R v Beaumont

[2000] VSCA 214

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 294 of 1999

THE QUEEN

v.

KRISTEN JADE BEAUMONT

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JUDGES:	PHILLIPS, C.J., WINNEKE, P. and BROOKING, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 October 2000
DATE OF JUDGMENT:	30 October 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 214

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Criminal law – Sentence – Custodial sentence for more than one offence – Whether general sentence as opposed to individual sentences may be passed.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Ms. R.E. Carlin	P.C. Wood, Solicitor for Public Prosecutions
For the Appellant	Mr. R.J. Bourke	Clareborough Pica

PHILLIPS, C.J.: 

1. I shall ask my brother Brooking to give the first judgment in this matter.

BROOKING, J.A.: 

1. This appeal arises out of a sentence of 30 months' detention in a youth training centre ("YTC") passed in the County Court on 5 November 1999. Leave to appeal was granted on 22 June on an application under s.582 of the Crimes Act 1958, not because the judge thought that the sentence was reasonably subject to attack as manifestly excessive, but because he thought that it was arguably erroneous to pass a single sentence for the three offences of car theft, armed robbery and reckless conduct endangering persons to which the appellant had pleaded guilty. There are four grounds of appeal - error in imposing a single sentence of detention on the three counts instead of three individual sentences; failure to provide adequate reasons for sentence; manifest disparity with the sentence passed on a co-offender, Scott James Hopkin; and manifest excess. The second of these grounds is a complaint that, since how the aggregate sentence was arrived at does not appear from that global sentence itself and is not disclosed in the reasons for sentence, it cannot be said what view the judge formed on how long a term of detention each of the three offences should attract and what should be done in relation to concurrency or cumulation.

1. The passing of general sentences of YTC for two or more offences by County Court judges is not a rare occurrence, although I believe the view generally held is that where this is done it is the result of a slip.  It may be that in some cases the slip is the result of a subconscious confusion of the rule that no non-parole period can be fixed when YTC detention is ordered with the rules governing the need for individual sentences for individual offences.  Another possible explanation is

confusion with the situation obtaining in the Children's Court and on appeal from that Court:  Children and Young Persons Act 1989, ss.189(3)(b) and 197(7). Be that as it may, the Crown concedes that the judge ought to have passed not a general sentence but individual sentences in this case and that this error reopens the sentencing discretion. I should make it clear that the Crown accepts that the present sentence is a general sentence, in other words that the judge has passed a single sentence which is intended to cover more than one offence, instead of passing a separate sentence for each offence. In some cases what might look like a general sentence has been saved by holding that the judge intended to pass the same sentence on each count and intended the sentences to be concurrent: Re Hastings[1];  Re Adlam[2].  Compare the English Practice Note[3].

[1][1958] 1 W.L.R. 372.

[2](1984) 1 N.Z.L.R. 389.

[3][1962] 1 W.L.R.191.

1. Only last month this Court accepted that the passing of a general sentence of YTC detention was an error, the Crown conceding the point:  R. v. Christie[4].  Reference was there made to two provisions of the Sentencing Act 1991 - s.9, empowering the Magistrates' Court to impose a general sentence of imprisonment for two or more offences in certain circumstances, and s.33(1), dealing with concurrency in relation to terms of YTC detention. It may well be that the basis of the decision in Christie was that the Sentencing Act manifested an intention that a County Court judge (and no doubt also a Supreme Court judge) should have no power to impose a general sentence of YTC detention and it may be that the Court took the same view in respect of general sentences of imprisonment. 

   [4][2000] VSCA 183.

1. A distinction must be drawn between power and the proper exercise of a discretion.  It is often said expressly, and it is often said by implication, that each offence must have its own sentence.  It is not always clear whether the basis of this assertion is the view that a general sentence is beyond power and so unlawful or the view that a general sentence offends against sentencing principle.  Moreover, there is usually a failure to distinguish between custodial sentences and other kinds of sentence, and even a failure to distinguish between custodial sentences of imprisonment in an adult prison and other custodial sentences.  The wide variety of sentences now standing at the disposal of courts makes it undesirable to lay down general propositions about what may be done as a matter of power when sentencing for two or more offences.  The statutory provisions governing the particular variety of disposition must always be examined, and it may be determined that statutory power exists to make a single order by way of sentence for two or more offences.  This was the view taken of hospital security orders in R.v. Jolly[5], where it was indeed doubted whether power existed to make two hospital security orders at the same time.  With one of the modern forms of sentencing disposition it may be held, as it was held in Jolly, that a general sentence is not only lawful but imposed in the sound exercise of a discretion.

   [5][1994] 1 V.R. 446.

1. As examples of express or implied assertions that general sentences are either unlawful or improper, I refer to Re Director of Penal Services' Application[6];  Re McLean[7]; Thomas, Principles of Sentencing, 2nd Ed, p.53; Ashworth, Sentencing and Criminal Justice, 2nd ed., p.203; Victorian Sentencing Manual, 2nd ed., para.14.302; Fox, Victorian Criminal Procedure (2000) p.284. See, too, Fox and Freiberg, Sentencing, 2nd ed., §9.627. Statutory power to pass a general sentence is often conferred. Examples will be found in ss.9 and 51 of the Sentencing Act 1991; s.4K(4) of the Crimes Act 1914 (Cth); s.18A of the Criminal Law (Sentencing) Act 1988 (SA), considered in Nixon[8];  s.389(7) of the Criminal Code 1924 (Tas).  The general sentence has been employed in Tasmania since at least 1856 and in 1987 it was still a favourite form of disposition there:  Warner, "General Sentences"[9].  The general sentence of imprisonment was formerly employed in Victoria[10].  But that time has long since passed:  it is well known that it has for many years been the practice in this State to pass individual, not general, sentences of imprisonment where there are more counts than one.

   [6][1958] V.R. 1 at 3.

   [7](unrep., Court of Criminal Appeal, 28 February 1991) at p.3.

   [8](1993) 66 A.Crim.R.83.

   [9](1987) 11 Crim.L.J. 335.

   [10]There is a contemporaneous record in the Supreme Court Library of sentences passed by the Supreme Court of Victoria between 15 February 1877 and 20 December 1883.  This shows that both general and individual sentences of imprisonment were common at that time.

1. For the reason already given I confine what I say to custodial sentences.  Two matters must, as I have said, be distinguished - the matter of power and the matter of its proper exercise in the light of sentencing principle.  The question of power itself raises two questions - does the common law recognise general sentences and if so has the general sentence been outlawed by statute?  General sentences do seem to have been recognised by the common law.  I see no need for present purposes to discuss two famous cases - O'Connell v. R.[11] and Castro v. R.[12]  It is enough to mention Hervey & Goodwin v. R.[13];  Re Hastings[14];  R. v.Edirimanasingham[15];  McL. v. R.[16]  But it does not matter whether (as appears to be the case) the common law recognised general sentences or whether in Victoria the provisions of the Sentencing Act 1991, and especially s.9, s.11(4) ("all the sentences then imposed") and s.51, have by implication abolished the power to pass a general custodial sentence. (The question whether a general custodial sentence is still lawful in Victoria was expressly left open by Gleeson, C.J., Gaudron and Callinan, JJ. at 1325 and by Kirby, J. at 1336 in McL. v. R.)  For it is clear that in Victoria, save perhaps in unusual circumstances of which I cannot for the moment conceive, a general custodial sentence, assuming it to be lawful, should not be passed, since to do so conflicts with the principles governing the way in which sentences for more offences than one should be arrived at and does not permit the proper consideration of sentences on appeal.  It is enough to refer to Ryan v. R.[17];  Mill v. R.[18];  R. v. Bibaoui[19];  Pearce v. R.[20];  D.P.P. v. Grabovac[21];  and above all McL. v. R.[22]  In the decision last cited Gleeson, C.J., Gaudron and Callinan, JJ. said, at 1325:

"[A]lthough general or global sentences in the case of multiple offences have, in the past, been common in England, they are virtually unknown in Victoria, and may not be permissible.  It is unnecessary to resolve the latter question.  It suffices to say that current sentencing practice in Victoria requires the imposition of individual sentences in relation to each count upon which an appellant is convicted unless, of course, it is decided that for some sufficient reason no sentence should be imposed in relation to a particular offence."

McHugh, Gummow and Hayne, JJ., at 1331, noted that general sentences were from a practical point of view unknown in Victoria.  Kirby, J. at 1336 said that if it was a lawful practice to pass general sentences in Victoria then the practice was a bad one.

[11](1844) 11 Cl.& F. 155; 8 E.R. 1061.

[12](1881) 6 App.Cas. 229.

[13](1939) 27 Cr.App.R. 146.

[14][1958] 1 W.L.R. 372 at 375 per Lord Goddard, C.J.

[15][1961] A.C. 454 at 460-1.

[16](2000) 74 A.L.J.R. 1319 at 1325 per Gleeson, C.J., Gaudron and Callinan, JJ.

[17](1982) 149 C.L.R. 1 per Wilson, J. (with whom Gibbs, C.J. concurred) at 20-21 and per Brennan, J. at 22.

[18](1988) 166 C.L.R. 59 at 63.

[19][1997] 2 V.R. 600.

[20](1998) 194 C.L.R. 610 at 624 per McHugh, Hayne and Callinan, JJ.

[21][1998] 1 V.R. 664.

[22](2000) 74 A.L.J.R. 1319.

1. Accordingly the present sentence cannot stand and the sentencing discretion falls to be re-exercised.  The circumstances of the appellant's offending and that of Hopkin, one of her co-offenders, sufficiently appear from the judge's reasons for sentence.  It is said for the appellant, although more in the written outline of submissions than orally, that, when her offences and her personal circumstances are compared with those of Hopkin, there is manifest disparity between the aggregate sentence of 30 months' detention passed on her and the same aggregate sentence passed on him.  The argument is recorded in the appellant's counsel's lengthy and helpful written outline of argument and need not be summarised.  I am not persuaded that there was manifest disparity, notwithstanding the matters relied on by appellant's counsel.  Hopkin was to be sentenced for four offences and she for three, two of them being common to both offenders.  This itself does make the task of establishing manifest disparity more difficult, especially where the two sentences being compared are both global.  I am of the view that it was open to the judge to consider that each offender should be given the same total effective sentence.  As to the re-exercise by this Court of the sentencing discretion, the appellant's personal circumstances show this case to be an extremely sad one.  Her counsel rightly points out that she has a truly wretched history.  She is now on parole.  I have, of course, read all the material, including the parole progress report which we received, although I do not summarise it.  But having regard to her role in these offences and her prior convictions and all other material considerations, the sentences which I would propose mean that I would not differ, just as the judge who granted leave to appeal would not have differed, from the ultimate result of 30 months' YTC detention arrived at below.  I would propose that the appeal be allowed but only for the purpose of substituting individual sentences for the general sentence passed below, for which I would substitute sentences of YTC detention as follows:

Count 9 (theft) - six months.
           Count 10 (armed robbery) - 24 months.
           Count 11 (reckless conduct endangering persons) - six months.

I would make three months of the sentence on count 9 and three months of the sentence on count 11 cumulative upon each other and upon the sentence on count 10, giving a total effective sentence of 30 months' detention.

PHILLIPS, C.J.: 

1. I agree with the conclusions of Brooking, J.A. and I would subscribe to his Honour's reasons for reaching them.

WINNEKE, P.: 

1. I agree, for the reasons given by Brooking, J.A., that this appeal should be allowed.  I also agree that the appeal should be disposed of in the manner which he suggests.

PHILLIPS, C.J.: 

1. The orders of the Court are:

The appeal is allowed.  The sentence imposed on the appellant in the Court below is set aside and in lieu thereof she is sentenced as follows:
Count 9 - sentenced to be detained in a youth training centre for six months;
Count 10 - sentenced to be detained in a youth training centre for 24 months;
Count 11 - sentenced to be detained in a youth training centre for six months.

The Court directs that three months of the sentences imposed on counts 9 and 11 are to be served cumulatively upon each other and upon the sentence imposed on count 10, making for a total effective sentence of 30 months' detention.

The Court declares that the period of 411 days is the period of pre-sentence detention already served by the appellant as part of the said sentence and directs that the making of this declaration and its contents be entered in the records of the Court.