Parker v Richardson
[2012] TASSC 63
•3 October 2012
[2012] TASSC 63
COURT: SUPREME COURT OF TASMANIA
CITATION: Parker v Richardson [2012] TASSC 63
PARTIES: PARKER, John
v
RICHARDSON, Sean Gregory
FILE NO: 267/2012
DELIVERED ON: 3 October 2012
DELIVERED AT: Hobart
HEARING DATE: 25 September 2012
JUDGMENT OF: Blow J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Commencement – Backdating – Pre-sentence custody – Period of remand in custody before committing offences for which sentenced.
Sentencing Act 1997 (Tas), s16(1).
Geale v Tasmania (2009) 18 Tas R 338, distinguished.
Aust Dig Criminal Law [3341]
REPRESENTATION:
Counsel:
Applicant: S Nicholson
Respondent: E Hughes, F Cangelosi
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Rae & Partners
Judgment Number: [2012] TASSC 63
Number of paragraphs: 56
Serial No 63/2012
File No 267/2012
JOHN PARKER v SEAN GREGORY RICHARDSON
REASONS FOR JUDGMENT BLOW J
3 October 2012
This is a motion for the review of some sentencing orders made by a magistrate, Mr R Marron. He sentenced the respondent following pleas of guilty to 33 offences. In respect of 30 of those offences, he imposed a global sentence of 256 days' imprisonment, backdated to 17 July 2011, disqualified him from driving for 12 months, and made a probation order of 12 months' duration. The period of 256 days was chosen by the learned magistrate as the aggregate of a number of periods that the respondent had spent in custody. His arithmetic was wrong, but that is of little significance. The sentence was imposed on 27 March 2012. It was backdated by 255 days, so that it expired on the day of the sentencing.
The applicant, a senior sergeant in Tasmania Police, has sought the review of the sentence on the 30 counts on two grounds. By ground 1, he contends that the learned magistrate erred in taking into account a period that the respondent spent in custody before committing any of the 30 offences to which the sentence related. By ground 2, he contends that the sentence was manifestly inadequate.
The 33 offences
The first of the offences for which the learned magistrate sentenced the respondent was an offence of possessing cannabis, committed on 18 May 2010. On that day police officers stopped and searched a car in which the respondent was travelling as a passenger. They found that he had a small quantity of cannabis. The learned magistrate dealt with that charge separately from the others. He simply recorded a conviction. It is not suggested that he should have been less lenient.
The rest of the offences were committed during a period of about 11 months, from 13 December 2010 to 9 November 2011. I will give details of them in chronological order.
13 December 2010
On this date the respondent breached his bail conditions. He was required to report to a police station every day between 9am and 5pm. He was late. He got to the police station at 6.45pm.
15 December 2010
There was a similar charge in relation to this date. The respondent reported to the required police station at 7.55pm.
30 December 2010
There were five charges in relation to offences committed on this date:
· Dangerous driving.
· Evading police.
· Driving without a licence.
· Driving an uninsured vehicle.
· Driving an unregistered vehicle.
The respondent was observed by police officers when he was riding a motorcycle on Main Road, George Town at about 100Km per hour in an area where the speed limit was 60Km per hour. An officer signalled to him to pull over but, after looking at the police, the respondent accelerated away rapidly, reaching about 160Km per hour. He was last seen by the officers on the incorrect side of the road, overtaking a vehicle on a bend where his view of any oncoming traffic was obscured. He was on the wrong side of double white lines. A pedestrian saw him overtake three vehicles as he rounded that bend, then overtake a fourth vehicle on its left, a fifth vehicle on its right, and a sixth vehicle on its left. At the places where he overtook vehicles on the left, there was only a single lane in each direction. He reached a roundabout, and rode around it on the incorrect side, against the flow of traffic. The respondent turned into Cimitiere Street, and was seen travelling at about 90Km per hour along that street. Then he turned into Agnes Street, where he travelled at about 110Km per hour. These streets are in the built-up area of George Town. The respondent rode into a back yard. Police officers arrived, and called out that he was under arrest, but he climbed a fence and fled on foot. The motorcycle was unroadworthy. Its brakes were defective in various respects. There was no tread on part of the rear tyre. The accelerator did not return to the idle position after its release. The motorcycle was unregistered and uninsured. The respondent has never held a driving licence of any sort.
24 January 2011
There were five charges relating to an incident on this day:
· Speeding.
· Driving a motorcycle with no helmet.
· Evading police.
· Driving without a licence.
· Contravening the conditions of a notice.
Following the respondent's arrest on 30 December 2010, he was bailed by a police officer. The bail notice contained a condition requiring him not to be found behind the controls of a motor vehicle. Police officers observed him riding a motorcycle without a helmet on Alanvale Road, Newnham on the morning of 24 January 2011. They turned the police vehicle to intercept him, but he accelerated heavily, reaching a speed of 140Km per hour. The officers abandoned their attempt to intercept him. The speed limit on Alanvale Road was 50Km per hour.
The learned magistrate dealt with the charges of speeding and riding without a helmet separately from the bulk of the charges. On those two charges, as a global penalty, he fined the respondent $400.
15 March 2011
There were four charges relating to an incident on this day:
· Negligent driving.
· Evading police.
· Driving without a licence.
· Breach of bail requirements.
On 25 January 2011 a magistrate had granted the respondent bail, with a condition that he was not to ride a motorcycle. On 15 March 2011, police officers observed him riding a motorcycle along Invermay Road at Mowbray. A police officer directed him to pull over and stop, but he accelerated away, crossed double white lines, turned into a one-way street in contravention of "No Entry" signs, and rode the motorcycle up that street against the flow of traffic. He was arrested after his motorcycle broke down.
24 April 2011
On this date police officers visited a residence where they found the respondent working on a motorcycle. Enquiries revealed that it had been stolen. The respondent admitted that he had purchased it for about $200, and that he believed at the time that it was stolen. He was charged under the Criminal Code with possession of stolen property. The charge alleged that the bike was worth about $1,700. That allegation was not disputed.
27 April 2011
The respondent pleaded guilty to three charges relating to an incident on this date:
· Evading police.
· Breach of bail.
· Driving without a licence.
Police officers saw him riding a motorcycle on Invermay Road at Mowbray. He appeared to see them, but evaded them by riding over a traffic island, not giving way to other traffic when he should have, and speeding off through the traffic on Invermay Road. The officers were unable to catch up with him. He had been bailed on 29 March 2011 with a bail condition requiring him not to drive a vehicle.
18 May 2011
On this day police officers searched the respondent for drugs on a public street in Mayfield. They did not find any drugs, but they found he was carrying a large fold-out knife. He pleaded guilty to unlawfully possessing a dangerous article in a public place.
29 July 2011
The respondent pleaded guilty to six charges, on three complaints, as a result of a random police check on this day:
· Breach of bail conditions.
· Possessing cannabis.
· Using cannabis.
· Driving without a licence.
· Driving with prescribed illicit drugs in his blood.
· Threatening police.
He was stopped by police officers when driving a car on Reservoir Road at Rocherlea. There was no suggestion that he was driving badly. He had been bailed on 12 July 2011 with a bail condition that he was not to drive a vehicle. He was arrested for breaching that bail condition. The police officers searched the vehicle and found two bags containing cannabis. When interviewed, the respondent denied that the drugs found in the car were his, but admitted that he had used cannabis earlier that day. The drug charges related to his possession and use of cannabis earlier in the day, not the cannabis in the car. A blood sample was taken from him. It showed that he had methylamphetamine and THC in his bloodstream at the time of his driving. Whilst at the Launceston Police Station, he threatened two male police officers by saying to them, "Next time I see you, you better be wearing bullet proof vests, you dog cunts", and "I'm going to run you cunts over."
August to October 2011
The respondent pleaded guilty to four charges of breaching bail conditions, each relating to an occasion when he drove a car when a bail condition required him not to. Those offences were committed on 17 August, 18 August, 7 September, and 4 October.
9 November 2011
The final charge was a charge of breaching a bail condition on this date. The condition required the respondent to live at a particular address. He breached that condition by living somewhere else.
Time spent in custody (ground 1)
When calculating the number of days that a person has spent in custody, it is usual to include both the day that the individual was taken into custody and the day that he or she was released.
The periods that the respondent spent in custody that the learned magistrate took into account were as follows:
· 10 August 2010 to 3 December 2010 (117 days).
· 15 March 2011 to 16 March 2011 (2 days).
· 30 July 2011 to 1 August 2011 (3 days).
· 10 November 2011 to 27 March 2012 (149 days).
These periods total 271 days. However the learned magistrate thought they totalled 256 days. He sentenced the respondent to 256 days' imprisonment, and backdated the sentence of imprisonment accordingly.
The earliest of the periods in custody, a period of 117 days, concluded on 3 December 2010, but the first of the 30 offences to which the sentence of imprisonment related was not committed until 10 days later, on 13 December 2010.
The taking into account of time spent in custody and the backdating of sentences are authorised by the Sentencing Act 1997, s16(1). That subsection reads as follows:
"(1) A court that is sentencing an offender to a term of imprisonment for an offence —
(a)must take into account any period of time during which the offender was held in custody in relation to proceedings for, or arising from, that offence; and
(b)may order that the sentence of imprisonment is to commence on a day earlier than the day on which it is imposed."
The period when the respondent was held in custody from 10 August 2010 to 2 December 2010 was not something that the learned magistrate was authorised by s16(1)(a) to take into account. However the discretion to backdate sentences, conferred by s16(1)(b), is unfettered. There are certainly circumstances in which it is appropriate for a sentencing magistrate or judge to take into account time spent in custody for reasons unconnected with any offence for which he or she is imposing a sentence.
In Geale v Tasmania (2009) 18 Tas R 338, the Court of Criminal Appeal considered a situation in which a man was charged with some crimes, released on bail, charged with an unconnected crime, remanded in custody, held in custody for over six months, and then convicted on the original charges. None of his time in custody, prior to that conviction, related to his original charges. A judge sentenced him to a term of imprisonment that commenced on the date of his conviction. The Court of Criminal Appeal held that the sentence should have been backdated so as to commence on the day when he was remanded in custody on the unrelated charge. Evans J, with whom Porter J agreed, reviewed the relevant case law and the history of Tasmanian legislation relating to the backdating of sentences and the taking into account of time spent in custody. He concluded that, when time has been spent in custody otherwise than in relation to the offence for which the sentence is to be imposed, it is generally desirable to take that time into account at the first opportunity, but that the Court always has a discretion as to whether it will make an allowance for time in custody and, if so, how much of an allowance it will make: par[63]. At par[64] he said:
"In the absence of any factors that warrant disregarding presentence time in custody, then ordinarily it should be taken into account. In the circumstances of this case, I can see no reason for not allowing the appellant the benefit of his presentence time in custody."
Of course his Honour was dealing with a case in which the appellant has spent time in custody only after being charged with the crimes for which he was sentenced. The present case is distinguishable on the basis that the respondent spent the first period of 117 days in custody before committing any of the offences for which he was subsequently sentenced to imprisonment.
In his submissions to the learned magistrate on behalf of the respondent, Mr Hughes said that altogether his client had spent over 22 months in custody on matters that were dismissed or withdrawn, including 7½ months on a murder charge in 2009, and 3½ months on an affray charge in early 2010. He submitted that the respondent had not previously been given credit for his time in custody from August to December 2010. He referred to Geale, and made a submission in the following terms:
"In Tasmania the position is that the pre-time custody doesn't have to attach to the charge for which the defendant is sentenced. That's almost like having a credit card, you have a certain amount of credit that's extended to you as you are in custody over time. The first time that you become – that it becomes appropriate or available to the court to take that time into account the court can take that time into account for the purposes of a fixing sentence."
In his sentencing comments, the learned magistrate referred to Geale, to s16(1)(a), and to the court's discretion as to whether it will take into account time in custody and, if so, what allowance will be made. He said that "the absence of a real connection does not render the time spent in custody irrelevant", and that such time should ordinarily be taken into account in the absence of any factors that warrant disregarding it. The learned magistrate took into account the fact that the time in custody from August to December 2010 related to charges of burglary, stealing, aggravated burglary, and attempted stealing, whereas only one of the charges on which he was to impose sentence, the charge relating to the stolen motorcycle, concerned dishonesty. He took into account that all the other charges were of a different nature to those relating to the period in custody in 2010. He did not accept the proposition that a person who had been remanded in custody "could bank such periods to be used to offset future offending". He referred to the fact that the respondent was a "youthful offender" aged 19 when remanded in custody in August 2010, and said that any period of time in custody in such circumstances was significant. It was only after taking all of those matters into account that he decided to give the respondent full credit for every day that he had spent in custody from 10 August 2010 to 3 December 2010.
The applicant contends that that period of custody should not have been taken into account in that way. The respondent contends that, in doing so, the learned magistrate quite properly exercised the backdating discretion conferred by s16(1)(b).
A magistrate or judge sentencing an offender must always take into account both the circumstances of the offence and the circumstances of the offender. If the offender has recently suffered a substantial misfortune in life, that can be taken into account as a factor weighing in favour of leniency. There is no reason why the spending of months in custody, before committing the offences for which the offender is to be sentenced, on charges that were withdrawn or dismissed should not therefore be regarded as a factor weighing in favour of leniency. If the charges have been withdrawn or dismissed, the individual should be presumed to have been innocent of the crimes or offences charged. In deciding what weight, if any, to give to such time in custody, it would be appropriate to take into account how long the individual spent in custody, when that was in relation to the offences for which the individual is to be sentenced and the proceedings relating to those offences, and any other factors which may weigh against lenient treatment. When an offender is to be sentenced for offences committed after a lengthy period of custody on charges that were withdrawn or dismissed, there is no principle of sentencing that requires that period in custody never to be taken into account.
But, in the circumstances of this case, I think the learned magistrate gave the period in custody in late 2010 undue weight. The respondent committed some quite serious offences, beginning with the offence of dangerous driving on 30 December 2010, only 27 days after his release from custody. His negligent driving in March 2011 and his purchase of the stolen motorcycle in April 2011 also involved serious offending. He was caught driving in contravention of bail conditions eight times, showing complete disregard for court orders, even after being repeatedly caught and prosecuted. Those factors all weighed against lenient treatment, to such an extent as to negate, to a substantial degree, the unfortunate circumstance of his having served months in custody for offences which he must be presumed not to have committed. In my view it was therefore unreasonable for the learned magistrate to sentence on the basis that each day the respondent served in custody in that period in late 2010 was to be credited towards his sentence of imprisonment for the 30 offences that he later committed. This ground of review must therefore succeed.
A manifestly inadequate sentence? (ground 2)
The applicant contends that both the sentence of 256 days' imprisonment and the driving disqualification period of 12 months were manifestly inadequate. In order to evaluate those contentions, it is necessary to consider the respondent's record of prior convictions and the other relevant factors.
Prior convictions
In February 2006 the respondent appeared before a magistrate and pleaded guilty to three charges of assault, 16 charges of burglary, four charges of aggravated burglary, 27 charges of stealing, one charge of possessing stolen property, two charges of contravening the conditions of a notice, one charge of breach of bail, and one charge of possessing a thing used for the administration of a controlled drug. He was placed on probation for 12 months.
In September 2006 he pleaded guilty to several new charges – two charges of aggravated burglary, two charges of stealing, two charges of motor vehicle stealing, and a charge of escape. He was sentenced to 12 months' detention. By re-offending, he had contravened his probation order. As a result, by way of re-sentencing on the February 2006 charges, he was placed on probation afresh for 12 months as from his release from detention.
In October 2006 he committed the crime of aggravated robbery. In December 2007 he was sentenced to six months' detention for that crime.
On 23 January 2008 he pleaded guilty to some further charges – one charge of burglary, two charges of stealing, three charges of motor vehicle stealing, one charge of possessing a controlled plant, two charges of using a controlled plant, three charges of driving without a licence, one charge of driving an unregistered vehicle, one charge of driving an uninsured vehicle, and five charges of breaches of bail. He was convicted, sentenced to 112 hours' community service, and disqualified from driving for two years. Once again, he had breached his probation order. As a result, he was sentenced for a third time on the offences for which he had appeared in February 2006. At the time of re-sentencing, he was in custody, on remand. By way of re-sentencing, he was placed on probation for a fresh term of 12 months, to commence on his release from prison.
He had been in remand because he had committed the crime of aggravated armed robbery on 27 June 2007. On 19 March 2008 he was sentenced to 18 months' imprisonment for that crime, backdated to 28 June 2007, with six months of that sentence suspended. He was disqualified from driving, concurrently with his earlier disqualification, for 12 months as from 19 March 2008.
On 7 April 2008 he was sentenced to seven hours' community service on minor drug charges. On 30 April 2008 he was sentenced to 14 hours' community service on a another minor drug charge, and reprimanded on a charge of driving without a licence.
On 23 October 2008 he pleaded guilty to some fresh charges – one charge of assault, two firearms charges, a charge of destroying property, and a charge of driving without a licence. He was sentenced to six months' detention. Once again he was dealt with for breaching the conditions of his probation order. He was sentenced for a fourth time on the charges that first came before a magistrate in February 2006. A fresh 12-month probation order was imposed.
Evidently the respondent did not satisfactorily perform the 112 hours' community service that were ordered on 23 January 2008. That might have been because he was in custody on the murder charge that did not proceed to trial. On 21 September 2009 he was re-sentenced on the January 2008 charges to five months' detention with effect from 26 December 2008.
On 17 February 2010 the respondent appeared before a magistrate and pleaded guilty to three charges of driving whilst disqualified, one charge of receiving stolen property, two charges of contravening the conditions of a notice, one charge of riding a motorcycle without a helmet, and one charge of having a passenger without a helmet. He was sentenced to two months' imprisonment with effect from 8 December 2009.
The learned magistrate made a potentially serious mistake as to the convictions imposed on that occasion. In his sentencing comments he said that the respondent had been convicted of dangerous driving on that occasion. That was wrong. The respondent had no prior convictions for dangerous driving.
His last convictions before the sentencing now under review were imposed by a magistrate on 5 November 2010. That was during the period in custody to which ground 1 relates. He was fined $275 for speeding, and convicted of driving without a licence.
Mitigating factors
The following mitigating factors were made known to the learned magistrate:
· The respondent was only 21 years old at the time of sentencing.
· He had had a difficult and rough childhood and adolescence.
· He was in a stable relationship with a young woman. They had a child who was born in late January 2012.
· The respondent had been exposed to cannabis from about the age of 12, and to methylamphetamine from about the age of 17. He had a history of difficulties with drugs.
· He had held some employment.
· Most of his prior convictions were for crimes and offences of dishonesty, whereas only one of the offences for which he was to be sentenced involved dishonesty.
Pre-sentence report
The learned magistrate was provided with a pre-sentence report by a probation officer. That report confirmed the mitigating factors listed above. The probation officer said the respondent had been assessed as having a very high risk of re-offending. He said the respondent appeared to have very little insight into his offending, other than to say that he had not long been out of prison, and that he was going through a "rough patch" and using "speed and cannabis". However he noted that the respondent claimed to have decreased his drug use after forming his relationship with his current partner. He noted a comment by the respondent about the long periods he had spent in custody in relation to charges that did not proceed. The respondent said he felt unfairly treated, that the police had ruined his life, and that the last thing he ever wanted was to come into contact with them. That might tend to explain, though not excuse, his reactions on various occasions when officers saw him riding a motorcycle.
Conclusions
When he disqualified the respondent from driving for 12 months, the learned magistrate said that that period was "cumulative on any current period of disqualification". Evidently he did not bother to check the respondent's record of prior convictions, or to ask anybody else, with a view to finding out whether there was a current period of disqualification. There was not. The respondent had only been disqualified twice. Those disqualifications were concurrent. The longer of them expired in January 2010. Having regard to the seriousness of some of the driving offences for which the respondent was sentenced, particularly dangerous driving, negligent driving, and driving with prescribed illicit drugs in his blood, all on different occasions, I think the disqualification period of 12 months was manifestly inadequate. A longer period is called for. However, because the respondent is a young man and a driving disqualification might interfere with him obtaining work and rehabilitating himself, I think an appropriate period of disqualification would be two years.
The sentence of 256 days' imprisonment equated to about 8½ months. It is significant that, because the sentence was imposed on the last day of the 256-day period, the respondent was not eligible for parole or any remission of his sentence. Under the Sentencing Act, s17(2)(b), a magistrate may make an order fixing a non-parole period. The shortest non-parole period that may be ordered is half of the head sentence: Sentencing Act, s17(3). Under the Corrections Act 1997, s70(b), a prisoner may not be released on parole before the completion of a continuous period of imprisonment of six months. If this had not been a backdated sentence, the learned magistrate could have made an order whereby the respondent could have been released on parole after serving six months of the sentence. Further, under the Corrections Regulations 2008, reg22, the Director of Corrective Services can grant a remission of part of a prison sentence up to a maximum of either three months or one third of the sentence, whichever is the greater. That, of course, cannot be done in relation to a wholly backdated sentence. A period of 8½ months in custody is therefore the equivalent of 11½ months in custody with the maximum remission and no parole. From another point of view, 8½ months in custody is how long a prisoner would serve if sentenced to 17 months' imprisonment and released on parole after serving half of that sentence. Of course it must always be borne in mind that the whole of the head sentence might have to be served.
Having regard to the seriousness of the 30 offences and to the respondent's prior convictions, I think the only appropriate penalty was a sentence of imprisonment. The fact that the respondent was still a young man, only 21 years old, made it appropriate to impose a shorter sentence than would have been imposed on a significantly older man. Having regard to all the relevant factors that I have mentioned, I think that, if the respondent had spent no time in custody, it would have been appropriate to sentence him to about nine to twelve months' imprisonment, either with part of that sentence suspended, or with provision for his release on parole after six months. I think it must follow that a sentence of 256 days' imprisonment, with no eligibility for parole or remission, was not manifestly inadequate. Ground 2 must succeed only in relation to the driving disqualification.
Re-sentencing
When the learned magistrate imposed the impugned sentence, the respondent was in custody on remand, having been committed for trial on a charge under the Criminal Code. On 2 April 2012 the Crown filed a nolle prosequi in relation to that charge and the respondent was released. Thus, between the commission of the first of the 30 offences for which he was sentenced to imprisonment and his release on 2 April, the respondent spent a total of 160 days in custody, comprising two days commencing on 15 March 2011, three days commencing on 30 July 2011, and 155 days commencing on 10 November 2011.
In my view it is appropriate to take into account the 117 days that he spent in custody between 10 August 2010 and 3 December 2010 as a factor weighing in favour of leniency.
Counsel for the respondent informed me that, since his release on 2 April, his client had been complying with his probation order; that he had been undertaking a "Positive Lifestyle Choices" course; that he had made enquiries about obtaining qualifications for work in the mining industry; that he now always uses public transport, and no longer owns any motorcycles or other motor vehicles; and that he has the support of his family in relation to his rehabilitation. None of those matters was disputed by counsel for the applicant.
In the circumstances, I do not think it would be desirable to make orders that require the respondent to go back into custody. I think the most appropriate course is to impose a partly suspended sentence, the "active" part of which covers a period of 160 days ending on the day he was released from custody, 2 April 2012. The sentence should therefore be backdated to 5 November 2011.
I will therefore make the following orders:
1The motion to review is allowed.
2The sentence of 256 days' imprisonment is set aside.
3In substitution for that sentence of imprisonment, the respondent is sentenced to 320 days' imprisonment with effect from 5 November 2011, 160 days of which is suspended on condition that the respondent commit no crime or offence punishable by imprisonment for a period of 12 months commencing on 3 October 2012.
4The driving disqualification order made by the learned magistrate is varied by increasing the period of disqualification from 12 months to two years.
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