complaint that the Magistrate did not in fact deduct the period of 60 weeks spent in custody from the non-parole period as he had stated.
It is well established that a sentencing court, in giving credit for time spent in custody, may either deduct that period from either the notional head sentence and then fix a non-parole period by reference to the head sentence, or simply deduct the period in custody from both the head sentence and the non-parole period.
There is more than one way in which a proper credit can be allowed for the time spent in custody and providing that a sentencing court has made proper allowance, there can be no complaint as to the particular method adopted: Strugnell v Police [2007] SASC 33, R v Sladic [2005] SASC 210.
In this case, there is no dispute that the period of 60 weeks was mathematically deducted from the head sentence before the non-parole period was fixed. The fact that the Magistrate fixed a non-parole period significantly less than 50% of the head sentence is a very strong indicator that he did in fact deduct a period of 60 weeks from the intended non-parole period. Either way, the prosecution’s submission that the non-parole period in all the circumstances was a fair and modest one is correct. I do not consider there is any substance in this ground of appeal.
The Mental Health Diversion Program
A number of grounds of appeal touched directly or indirectly on the issue of whether the Appellant was wrongfully deprived of an opportunity to re-enter the Mental Health Diversion program and finish that program.
It was argued that the Magistrate erred by failing to take into account the fact that the appellant had successfully completed part of a Mental Health Diversion program, which was of itself unlawfully interrupted by his improper detention in the Baxter Immigration Detention Centre.
It was also argued that the Magistrate erred by refusing to allow the Appellant re-entry into the Mental Health Diversion program and by failing to take into account adequately the fact that the Appellant’s known psychological, psychiatric and physical condition pointed towards the unlikelihood that the Appellant would again offend by committing serious offences.
In order to understand the Appellant’s arguments on these grounds of appeal it is necessary to examine some of the background concerning the Appellant’s admission into the Mental Health Diversion Program.
It is apparent from the affidavit of Mr Dollard sworn on 10 January 2007 that the Appellant was first admitted to the Mental Health Diversion Program in about 3 June 2005. On 5 August 2005 the Appellant was removed from that program on account of the fact that he failed to appear in court on that date. The failure to appear on that occasion was due to his detention in the Baxter Detention Centre. However, when the matter next came on again in court, on 8 December 2005, the Appellant was again accepted onto the Mental Health Diversion program. On 16 June 2006 the Appellant did not appear in court and he was again on that date removed from the Program.
It is apparent from the record of offending that the Appellant during the period in early 2006 was continuing to commit breaches of his bail, the last such breach occurring on 30 July 2006. It also appears that the court ran out of patience with the Appellant’s non-appearances on various matters in about July of 2006 because on 31 July 2006 he was refused bail in the Christies Beach Magistrates Court.
Ultimately all of these matters were referred by the Supreme Court back to the sentencing Magistrate to be dealt with on 10 October 2006. On that date the Appellant’s then lawyer applied to have the matters again diverted into the Mental Health Diversion Program.
By that date the Magistrate was in receipt of a final report prepared by the Senior Clinical Liaison Officer for the Magistrates Court Diversion Program who recommended that the Magistrates Court Diversion matters involving the Appellant be finalised.
In support of this ground of appeal the Appellant relied upon the remarks of Sulan, J in H,T v Police[4]. In that case His Honour dealt with the decision of a magistrate to refuse an offender entry into the Mental Health Diversion Program on the basis of a recommendation by a clinical advisor employed in the Program that the offender failed to satisfy the Committees eligibility criteria for entry into the Program. That decision in my view has no relevance to the facts here.
[4] H,T v Police (2005) SASC 143
Here the Appellant (notwithstanding that the original mental health diagnosis was both unclear and unequivocal) had been accepted into the Program. The Appellant’s participation in that program was interrupted by his detention in the Immigration Baxter Detention Centre. After release from the Baxter Detention Centre he was again placed on the Program and again removed from the Program apparently due to further non-appearances in court.
All of this evidence was before the Magistrate. In his reasons the Magistrate explained in some detail why he rejected the application of the Appellant to be re-admitted for a third time to that Program. He concluded that the Appellant’s mental health condition was in any event unclear and equivocal and there was no evidence before him to establish any association or causal link between the Appellant’s mental health and his offending behaviour. The Magistrate observed that the available evidence tended to demonstrate that the appellant’s participation in the program had been of limited success in any event, and the Appellant’s Clinical Liaison Officer did not recommend continuation in the program in her final report of 8 June 2006. In addition, the Appellant continued to offend shortly after being removed from the program.
In my view it was open to the Magistrate to reach the conclusion he did on this topic. He made a specific finding that the provisions of s19C of the Criminal Law (Sentencing) Act were not applicable to the Appellant. His reasons as a whole indicate that he gave careful and thorough attention to this aspect of the Appellant’s submissions. There is no substance in this ground of appeal.
The failure to give the Appellant Credit for the period spent in Home Detention
Counsel for the Appellant argued that because the Appellant had spent an extraordinary period of time on home detention some one thousand two hundred and thirty two (1,232) days, the Magistrate was in error in failing to take any account of, or give any weight to, that period. He conceded that the failure to give any credit for periods of time spent on home detention bail does not in itself amount to an error of principle in sentencing. Nevertheless, he argued that because the Appellant was under the most stringent of home detention conditions and because those conditions were identical in nature to those prescribed by Statute for a sentence of imprisonment where the sentence is to be partly or wholly served by home detention, it was unfair and unjust for the magistrate to ignore that period.
This ground of appeal can be disposed of quite shortly. A sentencing court is entitled to take into account the time spent by a person on home detention bail, however there is no obligation on a sentencing court to make a specific reduction from either the head sentence or the non-parole period for time spent on home detention: R vMalesevic[5].
[5] R v Malesevic (1999) 2004 LSJS 32 p32-33
Here the Magistrate declined to give any credit for the period spent on home detention bail. Nevertheless, it is obvious that he directed his mind to that issue and in the exercise of his discretion declined to take it into account.
In the light of the history of the Appellant’s non-compliance with his conditions of bail on numerous occasions it is hardly surprising that he took the course he did. In my view there is no substance to this ground of appeal.
The imposition of one global penalty of ten months in relation to the nineteen breaches of bail
The respondent concedes that the Magistrate appears to have erroneously referred to seventeen breaches of bail when in fact there were a total of nineteen individual counts of breaches of bail to be dealt with. Whilst that appears to amount to a technical error in sentencing, for the reasons which follow I consider no miscarriage of justice has resulted from that technical error.
Counsel for the Appellant argued that the imposition of the global sentence of ten months for all nineteen offences was manifestly excessive or in the alternative that the Magistrate erred by failing to calculate separate and distinct sentences for each of those nineteen breaches before determining a suitable single sentence.
There is a further complaint that the Magistrate has ignored the principle of totality and that taken as a whole the ultimate sentence of ten months for the breaches of bail must be regarded as manifestly excessive given the nature and circumstances in which the breaches were committed. It was submitted that although there were a large number of breaches, each of the offences were really quite trivial.
The Magistrate in imposing a global penalty of ten months concluded that the Appellant persistently flouted his bail conditions over an extended period of time. He said:-
In all there are seventeen breaches of bail, whether imposed by the police, the Magistrates Court, or the District Court between 26 December 2003 and 30 July 2006, a period of 31 months. These were home detention conditions. It has been suggested that the defendant’s medical condition was at least a contributing factor. I have referred to the facts. Clearly, the defendant has persistently flouted his bail of last resort conditions and that and his repeated offending accounts for periods spent in custody. Finally, in July 2006, this court’s patience ran out and in the interests of conciseness and bearing in mind the totality principle, one sentence under s18A of the Sentencing Act for all 17 offences is appropriate. I convict the defendant on all counts and sentence him to a period of 10 months imprisonment…
When viewed in isolation each of the breaches of bail could perhaps be regarded as minor. However, when viewed in their totality, the Magistrate’s effective conclusion that this offending call for a deterrent penalty was justified.
In particular, the Magistrate placed reliance upon a report from the Home Detention Supervisor from the Department of Correctional Services. In his general assessment of the Appellant’s compliance with home detention he described the Appellant’s compliance as “the absolute worst” observed by him in three years dealing with a caseload of some three hundred clients.
On the basis of the material before the Court, it was open to the Magistrate to conclude that the Appellant’s offending was both persistent and deliberate over an extended period of time. Moreover, he was by his continual breaches, over-extending the resources of the Department of Correctional Services Officers assigned to supervise persons on Home Detention.
While the sentence of 10 months was a substantial penalty, I am not persuaded that it was so high as to justify interference by this Court. The fact that the Magistrate appears to have referred erroneously to only 17 breaches of bail when there were 19 for which the Appellant stood to be sentenced, is not an error which could have prejudiced the Appellant.
I would therefore dismiss this ground of appeal.
The Detention in the Immigration Centre at Baxter
The Appellant complained that the Magistrate erred by failing to take into account the time spent in Baxter Immigration Centre by the appellant.
The Magistrate concluded that the Appellant’s detention in Baxter was at the behest of the Federal authorities apparently in relation to deportation proceedings which he concluded had nothing to do with the matters before him.
The Appellant’s counsel submitted that the Appellant’s detention was in fact directly related to the matters before the court because the investigating officer in relation to the matters before the had been involved in reporting the Appellant to the Federal authorities for potential breaches of the Migration Act 1958 (Cth).
At the hearing of this appeal I was informed that in fact the Appellant was lawfully detained on a warrant issued under the provisions of the Migration Act in connection with a suggestion that he was not a fit and proper person to remain in Australia as a result of his offending history. For some reason, which is not clear, the investigating officer in relation to the Magistrate Court matters was present with the Federal authorities when they arrested the Appellant for the alleged breaches of the Migration Act.
In my view, even if that were true, none of these factual allegations could give rise to any suggestion that the Appellant’s detention in the Baxter Immigration Centre was somehow referable to or related to the offences before the court.
The Appellant relied on a number of interstate decisions which he contended were authority for the principle that time spent in immigration detention was a matter which could have and should have been taken into account by the Magistrate. In my view those interstate decisions (Zainudin[6], Yusup[7]) are distinguishable from this case.
[6] Zainudin [2005] 190 FLR 149
[7] Yusup [2005] NTCCA 19
Where there is a close connection between the detention and the offence before the court the fact of immigration detention may be taken into account by a sentencing judge or magistrate: Darter v Diden[8]. In each of the cases relied on by the Appellant, the court was dealing with offences committed contrary to Federal Statutes and the immigration detention concerned was either solely referable to that offending or very closely connected with that offending.
[8] Darter v Diden [2006] SASC 152
In this case the Appellant’s detention at the Baxter Immigration Centre was unrelated to any of the offending before the Magistrate. For these reasons in my view the Magistrate was correct in declining to take it into account that time spent in Immigration detention.
Conclusion
The Magistrate addressed all of the issues relevant to the Appellant’s prospects of rehabilitation, including his conduct throughout the period between 2000 – 2006.
He was given extensive material relating to the Appellant’s psychological and physical condition. The fact that he relied upon some of them and took others into account is obvious from his references to them at numerous points throughout his sentencing remarks.
Generally, the Magistrate gave careful and detailed reasons for his approach which were quite sufficient to enable this Court to identify and understand his reasoning.
Given the nature and extent of the offending for which the Appellant was to be sentenced and his prior criminal history, considerations of both general and personal deterrence were very important in sentencing the Appellant. In the light of all of the circumstances, I do not consider that the Magistrate’s remarks contain any error of principle. The head sentence was appropriate and in my view the non-parole period was relatively modest.
For all of these reasons the appeal should be dismissed.
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