Parker v Stebbings
[2017] TASSC 28
•5 May 2017
[2017] TASSC 28
COURT: SUPREME COURT OF TASMANIA
CITATION: Parker v Stebbings [2017] TASSC 28
PARTIES: PARKER, John
v
STEBBINGS, Aaron John
FILE NO: LCA 3855/2016
DELIVERED ON: 5 May 2017
DELIVERED AT: Launceston
HEARING DATE: 28 April 2017
JUDGMENT OF: Pearce J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Sentence and penalty –Stalking, drive with illicit drugs in blood and activated suspended sentence for trafficking – Total sentence of eight months' imprisonment with four months suspended manifestly inadequate.
Criminal Code (Tas), s 192.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s 6A(1).
Sentencing Act 1997 (Tas), s 27.
Aust Dig Magistrates [1349]
Criminal Law – Sentence – Sentencing orders – Non-custodial orders – Suspended sentence of imprisonment – Breach of conditions of suspension and sentence following breach – Whether "unjust" to activate suspended sentences.
Sentencing Act 1997 (Tas), s 27.
Tanner v Brown [2011] TASSC 59; Parker v Bessell [2012] TASSC 78, applied.
Aust Dig Criminal Law [3388]
REPRESENTATION:
Counsel:
Applicant: E Bill
Respondent: In person
Solicitors:
Applicant: Director of Public Prosecutions
Judgment Number: [2016] TASSC 28
Number of paragraphs: 61
Serial No 28/2017
File No LCA 3855/2016
JOHN PARKER v AARON JOHN STEBBINGS
REASONS FOR JUDGMENT PEARCE J
5 May 2017
The applicant, who is a police officer, moves to review sentencing orders made on 8 December 2016 by magistrate Mr R Marron, concerning the respondent, Aaron Stebbings.
There are four grounds of appeal. The first ground is that the learned magistrate imposed a sentence which was manifestly inadequate. Although the ground of appeal refers to a single sentence, a number of sentencing orders were made. As will become apparent, some of the orders were sentences imposed by his Honour on complaints before him at first instance. Other orders were made on application under the Sentencing Act 1997 (the Act), s 27, following breach by the respondent of the conditions of two suspended sentences. The combined result of the various orders was the imposition of a total effective term of imprisonment of eight months from 13 November 2016. The sentencing magistrate made a further order suspending four months of that effective term. The remaining grounds assert that the learned magistrate erred by not correctly addressing the applications concerning the suspended sentences and by failing to fully activate one of the suspended sentences.
For the following reasons the motion to review should succeed. The sentencing orders, in their total effect, amounted to a manifestly inadequate response to the respondent's criminal conduct as asserted in the first ground. For the most part, the errors asserted as to the suspended sentences are also established.
The offending
The respondent pleaded guilty to 19 offences committed between 3 November 2014 and 18 December 2015 charged across 12 complaints. I will provide a more detailed explanation of the circumstances of the offences in due course. The respondent pleaded guilty to abusing two police officers on 19 November 2014. Otherwise, broadly speaking, the offences fall into two categories. The first is a series of offences against his former partner, whom I will call the complainant. The respondent pleaded guilty to stalking her between 1 October 2014 and 16 October 2015, breaching orders made to protect her under the Family Violence Act 2004 committed between 8 June 2015 and 16 October 2015, destroying property on 12 May 2015 and a related charge of resisting police on 7 June 2015.
Secondly, the respondent pleaded guilty to a series of driving charges. He drove with illicit drugs in his blood, contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the RSAD Act), s 6A(1), on five occasions, namely 10 April 2015, 21 April 2015, 12 December 2015, 18 December 2015 and 8 January 2016. On each occasion, the drugs present in his blood were methylamphetamine and amphetamine. On four of those occasions, as well as on 3 November 2014 and 7 June 2015, he drove without a licence. On 10 April 2015 a glass smoking device was found in his car.
The circumstances of the offences – stalking and related charges
The respondent and the complainant were in a relationship for about eight years until they separated in March 2013. During their relationship they lived together from time to time. After they separated the complainant moved to South Australia. She returned to Tasmania about a year and a half later on 8 October 2014 with her two children aged 15 and 16. She soon became aware that the respondent was stalking her. The respondent started communicating with the complainant because he was unhappy that their relationship had ended. In late October, while she was shopping with her daughter, she received a photograph of her car in the car park sent by text message by the respondent. Thereafter, he phoned her, sometimes more than 10 times each day. He continually sent text messages, around 20 each day at all times of the day and night. Over about six months, many thousands of messages were sent. She sometimes responded. She told him repeatedly that she was not interested in resuming their relationship and asked him to leave her alone. Later examples of the text message exchanges, from March 2015, were shown to the magistrate. They contain constant expressions by the respondent of his love for the complainant and pleading requests for him to be given a chance. Her rejection of his advances could not have been clearer. She told him that his feelings were not reciprocated, that the relationship was over and that he should stop contacting her. Throughout the period, if she did not respond, the respondent became increasingly angry and threatening. In the sample shown to the magistrate the respondent insisted that he required a response to every text message he sent. He sent messages like "You shouldn't ignore me. You know what happens when you ignore me", and threatened to "involve her children".
As well as making phone calls and sending text messages, the respondent engaged in other forms of stalking behaviour. He regularly drove past the complainant's house, sometimes sending text messages commenting whether she was home or not. On some occasions he sat in his car, parked in the street outside her house. On one such occasion he sent a phone message with a photo of the front of her house to show that he was there. Between October 2014 and March 2015 he sent 11 cards and letters. One of the cards was sent from prison when, in February 2015, he spent a short period in custody. The cards and letters contained lengthy correspondence including assertions of his love for her, that they could have a life together and that he was angry with her for "not loving him back". The correspondence made clear that he had been watching her. He told her, for example, that "We both know where you were at 3.30 this morning. No-one at home. At the new cunt's place." On 1 January 2015 he parked outside her house and sent text messages and made phone calls asking her to come out and talk to him.
On 26 March 2015 the respondent put up a banner, more than two metres long, tied with string to trees opposite her house. On the banner he had painted "[The complainant], will you marry me?" He sent her a text message drawing her attention to it. She removed it without responding to the message. On 4 April 2015 he parked across her driveway. She told him, from her front door, to go, but he stayed for about 45 minutes. A few weeks later, when she was out, she received a text message from him that he was watching her.
Just before 11am on 12 May 2015 the respondent went to the complainant's home. He banged on the front door and yelled for her to open it. She asked him to leave but, instead, he began kicking the door, eventually kicking it open and damaging it. The complainant stood with her dog for protection. The respondent said to her things like, "If I can't have you no-one can." He left when the complainant called the police. While she was on the phone to the police, the respondent sent more messages saying, "You can't give me a reason can you. I can't wait to see you with another male." She then received a further 10 text messages and around 30 phone calls. Examples of the messages are some which read, "You are mine and no-one else's. Do you understand? No-one else can have you", and, "It will be a window next time if you keep being so ignorant and don't delete him." The complainant answered only some of the phone calls but terminated them when she heard the respondent yelling. Later the same day the complainant left her home to pick up her children from school. The respondent approached her car when it was stopped at a traffic light, apparently having followed her. He yelled at her. When she drove away he followed her in his car for a short time.
On 26 May 2015 a police family violence order was made with conditions that the respondent not stalk the complainant, contact her or go within 50 metres of her house. On 31 May 2015, before he had been served with the order, he erected another banner in the trees across from her house, about 1.5m square, this time fixed to the trees with wire and screws. The banner said "[The complainant], I love you, will you marry me please?" The complainant talked to the respondent to discourage him, but to no avail. He told her that he would not stop until they were in a relationship.
On 7 June 2015 the respondent sent the complainant more than 50 text messages. At around 6pm he sent her a photo of the front of her house. She went to the window and saw him parked across her driveway. She called the police. Two officers attended. They approached the respondent and arrested him. He resisted them by pulling away and locking his arms under his body as they attempted to restrain him. More police officers had to be called. He had driven there to find the complainant and, when there, he yelled at her. He was taken into custody and charged. He was then served with the police family violence order. He was admitted to police bail. On 7 July 2015 a complaint was filed alleging stalking between 1 October 2014 and 7 June 2015.
The phone calls and text messages then stopped. However other stalking behaviour went on. The respondent continued to keep the complainant under surveillance. He approached her once on 28 June 2015, thereby breaching the police family violence order. On 29 June 2015 a family violence order was made by a magistrate in the same terms as the police order, but to little avail. The respondent continued to stalk the complainant and breach the family violence order. On 9 July 2015 he parked outside her house. On 13 July 2015 he drove past the house. On 17 July 2015 he followed the complainant in his car while she was out shopping with her son. On 19 July 2015 he painted "I love you" with white spray paint on the road on either side of her driveway. He was arrested on 20 July 2015. He appeared before a magistrate on 22 July 2015. As I earlier explained, that was his first appearance on the stalking charge. He was again admitted to bail.
Even after appearing in court he was not deterred. On 12 August 2015 he followed the complainant to a medical appointment and waited outside the surgery for her. When she left he followed her. A month later, on 16 September 2015, she saw him following her and watching her while she was out shopping with her son. On 10, and again on 11 October 2015, she saw him driving past her house. He was arrested on 18 October 2015. The stalking complaint was subsequently amended to include the conduct which occurred between June and October 2015.
The circumstances of the offences – the driving and other charges
On 19 November 2014 the respondent was on bail for other matters. He was subject to a curfew. At 5.15am on 19 November 2014, the police went to his home to check. When they woke him he abused them with profanities.
The facts of the driving offences are unremarkable. Between 3 November 2014 and 8 January 2016 he drove without a licence on six occasions. His licence had expired in October 2014. By April 2015 at the latest, the respondent was aware that he had no licence. Between 10 April 2015 and 8 January 2016 he drove while amphetamine and methylamphetamine were present in his blood on five occasions. Each time he was checked randomly, or for another reason unrelated to the manner of his driving. The respondent had no cogent explanation for why he was driving on any occasion.
The suspended sentences
The first suspended sentence to which the respondent was subject was imposed by a magistrate on 7 May 2014. The respondent pleaded guilty to driving while disqualified and in breach of the terms of a restricted licence in Hobart on 12 August 2013. He was sentenced by a magistrate to imprisonment for 28 days wholly suspended for 12 months.
The other suspended sentence was imposed by the Supreme Court on 19 February 2015 on the respondent's plea of guilty to two counts of trafficking in a controlled substance and one count of dealing with proceeds of crime. On 21 April 2013 the respondent was found in possession of 135.1 grams of methylamphetamine, 24.8 grams of MDMA, small quantities of other illicit drugs and prescription medications, and $21,242.30 in cash. The cash was in four bundles of $5,000 in his car and $1,242.30 was on his person. The respondent was sentenced on the basis that the money and drugs belonged to someone else, but he was a mule for a trafficking operation. Porter J sentenced the respondent to imprisonment for 9 months from 4 February 2015. The balance of the term, about 8½ months, was suspended for two years on condition that during that period he did not commit an offence punishable by imprisonment. There were additional conditions of the suspended sentence that the respondent complete 80 hours of community service and be subject to the supervision of a probation officer for 12 months.
All but one of the offences set out in the table above are punishable by imprisonment. Thus, the offences committed prior to 7 May 2015 breached a condition of the suspended sentence imposed by the magistrate on 7 May 2014. The offences committed between 19 February 2015 and 7 May 2015 breached both suspended sentences. The offences committed after 7 May 2015 breached the suspended sentence imposed by Porter J. One offence, the charge of possessing a thing used for the administration of a controlled drug, a glass smoking device, contrary to the Misuse of Drugs Act 2001, s 23, committed on 21 April 2015 did not constitute a breach of either suspended sentence because it is punishable by fine only, and not by imprisonment.
The procedural history
The proceedings before the learned magistrate were protracted. It is impracticable to relate the procedural history of all of the complaints. However reference should be made to part of it because the way in which the complaints were dealt with, and the respondent's response to them, are relevant to sentence.
The respondent's first court appearance for any of the new offences was on 31 March 2015. He appeared before a different magistrate on the complaints for driving without a licence on 3 November 2014 and abusing the police on 19 November 2014. He pleaded not guilty to both charges and was bailed to appear again at a later date. He first appeared on the stalking charge on 22 July 2015. On that day some of the other complaints were listed as well. The complaint, as originally filed, alleged stalking between 1 October 2014 and 7 June 2015. The respondent was admitted to bail to appear again on 14 August 2015. He appeared again on that day and pleaded not guilty. Notwithstanding his plea of not guilty, a condition was imposed on his bail that he report to the Defendant Health Liaison Service. He made further court appearances on 5 October 2015, 14 October 2015, 11 November 2015, 19 November 2015, 27 November 2015 and 2 January 2016. Hearing dates were allocated but adjourned. In the meantime, on 6 November 2015, the prosecution amended the particulars of the charge of stalking by alleging that the offending conduct continued after the complaint was filed and until 16 October 2015.
When the respondent appeared in court on 2 June 2016 he amended his plea. He pleaded guilty to the amended complaint of stalking and to the charges on most of the other complaints. The sentencing hearing was adjourned and did not take place until five months later on 4 November 2016. The magistrate proceeded to sentence on 8 December 2016.
The respondent's personal circumstances and record
The respondent is now aged 50. He was educated to grade 10 and is literate. He had a good work history until he was arrested for trafficking in 2013. He lost his job as an aide at the Exeter High School assisting disabled and challenging students in technical subjects which he had held for 10 years. He claimed to have been only a recreational user of amphetamine and methylamphetamine. It was submitted on his behalf that he was an "unsophisticated person" who had difficulty fully grasping that what he had been told by the police about his driver licence meant that he could not drive.
The respondent does not have prior convictions for stalking or violence. He has a very poor record for driving offences throughout his adult life, mostly for speeding and other traffic regulation offences. He has been disqualified or had his licence suspended on many occasions. He has two convictions for driving with alcohol in excess of the prescribed limit, once in 1990 and again in 1991. He was fined and disqualified on each occasion. In March 2013 he was fined and disqualified from driving for driving with a radar detection device fitted, for driving while his licence was suspended and for possessing a crossbow, a pistol and an air rifle. He was granted a restricted licence on 3 June 2013. One of the suspended sentences was imposed when he drove in breach of the disqualification and the terms of his restricted licence on 12 August 2013. I have already referred to his conviction for trafficking imposed on 21 April 2013.
It was submitted to the sentencing magistrate on behalf of the respondent that he acted towards the complainant as he did because he believed they had formed a strong relationship in the past, he maintained strong affection for her, and wished to resume the relationship. His conduct, he said, was a genuine attempt to bring that about. He was confused about her response and did not appreciate how his actions might have been threatening or intimidating for her. It was submitted that, apart from him kicking in her door, there had been no other actual violence to her person or property. He asserted that, although some of his communications "could be construed as threats", he had no intention of carrying out any of them. It was further contended that it was not a serious case of stalking. By the time he was eventually sentenced in December 2016 he had been in a new relationship for about a year. He said he had learned from his experience and not repeated his conduct during the long period since his last offending against the complainant in October 2015. More generally, it was submitted that the respondent had withdrawn from a group of acquaintances who had led him to the trafficking charge in 2013.
By the time of the sentencing hearing the magistrate had two reports from the Defendant Health Liaison Officer. The first is dated 15 February 2016. The second is dated 1 November 2016. Those reports were taken into account on sentence. The first reported that the respondent had a dysfunctional family background. He did not know his father, had had a difficult relationship with his mother, and no relationship with his siblings. He had been affected by the deaths of his mother, his grandparents and his first serious intimate partner. It was recommended that the respondent attend a program directed at abusive behaviour, but the respondent said that he doubted it would be of benefit to him and that he had started a new relationship. The report also recommended probation and other programs. The next report was not prepared until 1 November 2016, well after the respondent had pleaded guilty in June 2016. By that time he had apparently had a change of heart about attending the recommended program. He had commenced the program in July 2016 and successfully completed it.
The sentences
The sentencing orders, although not articulated in these precise terms by the learned magistrate, may be stated as follows. For the stalking and related charges:
· stalking, complaint 33795/2015, imprisonment for five months from 13 November 2016;
· destroying property, complaint 33796/2015, imprisonment for one month, to be served concurrently with the term just referred to on complaint 33795/2015;
· resisting police, count 1 on complaint 33797/2015, imprisonment for one month also to be served concurrently with the sentence imposed on complaint 33795/2015;
· breach of police family violence order, complaint 36174/2015, conviction recorded;
· breach of family violence order, complaint 36175/2015, conviction recorded.
For the driving and related charges:
· five counts of driving with an illicit drug in the blood on complaints 33815/2015, 52512/2015, 31416/2016, 31527/2016 and 32369/2016, a global sentence of imprisonment for three months, also to be served concurrently with the term imposed on complaint 33795/2015;
· six counts of driving without a licence on complaints 36468/2014, 33815/2015, 52512/2015, 31416/2016, 31527/2016 and 32369/2016, convictions recorded;
· for the "driving matters", disqualification from driving for 12 months commencing on the respondent's release from prison;
· possess a glass smoking device, count 2 on complaint 33815/2015, conviction recorded.
For the charge of abusing police on 19 November 2014 a conviction was recorded.
On the application for breach of the 8½-month suspended sentence imposed by Porter J on 19 February 2015, the magistrate activated three months of the term and ordered that it be served cumulatively to the sentence imposed on complaint 33795/2015.
On the application for breach of the suspended sentence imposed by a magistrate on 7 May 2014, the magistrate activated the 28-day sentence, but ordered it to be served cumulatively to the sentence on complaint 33795/2015, and thus concurrently with the other partly activated suspended term.
Grounds 2, 3 and 4 – Activation of the suspended sentence for trafficking
It is convenient to deal with these three grounds together. By committing offences punishable by imprisonment during the period that the suspended sentences were in force, the respondent breached a condition of the sentences: the Act, s 24(1). The consequences of breach are dealt with by s 27. Application for an order under that section may be made to the court which imposed the suspended sentence: s 27(1). However, application may also be made to the court which finds the offender guilty of the offence constituting the breach, in the legislation called the "new offence": s 27(4). The court to which such an application is made may either deal with the application, or refer the application to the court which imposed the suspended sentence: s 27(4A). In this case, an application was made to the magistrate to deal with applications for breach of both of the sentences. Having agreed to deal with the application under s 27(4A)(a), once his Honour was satisfied, as he must have been, that the respondent had been found guilty of a new offence punishable by imprisonment, the combined effect of s 27(4B) and (4C) is that his Honour was required to activate the sentences held in suspense unless of the opinion that it would be unjust: State of Tasmania v Thorpe [2011] TASSC 18; Tanner v Brown [2011] TASSC 59. If he decided not to activate the suspended sentence, s 27(4D) mandated that he state the reasons for so deciding: Jones v Clarke [2012] TASSC 21; Parker v Bessell [2012] TASSC 78. If the relevant opinion was formed, s 27(4C) gave power to make one of the following orders instead:
"(a) activate part of the sentence that is held in suspense and order the offender to serve it; or
(b)order that a sentence (in this section called the 'substituted sentence') take effect in place of the suspended sentence; or
(c)by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or
(d)make no order in respect of the suspended sentence."
If a court orders an offender to serve a term of imprisonment that had been held in suspense, the term of imprisonment must, unless the court otherwise orders, be served immediately and cumulatively with any other term of imprisonment previously imposed on the offender by that court or any other court: s 27(6).
Generally speaking, if an offender wastes an opportunity offered by the court by re-offending, then a suspended sentence should be activated. Ordinarily, suspended sentences are meant to be a last chance. Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and the extent to which they may deter future offenders. As Wood J pointed out in Tanner v Brown at [91], s 27 now enshrines that policy in a legislative form and creates a presumption that the suspended sentence will be activated unless the court is of the opinion that it is unjust. The starting point is that the sentence should be activated. The court is not considering the original sentence afresh but determining whether activation of the sentence is unjust. In the words used by Wood J in Tanner v Brown at [103], "the exercise of the sentencing function is not at large, and is limited to an evaluation of whether it would be unjust to activate the sentence". In considering an application under s 27 there may be sentencing considerations which properly incline a sentencing court against activation of a suspended sentence, but which fall short of justifying a conclusion that it would be unjust to do so. It is for the sentencing court to consider and weigh the circumstances of each case. Factors commonly regarded as important include:
· the nature and circumstances of the offences for which the sentence was originally imposed;
· the nature and gravity of the breach in comparison to the original offences and whether activation of the suspended sentence may represent a disproportionate response;
· the lapse of time between the imposition of the suspended sentence and the breach;
· whether there is any, and if so what, indication of reform and rehabilitation. That is, whether the suspended sentence may be having its desired effect.
It also seems to me that the extent to which other punitive conditions of the sentence, for example a condition requiring performance of community service, may lead to double punishment if the sentence is fully activated, is a relevant consideration.
As to the suspended sentence imposed by the magistrate on 7 May 2014, the sentencing magistrate activated the sentence and ordered that it be served cumulatively to the sentence of imprisonment imposed for one of the new offences. No complaint is made about that order except in the context of the overall sentencing response dealt with in the other ground of appeal. However, the learned magistrate activated only 3 months of the 8½-month sentence imposed by Porter J on 19 February 2015. The applicant, by these grounds, contends:
"2The learned magistrate erred in failing to fully activate the suspended sentence imposed on complaint 2988/2013 by:
(a) Failing to determine that it was unjust to activate the entirety of the suspended sentence before partially activating the sentence;
(b) In the alternative, it was not open to the learned magistrate to determine that it was unjust to activate the entirety of the suspended sentence.
3The learned magistrate erred in law by failing to provide reasons for declining to activate the entirety of the suspended sentence imposed on complaint 2988/2013, pursuant to s 27(4D) of the Sentencing Act;
4In the alternative, that the learned magistrate erred in failing to provide sufficient reasons for declining to activate the entirety of the suspended sentence imposed on complaint 2988/2013."
When sentencing submissions were first made on 4 November 2016, subject to a submission about totality, counsel for the respondent did not submit that activation of the suspended sentence was unjust. He said:
"The suspended sentences arising are ones where circumstances of them are such that we wouldn't be seeking, or we're not trying to persuade you, that it would be unjust. Given the number of matters that come before you in contravention of those suspended sentences would fly in the face of established authority for me to try and argue otherwise."
However, on 8 December 2016, when the respondent appeared for sentence, a modified version of the submission was made. After referring to suspended sentence as being for a "drug related charge", the respondent's counsel then submitted:
"Of course, the nature of the offence is something you can take into account when determining the consequences of the breach and as to what extent the sentence is activated. It's not a circumstance of unjust that would warrant the re-suspension of the entirety of it. We're not asking for that. We're simply saying that you take into account the nature of the previous order and the matters that put him in breach in the way in which the majority of the offending seems to be separate and distinct … [He] diligently and fully competed his community service …".
That submission misapprehended the task of the sentencing magistrate under the Act, s 27. As I have explained, his Honour was required by the terms of 27(4B) to activate the sentence of imprisonment held in suspense and order the respondent to serve unless he was satisfied under subs (4C) that such an order would be unjust. That meant that he was required to first consider whether activation of the suspended sentence, according to its terms, was unjust. Unless and until the magistrate formed the opinion that activation of the sentence in full was unjust, he was required to activate it. Only if the relevant opinion was formed did the occasion arise for consideration of an alternative order under s 27(4C). In this case that sentencing function was not undertaken. His Honour referred in summary form to the circumstances of the new offences, to the applications under s 27, and then simply said, "I've heard submissions put on your behalf in relation to that, and this is what I am going to do … In relation to the Supreme Court suspended sentence, there's 3 months restored cumulatively." An oblique reference was made to the respondent having completed the community service which was also part of Porter J's order. Otherwise, no mention was made, either before or at the time the respondent was sentenced, of whether activation of all of the suspended part of the sentence was unjust. Nothing was said by the magistrate about the requirement that he form that opinion or give reasons for it. No finding was made and no reasons were stated. Such comments as were made were not sufficient: Parker v Bessell (above) per Crawford CJ at [29]-[32].
The integrity of the legislative system of suspended sentences relies on the proper exercise of the sentencing function required by s 27 in the case of breach. In this case the applications for orders under that provision were not addressed in accordance with the law. In the case of the application concerning the sentence imposed by the Supreme Court on 19 February 2015 the sentencing function thereby miscarried. I am satisfied that grounds 2(a), 3 and 4 are made out. For reasons which I will give in due course, I think it was open to find that activation of the sentence is unjust, and so ground 2(b) is not made out. However, as I will also explain, the decision to activate only three months of the sentence was unjustified and erroneously lenient.
The order made on the application concerning the suspended sentence imposed by Porter J will be set aside. I will determine the application after considering the remaining ground of appeal.
Another consideration
Before considering the first ground, a matter arising from the form of the sentences should be referred to. It concerns the way in which the learned magistrate formulated his sentencing order, and in particular the manner in which part of the total effective term of imprisonment ordered by the learned magistrate was suspended. His Honour ordered a combination of global and individual sentences. Six different sentences of imprisonment were imposed. Four of those sentences were for complaints before him at first instance. Two of the orders concerned activation or partial activation of suspended sentences. Some were ordered to be served cumulatively and some concurrently. At the conclusion of the process his Honour calculated the total effect of the concurrent and cumulative sentences he had imposed. It amounted to imprisonment for eight months. His Honour then made a single order suspending four months of that term. His Honour said:
"So it actually means a head sentence of 8 months, 8 months' imprisonment … What I am going to do in relation to that 8 months is I am going to suspend 4 months of that for 3 years …".
It was not open for his Honour to proceed in that manner. A court which finds a person guilty of "an offence" may make one of the sentencing orders specified in the Act, s 7, or a combination of them, s 8. The reference to "an offence" in s 7 is in the singular. However s 11 permits a court to impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments:
"(a) one sentence for all of those offences; or
(b)a separate sentence for each of those offences; or
(c)one sentence for a group of those offences determined by the court and —
(i) one sentence for all of the remaining offences; or
(ii) a separate sentence for each of the remaining offences; or
(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group."
His Honour imposed a separate sentence for some offences and, for other offences, imposed a single sentence for a group of offences. He made orders on the s 27 applications. The total effective term of imprisonment of eight months was the result of the combined effect of separate and global sentences, as well as the full or partial activation of suspended sentences. In my view, the Act does not authorise the making of a single order suspending part of the total effective term resulting from imposition of multiple sentences. A somewhat similar question concerning the making of a single parole order for multiple cumulative sentences of imprisonment was considered recently by Blow CJ in Lavell v McKenna [2017] TASSC 10. After considering the operation of the Acts Interpretation Act 1931, s 24(d), his Honour concluded that such an order was permissible when making a parole order.
In my view, the same does not apply when suspending a sentence of imprisonment. The Act, s 11, authorises one sentence for more than one offence, or separate sentences for each offence. Section 11 does not refer to activation of a suspended sentence, but an order made under either s 27(4B) or (4E) results in "a sentence" in the ordinary sense. Sections 7(b) and 24(1) speak of suspending "a sentence of imprisonment". The difficulty that a single order creates concerning the combined effect of multiple sentences, including an activated suspended sentence, is that it leaves a defendant, the public, prosecuting authorities, those responsible for administration of the orders once they are made, a court subsequently dealing with any breach application and an appeal court, uncertain about which sentences have been suspended, in whole or in part, and which have not. It is impossible to know whether a particular order is inadequate or excessive. For example, how much of the five-month sentence imposed in this case for stalking has been suspended cannot be determined. Nor can it be determined whether the three-month part of the suspended sentence for trafficking which was activated has been re-suspended. There are other practical implications, for example in considering the application of s 27(4E)(c) which limits the period for which a sentence may be further suspended. In this case it is unnecessary for me to decide. No ground of appeal challenges the form of the order, and the final result is erroneous in any event.
Ground 1 – manifest inadequacy – the individual sentences
I have decided that the most convenient way to approach the motion is to consider whether a total sentence of imprisonment for eight months, four months of which were suspended, is a just and appropriate measure of the respondent's total criminality, or whether it falls so short of that measure to the point of error. For the motion to succeed on this ground it is necessary that the applicant show that the sentence is unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 505. It must be demonstrated that there is such inadequacy of sentence as is indicative of error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 at 310. All of the circumstances relevant to sentence are to be taken into account and allowance made, and respect given to, the magistrate's wide sentencing discretion.
The motion is also subject to the principles which govern prosecution appeals: Green v The Queen; Quinn v The Queen [2011] HCA 49, 244 CLR 462 at 465 [1]; Cannell v Hughes [2014] TASSC 41; DPP v Swan [2016] TASCCA 9. However in this case, manifest inadequacy is plainly apparent, and intervention of this Court is required to ensure adequate sentencing standards and to maintain public confidence in the administration of justice: Everett v The Queen (1994) 181 CLR 295 at 306; R v Stoupe [2015] NSWCCA 175 at [115]-[116]. The error is implicit in the excessive leniency of the sentence imposed: Visser v Smart [1998] TASSC 151.
Importantly, the applicant does not contend that the sentences imposed by the magistrate for stalking, the driving offences, the property damage and the resist police offences are, considered individually, manifestly inadequate. What is contended is that, combined with the contended inadequacy of the response to the suspended sentence application, the total effect of the sentencing orders is manifestly inadequate. The applicant's submissions should be accepted.
I will deal firstly with the adequacy of the individual sentences. To me, manifest inadequacy is not plainly apparent in any of the sentences imposed for the stalking, driving and other matters. I will mention the stalking charges first. Stalking is an indictable crime: Criminal Code, s 192. However it is triable summarily at the election of the accused: Justices Act 1959, s 72(1)(a) and Sch 3. The maximum term of imprisonment that a court of petty sessions may impose on an offender convicted of a crime triable summarily is 12 months in the case of a first offence and five years for a second or subsequent offence: the Act, s 13. Because the respondent had previously been sentenced for an indictable crime, trafficking and dealing with proceeds of crime, the higher limit applied to him. The respondent subjected the complainant to a sustained and frightening course of conduct for more than a year. Although the content of some of the text messages he sent was innocuous, many were threatening and menacing. The number of messages he sent and calls he made is menacing in itself, regardless of the content, especially when considered in the context of his other stalking behaviour. His surveillance of the complainant, when he sent messages and photos informing her that he was watching her, is chilling. He deliberately ignored her requests that he stop. Even more importantly, he did not stop even in the face of charges against him, court appearances and police and court orders aimed at protecting the complainant. The acts were committed while the respondent was on bail and while he was subject to two suspended sentences. A sentence was required to vindicate the victim, punish the respondent, to condemn such conduct, and deter him and others from acting in a similar way. Nevertheless, the respondent had no prior convictions for similar offences and seemed, by the time he was sentenced, to have ceased his conduct. The sentence of imprisonment for five months is, in my view, within the broad sentencing discretion allowed to the magistrate.
The same can be said of the global sentence for the five counts of driving with an illicit drug under RSAD Act 1970. Each offence against s 6A(1) attracts the mandatory minimum penalties provided for by s 17 of that Act. A Table of Penalties is set out at the end of s 17. Section 17(3) governs the application of the Table. Section 17(3) of that Act is mandatory: Wilkie v Taylor [2015] TASFC 7, 71 MVR 239. Thus, the combined effect of s 17(3) and the Table is that a court which convicts a person of a first or subsequent offence under one of the sections listed in the Table, must impose a fine of at least the minimum amount shown in the Table, or a term of imprisonment, or both the fine and imprisonment, as well as a period of disqualification of at least the minimum specified term. In the case of a first offence against s 6A, the court must impose a fine of at least two penalty units, or a term of imprisonment, or both the fine and imprisonment, and also disqualify the person from driving for at least three months. However, because the applicant had previously been convicted of an offence under s 6 of the RSAD Act he was to be sentenced as a subsequent offender. In the case of a subsequent offence against s 6A, the court must impose a fine of at least four penalty units, or a term of imprisonment, or both the fine and imprisonment, and also disqualify the person from driving for at least six months. Section 17(5) permits a court which convicts a person of an offence specified in the Table to impose a lesser fine or period of disqualification than the specified minimum, but only if satisfied that there are special circumstances.
In this case the respondent pleaded guilty to five counts of driving in breach of s 6A. The magistrate chose to impose a single sentence of three months' imprisonment for all five counts. His Honour then imposed one single period of disqualification for 12 months for all of the "driving matters". I doubt that it was correct for him to proceed in that way for the reasons explained by Cox CJ in Harper v Gauden [2003] TASSC 66, 12 Tas R 57 at [7]. The power to impose global sentences contained in s 11 does not permit the imposition of separate sentences for more than one offence or groups of offences and a single additional part of the sentence by way of disqualification. However nothing turns on that in this motion. Similarly, the applicant does not contend that it was not open to impose a single period of disqualification for all five offences under the RSAD Act. Nothing in the RSAD Act mandates that each minimum period of disqualification be served cumulatively. The power to make orders which operate to make each period of disqualification wholly or partially concurrent emerges from the operation of the Vehicle and Traffic Act 1999, s 17(4)(b), and the Sentencing Act, s 56.
Again, the applicant does not submit that a sentence of imprisonment for three months and disqualification for 12 months was a manifestly inadequate response to those offences. The respondent had two prior convictions for alcohol related offences under the same legislation but they were a long time ago. I have the same view in respect to the sentences of imprisonment for one month imposed for destroying property and resisting police. They were within the range properly open to his Honour on each of those offences.
Determination of the suspended sentence application
I turn to the application under s 27 concerning the sentence imposed by Porter J. Because the magistrate's order was tainted by error and will be set aside, I will redetermine the application. However I will make some comments about the adequacy or otherwise of the initial order. The application was to be considered in accordance with the principles I outlined when considering grounds 2, 3 and 4. The magistrate was not considering the sentence afresh. Respect was to be shown to Porter J's sentence for a serious crime. The sentencing magistrate was limited to considering whether it would be unjust to activate the sentence. I outlined factors relevant to that question in Cannell v Hughes (above) at [14]. See also the analysis of Wood J in Tanner v Brown (above). There was little here to suggest that injustice would result from activation of the sentence. Although the nature and circumstances of the crime for which the sentence was originally imposed were somewhat different, the nature and seriousness of the new offences did not make activation of the suspended sentence unjust in the least. It would not have been a disproportionate response. The sentence was originally imposed for a serious crime. It was imposed during the period the respondent was stalking the complainant. The respondent thereby became subject to two suspended sentences. He did not modify his behaviour. The breaches commenced very soon afterwards. Within two months, the respondent committed the first of five driving offences arising from his use of amphetamine and methylamphetamine. He not only continued to stalk the complainant, he committed many other offences, including breaches of court orders made to attempt to ensure his compliance. He displayed a disregard for the law and contempt for the force of the orders, including those suspending the sentences.
Despite those factors, all of which were adverse to the respondent, I have concluded that activation of the whole sentence is, in my judgment, unjust. There are two factors which point to injustice. Suspension of the sentence was conditional on the performance of 80 hours of community service. By the time the respondent was dealt with for the breach, he had completed all of the community service. Activation of all of the suspended part of the sentence would have resulted in a sentence of imprisonment as well as the community service, a harsher sentence than that originally imposed. To avoid double punishment some allowance should have been made for the impingement on the respondent's liberty associated with the community service. It was equivalent to about 11 days' work. The second factor concerned the respondent's conduct while subject to the sentence. By the time the respondent was sentenced he had taken some steps towards reform. Although some of the delay arose from his response to the complaints, I also infer that the magistrate acquiesced in delay of the proceedings, and in particular delayed sentence, to allow the respondent to demonstrate the ability to reform. He had stopped contacting the complainant and formed a new relationship. He had completed one course directed at modifying his offending behaviour. Some modest allowance for that was appropriate to avoid injustice, although I record also that the respondent remains in custody on unresolved charges for violence alleged to have occurred prior to his imprisonment.
Taking into account all of the circumstances relevant to the s 27 application, the decision to activate only three months of the 8½-month sentence was a manifestly inadequate response to the breaches and amounted, even in the absence of other error, to clear error. Activation of such a small proportion of the sentence brought the law into disrepute and substantially undermined the force and effect of the sentence imposed on the respondent and the integrity of the system of suspended sentences more generally. My conclusion is that, taking into account the combined force of the two factors I referred to, activation of the suspended sentence is unjust, but that seven months of the sentence should be activated under the Act, s 27(4E)(c). There is no reason to further suspend any part of that activated sentence.
Ground 1 – manifest inadequacy of the total sentence
Subject to the increase in the length of the term of the activated suspended sentence, the result of the motion distils to whether the orders made by the magistrate concerning the concurrent or cumulative nature of the sentences, and the order suspending part, resulted in a manifestly inadequate sentence. As will already be apparent from these reasons, my conclusion is that it clearly did. The motion raises the issue of totality. The totality principle was considered by the Court of Criminal Appeal in Hall v Tasmania [2015] TASCCA 6 and Director of Public Prosecutions v Bradford [2016] TASCCA 14, and by Wood J in Young v Wilson [2015] TASSC 16. It is not necessary to repeat all of what was said in those cases. What is required is that there be an overall evaluation of the multiple offences faced by the respondent to ensure that the aggregation of the sentences appropriate for each offence is a just and appropriate measure of the total criminality involved. The totality principle applies when sentencing for contravention of a suspended sentence resulting in the activation of the suspended sentence, and the imposition of a sentence for the new offence constituting the breach: Young v Wilson at [41].
The result of the matters considered earlier in these reasons is that the total effect of the following sentences is to be considered:
· stalking, complaint 33795/2015, imprisonment for five months;
· destroying property, complaint 33796/2015, imprisonment for one month;
· resisting police, count 1 on complaint 33797/2015, imprisonment for one month;
· breach of police family violence order, complaint 36174/2015, conviction recorded;
· breach of family violence order, complaint 36175/2015, conviction recorded;
· five counts of driving with an illicit drug in the blood on complaints 33815/2015, 52512/2015, 31416/2016, 31527/2016 and 32369/2016, a global sentence of imprisonment for three months, also to be served concurrently with the sentence imposed on complaint 33795/2015;
· six counts of driving without a licence on complaints 36468/2014, 33815/2015, 52512/2015, 31416/2016, 31527/2016 and 32369/2016, convictions recorded;
· for the "driving matters", disqualification from driving for 12 months commencing on the respondent's release from prison;
· possess a glass smoking device, count 2 on complaint 33815/2015, conviction recorded;
· abusing police on 19 November 2014, conviction recorded.
· for breach of the 8½-month suspended sentence imposed for trafficking by Porter J on 19 February 2015, activation of seven months of the term;
· for breach of the suspended sentence imposed for driving offences by a magistrate on 7 May 2014, activation of the 28-day sentence.
The first point to be made is that each category of the respondent's offending, the stalking, the driving offences, and the trafficking, amount to a separate incursion into criminal conduct. The starting point is that cumulative sentences are appropriate: Johnson v The Queen [2004] HCA 15, 78 ALJR 616. I agree with the learned magistrate that it was appropriate to order that the sentences for stalking, destroying property and resisting police should be served concurrently. The applicant did not submit to the contrary. I agree with the learned magistrate's view that the activated suspended sentences should be served cumulatively to the sentences imposed for the offences constituting the breach. So much is contemplated by the Act, s 27(6). I do not agree that the activated suspended sentence for the driving offences should be served concurrently with the other activated suspended sentence. I do not agree that the sentence of imprisonment for any of the driving offences should be served concurrently with any other sentence. All of the driving offences, including those subject to the suspended sentence, involved separate and distinct criminality which should be reflected in the total sentence. I think that the total period of disqualification for the driving offences is appropriate.
I am entitled to take into account, in re-sentencing the respondent, any matter that has occurred since the magistrate's order. The respondent has been in custody since then. He has completed a course concerning domestic violence and been moved to a position of responsibility within the prison. Those factors do not affect my view of the appropriate sentences. I am satisfied that the residual discretion to dismiss the appeal, even if satisfied of error, should not be exercised. The respondent was due for release, having completed the term of four months actual imprisonment in early February 2017. However he has been in custody on other matters since then, reducing the potential for anxiety and distress at the prospect of return to prison after release.
It is not appropriate to suspend or re-suspend any part of the sentence I am about to impose. The respondent did not take advantage of the opportunity previously offered to him. Allowance for the factors in his favour, including his reform and rehabilitation, can be made by allowing the opportunity for parole at the earliest possible time.
Result and orders
I am satisfied that each ground of the motion is made out. The motion to review is allowed. For ease of understanding, all of the sentencing orders made by the learned magistrate should be set aside. I will re-sentence the respondent. The result of the orders I am about to make is that the respondent will be sentenced to imprisonment for a total of 15 months and 28 days from 13 November 2016, with eligibility to apply for parole after having served 8 months of that sentence.
I order:
(a)The sentencing orders made by the magistrate on 8 December 2016 are quashed.
(b)On complaint 33795/2015, stalking, the respondent is convicted and sentenced to imprisonment for five months from 13 November 2016.
(c)On complaint 33796/2015, destroy property, the respondent is convicted and sentenced to imprisonment for one month from 13 November 2016.
(d)On complaint 33797/2015, count 1, resisting police, the respondent is convicted and sentenced to imprisonment for one month from 13 November 2016.
(e)On complaint 33815/2015, count 3, complaint 52512/2015, count 1, complaint 31416/2016, count 1, complaint 31527/2016, count 2, and complaint 32369/2016, five counts of driving with an illicit drug in the blood, the respondent is convicted. I impose one sentence, a term of imprisonment of three months, cumulative to the sentence imposed on complaint 33795/2015, and disqualification from driving for 12 months commencing on the respondent's release from prison.
(f)On each of the following counts a conviction is recorded without further order, namely, six counts of driving without a licence on complaints 36468/2014, 33815/2015, 52512/2015, 31416/2016, 31527/2016 and 32369/2016, possessing a glass smoking device, count 2 on complaint 33815/2015, breach of police family violence order on complaint 36174/2015, breach of family violence order on complaint 36175/2015 and abusing police on complaint 30134/2015. The glass smoking device referred to in complaint 33815/2015 is forfeited to the Crown. On complaint 33796/2015 I make a compensation order in favour of [the complainant] and adjourn the assessment of compensation to a date to be fixed.
(g)On the application for breach of the 28-day suspended sentence imposed for driving offences by a magistrate on 7 May 2014, I order that the suspended sentence is activated, such sentence to be served cumulatively to the sentences of imprisonment already imposed.
(h)On the application for breach of the 8½ month suspended sentence imposed for trafficking by Porter J on 19 February 2015, I order that a substituted sentence of imprisonment for seven months take effect in place of the suspended sentence, such substituted sentence to be served cumulatively to the sentences of imprisonment already imposed.
(i)In accordance with Lavell v McKenna I make a single parole order. I order that the respondent not be eligible for parole until he has served 8 months of the total period of imprisonment.
(j)The respondent will pay the victim of crime compensation levy of $200 within 28 days of his release from prison.
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