Perkins v Heath - [2017] NTSC 74

CITATION:Perkins v Heath [2017] NTSC 74
PARTIES:PERKINS, Deanne

v
HEATH, Andrew

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 12 of 2017 (21655482)
DELIVERED ON:  28 September 2017
DELIVERED AT:  Darwin
HEARING DATE:  19 September 2017
JUDGMENT OF:  Kelly J
CATCHWORDS:

APPEAL — CRIMINAL LAW — Appeal against sentence — Suspended sentence — Whether conditions of suspended unrelated to offending – Whether conditions of suspended sentence must be solely for the purpose of rehabilitation of the offender — Conditions imposed for a purpose specified in s 5(1) Sentencing Act 1995 (NT)
APPEAL — CRIMINAL LAW — Appeal against sentence — Whether sentence manifestly excessive – Suspended sentence — Curfew and electronic monitoring conditions for the entire two year supervision period of the suspended sentence manifestly excessive
Sentencing Act 1995 (NT), s 5(1), s 44(2)
Edmond and Moreen v The Queen [2017] NTCCA 9, applied
Garling v Firth [2016] NTSC 41; R v S W Bugmy [2004] NSWCCA 258,
referred to
REPRESENTATION:
Counsel:
Appellant:E Fenge
Respondent:  C Ingles
Solicitors:
Appellant:Northern Territory Legal Aid Commission
Respondent:  Director of Public Prosecutions
Judgment category classification:    B
Judgment ID Number:  Kel1717
Number of pages:  13

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Perkins v Heath [2017] NTSC 74

LCA 12 of 2017 (21655482)
BETWEEN:

DEANNE PERKINS

Appellant

AND:

ANDREW HEATH

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 28 September 2017)

The appellant was an employee at Harvey Norman in Alice Springs between 11 December 2015 and 29 October 2016. While she was employed there, she stole four laptops, six iPods and a Samsung Galaxy phone from her employer. The value of the goods stolen was $6,631.90. She sold some of the items on Facebook and some to Cash Connections in Alice Springs, obtaining a benefit of $1,479.00.
On 13 April 2017, the appellant pleaded guilty in the Local Court in Alice Springs to one count of stealing which carries a maximum penalty of imprisonment for seven years and six counts of obtaining money by deception, each of which carries a maximum penalty of imprisonment for seven years.
At the sentencing hearing, defence counsel made the following submissions in mitigation:
(a)The offending was opportunistic and unsophisticated.
(b)The appellant was experiencing severe financial hardship at the time of the offending because of the medical needs of her daughter who suffers from cerebral palsy and has to travel to Adelaide on a regular basis for medical treatment. She was the sole financial support for her family. (Her husband was an alcoholic who spent all of his money on drinking.) She also had $20,000 in unpaid fines she was attempting to pay off.
(c)The appellant co-operated with police. She participated in an interview in which she made partial admissions. She pleaded guilty at the earliest opportunity.
(d)Although she had relevant priors from 2003, there had been a 13 year gap in offending.
(e)A term of imprisonment for the appellant would result in additional trauma to the appellant’s daughter.
(f)For these reasons it was submitted that the appellant’s circumstances were “very exceptional” and the Court should give consideration to a fully suspended sentence on conditions of supervision.
On 28 April 2017, the learned sentencing judge sentenced the appellant to a term of imprisonment for six months fully suspended with an operational period of two years on the following conditions:
1.The offender must not, during the period the order is in force, commit another offence (whether in or outside the Territory) punishable on conviction by imprisonment.
2.The offender is under the ongoing supervision of a probation and parole officer, and must report to a probation and parole officer within two clear working days after the order comes into force.
3.The offender must tell a probation and parole officer of any change of address or employment within two clear working days after the change.
4.The offender must not leave the Territory except with the permission of a probation and parole officer.
5.The offender will participate in assessment, counselling and/or treatment as directed by a probation and parole officer.
6.The offender will not enter the premises of or have any contact directly or indirectly with staff from Harvey Norman or Cash Connections.
7.The offender will submit to a curfew between the hours of 2100 to 0600, and not leave the nominated residence without prior permission from a probation and parole officer, except in the case of medical or dental emergency for self or daughter.
8.The offender must wear or have attached an approved monitoring device in accordance with the directions of a probation and parole officer, and allow the placing, or installation in, and retrieval from, the premises or place specified in the order of such machine, equipment or device necessary for the efficient operation of the monitoring device.
9.The offender shall comply with the electronic monitoring rules as stipulated in the Rules for Electronic Monitoring document.
In arriving at this sentence the sentencing judge essentially accepted the appellant’s submissions in mitigation outlined above. In particular, her Honour took into account the exceptional hardship which would be occasioned to the appellant’s daughter should the appellant be imprisoned. Her Honour said:
On top of the significant financial stresses that I have referred to and were detailed in submissions and the exhibit tendered, were additional and somewhat unusual stresses relating to your daughter’s medical needs and, in particular, her cerebral palsy. …
I accept that the need to take her interstate for her medical appointments in Adelaide did add another layer of financial hardship. I described this situation as an unusual stressor and I say that because it’s obvious that the impact of her condition alone and the associated complex disabilities and needs are beyond the scope of the usual stressors that can be associated with parenting and, in addition, there was the additional financial stress added to an already dire situation.
So those matters, coupled with the situation around your family circumstances at the time[1], and indeed currently are reasons why I consider this matter to fall into the class of being very exceptional for the purposes of deciding whether to require any actual time be served.
….
So your daughter with high needs is now in a situation where she is almost entirely reliant on your care and, indeed, she is cared for by you in your home. …… In my view, your personal family and financial circumstances at the time of the offending, the fact that that offending arose out of need not greed, coupled with the situation that now presents to your family are very exceptional and actual imprisonment is not appropriate in the circumstances and, in fact, would potentially result in additional trauma to your daughter and potentially also impede your own rehabilitation.
In crafting the conditions imposed on the suspended sentence, the sentencing judge made these remarks which have been the subject of criticism in this appeal.
I have formed the view that in your case specific deterrence could be met by a suspended sentence, but with strict conditions ... that will regulate your liberty. General deterrence and denunciation would be served by an imposition of a head term of some significance with a lengthy operational period.
(Her Honour had previously noted that in this sort offending involving a breach of trust by an employee, unless circumstances are very exceptional, actual and immediate imprisonment is to be expected.)
The appellant has appealed against this sentence on two grounds.
Ground 1: The learned judge erred by imposing conditions on the suspended sentence of imprisonment that were unrelated to the offending, namely conditions 7 to 9 inclusive.
Ground 2: By including conditions 7 to 9 in the suspended sentence, the learned judge erred in imposing a sentence that was manifestly excessive in all the circumstances of the case.

Ground 1

The essence of the appellant’s complaint in Ground 1 is that there was no nexus between the offending and conditions 7 to 9 (ie the imposition of the curfew and the requirement for electronic monitoring) and that made the imposition of those conditions wrong in principle.
In written submissions, counsel for the respondent, while contending that the sentence was in fact lenient, supported the appellant’s position on ground 1 and submitted that the imposition of conditions on a suspended sentence where there was no relevant nexus between the offending and the conditions imposed was contrary to the legal principles set out in Garling v Firth.[2]
The appellant contended that under s 5(1)(b) of the Sentencing Act 1995 (NT) (“Sentencing Act”), “conditions are imposed for the express purpose of rehabilitating the offender”. To the extent that the appellant was suggesting that rehabilitation was the only permissible purpose under the Sentencing Act for imposing conditions on a suspended sentence, I reject that contention. Section 5 of the Sentencing Act does not imposes any such restriction on the purpose for which conditions may be imposed.
Section 5(1) of the Sentencing Act provides:
(1)The only purposes for which sentences may be imposed on an offender are the following:
(a)to punish the offender to an extent or in a way that is just in all the circumstances;
(b)to provide conditions in the court’s order that will help the offender to be rehabilitated;
(c)to discourage the offender or other persons from committing the same or a similar offence;
(d)to make it clear that the community, acting through the court, does not approve of the sort of conduct in which the offender was involved;
(e)to protect the Territory community from the offender;
(f)a combination of two or more of the purposes referred to in this subsection.
The fact that s 5(1)(b) refers to the purpose of providing conditions in the court’s order that will help the offender to be rehabilitated, does not expressly or impliedly exclude any of the other purposes set out in s 5(1) from applying to the imposition of conditions, and s 5(1)(f) expressly empowers a court to have regard to two or more of the specified purposes in imposing a sentence on an offender.
Counsel for the appellant also quoted Hiley J in Garling v Firth as saying, “there must be some nexus between the particular offending, including what may have caused the offender to engage in that offending, and the particular condition imposed”.[3] However the remarks of Hiley J relied upon by the appellant must be seen in the context of the particular appeal before the court in that case. In Garling v Firth, the question was whether the sentencing judge was in error in imposing a no alcohol condition on a suspended sentence where the particular offence in respect of which the sentence was imposed was not committed under the influence of alcohol so that there was no nexus between the offending and the condition imposed. Importantly, in that case, there was no question of any other legitimate sentencing purpose for the imposition of the condition.
In the normal course, when a judge is imposing conditions on a suspended sentence of imprisonment, the primary focus will be on conditions that are designed to facilitate the rehabilitation of the offender. Further, in the normal course, it will be necessary for such conditions to have some nexus to the circumstances of the offence and/or of the offender when committing the offence in order to serve that purpose. However, I think it is going too far to say that conditions can never be imposed on a suspended sentence for one or more of the other legitimate purposes for which sentences may be imposed set out in s 5(1) of the Sentencing Act.
Nor do I interpret Hiley J’s reasoning in Garling v Firth as laying down any such broad general principle. It was not necessary in that case to do so: no other sentencing purpose had been suggested as applicable or relied on by the sentencing judge. The appellant quoted a selected extract only of [35] of Hiley J’s judgment in Garling v Firth. The full paragraph refers explicitly to the other purposes for which sentences may be imposed under s 5.
[35] The primary focus should be the appropriate sentencing disposition for the particular crime involved having regard to both the objective offending and the particular offender. The latter would involve relevant factors in s 5 of the Act, in particular punishment, specific deterrence, protection of the community and rehabilitation of the offender. I consider that there must be some nexus between the particular offending, including what may have caused the offender to engage in that offending, and the particular condition imposed. I do not consider that s 40 of the Act confers a power to impose a condition which has no such nexus.
Further, in R v S W Bugmy[4] Kirby J extracted the following three principles (relied on by Hiley J in Garling v Firth)[5]:
First, the discretion as to conditions that may be attached to a bond is broad but not unlimited. The conditions must reasonably relate to the purpose of imposing a bond, that is, the punishment of a particular crime. They must therefore relate either to the character of that crime or the purposes of punishment for that crime, including deterrence and rehabilitation. Secondly, the conditions must each be certain, defining with reasonable precision conduct which is proscribed. Thirdly, the conditions should not in their operation be unduly harsh or unreasonable or needlessly onerous.[6] (emphasis added)
In this case, the sentencing judge made it clear (in the passages quoted above) that she had formed the view that because of the appellant’s very exceptional personal, family and financial circumstances at the time of the offending and her particular family circumstances at the time of sentencing (relating to her daughter in particular) actual imprisonment was not appropriate in the circumstances. However, her Honour still wanted to give effect to the need for personal deterrence and formed the view that that could be met by a suspended sentence with strict conditions that would regulate the appellant’s liberty – in lieu of sending her to prison. In those circumstances, it cannot be said that the conditions imposed – a curfew and electronic monitoring in order to enforce the curfew – were not related to the purposes of punishment for that crime, including deterrence and rehabilitation. The conditions complained of were specifically intended to facilitate both rehabilitation and deterrence and were specifically related to the offence for which the appellant was being sentenced (which would ordinarily have required a period of actual imprisonment), the offender’s personal circumstances (which made that course undesirable), and her one past episode of similar offending (which pointed to the need for specific deterrence). All of these considerations were expressly articulated by the sentencing judge.
Although this situation is very unusual, in my view no error of principle has been demonstrated. In the absence of any express or implied limitation in the Sentencing Act it seems to me to be undesirable to attempt to lay down restrictions on the sentencing purposes in s 5(1) for which conditions can be imposed on a suspended sentence. Neither R v S W Bugmy nor Garling v Firth did so and I decline to do so.

Ground 2:

The appellant submitted that by imposing a curfew and electronic monitoring for the entire two year period of the suspended sentence, the learned judge erred in imposing a sentence that was manifestly excessive in all the circumstances of the case. I agree.
The principles governing appeals of this nature are well known.
It is fundamental that the exercise of the sentencing discretion is not disturbed on appeal unless error in that exercise is shown. The presumption is that there is no error. An appellate court does not interfere with the sentence imposed merely because it is of the view that the sentence is insufficient or excessive. It interferes only if it is shown that the sentencing judge committed error in acting on a wrong principle or in misunderstanding or wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings or the sentence itself may be so excessive or inadequate as to manifest such error. In relying upon this ground it is incumbent upon the appellant to show that the sentence was not just excessive but manifestly so. He must show that the sentence was clearly and obviously, and not just arguably, excessive.[7]
In determining whether a sentence is manifestly excessive, an appeal court must consider the maximum penalty for the offence, the objective seriousness of the offence on the scale of seriousness for that particular offence, the standards of sentencing customarily imposed for the offence and the personal circumstances of the offender.[8]
In this case, the learned sentencing judge imposed conditions nearly equivalent to a home detention order for a period of two years. (It is not quite equivalent in that there are no restrictions on the purposes for which the appellant is permitted to be absent from the home during non-curfew hours and it lacks the no alcohol condition associated with a home detention order.) The maximum period of home detention which the court can order[9] is 12 months.[10] This is an indication of the maximum period of time that the legislature considered a person should be subjected to the kind of restrictions on liberty imposed by a curfew and electronic monitoring and, in my view, to impose those restrictions for double that length of time is manifestly (and not just arguably) excessive.
For that reason, immediately following the hearing of the appeal I allowed the appeal on Ground 2, set aside the sentence imposed by the sentencing judge and re-sentenced the appellant to the same sentence imposed by the sentencing judge, but with conditions 7 to 9 (the curfew and electronic monitoring conditions) limited to a period of 12 months.

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[1] Her Honour referred obliquely to “circumstances that render it entirely unsuitable for [the appellant’s] daughter and son to be living under the same roof” without going into detail. The appellant’s son was living with the appellant’s former partner.

[2][2016] NTSC 41

[3] Ibid at [35]

[4] [2004] NSWCCA 258

[5] Garling v Firth [2016] NTSC 41 at [33]

[6][2004] NSWCCA 258 at [61]

[7] Edmond and Moreen v The Queen [2017] NTCCA 9 at [4] and the cases cited therein

[8]Ibid at [30] quoting Phan v Western Australia [2014] WASCA 144 at [19]

[9] See Correctional Services Regulations 2014 (NT) Division 4 and in particular Regs 19V and 19W

[10] Sentencing Act s 44(2)