Peter v Wade
[2017] ACTSC 122
•16 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Peter v Wade |
Citation: | [2017] ACTSC 122 |
Hearing Date: | 16 May 2017 |
DecisionDate: | 16 May 2017 |
Before: | Murrell CJ |
Decision: | Appeal allowed in part. Sentences of imprisonment confirmed. Good behaviour orders cancelled. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Motor vehicle offences – Failure to appear – Appeal against sentence – Whether sentence was manifestly excessive – Whether sentencing magistrate erred in imposing good behaviour orders which ran concurrently with the parole period – Offender with substantial criminal history – Offender’s need for drug and alcohol rehabilitation |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 149 Crimes (Sentencing) Act 2005 (ACT) ss 12, 29, 31 Legislation Act2001 (ACT) s 126(4) |
Cases Cited: | O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 Pettitt v Dunkley [1971] 1 NSWLR 376 Van Leeuwen v Hawke [2012] ACTSC 8; 256 FLR 433 |
Parties: | Nicholas Peter (Appellant) Troy Adam Wade (Respondent) |
Representation: | Counsel Mr R Davies (Appellant) Mr D Swan (Respondent) |
| Solicitors Legal Aid ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 4 of 2017 |
Decision under appeal: | Court/Tribunal: ACTMC Before: Magistrate Boss Date of Decision: 2 December 2016 Case Title: Wade v Peter Court File Number: CC15/1598 |
MURRELL CJ:
On 2 December 2016, Magistrate Boss (the Magistrate) imposed three sentences which are the subject of appeal:
(a)Drive motor vehicle without consent – 12 months’ imprisonment from 3 July 2016 (reduced from 14 months’ imprisonment for the plea of guilty), conditional good behaviour order for 12 months to be entered upon release from custody. The maximum penalty was five years’ imprisonment.
(b)Fail to appear – three months’ imprisonment from 3 January 2017 (reduced from four months’ imprisonment for the plea of guilty). The maximum penalty was two years’ imprisonment. This sentence was totally concurrent with other sentences.
(c)Take motor vehicle without consent – 14 months’ imprisonment from 3 January 2017, conditional good behaviour order for 12 months to be entered upon release from custody. The maximum penalty was five years’ imprisonment. There was no reduction for a plea of guilty as the matter was defended.
Her Honour also sentenced the appellant to three months’ imprisonment for possession of cannabis plants (reduced from four months for the plea of guilty). That sentence was to be served from 4 June 2016.
The effective sentence was from 4 June 2016 to 2 March 2018, a total period of 21 months’ imprisonment. The Magistrate fixed a nonparole period to expire on 3 June 2017 (12 months of the total sentence, or a little under 60%).
The good behaviour orders were to run from 4 June 2017 to 3 June 2018, i.e. they were partly concurrent with the parole period. The Magistrate imposed extensive conditions on the good behaviour orders, including obligations to accept the supervision of the Director-General of Corrective Services, to supply samples of blood, breath or urine for alcohol or drug testing, to undertake mental health assessment and treatment, and conditions relating to employment and education.
An appeal to this Court is by way of review. The Court will intervene only if an appellant establishes an error of fact or law, or an erroneous exercise of the sentencing discretion in that the sentence imposed was manifestly unreasonable or unjust. It is difficult to establish manifest excess because sentencing is a quintessentially discretionary exercise.
In this case, the two grounds of appeal were that each of the sentences was manifestly excessive, and that her Honour erred in imposing good behaviour orders for the motor vehicle offences to run concurrently with the parole period applying to those offences.
Manifest excess ground
In fixing any sentence, a court engages in a process of intuitive synthesis, considering the objective seriousness of the relevant offence, the offender’s subjective circumstances, other matters that must be considered pursuant to statute (in this case, most relevantly, the Crimes (Sentencing) Act2005 (ACT) (Sentencing Act)), and any other relevant material.
The parties agreed that the Magistrate referred to the relevant considerations. The issue was whether the sentences were plainly unreasonable or unjust.
In my view, they were not.
Objective Seriousness
The parties agreed that the objective seriousness of each motor vehicle matter was moderate or mid-range. They were typical examples of such offences. In each case, the appellant took a motor vehicle without consent, drove it for a period of several days and caused some damage to the vehicle before it was recovered.
The appellant's legal representative categorised the fail to appear offence as at the lower level of objective seriousness and the prosecution accepted that characterisation. However, it was not at the lowest level. The appellant failed to appear at a mention date in the Magistrates Court. No explanation was given. After failing to appear, he did not surrender himself. Rather, about three weeks later, police attended his mother’s residence, where they found the appellant and arrested him.
Subjective Circumstances
The appellant was 19 years old at the date of the offences. The Magistrate recognised the significance of his youth to the sentencing process. Given his youth, the appellant had a substantial criminal history. He had been imprisoned for offences of dishonesty including an offence of taking a motor vehicle without consent. There were other significant matters of dishonesty in his criminal history.
The Magistrate was aware of the appellant’s personal circumstances. A pre-sentence report described the appellant's lengthy substance abuse problem, which started when he was about 12 years old. He had been diagnosed with ADHD. It was untreated. The pre-sentence report described the appellant’s troubled and unstable upbringing. Fortunately, by the time that the matter came before her Honour, the appellant enjoyed the support of his family.
The pre-sentence report author said the appellant was in need of support
and assistance in various areas, including in relation to substance abuse.
Her Honour was hopeful that, while in custody, the appellant would undertake the Solaris Program, an intensive drug and alcohol rehabilitation program offered within the prison environment.
Although it was not spelt out, it is quite clear from an overall reading of the Magistrate’s reasons that her Honour was cognisant of the appellant's youth and need for alcohol and drug rehabilitation, and had rehabilitation at the forefront of her mind when imposing the sentence. Her Honour repeatedly referred to the importance of the appellant completing the Solaris Program and (having regard to the appellant’s offending history) her Honour imposed a reasonably short nonparole period. Given the appellant's subjective circumstances, the objective seriousness of the offences, the appellant's criminal history and relevant sentencing purposes, both the individual sentences and the total sentence of 21 months' imprisonment appear to be appropriate. It was not argued that the overall sentence did not reflect the total criminality of the matters before her Honour, including those that were not the subject of appeal.
The appellant has not established that the individual sentences or the total sentence were manifestly excessive.
Constitutional uncertainty ground
The second ground of appeal raises “constitutional uncertainty”.
Section 29 of the Sentencing Act enables a court to impose a combination sentence, including a sentence combining full-time imprisonment and a good behaviour order. Section 31 of the Sentencing Act deals with start and end times in relation to combination sentences. It provides that, for a combination sentence, a court may set the start or end of the period of any part of the sentence by reference to anything the court considers appropriate. Notably, the following is given as an example of how this might work:
Example for par (c)
a 5-year combination sentence consisting of the following orders:
·an order for imprisonment with a 3-year nonparole period
·a good behaviour order and a place restriction order, stated to start whenever (if at all) the offender is released on parole and to end at the end of the 5-year term of the sentence
The section goes on to note that, pursuant to s 126(4) of the Legislation Act2001 (ACT), an example in an Act is part of the Act or instrument. Consequently, in working out the meaning of the Act, regard is to be had to an example.
Looking at the text of ss 29 and 31 of the Sentencing Act and the example, it seems clear that the Magistrate was empowered to impose the sentence that her Honour imposed.
However, a question arises as to whether the apparent meaning of ss 29 and 31 of the Sentencing Act should be read down to avoid "constitutional uncertainty".
Orders such as those imposed in the present case create an overlap of responsibilities between the executive and the judiciary. It is easy to see how embarrassing conflicts could arise. They could arise because parole conditions imposed by the Sentence Administration Board (SAB) conflicted directly with good behaviour conditions imposed by a court. Even if there was no direct conflict with court-imposed good behaviour conditions, SAB parole conditions could impose an additional burden on an offender that was oppressive.
A worse problem is the possible conflict between the outcomes that might result from a breach of both good behaviour obligations and parole. Pursuant to s 149 of the Crimes (Sentence Administration) Act 2005 (ACT), if a parolee is convicted of an offence punishable by imprisonment, there is an automatic cancellation of parole. A parolee could be convicted of a very minor offence punishable by imprisonment in respect of which a court could decide to take no action on the associated breach of a good behaviour order. In relation to other types of breaches, the SAB and the court could decide to take completely different approaches.
These issues were discussed by the Court of Appeal in R v Lee [2016] ACTCA 69 (Lee), Penfold J in R v Pumpa [2015] ACTSC 177 (Pumpa) and Burns J in Van Leeuwen v Hawke [2012] ACTSC 8; 256 FLR 433. Burns J decided that there was no potential for inconsistency between the orders of the SAB and the courts in the circumstances that he was considering and that, in any event, it was for the legislature to determine how a breach of a sentencing disposition was to be dealt with.
In Lee and Pumpa, the Court was concerned with the potential for "constitutional uncertainty" created by parallel regimes. In Lee and Pumpa, the circumstances differed from the present circumstances; the Court was concerned with a good behaviour order associated with a suspended sentence under s 12 of the Sentencing Act, where the good behaviour order and suspended sentence were partially concurrent with a periodic detention order.
In Lee, the Court of Appeal said at [31]:
If a good behaviour order ran concurrently with a periodic detention order then s 110 would interfere with the administration of the sentence of periodic detention; the corrective services authorities would be responsible for administering the periodic detention sentence but the court would be responsible for dealing with any breach of the good behaviour order, creating what Penfold J described as “constitutional uncertainty.” Similar problems would arise under the current sentencing regime if an offender was sentenced to full-time imprisonment and the sentencing court imposed a concurrent good behaviour order.
The reference to the "current sentencing regime" is a reference to the fact that the sentencing option of periodic detention is no longer available in this jurisdiction. Consequently, the precise problem that arose in Pumpa and Lee could not arise now. However, the general difficulty adverted to in Pumpa and Lee remains a very real one.
In this case, it is not necessary to determine whether there is "constitutional uncertainty", or whether such uncertainty means that ss 29 and 31 should be read down. Trial judges are required to state their reasons adequately to enable a proper understanding of their decision and, depending on the circumstances, the failure to do so may constitute an error of law: Pettitt v Dunkley [1971] 1 NSWLR 376, 382 (Asprey JA) and see also O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 at [20]. Particularly in a summary jurisdiction, a judicial officer does not need to give detailed reasons, but some explanation for the imposition of an inherently problematic sentence is required. The decision to make a good behaviour order that is concurrent with a sentence of imprisonment means that, in the event of breach, there may be a conflict between decisions made by the executive and the judiciary. The failure to explain such a sentencing decision is an error of law.
This ground of appeal is upheld.
Orders
| I certify that the preceding twenty-seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 6 June 2017 |
The appellant is resentenced to the orders of imprisonment imposed by the Magistrate, except that no good behaviour order is imposed.
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