Peter v Brownlie

[2023] ACTSC 198

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Peter v Brownlie

Citation: 

[2023] ACTSC 198

Hearing Date: 

6 July 2023

Decision Date: 

28 July 2023

Before:

McWilliam J

Decision: 

The appeal is dismissed

Catchwords: 

APPEAL – APPEAL FROM MAGISTRATES COURT – Appeal against sentence – whether sentences manifestly excessive – whether principle of totality considered – Magistrate considered rehabilitation and deterrence – no appellable error demonstrated – appeal dismissed

Legislation Cited: 

Crimes Act 1900 (ACT) s 116(3)

Criminal Code 2002 (ACT) ss 44, 308, 318(1), 321

Crimes (Sentence Administration) Act 2005 (ACT) ss 108, 110

Firearms Act 1996 (ACT) s 249(1)

Magistrates Court Act 1930 (ACT) ss 207, 208, 218

Road Transport (Safety and Traffic Management Act) 1999 (ACT) s 7(1)(a)

Cases Cited: 

Barrett v The Queen [2016] ACTCA 38

Barron v Laverty [2019] ACTSC 198; 346 FLR 442

Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79

Dinsdale v The Queen [2000] HCA 54; 202 CLR 321

Kelly v The Queen [2021] ACTCA 15

Kourpanidis v The Queen [2022] ACTCA 11

Le Clair v The Queen; Achanfuo‑Yeboah v The Queen [2017] ACTCA 19

Lowndes v The Queen [1999] HCA 29; 195 CLR 665

O’Brien v The Queen [2015] ACTCA 47

NC v The Queen [2017] ACTCA 31

R v AB [2017] NSWCCA 88

R v Donnelly [2021] ACTSC 336

R v Dowden-Carlisle [2023] ACTSC 169

R v Henry [1999] NSWCCA 111; 46 NSWLR 346

R v Kirkwood [2022] ACTSC 148

R v Law [2021] ACTSC 351

R v Rosewarne [2021] ACTSC 217

R v Taouk (1993) 65 A Crim R 387

R v Williams (No 2) [2020] ACTSC 280

R v Winters [2022] ACTSC 371

Saga v Reid [2010] ACTSC 59

Samani v The Queen [2017] ACTCA 23

Taylor v The Queen [2014] ACTCA 9

Tracey v The Queen [2020] ACTCA 51

Williams-Savage v The Queen [2022] ACTCA 58

Zdravokovic v The Queen [2016] ACTCA 53

Parties: 

Nicholas Josef Peter ( Appellant)

Matthew William Brownlie ( First Respondent)

Jack Liam Wright (Second Respondent)

Representation: 

Counsel

T Lee ( Appellant)

C Daly ( Respondents)

Solicitors

Legal Aid ACT ( Appellant)

ACT Director of Public Prosecutions ( Respondents)

File Number:

SCA 12 of 2023

Decision Under Appeal: 

Court:  ACT Magistrates Court

Before:   Chief Magistrate Walker

Date of Decision:       2 February 2023

Case Title:                 The Police v Peter

Court File Number:     AM 1743 of 2016

McWILLIAM J:          

1․This appeal concerns a sentence imposed on the appellant on 2 February 2023 in the Magistrates Court in respect of the following offences:

Charge	Offence	Maximum penalty	Sentence
CC2022/9099	Take Motor Vehicle without consent S 318(1) of the Criminal Code 2002 (ACT) (Criminal Code)	500 penalty units, imprisonment for five years or both	Convicted Sentenced to nine months’ imprisonment (15 October 2023 to 14 July 2024)
CC2022/9203	Minor Theft S 321 of the Criminal Code	50 penalty units, imprisonment for six months or both	Convicted Sentenced to one month’s imprisonment. (15 April 2023 to 14 May 2023)
CC2022/9491	Attempt Theft S 308 (by virtue of s 44) of the Criminal Code	1,000 penalty units, imprisonment for 10 years or both	Convicted.  Sentenced to nine months’ imprisonment (15 April 2023 to 14 January 2024)
CC2022/5254	Possess ammunition S 249(1) Firearms Act 1996 (ACT)	10 penalty units	Convicted and fined $750 no time to pay
CC2022/4925	Possess ammunition S 249(1) Firearms Act 1996 (ACT)	10 penalty units	Convicted and fined $750 no time to pay
CC2022/4924	Damage property (less than $5000) S 116(3) Crimes Act 1900 (ACT)	60 penalty units, imprisonment for three years or both	Convicted and fined $750 no time to pay
CC2021/9003	Aggravated furious reckless or dangerous driving S 7(1)(a) Road Transport (Safety and Traffic Management Act) 1999 (ACT)	300 penalty units, imprisonment for three years or both	Convicted Sentenced to seven months’ imprisonment. (15 September 2022 to 14 April 2023)

2․The first three offences listed each occurred on 9 September 2022.  The convictions for those offences put the appellant in breach of four previous sentencing orders, which were then dealt with by the Chief Magistrate (sentencing magistrate) pursuant to ss 108 and 110 of the Crimes (Sentence Administration) Act 2005 (ACT).

3․The aggregate sentence imposed was imprisonment for 22 months, commencing 15 September 2022 and ending on 14 July 2024.  A non-parole period of 12 months was imposed, to end on 14 September 2023, which equated to approximately 55% of the head sentence.

Facts of offending

4․The appeal only relates to two of the above offences, namely CC2022/9099 (take motor vehicle) and CC2022/9491 (attempt theft).  However, the facts for each of the offences on 9 September 2022 are set out below, as they are relevant to the grounds of appeal that were argued.

Attempt theft

5․The appellant attended the Raiders Mawson Club in the early hours of the morning on 9 September 2022.  He went to the gaming lounge and approached a change desk counter.  He reached under the security screen and took the cash tray, which contained $14,463.55 AUD.  The appellant then placed the tray under his jumper and tried to leave the premises.  He was intercepted by security.

Minor theft

6․The appellant dropped the tray and scrambled on the floor to pick up various denominations totalling $235 AUD.  He then left the premises.

Take motor vehicle without consent

7․At about 4:42pm on the afternoon of 9 September 2022, the appellant entered the yard of Gemini Kingston Auto Body Shop, a business where he had previously worked. He walked straight to the area where he knew keys to vehicles were kept. He had a short conversation with a former colleague and shook his hand.  He then drove a navy-blue Mazda CX-5 which had been left at the shop for repairs away from the yard, without the knowledge of those working on site.

The grounds of appeal

8․The Notice of Appeal dated 1 March 2023 contains two grounds:

(a)Each of the individual sentences for CC2022/9099 and CC2022/9491 were manifestly excessive.

(b)The aggregate sentence is manifestly excessive, in that the accumulation of the individual sentences was excessive, or alternatively, the sentencing magistrate had insufficient regard to the principle of totality, including structuring the sentences so that they were entirely cumulative upon CC2021/9003.

Jurisdiction

9․The Court’s jurisdiction on appeal is exercised pursuant to Part 3.10 of the Magistrates Court Act 1930 (ACT) (MC Act). The jurisdiction includes appeals against sentences imposed by the Magistrates Court: see divs 3.10.1 and 3.10.2 (in particular, ss 207 and 208) of the MC Act.

10․The orders the Supreme Court may make on such an appeal are set out in s 218 of the MC Act. Relevantly here, the Court may confirm, reverse or vary the sentence (s 218(1)(a)), or give the judgment or make the order that, in all the circumstances, it considers to be appropriate (s 218(1)(b)), which then has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly: s 218(2).

11․The appeal is by way of rehearing and the starting point is restraint. A sentence imposed in the Magistrates Court will not be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence: Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]. There is a strong resistance against appellate “tinkering” with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 at [62].

Applicable principles to a complaint of a manifestly excessive sentence

12․The principles applying to a complaint of manifest excess are also uncontroversial and are consistent with the general approach to appeals described above.  The principles have been drawn together at appellate level in various ways, as seen from the following three examples.  First, as explained by the Court of Appeal in Zdravokovic v The Queen [2016] ACTCA 53 at [51] and [52]:

51. A sentence appeal alleging manifest excess calls into question what is a quintessentially discretionary decision. Error may be inferred if the sentence is “manifestly excessive” in the sense that it is “unreasonable or plainly unjust”: Dinsdale v The Queen[2000] HCA 54; 202 CLR 321 per Gleeson CJ and Hayne J at [6]. But “manifest excess” is not established just because the appeal court would have imposed a more lenient sentence: R v Ellis(1993) 68 A Crim R 449 at 461 per Hunt CJ at CL; Balthazaar v The Queen[2012] ACTCA 26 at [61].

52. When deciding whether a sentence is “manifestly excessive”, the legislated maximum penalty that applies to the “worst possible case” must be considered; it provides a “yardstick” for assessing the appropriate penalty: Markarian v The Queen[2005] HCA 25; 228 CLR 357 at [31]. The objective seriousness of the particular offence, the subjective circumstances of the offender, relevant statutory provisions (including the sentencing purposes in s 7 of the Sentencing Act) and any sentencing pattern applicable to the offence type are also important considerations when deciding whether a sentence lies within the available range.

13․Second, in Samani v The Queen [2017] ACTCA 23 at [15], the Court of Appeal quoted the above passage before also adopting (at [16]) the following passage from R v AB [2017] NSWCCA 88 at [57]:

The principles on which an appellate court will determine that a sentence is manifestly excessive or inadequate are well-established. An appellate court is not entitled to interfere with the exercise of the sentencing discretion merely because it would have arrived at a different result: Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]. For a sentence to be set aside as being manifestly inadequate, it must be unreasonable or plainly unjust after taking all relevant matters into account: Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6], [22]; Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [58]- [60].

14․Third, the submissions of the parties also drew attention to the more recent judgment in Tracey v The Queen [2020] ACTCA 51, where the Court of Appeal gave a summary consistent with the above extracts at [37]-[38]:

37. The principles in relation to assessing whether a sentence is manifestly excessive are well-established. Appellate intervention is not justified simply because an appellate court may have a different view as to the most appropriate sentence (Lowndes v The Queen [1999] HCA 29; 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [28]) or where the sentence is markedly different from sentences that have been imposed in other cases (Wong v The Queen [2001] HCA 64; 207 CLR 584 at [58] (Wong); Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520 at [58] (Hili)). Rather, the appellant must demonstrate that the sentence is such that it may be inferred that there was a misapplication of principle by the sentencing judge, although when and how the error occurred is not apparent from the judge’s reasons: Wong at [58]; Hili at [58]–[59], [75]–[76].

38. To determine whether a sentence is manifestly excessive, it is necessary to view it in the context of the maximum sentence prescribed for the offence, the standards of sentencing customarily observed with respect to the offence, the relative objective seriousness of the particular offence, and the personal circumstances of the offender.

15․As submitted by the respondent, sentencing magistrates are to be afforded as much flexibility as accords with consistency of approach and applicable sentencing principles: Kelly v The Queen [2021] ACTCA 15 at [42].

16․The appellant must satisfy the Court that, individually and/or collectively, the sentences imposed by the sentencing judge were unreasonable, plainly unjust or outside the available sentencing range: Barrett v The Queen [2016] ACTCA 38 at [34].

Was the sentence of 9 months’ imprisonment for taking the car without consent excessive?

17․The appellant submitted that the sentencing magistrate erred in determining the objective seriousness of the offending and failed to consider rehabilitation in any meaningful way.

Objective seriousness

18․Dealing first with the complaint relating to the objective seriousness, the appellant took issue with the reasoning of the sentencing magistrate referring to the fact that when the car was found by police, it was “dirty and carelessly parked” four days later.

19․The considerations that inform the objective seriousness of an offence of taking or driving a motor vehicle without consent were set out by Murrell CJ in R v Rosewarne [2021] ACTSC 217 at [123], as follows:

(a)     The degree of planning.

(b) The motive for the offence, including whether it was undertaken to facilitate another offence (in this case, a burglary or another offence of dishonesty).

(c) Whether the taking caused damage to the vehicle (unless separately charged) and whether the vehicle was recovered.

20․It can be seen that whether or not a car is recovered, and the state in which a vehicle may have been recovered, are relevant factors in assessing the objective seriousness of an offence.  R v Donnelly [2021] ACTSC 336 at [70] is to similar effect.

21․It is also important that the sentencing magistrate’s statement be read in context, which was as follows:

Ultimately the car was found dirty and carelessly parked by police four days later, on 13 September.  You left the premises when the police entered, but you were picked up at the same residence, hiding in the bedroom, the next day.  This was an offence which required a degree of planning.  You knew how the system worked at the place.  It was also incredible brazen that, knowing you were going to steal a car, you just shook hands with someone you’d worked with.  It was a clear breach of trust of those who had employed you in the past and you clearly had control of the vehicle for a substantial period of time.  You might not have driven it terribly far, but it was under your control for the four days.

22․The reference to the car being dirty and carelessly parked carried some significance, in that as the sentencing magistrate explained elsewhere, it was the state of the car that had brought the vehicle to the attention of police. 

23․However, in the above context, it was not a matter that was used to describe an aggravating feature.  The fact that the car was dirty or how it was parked was not the material focus of the sentence.  The full sentence was about the car being recovered, who discovered it, and when it was found. 

24․Counsel for the respondent drew attention to Kourpanidis v The Queen [2022] ACTCA 11 at [4] where it was recalled “at the outset that remarks on sentence must be read fairly as a whole and without engaging in unduly critical textual analysis or minute scrutiny”.

25․A fair reading of the above reasons indicates that the sentencing magistrate was actually directing attention to the fact that the car was returned but had been under the appellant’s control for four days, notwithstanding that it was not driven very far.  In addition, the sentencing magistrate referred to whether there was a degree of planning, the brazen nature of the offence and the breach of trust arising from knowledge gained from a former workplace.  These are all matters that were relevant to the assessment of objective seriousness.  There is no error arising in respect of that assessment.

Rehabilitation

26․The sentencing magistrate’s reasons in respect of rehabilitation were as follows:

Your rehabilitation is still a factor.  I accept the application of the Henry principles in relation to your early drug use and I do not think you are a person who is beyond rehabilitation, but it’s at the point where, really, it’s now for you to take responsibility for that.  The system has tried and tried to support you, but you’ve got to make the efforts yourself.

27․The reference to the “Henry principles” is a reference to R v Henry [1999] NSWCCA 111; 46 NSWLR 346 (Henry), where the NSW Court of Appeal issued a guideline judgment in relation to the crime of armed robbery and (relevantly here) whether drug addiction can be taken into account in mitigation.  It has been referred to repeatedly in this jurisdiction, most recently by Norrish AJ in R v Dowden-Carlisle [2023] ACTSC 169 at [68], who cited the judgment of Wood CJ at CL at [273] (with agreement, per Spigelman CJ at [212], Hulme J at [331], Newman J at [278], and Simpson J at [348]). The passage has since been described in shorthand as the “Henry principles”.  It is as follows (references omitted):

In my view the relevant principles are as follows:

(a) the need to acquire funds to support a drug habit, even a severe habit, is not an excuse to commit an armed robbery or any similar offence, and of itself is not a matter of mitigation;

(b) however the fact that an offence is motivated by such a need may be taken into account as a factor relevant to the objective criminality of the offence in so far as it may throw light on matters such as:

(i) the impulsivity of the offence and the extent of any planning for it; …

(ii) the existence or non existence of any alternative reason that may have operated in aggravation of the offence, eg that it was motivated to fund some other serious criminal venture or to support a campaign of terrorism;

(iii) the state of mind or capacity of the offender to exercise judgment, eg if he or she was in the grips of an extreme state of withdrawal of the kind that may have led to a frank disorder of thought processes or to the act being other than a willed act;

(c) It may also be relevant as a subjective circumstance, in so far as the origin or extent of the addiction, and any attempts to overcome it, might:

(i) impact upon the prospects of recidivism/rehabilitation, in which respect it may on occasions prove to be a two-edged sword; …

(ii) suggest that the addiction was not a matter of personal choice but was attributable to some other event for which the offender was not primarily responsible, for example where it arose as the result of the medical prescription of potentially addictive drugs following injury, illness, or surgery …; or where it occurred at a very young age, or in a person whose mental or intellectual capacity was impaired, so that their ability to exercise appropriate judgment or choice was incomplete;

(iii) justify special consideration in the case of offenders judged to be at the "cross roads"…

The competing arguments

28․The appellant argued that the sentencing magistrate failed to consider rehabilitation in any meaningful way, either in the setting of individual sentences or in considering the manner in which such sentences were to be served.  The appellant submitted that given the court below had accepted the Henry principles applied, and that the appellant had started using drugs very early, greater importance should have been given to rehabilitation.  That is particularly case where rehabilitation is a mandated purpose of sentencing (relying on R v Law [2021] ACTSC 351 at [82]).

29․The respondent disagreed with the complaint that the sentencing magistrate had not given proper consideration or weight to the appellant’s rehabilitation.  The respondent drew attention to the earlier statement by Wood CJ at CL in Henry at [269]:

The objective of rehabilitation is but one aspect of sentencing. It needs to be taken into account along with the objectives of retribution and deterrence.

30․The respondent also relied upon [344] of the judgment of Simpson J in Henry. I think it is important to put the passage in context. Her Honour had earlier stated at [336] and [340] (emphasis added):

336.It is a mistake, in my opinion, to regard drug addiction as a starting point. It is an end point, or a point on the way to the end, of a process. Where the process begins may vary in individual cases but it does not necessarily begin when a person decides to use a prohibited substance. It probably has its origins well before the date of the first use of drugs. In the worst, or least forgivable, cases it may have its origins in arrogance, in an antipathetical attitude to the laws of society, or in weakness of character. In other cases, I have no doubt, it has its origins in social disadvantage, poverty, emotional, financial, or social deprivation, poor educational achievement, unemployment, and the despair and loss of self-worth that can result from these circumstances or any combination of them. In this court one sometimes sees cases in which drug taking stems from sexual assault or exploitation, sometimes committed when the person who turns to drugs, and who comes before the court, is very young, and sometimes the precipitating events have occurred many years before. Drug addiction is not always the disease; it is, as often as not, a symptom of social disease.

…

340.…Where great social difficulties, poor self image, absence of education and work opportunity and other demoralising factors have placed heavy stresses upon drug offenders, causing or reinforcing their resort to drugs, then it is appropriate for this court to [recognise] those antecedent circumstances.

31․Simpson J then discussed (at [341] and [342]) the delicate balancing task of the sentencing judge and the fact that it would be too simplistic to lay down a principle that addiction either is, or is not, a mitigating circumstance.  Her Honour turned (at [343]) to the point relied upon by the respondent here, that of evidence of rehabilitation being the “key to the impact evidence of drug addiction might have in the sentencing process.”

32․Her Honour stated at [344] (emphasis added):

Where circumstances such as those I have mentioned (or others equally deserving of compassion) have been the foundation for the drug addiction, and part of the causal chain leading to the commission of crime, then it would be appropriate, in my view, for the rehabilitative aspects of sentencing to assume a more significant role than might otherwise be the case. In an appropriate case, rehabilitation might outweigh other sentencing factors. In order for those circumstances to provide a reason for reduction of sentence, however, there would need to be strong evidence of real progress towards actual rehabilitation. I would not wish to be understood to be saying other than that leniency of the kind to which I refer depends heavily upon demonstrated (as distinct from theoretical) rehabilitative prospects.

33․The respondent relied upon this passage on the appeal here because of the appellant’s poor history of compliance in relation to attempts at rehabilitation.  The respondent further pointed to the good behaviour order that had attached to the previously suspended sentence for aggravated furious, reckless or dangerous driving (CC2021/9003), which included a condition to attend programs particularly in relation to alcohol and drugs. 

34․The respondent drew attention to these matters as supporting the submission that the opportunities provided by the Court had been squandered by the appellant.  In that regard, the respondent relied upon what was said by Murrell CJ in Barron v Laverty [2019] ACTSC 198; 346 FLR 442 at [85]:

…the suspended sentence regime is designed to facilitate rehabilitation through the vehicle of a good behaviour order.  It has been described as a “Sword of Damocles” that enables and motivates rehabilitation.

Resolution of the competing arguments

35․These competing submissions, and the detailed consideration in Henry given to drug addiction and how to treat it in the sentencing process, are indicative of an issue of some complexity.  There is no single correct approach to what a meaningful consideration of the appellant’s rehabilitation might look like when imposing a sentence of imprisonment. 

36․The sentencing magistrate’s reasons dealing with rehabilitation are brief.  Without more, it is understandable that an offender with the appellant’s subjective circumstances of social disadvantage may well feel that the Chief Magistrate’s remarks on sentence were dismissive of the appellant’s prospects of rehabilitation. 

37․However, the passage needs to be read in the context of two things: first, what her Honour had already said in relation to the appellant’s drug use and addiction; and second, in the context of the material that was before the Court, and which her Honour’s reasons demonstrate she had read and considered.

38․The Chief Magistrate referred to the appellant starting to use drugs very early from age 12 and the fact that the appellant was now 27.  She described the appellant’s drug use as problematic, but her concern was that “it was not clear that it was related to the offending.”  Her Honour was prepared to assume that the commission of the offences was “part of the milieu or the background in which the offending occurred”. 

39․The sentencing magistrate also had before her material disclosing that the appellant had attended the Ted Noffs foundation rehabilitation programme at age 16.  There was an attempt to refer him to Arcadia House in July 2021 which was unsuccessful.  He had expressed an interest in attending the Canberra Recovery Hub run by the Salvation Army.  The sentencing magistrate referred to aspects of this history, but again she reasoned that there was not much to put in front of the court to show that he had really come to grips with the addiction. 

40․There are different views that may reasonably be taken in respect of the appellant’s false starts in engaging with drug rehabilitation programs.  In Saga v Reid [2010] ACTSC 59 (Saga), Refshauge J spoke of the rehabilitation of persons with a dependency on illicit drugs at [89] (emphasis added):

In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it.

41․I respectfully share his Honour’s view.  Failed attempts are at least indicative of a person still willing to try, and the fact of failure should not, of itself, prevent a court from promoting rehabilitation in the sentence imposed. 

42․Here, the sentencing magistrate appears to have been cognisant of both the appellant’s circumstances and the challenges of rehabilitation for him.  But the difficulty she was facing, is also apparent in the reasoning.   She acknowledged the consequences for the appellant if he were unable to address his drug addiction:

…there’s a real risk that if back in the community, without some real support, you’ll find yourself again using and possibly being involved in significant crime as a result. 

…

You’ve been assessed as high risk of further offending if you don’t address the issues that have plagued you now for some time.

43․However, she stated:

…you have very poor compliance in the community with orders that this court has made, even though those orders were there to support you.

44․The sentencing magistrate’s earlier reasoning reveals that she was not blind to the idea that for some people the rehabilitation rollercoaster has more downs than ups.  What was operating on her Honour’s mind was the simple problem that the sentences that had been imposed previously with a view to providing greater scope for rehabilitation opportunities in the community had not worked, and the material before her Honour was insufficient to provide a rational basis for permitting further attempts (being the difficulties highlighted in the extract from Saga above). 

45․Although the sentencing magistrate did not repeat in full the various attempts to encourage and support the appellant’s rehabilitation, that context emerges from the sentencing magistrate’s statement that “it’s at the point where, really, it’s now for you to take responsibility for that.  The system has tried and tried to support you, but you’ve got to make the efforts yourself.”

46․The sentencing magistrate’s consideration of rehabilitation may be viewed as an application of the Henry principles and of Simpson J’s discussion of leniency not being appropriate where the rehabilitation prospects were theoretical as opposed to demonstrating actual motivation. 

47․It must also be remembered that the non-parole period imposed by the sentencing magistrate was set at a proportion resulting in a substantial period of eligibility for parole. Although the sentencing magistrate did not say it in these terms, a longer period on parole would permit the appellant to again attempt to grapple with his disease outside prison, should he choose to do so, in a supported environment by way of parole supervision. 

48․Taking the sentencing magistrate’s reasons as a whole, it has not been established that in the context of this appellant’s circumstances, rehabilitation was not given proper consideration, or that the application of the principle was erroneous.  

Was the sentence otherwise manifestly excessive?

49․Absent the demonstration of specific error resulting in a manifestly excessive sentence, it remains to be considered whether a term of imprisonment of nine months was otherwise plainly unreasonable or unjust, such that error is to be inferred.   The following matters are relevant to that issue:

(a)The maximum penalty for taking a motor vehicle without consent is five years’ imprisonment.

(b)The appellant had a prior conviction for the same offence which had attracted a 14-month full time sentence of imprisonment in 2016 and another prior conviction for the same offence as a young person, which similarly attracted a sentence of full-time imprisonment.

(c)The offence was committed while the appellant was subject to conditional liberty by way of multiple good behaviour and suspended sentence orders.

(d)The magistrate referred to the appellant’s relative youth and mental health issues.

(e)A discount of 25 percent was applied for the appellant’s plea of guilty.

50․It is also relevant to take into account sentencing patterns or practices.  In NC v The Queen [2017] ACTCA 31 the Court of Appeal stated at [54]:

…Comparable cases may be useful in two ways: first, if it is possible to discern from them any unifying sentencing principles that should be applied; and second, if an analysis of the cases discloses discernible sentencing patterns or a range of sentences. However, the cases may not establish any relevant range, or the range may not necessarily be the correct range or otherwise determinative of the upper and lower limits of sentencing discretion: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [54]–[55] (per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Wong v The Queen [2001] HCA 64; 207 CLR 584 at [59] (per Gaudron, Gummow and Hayne JJ); R v Pham [2015] HCA 39; 256 CLR 550 at [26]–[27] (per French CJ, Keane and Nettle JJ). Much will depend on the number of cases referred to and whether they are truly comparable. …

51․In R v Williams (No 2) [2020] ACTSC 280 at [39], Murrell CJ referred to the statistics obtained from the sentencing database as showing that 75 percent of persons convicted of an offence of taking a motor vehicle without consent received a sentence of imprisonment, often in the range of six to 12 months’ imprisonment. Current statistics suggest that the range of a usual sentence in the Magistrates Court is between 4 and 10 months. Cases since then (where a 25 percent discount for a guilty plea was applied) are consistent with that range: see, for example, R v Elphick [2021] ACTSC 9; and R v Rosewarne [2021] ACTSC 217.

52․Sentencing statistics have limitations.  In Williams-Savage v The Queen [2022] ACTCA 58 the Court of Appeal said at [22]:

As was observed by this Court in Tracey v Queen [2020] ACTCA 51 at [38], when considering whether a sentence is manifestly excessive, the sentence imposed should be considered in the context of (among other things) the standards of sentencing customarily observed with respect to the offence. Of course, while bare sentencing statistics may establish the range of sentences that have been imposed in the past for a particular offence, the statistics do not fix the permissible bounds of the sentencing discretion in a particular case. See, eg, Barbaro v The Queen [2014] HCA 2; 253 CLR 58, [41], Director of Public Prosecutions v Dalgliesh (a pseudonym) [2017] HCA 41; 262 CLR 428, [51]–[52]. For dishonesty offences such as burglary and theft, culpability varies significantly between cases: see, eg R v Bessant [2020] ACTSC 365. Accordingly statistics, which say nothing about the circumstances of individual offences or offenders, are a blunt instrument and should not be afforded undue weight.

53․Accepting the limited weight of bare statistics, they do have use here as some indicator of standards and whether a particular sentence may clearly be out of step.  The sentence of nine months falls well within the statistical range.

54․In light of those matters, and applying the principles above, it cannot be said that a sentence of nine months’ imprisonment was “plainly unjust”.  The objective seriousness of the conduct was greater than other conduct falling within the spectrum for the offence (such as where the vehicle taken had the keys in the ignition, or where the vehicle was recovered almost immediately).  There was the aggravating matter of the offender being on conditional liberty.  There was an objective of specific deterrence required in light of the relevant antecedents.  Even paying due regard to the application of the Henry principles and with rehabilitation featuring in the balancing process, such deterrence was warranted.

55․Taking into account all those factors, the appellant has not established that the individual sentence warrants intervention for being manifestly excessive.

Was the sentence of nine months’ imprisonment for attempt theft manifestly excessive?

56․In relation to the offence of attempt theft, the seriousness of the offence is seen in the maximum penalty being 10 years’ imprisonment.

57․The most relevant feature is the amount or value of property taken (monetary or otherwise): R v Winters [2022] ACTSC 371 at [71]. Other features relevant in assessing the objective seriousness have been set out in R v Dawson [2022] ACTSC 64 at [43], cited in R v Kirkwood [2022] ACTSC 148 at [79]. They include:

(a)Where the theft occurred;

(b)The motivation for the conduct;

(c)The level of inconvenience caused; and

(d)The degree of planning or premeditation.

58․Where the offence is one of attempt, as is the case here, the objective seriousness is informed by:

(a)The level of sophistication; and  

(b)The level of success.

59․In Cajina v The Queen [2009] ACTCA 2; 3 ACTLR 79, the Court of Appeal referred (at [29]) to the requirement to evaluate the seriousness of the offence as one of attempt rather than commission of the substantive offence. The Court of Appeal adopted the principles set out in R v Taouk (1993) 65 A Crim R 387 at 390. Relevantly here, the evaluation is as follows (emphasis added):

In making such an evaluation, where the charge is of an attempt to commit a substantive offence, it will be relevant for the judge to consider, first, that the charge is of attempt only, and, by hypothesis, the substantive offence was not completed; and it will be relevant to consider the chances that the attempt, if not interrupted, would have succeeded. If on the facts it appears that the attempt was unlikely to succeed or indeed, that although physically possible there was in reality no prospect that it would succeed, this is a matter which might be seen to reduce the objective seriousness of the crime. However it must also always be necessary for the sentencing judge to consider the seriousness of that which was attempted. …It may be postulated that where the offence attempted is grave, a sophisticated attempt which came close to success is likely to attract a heavier sentence than a naïve an ill-prepared attempt predestined to fail. On the other hand, a determined and all but effective attempt to commit a minor crime would attract perhaps a more severe sentence than a naïve and inefficient attempt to do the same thing, although the relative triviality of the offence would tend to narrow the margin between the two outcomes. It cannot necessarily be postulated, however, that a naïve and ill-prepared, even incompetent, attempt to commit a serious offence must necessarily attract a lesser sentence than would be incurred by a serious and all but effective attempt to commit an offence of less gravity. There is clearly an interrelationship between the seriousness of the intended consequences and the real prospects of having achieved them, and that relationship has to be weighed in each case in the light of all of the circumstances.

60․Here, the sentencing magistrate did turn her mind to the fact that this was an attempt.  It was found that there was a low level of planning and sophistication in the offence, being a scrambling effort where the offender was “pretty desperate”.  However, the amount that the appellant was attempting to steal was approximately $14,500, a significant amount.  In that regard, the sentencing magistrate said:

…the amount you were looking to steal was significant.  The fact that you did it so brazenly, in a club of which you were a member and with people around, again, probably speaks mostly to the level of desperation that you were experiencing, but also shows that this was something in which you were simply prepared to do whatever it was you needed to do to get your needs met.

61․Her Honour’s reasoning discloses that she took into account that the level of planning and sophistication of the attempt was low, but the determination and the amount in question was not.  No specific error can be seen in the consideration given to the objective seriousness of the offence.

62․Again, the conduct must then be seen with the same considerations that were taken into account above in respect of the offence discussed above.  That is:

(a)The offending was committed while the appellant was subject to conditional liberty by way of multiple good behaviour and suspended sentence orders.

(b)The offending occurred against the background of an extensive criminal history which included dishonesty offences.

(c)A discount of 25 percent was applied for the appellant’s plea of guilty.

(d)The comments made in relation to the appellant’s rehabilitation, discussed above, applied equally to this offence.

63․The variety of circumstances in which attempted theft arises means that comparable cases and statistics are of less utility for this offence.  It suffices to state that having regard to the fact that this was an unsophisticated attempt that had a high chance of failure, albeit the attempt was to steal a significant amount, I accept that a lesser term of imprisonment may have been imposed. 

64․However, as the authorities referred to above on appellate intervention make clear, that is not the question.  A sentence of nine months is not unreasonable or plainly unjust in light of the specific deterrence that was warranted in this appellant’s particular circumstances and the importance of general deterrence for the offence.

Was the aggregate sentence manifestly excessive?

65․The sentencing magistrate’s reasons in this regard were as follows:

I take into account the pre-sentence time you have spent in custody, which I am told is 141 days, such that any sentence would be backdated to 15 September 2022.

I have considered the principle of totality.  That simply requires that the court looks at all of the matters before the court, looks at an appropriate sentence for each and then looks at the effect of that overall to come to a fair sentence.  I’ve applied a small degree of concurrency to reflect that in the circumstances.

Did the sentencing magistrate pay insufficient regard to the totality principle?

66․The principles applying when sentencing an offender for multiple offences are well-established, and were summarised in O’Brien v The Queen [2015] ACTCA 47 at [26] as follows:

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:

(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624.

(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.

(c)A countervailing factor is the need to ensure that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].

(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

67․Totality considerations include the fixing of the non-parole period.  The proper approach which was set out in Taylor v The Queen [2014] ACTCA 9 (Taylor) at [19] as follows:

1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen [1984] HCA 31; (1984) 11 A Crim R 88 at 89, Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 (Bugmy) at 536.

2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.

3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.

4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:

... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.

68․The Court in Taylor went on to note at [20] that in the ACT, non-parole periods generally fall within the range of 50-70 percent of the total term.

69․In implementing the totality principle, there is no single correct approach to the structuring of multiple sentences - a variety of ways may be acceptable: Le Clair v The Queen; Achanfuo‑Yeboah v The Queen [2017] ACTCA 19 at [56].

70․Here, the magistrate plainly gave consideration to the totality principle, and set a non-parole period which she considered to be “a relatively short non-parole period, particularly having regard to all of the circumstances”.  That ratio was just over 50 percent of the total term.

71․Her Honour made the one-month sentence for theft entirely concurrent with the attempt theft and made the sentence for taking the motor vehicle concurrent for one month with the attempt theft. 

72․The appellant complained that the fresh offences were imposed on a cumulative basis with the resentence for aggravated, furious or reckless driving (CC2021/9003) and that this represented a failure to take “a last look” and what was being imposed.  It is the case that the sentencing magistrate did not adopt a structure with any concurrency between the offences for which the appellant was being re-sentenced and the fresh offending.

73․However, while there was clearly scope for greater concurrency in respect of the overall sentence in implementing the totality principle, because there is no single correct approach to the structuring of sentences and the sentencing magistrate otherwise properly applied the principles concerning totality, there is no warrant for this court to intervene.

Orders

74․As the appellant has not established that either the individual sentences or the aggregate sentence was manifestly excessive, the appeal will be dismissed.

75․Accordingly, the order of the Court is as follows:

(1)The appeal is dismissed.

I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam J

Associate:

Date: 28 July 2023