Peter Michael Crawford v Michael Laverty
[2008] ACTSC 107
•13 October 2008
PETER MICHAEL CRAWFORD v MICHAEL LAVERTY [2008] ACTSC 107 (13 October 2008)
APPEAL – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals.
CRIMINAL LAW – sentencing principles – subjective features of appellant – Fernando principles.
CRIMINAL LAW – sentencing principles – subjective features of appellant – offender’s youth and prospects of rehabilitation.
CRIMINAL LAW – sentencing considerations – reliance placed on recommendations of pre-sentence report.
CRIMINAL LAW – sentencing principles – terms of imprisonment – error by Magistrate in imposing sentence exceeding maximum penalty.
CRIMINAL LAW – sentencing principles – terms of imprisonment – failure of Magistrate to specify reasons for applying maximum penalty in respect of offence.
CRIMINAL LAW – sentencing principles – terms of imprisonment – principle of totality – accumulation of sentences – multiple offences arising out of the same course of conduct.
CRIMINAL LAW – sentencing principles – principle of totality – splitting of sentencing for related offences.
Crimes (Forensic Procedures) Act 2000 (ACT), s 24
Stanley Edward Fernando (1992) 76 A Crim R 58
House v The King (1936) 55 CLR 499
Dinsdale v The Queen (2000) 202 CLR 321
Markarian v The Queen (2006) 228 CLR 357
Rogers v Green [2008] ACTSC 78 (27 August 2008)
R v Meyboom [2001] FCA 861 (10 July 2001)
R v Seckold [2005] ACTSC 34 (18, 22 February 2005)
Mill v R (1988) 166 CLR 59
High v Willis [2008] ACTSC 88 (26 September 2008)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 106 of 2007
Judge: Penfold J
Supreme Court of the ACT
Date: 13 October 2008
IN THE SUPREME COURT OF THE )
) No. SCA 106 of 2007
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:PETER CRAWFORD
Applicant
AND:MICHAEL LAVERTY
Respondent
ORDER
Judge: Penfold J
Date: 13 October 2008
Place: Canberra
THE COURT ORDERS THAT:
(a) the appeal is allowed;
(b) the appellant will be re-sentenced.
Introduction
Peter Crawford appeals from eight sentences of imprisonment imposed in the Magistrates Court on 12 September 2007. These relate to:
(a) one offence of entering a building with intent to commit theft (the burglary offence);
(b) one offence of intentionally damaging property (the damage offence);
(c) two offences of minor theft;
(d) three offences of dishonestly and without consent riding in a motor vehicle (the motor vehicle offences); and
(e) one offence of intentionally obstructing a forensic procedure (the obstruction offence).
Mr Crawford was sentenced to what was described by the learned Magistrate as a head sentence of 27 months imprisonment, with a non-parole period of 18 months. However, the 27 months and the 18 months covered only the periods that the appellant was yet to serve, and did not include the 5-month term imposed for the earliest offence, which was backdated to take account of 5 months already spent in custody. Thus, in effect, the head sentence was 32 months and the non-parole period was 23 months.
The following table shows, among other things, the sentence imposed for each offence.
Charge no. and date of offence Nature of offence Maximum period of imprisonment Period of imprisonment imposed To be served 2005/9200
27/10/05Burglary 14 years 5 months 12/4/07 – 11/9/07 2007/559
5/12/06Intentionally damage property 10 years 12 months 12/9/07 – 11/9/08 (consecutive on 2005/9200) 2007/558
5/12/06Minor theft 6 months 9 months 12/9/07 – 11/6/08 (concurrent with 2007/559) 2007/588
15/12/06Ride motor vehicle 5 years 12 months 12/9/08 – 11/9/09 (consecutive on 2007/559) 2007/996
16/12/06Ride motor vehicle 5 years 12 months 12/9/08 – 11/9/09 (concurrent with 2007/588) 2007/997
16/12/06Minor theft 6 months 6 months 12/9/08 – 11/3/09 (concurrent with 2007/588) 2007/11133
17/12/06Ride motor vehicle 5 years 12 months 12/9/08 – 11/9/09 (concurrent with 2007/588) 2007/11166
20/12/06Obstruct forensic procedure 2 years 3 months Consecutive on “other penalties”; 12/9/09 – 11/12/09
Grounds of appeal
Notified grounds
The grounds of appeal as identified in the Notice of Appeal and the appellant’s written submissions can be summarised as follows:
(a) the learned Magistrate gave insufficient weight to the principles in Fernando ((1992) 76 A Crim R 58);
(b) the learned Magistrate gave insufficient weight to the appellant’s youth and prospects of rehabilitation;
(c) the learned Magistrate gave insufficient weight to the appellant’s absence of failure to appear convictions;
(d) the learned Magistrate gave insufficient weight to the principle of totality;
(e) the learned Magistrate erred in wholly accumulating certain sentences;
(f) the learned Magistrate erred in imposing an 18-month non-parole period.
Further ground
The table set out at [3] above indicates that the learned Magistrate fell into an error not specifically identified in the above grounds but raised in the context of the totality principle, namely that the penalty imposed for the first offence of minor theft (9 months imprisonment) was more than the maximum penalty available for the offence (6 months imprisonment). Given that this term was to be served concurrently with a term of 12 months imposed for a related offence, the error may not of itself have had any particular impact, but it is impossible to be sure that her Honour was not influenced by the 9-month sentence in setting the non-parole period or in how she structured the sentence as a whole.
Although I consider that this error of itself would justify re-considering all the sentences imposed on Mr Crawford, I propose to deal also with the stated grounds of appeal, if only because that process may provide useful guidance for the re-sentencing process.
Background
The offences
Burglary (entering building with intent to steal)
In October 2005, the appellant entered the Canberra Institute of Technology (CIT) campus in Reid and took a bag from the library area. The appellant ran away when the caretaker found him rummaging through the bag in the library staff room.
Damaging property and theft
In December 2006 it was discovered that an Autoloader located on the University of Canberra campus had been broken into. The Autoloader is a cash machine used to add credit to student cards. Security footage enabled the identification of the appellant as the person who had damaged the machine and gained access to the internal money tray. An amount of $28.95 had been stolen from the Autoloader.
Motor vehicle offences
The motor vehicle offences arose after a vehicle was taken from the Deakin shops on 11 December 2006, when the owner left his keys unattended while taking part in an exercise class at the Deakin Health Spa. The vehicle was located six days later after several sightings, over three days, of the vehicle with the appellant in it. Those multiple sightings were the basis of the three motor vehicle charges.
Theft
On 16 December 2006, a handbag and its contents, valued at over $600, were stolen from a vehicle parked at Southwell Park in Lyneham while the owner of the vehicle watched her son play cricket. The vehicle taken from Deakin was used in this theft.
Obstruction of forensic procedure
On 19 December 2006 the appellant, who was by now in custody, refused to provide a sample of his saliva for a DNA procedure after having been ordered to do so under s 24 of the Crimes (Forensic Procedures) Act 2000 (ACT).
Court processes
The appellant has been in custody, before and after sentencing, for a total of nearly 18 months in respect of these offences. The appellant lodged an appeal against sentence on 14 December 2007 after an extension of time was granted, but has remained in custody.
Further evidence
Counsel for the appellant did not seek to lead any further evidence on appeal.
Principles for determining appeal
On an appeal against sentence, an original sentence may be replaced if the exercise of the learned Magistrate’s sentencing discretion was affected by a specific error. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King (1936) 55 CLR 499 at 505; Dinsdale v The Queen (2000) 202 CLR 321 at 324-325; Markarian v The Queen (2006) 228 CLR 357 at 371).
As well, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen (2000) 202 CLR 321 at 340). That is, no specific error need be shown to justify a finding that the sentence is “manifestly excessive”, and if specific error is shown then there is no need to argue manifest excess.
I mention for completeness that even if specific error is shown, an appeal should not be allowed and a new sentence imposed unless the appeal court also considers that a different sentence would be appropriate, so to this extent the level of the sentence will need to be considered even in an appeal based on specific errors.
I now deal with the appellant’s stated appeal grounds by reference to the principles set out above.
Consideration of notified grounds of appeal
Insufficient weight given to the principles in Fernando
The case of Stanley Edward Fernando (1992) 76 A Crim R 58 (Fernando) was drawn to the learned Magistrate’s attention, and in response to a question from her Honour, counsel for the appellant explained that the Fernando principles should be considered by the court:
… in terms of taking into account this young man’s lack of opportunity, his disadvantage, his disadvantage as a result of the drugs and alcohol in his life and in his family as a whole. The consequences that’s had for him in terms of his massive drug addiction that he’s now saddled with, for probably the remainder of his life, and his management of that drug addiction in some form or another either one day get in to a rehabilitation program or having to be maintained on the Methadone program for an indefinite period of time, unless and until some other method comes along to relieve him of that. It’s a curse over his life. So the Fernando principles of course do not detract from normal sentencing principles, but they will go to mitigation of sentence.
The Fernando principles are as follows (at 62-63):
(A) The same sentencing principles are to be applied in every case irrespective of the identity of a particular offender or his membership of an ethnic or other group but that does not mean that the sentencing court should ignore those facts which exist only by reason of the offenders’ membership of such a group.
(B) The relevance of the Aboriginality of an offender is not necessarily to mitigate punishment but rather to explain or throw light on the particular offence and the circumstances of the offender.
(C) It is proper for the court to recognise that the problems of alcohol abuse and violence which to a very significant degree go hand in hand within Aboriginal communities are very real ones and their cure requires more subtle remedies than the criminal law can provide by way of imprisonment.
(D) Notwithstanding the absence of any real body of evidence demonstrating that the imposition of significant terms of imprisonment provides any effective deterrent in either discouraging the abuse of alcohol by members of the Aboriginal society or their resort to violence when heavily affected by it, the courts must be very careful in the pursuit of their sentencing policies to not thereby deprive Aboriginals of the protection which it is assumed punishment provides. In short, a belief cannot be allowed to go about that serious violence by drunken persons within their society are treated by the law as occurrences of little moment.
(E) While drunkenness is not normally an excuse or mitigating factor, where the abuse of alcohol by the person standing for sentence reflects the socio-economic circumstances and environment in which the offender has grown up, that can and should be taken into account as a mitigating factor. This involves the realistic recognition by the court of the endemic presence of alcohol within Aboriginal communities, and the grave social difficulties faced by those communities where poor self-image, absence of education and work opportunity and other demoralising factors have placed heavy stresses on them, reinforcing their resort to alcohol and compounding its worst effects.
(F) That in sentencing persons of Aboriginal descent the court must avoid any hint of racism, paternalism or collective guilt yet must nevertheless assess realistically the objective seriousness of the crime within its local setting and by reference to the particular subjective circumstances of the offender.
(G) That in sentencing an Aborigine who has come from a deprived background or is otherwise disadvantaged by reason of social or economic factors or who has little experience of European ways, a lengthy term of imprisonment may be particularly, even unduly, harsh when served in an environment which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society or his own personality.
(H) That in every sentencing exercise, while it is important to ensure that the punishment fits the crime and not to lose sight of the objective seriousness of the offence in the midst of what might otherwise be attractive subjective circumstances, full weight must be given to the competing public interest to rehabilitation of the offender and the avoidance of recidivism on his part.
It is apparent that the Fernando principles are of primary relevance to offences committed by Aboriginal offenders within Aboriginal communities, and in particular where the offences are associated with alcohol abuse and resulting violence within those communities. Principle (G), which relates to sentencing options rather than the features of offences under consideration, relates to the possible harshness of a lengthy term of imprisonment for an Aboriginal offender in a prison environment “which is foreign to him and which is dominated by inmates and prison officers of European background with little understanding of his culture and society”.
It is not apparent, despite the efforts of counsel in the Magistrates Court and counsel appearing for the appellant, that these principles add anything to the proper exercise of the sentencing discretion in relation to this appellant.
The appellant was not charged with offences committed within an Aboriginal community, or offences attributable to the excessive use of alcohol. Rather, he is charged with property offences (the refusal to submit to DNA testing is consequential on the police investigation of his property offences) committed within and against the broader community, not within an Aboriginal community.
Those property offences were not committed as a result of alcohol abuse, but arose from the appellant’s need to fund a heroin addiction. There was no evidence before her Honour to suggest that the Fernando principles should be extended to cover heroin abuse (or even illicit drug use) as a recognised social problem in Aboriginal communities, or to cover property offences outside any relevant Aboriginal community. Nor is there any support to be found in Fernando for a sentencing approach that gives, to generally relevant disadvantages of the kind undoubtedly suffered by the appellant, more weight because of the offender’s Aboriginality. Any offender who was taken into care and separated from his mother and siblings at the age of three, and who began living on the streets and using heroin in his early teens, deserves the sympathy and understanding of the court, irrespective of his racial or cultural background. I am satisfied that the learned Magistrate was quite conscious of the appellant’s Aboriginality, of the Fernando principles, and of the aspects of the appellant’s background and life experiences that made him especially deserving of sympathy in general and of multiple rehabilitation opportunities in particular. I can find no error in her Honour’s treatment of the appellant as an Aboriginal offender.
Insufficient weight given to the appellant’s youth and prospects of rehabilitation
Counsel for the appellant submitted that the learned Magistrate gave insufficient weight to the appellant’s youth and prospects for rehabilitation. In support of this claim, counsel pointed to various matters possibly relevant to the appellant’s prospects of rehabilitation. These were:
(a)that the appellant commenced the Methadone Maintenance Program while on remand in early 2007 and has remained on this program as at the hearing of the appeal;
(b)that the appellant has expressed remorse and insight into the consequences of his offending behaviour;
(c)the reasons for the appellant’s departure from the Odyssey House residential rehabilitation facility; and
(d)the death of the appellant’s maternal grandmother.
All these factors, although not expressly drawn to the learned Magistrate’s attention, were mentioned in the Pre-Sentence Report that was available to and read by her Honour. However, the authors of both the Pre-Sentence Reports, in particular the later Pre-Sentence Report that mentions the death of the appellant’s grandmother and his departure from Odyssey House, indicated real concerns about the appellant’s prospects of community-based rehabilitation in spite of these factors. For instance, the assessment in the later Pre-Sentence Report was as follows:
[The appellant] is a young man who has stated that he would like to change his lifestyle. However, he has demonstrated in the past that he has neither the motivation nor the self-discipline to cope with the demands and requirements involved in changing his lifestyle at this time. Whilst his self reported assertion of good intent whispered on his grandmother’s body might be an impetus for change, it is difficult to place any confidence in the offender’s current ability to persevere for any length of time with such a program of change.
[The appellant] has demonstrated in the past that he is not suitable for community based programs which demand commitment and good will on his part.
[The appellant] needs a highly structured program from which he cannot ‘walk away’. Such a program might enable him to obtain some relief from drug use and gain some maturity through education, counselling and employment if he so chooses.
The learned Magistrate focussed on these concerns, and the generally pessimistic tone of the Pre-Sentence Reports, saying:
But the pre-sentence report is really very sad at the moment. It’s to your credit in some ways though that I think you’re finally accepting that you don’t want to stand before the court and go through the motions and pretend that you’ll go off to do rehabilitation when really you know that it’s not going to work for you at this time.
You know it’s to your credit, as I say, that you’re honest with the author of the pre-sentence report and didn’t mouth the words in the hope that maybe yet again a court would try something and set you up for failure yet again. But, you know, they say you don’t seem to have the motivation or the self-discipline to cope with the demands and requirements involved in changing your lifestyle at this time.
It is clear from her Honour’s comments that she was aware of the matters mentioned by counsel at the appeal hearing and listed at [24] above, but could find no reason for seeing them as grounds for optimism, having regard to the assessment of the Pre-Sentence Report author.
I have commented on the significance of Pre-Sentence Reports in the recent decision of Rogers v Green [2008] ACTSC 78 (27 August 2008), and for the reasons set out at [21] and [22] of that decision, I do not consider that the learned Magistrate was obliged to accept the views of the Pre-Sentence Report author without question. However, she was certainly entitled to accept those views if she found them convincing, and accordingly I cannot find any error in her Honour’s acceptance of the views of the Pre-Sentence Report authors, which were provided specifically in the context of all the matters that counsel for the appellant has raised as matters in mitigation that should have been given more weight.
Counsel for the respondent acknowledged that rehabilitation will often constitute a relevant factor in sentencing, but stressed that the appellant had been given several opportunities for rehabilitation which had been squandered, as indicated by the Pre-Sentence Report:
[The appellant] admitted he has only maintained periods of abstinence from drug use during periods of incarceration and brief stints at residential rehabilitation programs. He informed he has attended three rehabilitation programs, however failed to complete any of them. [AB 104]
As a result, counsel argued, the learned Magistrate was justified in focussing on deterrence in sentencing the appellant.
Counsel for the appellant referred me to cases indicating that drug addiction might be a mitigating factor in some offences, depending on the circumstances in which the offender acquired the addiction (see R v Meyboom [2001] FCA 861 (10 July 2001) at [52] and R v Seckold [2005] ACTSC 34 (18, 22 February 2005)).
However, while the granting of leniency to an offender who has acquired a drug addiction at an early age and in circumstances deserving of sympathy is clearly available in some cases, such leniency could not be said to be based on an offender’s youth or prospects of rehabilitation. Indeed, such leniency might sometimes be available to an offender who is neither young nor likely to succeed in rehabilitating himself, and equally leniency arising from youth and rehabilitation prospects is not limited to offenders who have acquired early drug habits or even to cases involving drug addictions at all. Although it is true that the two grounds for leniency may often arise in the same cases, they are conceptually separate.
Having regard to the material before the learned Magistrate and her careful consideration of it, I do not find that her Honour fell into any error in the weight she gave to the appellant’s youth and prospects of rehabilitation.
Insufficient weight given to the appellant’s absence of failure to appear convictions
Although it was included as an appeal ground, no mention was made in the hearing of the appellant’s absence of failure to appear convictions, and it is hard to see the particular relevance of any such absence to the appeal or to the original sentencing; the words may have been carried over from a document used in support of a bail application.
The principle of totality, the accumulation of sentences and the setting of the non-parole period
Counsel for the appellant submitted that the learned Magistrate erred by failing to take into account the principle of totality, erred in her accumulation of sentences and erred in imposing a non-parole period of 18 months. No specific error affecting the accumulation of sentences or the setting of the non-parole period was identified; if and to the extent that the accumulation of sentences or the setting of the non-parole period did involve an error, the error would seem to be a form of failing to apply the totality principle appropriately.
In Mill v R ((1988) 166 CLR 59 (Mill) at 62-63), the High Court explained the totality principle as follows:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, as follows:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is `just and appropriate'. The principle has been stated many times in various forms: `when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; `when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
The totality principle is relevant in the sentencing process appealed from in two separate ways. First there is a general question relating to the accumulation of various sentences and the assessment of the totality of the sentence and the non-parole period. Secondly, there is a specific issue concerning the sentencing process for the earliest offence. This offence was one of an earlier group of offences and sentences had previously been imposed for all the other offences in the group. The question arises whether the approach to the earlier sentencing breached the totality principle, and the effect any such breach might have had on the sentence eventually imposed and now appealed from.
Totality in the 2007 sentencing
The effect of the learned Magistrate’s structuring of the sentences was to impose completely separate and consecutive periods of imprisonment in respect of each separate incident or course of conduct.
· The burglary offence received a 5-month term of imprisonment.
· The two offences arising out of the appellant’s dealings with the Autoloader received concurrent sentences, which would start running only after the 5-month term had been served.
· The three offences arising out of the motor vehicle theft, and the minor theft involving the use of the stolen motor vehicle, were punished with concurrent sentences that would commence to run only after the sentences for the Autoloader incident had been served.
· Finally, the sentence for obstructing a forensic procedure would commence only after all other sentences had been served.
The approach of providing for sentences arising out of a single incident to run concurrently while accumulating sentences arising out of separate incidents is generally an appropriate starting point, and seems to have been so in this case. However, the effect was to impose a head sentence of 32 months for a series of offences most of which, while certainly to be deplored, seem to have been less serious examples of the various offences, and to impose that sentence on a young man with a lengthy criminal history but also a number of subjective circumstances that might properly have entitled him to some leniency.
As well, there is no clear pattern discernible in the relationship between the circumstances of each offence, the maximum penalties available and the sentences imposed.
The offence with the highest maximum penalty (entering a building with intent to steal, penalty including imprisonment for up to 14 years) appears to have been an opportunistic act in a building to which public access would have been readily available, and this is reflected in the imposition of a 5-month sentence.
The three motor vehicle offences involve the same motor vehicle and a course of conduct over a period of only a few days in which the appellant used the vehicle and happened to be observed doing so on three separate occasions. However, I note that the appellant did use the vehicle to commit a further offence. The learned Magistrate specifically referred to the appellant engaging in “one multi-faceted course of criminal conduct”, and made all the sentences for the motor vehicle offences, and the associated minor theft offence, concurrent.
While the sentences imposed for the more serious offences were relatively lenient, the sentences imposed for the two minor thefts were in one case the maximum penalty and in the other case 150% of the maximum penalty. Neither her Honour’s comments, nor the facts of the offences as set out in the agreed Statement of Facts, give any clue to why these offences were regarded as such extreme examples of minor theft: the learned Magistrate’s failure to explain why the offences were quite so serious might itself amount to a sentencing error, but in the absence of relevant submissions I don’t propose to make any finding on this issue.
Even ignoring the absence of any explanation why the various sentences were such different proportions of the maximums, it would have been appropriate, having regard to the nature and seriousness of the offences, the appellant’s youth, and the appellant’s disadvantages, including the early acquisition of a significant drug addiction, as already discussed (at [23] above) in the context of the Fernando principles, for her Honour to “take a last look at the total just to see whether it looks wrong”.
The learned Magistrate was clearly aware of issues of totality, adjourning expressly to give herself time “to make sure I take into account totality, proportionality, concurrency, consecutiveness … to make sure that whatever penalty is imposed is certainly not crushing”. However, her Honour appears to have been misled in making that assessment:
(a) by her calculation of the head sentence as 27 months when in fact it was 32 months; and
(b) by the fact that the offences covered by the 27 months she referred to did not include the offence with the highest maximum penalty (burglary, 14 years).
The significance of this second matter is that in the context of eight offences, the two most serious of which had maximum penalties of 14 years and 10 years imprisonment respectively, a sentence of 27 months imprisonment may not seem excessive; the same head sentence for seven offences the two most serious of which had 10 year and 5 year maximum prison sentences was more substantial.
Similarly, in setting the non-parole period, the learned Magistrate considered it as a period of 18 months in a total head sentence of 27 months rather than 23 months in a head sentence of 32 months. In either case, the non-parole period would have been quite high, especially for a relatively young offender whose longer-term rehabilitation should have remained a consideration, even if it had not justified a particularly brief sentence, but a 23-month non-parole period in a head sentence of 32 months seems unusually severe.
Totality in relation to the 2005 offence
The sentencing of the appellant for the 2005 burglary offence raises several difficult issues.
The appellant was arrested and charged with that offence, along with seven other offences, on 30 November 2005. On 23 February 2006, a different Magistrate sentenced the appellant for the other offences, and he began serving an 18-month term of imprisonment with a 12-month non-parole period. On the burglary charge, that Magistrate (the earlier sentencing Magistrate) remanded the appellant in custody until November that year, noting that the appellant would in any case be in custody. At some point he told the appellant that if there were no problems after his release, then he would not go to gaol again.
It is not clear why his Honour took this course instead of sentencing the appellant in respect of this offence at the same time as he sentenced for all the other offences, including at least one other offence arising out of the same incident at the CIT. I can only assume that the learned Chief Magistrate was using a form of Griffiths remand and that he was doing so in the hope of giving the appellant a continued incentive to stay out of trouble, but it is not clear to me that a sentencing court can or should use such an approach in conjunction with imposing final sentences for other offences, at least where the offences arise out of the same incident (see High v Willis [2008] ACTSC 88 (26 September 2008) at [35]).
In November 2006, about a month before the appellant was due to be released from prison on the other offences, the earlier sentencing Magistrate made several orders relating to Corrective Services and CADAS supervision and remanded the appellant again, this time for just over 6 months, stating that the appellant would be on bail after being released from prison. In fact the appellant re-offended shortly after his release, and the earlier unfinished burglary charge was brought to the attention of the Magistrate whose sentencing is the subject of this appeal when she sentenced him for the later offences. The effect of the sentences imposed by her Honour at that point was that the appellant served a total of 5 months imprisonment on the earlier burglary charge, which was not to any extent concurrent with any of the sentences for the related 2005 charges or with any of the sentences for the 2006 charges.
It is of course impossible to guess what the earlier sentencing Magistrate might have done if he had sentenced the appellant for that 2005 offence at the same time as he sentenced the appellant to a total of 18 months imprisonment for the other 2005 burglary, theft and motor vehicle thefts. There is no way to resolve that uncertainty, but it is possible that if the earlier sentencing Magistrate had sentenced the appellant as part of the 2005 sentencing exercise:
(a) any term of imprisonment might well have been longer than the 5 months eventually imposed; but
(b) any such term of imprisonment might well have been made concurrent with the concurrent 18-month terms of imprisonment imposed for the other two burglaries.
On this basis, and despite the possibility that the appellant’s sentence on the burglary charge might have been longer than 5 months, it seems to me that the appellant may have been unfairly disadvantaged by being sentenced for the outstanding 2005 burglary charge, in effect, quite separately from either the original associated offences or the new set of offences for which he came before the court in 2007. Any error constituted by a breach of the totality principle in relation to the 2005 offences was that of the earlier sentencing Magistrate, but it could have been accounted for, and corrected, in the 2007 sentencing exercise. I note, however, that the matter that I have identified as a possible error was not raised with the second Magistrate when she was considering the sentences that are now the subject of appeal. Nor was it argued before me on the basis on which I have analysed it, and accordingly I make no final finding about this possible error.
When the appellant’s counsel originally put the suggestion that punishments previously imposed in other sentencing proceedings might need to be accounted for in applying the totality principle, I was unconvinced, but on reflection it seems that this is a case that raises similar issues to those in Mill, namely how to deal with the fortunately rare case of a sentencing process that would ideally have been a single exercise but that has been split into two exercises separated by time and involving different sentencing courts (in Mill the sentencing was split because the offences concerned took place in different jurisdictions, but in this case the sentencing was deliberately split by the earlier sentencing Magistrate).
Conclusions on totality
I find, therefore, that:
(a) the learned Magistrate whose decision is appealed from fell into error in failing to take full account of the totality principle in setting either the head sentence or the non-parole period; and
(b) the sentence imposed for the 2005 burglary offence may also have been infected by an error in an earlier sentencing process which was not corrected in the later process.
Conclusions
Thus, I find that the learned Magistrate fell into error in two ways in this sentencing process, first by imposing one sentence in excess of the maximum penalty for the offence concerned, and secondly by applying the totality principle, both generally and in relation to the non-parole period, only to part of the total sentence being imposed. As well, the sentencing process may have been infected by:
(a) a failure to give any reason for applying a maximum sentence for one offence; and
(b) an error on the part of the earlier sentencing Magistrate in separating one offence out of what should properly have been a single sentencing process for a group of related offences.
In those circumstances and having regard to the nature of those errors, the appeal must be allowed and the appellant must be re-sentenced.
Re-sentencing
The appellant is currently awaiting sentencing for two other offences committed during the same 3-week period as is covered by the offences the subject of this appeal. I propose to consolidate that sentencing process with the re-sentencing required as a result of this appeal. Apart from the convenience of this approach, it will allow full regard to be had to the principle of totality in accordance with the principles I have canvassed in this judgment.
The orders
Accordingly, the orders will be as follows:
(a) the appeal is allowed;
(b) the appellant will be re-sentenced.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 13 October 2008
Counsel for the appellant: Ms T Warwick
Solicitor for the appellant: Aboriginal Legal Service (NSW/ACT) Ltd
Counsel for the respondent: Ms K McKenzie
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 28 March, 13 May 2008
Date of judgment: 13 October 2008
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