Olney v Martin
[2017] ACTSC 79
•30 March 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Olney v Martin |
Citation: | [2017] ACTSC 79 |
Hearing Date: | 30 March 2017 |
DecisionDate: | 30 March 2017 |
Before: Decision: | Murrell CJ Sentence imposed by the Magistrate is varied to provide for a security in the sum of $20.00. Otherwise, appeal dismissed and orders of the Magistrate confirmed. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal from Magistrates Court – appeal against sentence – contravention of protection order – trespass – breach of good behaviour orders – error of law – error as to factual basis – manifestly excessive – totality of sentence – concurrency and cumulation between the sentences |
Legislation Cited: | Domestic Violence and Protection Orders Act 2008 (ACT) s 90 Crimes Act 1914 (Cth) Public Order (Protection of Persons and Property) Act (Cth) s 11 |
Cases Cited: | Beniamini v Craig [2017] ACTSC 30 Mill v The Queen [1988] HCA 70; 166 CLR 59 Wong v The Queen [2001] HCA 64; 207 CLR 584 |
Parties: | Tobias Olney (Appellant) Saxon Martin (Respondent) |
Representation: | Counsel Ms R Bird (Appellant) Mr S McLaughlin (Respondent) |
| Solicitors Rachel Bird & Co (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 21 of 2017 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Magistrate Fryar Date of Decision: 3 March 2017 Case Title: Martin v Olney Court File Numbers: CC 9051 of 2014; CC 10631 of 2014; CC 867 of 2015; CC 9626 of 2016; CC 9748 of 2016 |
MURRELL CJ:
On 3 March 2017, the Magistrate sentenced the offender in relation to two fresh charges and three older matters that were the subject of suspended sentence good behaviour orders that had been breached.
Breach matters
The breach matters relate to sentences that had been imposed on 21 December 2015. For each of two offences (assault and dangerous driving), a three month sentence of imprisonment had been imposed, suspended on an 18 month good behaviour order. For an offence of damage property, a one month sentence of imprisonment had been imposed, also suspended on an 18 month good behaviour order.
On 3 March, 2017, the Magistrate cancelled the good behaviour orders and imposed the sentences. The Magistrate directed that the three month terms of imprisonment be served concurrently from 28 October 2016, and that the one month term of imprisonment be served cumulatively, from 28 January 2017. The result was a total sentence of four months’ imprisonment from 28 October 2016 to 27 February 2017.
In relation to five further good behaviour orders that had been breached, the Magistrate took no further action.
New charges
In relation to the new charges, the Magistrate imposed sentences that were entirely cumulative on the sentences imposed on the breach matters.
For an offence of contravention of protection order, the Magistrate imposed a sentence of 12 months’ imprisonment (discounted by 20 per cent from a starting point of 15 months’ imprisonment), commencing on 28 February 2017. Her Honour ordered that the sentence be suspended after three months upon the offender entering into a good behaviour order for 18 months. The conditions of the good behaviour order required the offender to accept the supervision of Corrective Services; to attend such courses, programs, counselling etc. as directed; and to supply samples of blood, breath, urine or hair follicles as directed. Under s 90 of the Domestic Violence and Protection Orders Act 2008 (ACT), the offence carries a maximum penalty of 5 years’ imprisonment.
For an offence of trespass, the offender was sentenced to an 18 month good behaviour order on the same conditions. Under s 11 of the Public Order (Protection of Persons and Property) Act (Cth), the maximum penalty for an offence of trespass is a fine of $1800.
Grounds of appeal
The appellant appealed on three grounds:
(a)The Magistrate failed to apply the principle of totality in making orders as to concurrency and accumulation.
(b)The Magistrate proceeded on an incorrect factual basis in respect of the contravene protection order charge.
(c)The sentence was manifestly excessive. In particular, the total sentence was manifestly excessive and the starting point of 15 months’ imprisonment for the contravene protection order charge was manifestly excessive.
Facts and reasons
Facts – Breach offences
As I have already noted, on 21 December 2015 Special Magistrate Cush imposed suspended sentences and good behaviour orders. Those sentences related to an assault on a police officer on 9 September 2014 and a dangerous driving on 28 October 2014. The third offence occurred on 13 January 2015 and involved damaging the windscreen of a vehicle belonging to the same complainant in the new matter of contravening a protection order. Each of the offences resulted in the imposition of an 18 month good behaviour order. By committing the fresh offences, the appellant breached the good behaviour orders.
Reasons – Breach offences
In dealing with the breach offences on 3 March 2017, the Magistrate did not explain at length the reasons for the course of action taken. However, the action is virtually self-explanatory. Prima facie, the commission of significant breaches of a good behaviour order associated with a suspended sentence will result in the imposition of the sentence on a full-time basis.
In this case, the breaches were significant. The appellant committed further serious offences. The Magistrate chose to follow the usual course and require the appellant to serve the original sentences on a full-time basis. The appellant was somewhat advantaged in that, although the two three month sentences related to offences of a different type that had occurred on different dates six or seven weeks apart, her Honour directed that those sentences be served concurrently.
Facts – New charges
In relation to the contravention of protection order charge, on 10 September 2016 at approximately 4:02 pm, a 48 hour domestic violence emergency order was granted because the offender was perceived to have been acting in an agitated and aggressive manner towards the complainant. The order was served on the offender at around 4:55 pm. It prohibited the offender from being on the premises where the complainant lives.
Later that night, at approximately 11:40 pm, the offender approached the complainant’s house via the driveway. The complainant’s mother attempted to close the door, but the offender forced his way in, removed something from the lounge room, and left the premises.
The offence of trespass occurred a few days later on 16 September 2016. The appellant, by unknown means, gained entry to the complainant’s premises and refused to leave when asked to do so. The appellant was found inside a child’s bedroom; this reportedly caused the complainant to feel fearful and anxious. The appellant then engaged in what the Magistrate called “bizarre and extreme behaviour”, including the infliction of self-harm.
Reasons – New charges
The appellant pleaded guilty to both offences after some negotiation in relation to the statement of facts. There were a number of appearances before the Magistrates Court before the pleas of guilty were entered.
The Magistrate assessed the objective seriousness of the contravention of protection order offence as being of “at least mid-range, if not higher”, referring to the fact that it involved not only an actual physical attendance, but an entry onto the premises (the complainant’s residence).
I would add that other factors making the offence objectively serious were that the offence occurred about seven hours after the appellant had been served with the order, and it occurred late at night, when persons were present at the residence, and would be expected to have been present.
The Magistrate assessed the trespass offence as being in “the high range”. I agree with that assessment given that it involved the complainant’s residence, a refusal to leave the residence when initially asked to do so, and presence inside a child’s bedroom causing the complainant to experience significant anxiety.
The Magistrate had regard to the appellant’s subjective circumstances. The Magistrate analysed his criminal history and drew conclusions about the relationship between his criminal history, which was relatively recent, and what her Honour believed was a significant substance abuse problem. Her Honour noted that his behaviour was unexplained except by reference to substance abuse.
As I have already noted, the Magistrate allowed the appellant a significant discount for his pleas of guilty following what she described as “some negotiation”. The discount was generous given that the pleas were entered after several appearances in the Magistrates Court and after the appellant had gained the benefit of negotiated facts.
The appeal
The appeal is pursuant to the Magistrates Court Act 1930 (ACT). It is by way of review. As Refshauge J recently stated in Beniamini v Craig [2017] ACTSC 30, at [33] (Beniamini), “[s]entences imposed in the Magistrates Court are not to be set aside simply because [the appellate court] would have imposed a different sentence.” The appeal will be upheld only if the sentencing discretion has been affected by an error of law, error of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations.
An error may be express or inferred. It may be inferred in the case of a sentence that is manifestly excessive, unreasonable, or plainly unjust or plainly wrong. The inference of error may be made where a sentence is clearly outside what has been described as the "available sentencing range". That is not necessarily the range that has been imposed in practice, but a range that is available at law having regard to the critical sentencing parameter of the maximum available penalty, relevant objective and subjective considerations, sentencing purposes, and other statutory considerations.
Error as to fact
The appellant submitted that the Magistrate made an error of fact in that her Honour initially believed that the protected person (rather than the protected person’s mother) attempted to prevent the appellant from forcing his way into the premises by the front door. It was on that basis that her Honour commenced to deliver her reasons. During the reasons, her Honour also referred to the children being present on the occasion that gave rise to the protection order.
Fortunately, the appellant's legal representative intervened to correct the Magistrate. Her Honour was informed, first, that there was no evidence that the children had been present on the occasion that gave rise to the protection order and, second, that it was the protected person's mother that answered the door.
After these matters were pointed out, her Honour noted the amendment to the facts observing that, "[i]t doesn't really matter". With the benefit of hindsight, that comment may have been unfortunate. However, it is clear what her Honour meant. Her Honour meant that the change in her understanding of the facts did not affect her view about the appropriate outcome.
It is clear that her Honour did understand the correct factual scenario. Indeed, her Honour was careful to check with the legal representatives by restating her understanding of the facts, following the correction by the appellant's legal representative.
Manifest excess
In relation to the allegation of manifest excess, as stated in Beniamini, it is well established that appellate intervention is not justified simply because the result arrived at by the court below is markedly different from other sentences that have been imposed in similar cases. Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58]:
Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.
In this case, the focus of the submission was on the sentence for breach of the protection order. It was submitted that a starting point of 15 months’ imprisonment was so inappropriately high that it was, in effect, outside the available sentencing range. The appellant further submitted that the Magistrate overloaded the sentence for the offence of breaching a protection order because her Honour considered that the offence of trespass was a very serious one and that the only available penalty (a fine) was insufficient to address the serious offending conduct.
This submission is not well founded. The maximum available penalty is five years' imprisonment. The starting point was 15 months' imprisonment for what the Magistrate correctly described as an offence of significant seriousness. It is hard to argue that the starting point was too high. The importance of imposing sentences that send messages of both general deterrence and specific deterrence for offences of domestic violence has often been discussed by this Court, most recently by Refshauge J in Beniamini.
The starting point of 15 months' imprisonment was not outside the available sentencing range. Further, as already noted, the appellant was lucky to achieve a discount for the plea of 20 per cent.
Totality
Nor do I consider that there was any error in the manner in which the sentences were made concurrent or cumulative or that the total sentence is manifestly excessive.
It is well settled that, when sentencing for multiple offences, the sentencing court must fix an appropriate sentence for each offence and then consider questions of accumulation and concurrence, as well as totality: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40]-[50]. The total sentence must be just and appropriate for the totality of the criminal conduct: Mill v The Queen [1988] HCA 70; 166 CLR 59 at 63.
Usually, discrete offences will result in sentences that are at least partly cumulative as concurrent sentences would fail to reflect the total criminality of the separate criminal conduct and consequences. I have already remarked on how this played out in relation to the sentencing for the two discrete breach offences for which sentences of three months' imprisonment were imposed.
Where offences are part of a single episode of criminality and share common features, it is usual for there to be a significant degree of concurrency. None of the offending behaviour in the present case clearly fell into that category. While the fresh offences occurred within a period of six days, each was independently a serious offence of its type. One would not necessarily expect there to be a significant degree of concurrency between the sentences.
It is also well established that, when a nonparole period (or date for suspension of the sentences) is being considered, it is important to look at the overall picture of imprisonment, which involves a consideration of sentences previously imposed and still being served, as well as all the new sentences that are imposed.
In this case, the Magistrate was sentencing in relation to a number of separate incidents. There were three separate breach incidents. There were two separate fresh incidents. A variety of approaches to concurrency and accumulation were available to the Magistrate. I do not see any error in the manner in which her Honour chose to exercise her discretion.
Similarly, when determining the date from which the final sentence should be suspended (which her Honour fixed as 27 May 2017 or three months into the sentence for contravening the protection order), it is clear that her Honour had regard to the overall sentence of 16 months’ imprisonment and the total period that the appellant would spend in custody. Her Honour was well aware that a sentence of imprisonment from 16 September 2016 to 27 October 2016 had been imposed on the appellant, and that the effect of the sentence that her Honour imposed was that the overall period of imprisonment (including the earlier sentence) was a period of 17 months and 11 days.
Her Honour selected a date for suspension of the final sentence which meant that the appellant would serve a period of eight months and 11 days before the suspension came into play, i.e. less than 50 per cent of the overall period of imprisonment. Given the appellant's short criminal history, and the fact that it was his first period of full-time imprisonment, a period of slightly less than 50 per cent was well within the available range.
There was no error in the manner in which her Honour exercised her sentencing discretion in relation to accumulation, concurrency or the fixing of the date for suspension of the final sentence.
The only error that occurred was of a very minor nature. It was identified by the respondent. In relation to the recognizance imposed under section 20(1)(a) of the Crimes Act 1914 (Cth), it was necessary that a security be ordered. In that respect, I vary the sentence imposed by the Magistrate to order that there be security in the sum of $20.
Otherwise the appeal is dismissed and the orders of the Magistrate are confirmed.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell Associate: Date: 7 April 2017 |
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