R v Carmody (No 2)
[2017] ACTSC 25
•14 February 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Carmody (No 2) |
Citation: | [2017] ACTSC 25 |
Hearing Date: | 31 January 2017 |
DecisionDate: | 14 February 2017 |
Before: | Refshauge J |
Decision: | 1. That order 3 of the order made by the Honourable Justice Penfold on 27 July 2012 be amended by omitting “3 years” and substituting “18 months”. 2. The parties be heard as to how the sentencing proceedings should now be conducted. |
Catchwords: | PRACTICE AND PROCEDURE – JUDGMENTS AND ORDERS – Amendment to a Court order – slip rule – period of Good Behaviour Order incorrectly entered by the Court registry – new order made reflecting original pronouncement by sentencing Judge – proceedings adjourned awaiting receipt of the assessment for an Intensive Correction Order |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 86, Pt 6.4, Pt 6.5 Court Procedures Rules 2006 (ACT), r 6906 |
Cases Cited: | Auld v The Queen [2013] ACTCA 21 |
Parties: | The Queen (Crown) Jakson Mark Carmody (Accused) |
Representation: | Counsel Mr T Hickey (Crown) Ms L Taylor (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Defendant) | |
File Numbers: | SCC 259 of 2015 SCC 258 of 2015 SCC 106 of 2009 SCC 16 of 2009 SCC 377 of 2008 SCC 283 of 2008 SCC 211 of 2008 SCC 272 of 2007 |
REFSHAUGE J:
The accused, Jakson Mark Carmody, has a long and serious criminal history, apparently contributed to significantly by drug abuse and mental impairment.
More recently, however, he appears to have been overcoming his challenges and making good progress with rehabilitation.
Unfortunately, however, he was involved in an altercation with a visitor to a neighbouring property on 11 June 2015. That led to him being charged with offences of recklessly inflicting grievous bodily harm and damaging property, to which he pleaded guilty on 24 August 2016.
On 16 December 2016, I commenced sentencing proceedings and convicted Mr Carmody of those two offences but adjourned the further sentencing to investigate the possibility of making an Intensive Correction Order under s 11 of the Crimes (Sentencing) Act 2005 (ACT).
In addition to the seriousness of the offences themselves, it was alleged that Mr Carmody, by committing the offences, had breached a Good Behaviour Order made on 27 July 2012 when Penfold J found that he had breached an earlier order that her Honour had made and re-sentenced him by imposing a portion of the sentence that had been earlier suspended and making a further Good Behaviour Order: R v Carmody (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 27 July 2012). That he was at conditional liberty, the conditions of which he breached was, of course, an aggravating circumstance of some significance to any sentence I was to impose. See, for example, Auld v The Queen [2013] ACTCA 21 at [9].
When sentencing Mr Carmody on 16 December 2016, I said in R v Carmody [2016] ACTSC 382 (R v Carmody (2016)) at [92]:
In the 2012 decision R v Carmody, her Honour cancelled the Good Behaviour Order and re-sentenced him. That resulted in a total sentence of three years and six months backdated to 27 January 2011 of which he was to serve 12 months of that sentence with nearly three months concurrent with the Magistrates Court sentences. The sentence was suspended on 26 July 2013, effectively suspending 12 months of the sentence with a Good Behaviour Order. In the 2012 decision, R v Carmody, her Honour stated that it was a Good Behaviour Order for 18 months, but the sealed order of the Court stated that it was for three years. There had been other offences dealt with since her Honour's sentencing, but they related to offences committed before her Honour re-sentenced Mr Carmody.
After publication of my remarks, other judges, including Penfold J, read them, as is not uncommon, especially when the judicial officer has had some knowledge of or has dealt with the litigant. In reading those remarks, her Honour advised me that the Good Behaviour Order she had made was for 18 months not, as shown in the sealed order of the Court, for three years.
That is very important because, if the order was for 18 months, then Mr Carmody had not breached it and, indeed, had been crime-free for a further 18 months, less a fortnight, after it had ended.
While the breach of a Good Behaviour Order does not increase the objective seriousness of an offence (Boney v The Queen [2015] NSWCCA 291 at [19]), clearly it is an aggravating factor in respect of the overall circumstances of the offending, especially where constituted by further offending (Sampson v De Haan [2016] ACTSC 327 at [92]).
Accordingly, while the accurate position as to a sentence imposed on an offender is always important, it is especially important in a case such as this because of the implications for the sentence that I must impose.
What was the length of the Good Behaviour Order?
I have had the opportunity of looking at the Court records. The transcript records her Honour pronouncing the following sentence:
I now sentence you to imprisonment for a total period of three years and six months, which will be backdated, as mentioned, by 18 months to 27 January 2011 and expiring on 26 July 2014.
I consider that from here on you should serve another 12 months of that three years six months sentence, nearly three months of which will therefore be effectively concurrent with the sentence you are already serving. That puts your release date at 26 July 2013 and means that by then you will have served two and a half years of the three years and six months sentence, leaving on 12 months to be suspended.
...
Accordingly, I order that before you are released next year you sign undertakings to comply with your good behaviour obligations under the Crime (Sentence Administration) Act for the following periods, all starting on 27 July next year:
(a) for the June 2007 aggravated burglary and the 14 March and 19 March 2008 burglaries, the good behaviour undertakings will be for six months each because you will have only a few months left to serve on each of those sentences by the time you are released;
(b) for the July 2008 aggravated burglary, the good behaviour undertaking will be for 18 months because the outstanding sentence on that offence will be 12 months from when you are released.
The Good Behaviour Orders were also made subject to certain further conditions, in addition to the core conditions imposed by s 86 of the Crimes (Sentence Administration) Act 2005 (ACT), to which I do not need to refer.
Her Honour continued:
You will be given a written copy of the good behaviour orders, and they will be explained to you by the court officials. In short, they mean that for the 18 months after you are released you need to keep out of trouble, and keep in close contact with Corrective Services. If you commit another offence during that time you may find yourself back here yet again to be
re-sentenced for those last few offences.
I note that these excerpts show that her Honour mentioned the period of 18 months on two occasions during her sentencing remarks.
The bench sheet, which is the record of proceedings made by the Judge’s associate and from which the orders of the Court are ordinarily prepared (see Jovanovic v The Queen [1999] FCA 1008; 92 FCR 580 at 592; [59]), attached a typescript of the orders which make it crystal clear that the Good Behaviour Order was made for a period of 18 months.
The Good Behaviour Order drawn up by the Court was a complicated document because of the fact that Mr Carmody had to be re-sentenced for 28 offences. Nevertheless, for some unknown reason, the formal sealed order of the Court specified the length of the Good Behaviour Order as three years even though there was no mention in any of the relevant sentencing remarks of her Honour of that period.
It appears that that order had been entered in the records of the Court incorrectly through a clerical mistake in translating the orders of her Honour into the orders of the Court.
Regrettably, this appears not to be a unique problem. See R v NF (No 2) [2016] ACTSC 227 at [4]. It is regrettable particularly for such orders have direct and significant effects on offenders. While judicial officers are not immune from errors, clearly neither are officers of the Court registry.
I was informed that the Crown prosecutor had, when the Good Behaviour Order was originally made, also noted down the period of the Good Behaviour Order as three years which raised a doubt in the mind of the Crown prosecutor in this matter, especially as he had not appeared in the earlier matter.
Investigation
I raised the matter with both parties, initially by email notice from my associate, briefly setting out the problem, and then relisting the matter for mention.
Despite the recording of the 18 month period in the transcript, in two places, I was asked by the Crown prosecutor at the mention to permit him to obtain access to the audio recording of the Court proceedings to which he wished to listen. There was no objection from Mr Carmody’s counsel and so I adjourned for that purpose.
I have now been informed that the audio recording of the sentencing remarks of Penfold J on 27 July 2012 shows that the written transcript accurately recorded the remarks and orders made by her Honour.
Amendment to the Court order
The Supreme Court is a court of record. Accordingly, the integrity of the records of the Court are very important. This is particularly so where the denial of liberty of a person may depend upon the accuracy of the records.
A court order, sealed and entered, in this case setting out the Good Behaviour Order made by Penfold J on 27 July 2012, may only be amended or altered in limited circumstances. See R v Gorman [2009] ACTSC 7. It should, of course, only be done with notice to the parties and, if necessary, giving them an opportunity to be heard. I set out the proper approach to be taken in Elson v Ayton [2010] ACTSC 70; 241 FLR 178 at 192-4; [81]-[93]. As noted above (at [20]), I had raised the matter with both parties and there is now consent to the amendment from both.
In making such an amendment, the Court proceeds under r 6906 of the Court Procedures Rules 2006 (ACT) which permits an order of the Court, even if it is sealed, to be amended in the circumstances set out in the rule.
Such an amendment, however, may only be made by a formal court order because, of course, it is not permissible for an amendment merely to be made in the registry just because registry staff see the obvious error and wish to amend it.
I am satisfied that the order of the Court requires amendment to specify the actual imposed period of 18 months during which Mr Carmody was subject to the Good Behaviour Order.
While, in ordinary circumstances, it would be desirable for the judge, whose order it is, to amend it, there is no absolute requirement for that. The order is an order of the Court and not of a particular judge. While the making of an amendment by another judge often applies where a judge has retired (see, for example, Brennand v Hartung (No 3) [2015] ACTSC 149), the circumstances where that is appropriate are not so limited as I noted in Wickey v The Queen (No 2) [2012] ACTCA 51; 269 FLR 289 at 295; [36]-[37].
In this case, while Penfold J is available, it is convenient for me to deal with this matter given that I am dealing with Mr Carmody’s forthcoming sentence and need to determine the circumstances under which I have to sentence him. I have her Honour’s consent to do so.
The effect of the Good Behaviour Order
A Good Behaviour Order is a somewhat curious beast. That is to say, the order of the Court, as set out in s 13(2) of the Crimes (Sentencing) Act provides:
The court may make an order (a good behaviour order) requiring the offender to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for a stated period.
[emphasis in original]
That means, of course, that there is a degree of consent in the process. This has some similarities with the previous provision in the legislation for service of a sentence of imprisonment by periodic detention. See Lewis v Chief Executive of the Department of Justice and Community Safety of the Australian Capital Territory [2013] ACTSC 198; 280 FLR 118 at 163; [266]-[267].
That may be relevant given that Mr Carmody actually signed an undertaking to comply with certain conditions which, on the document he signed, lasted for three years.
That undertaking, however, was not in accordance with the Court order. While it is a promise, indeed a solemn promise, it is not a Good Behaviour Order so far as the Crimes (Sentencing) Act and the Crimes (Sentence Administration) Act are concerned and insofar as it brought with it statutory obligations.
In particular, the provisions of Pt 6.4 (Good Behaviour – Supervision) and Pt 6.5 (Good Behaviour Orders – Breach) of the Crimes (Sentence Administration) Act could not apply to it, at least not for the period beyond the 18 months of the order pronounced by Penfold J.
Since that period has long expired without, so far as I am aware, any breach, it is not necessary to consider whether the error infected the whole order or whether, as seems to me more likely, it was simply effective only for the 18 month period consistent with the requirement made by Penfold J.
Accordingly, it seems to me that I should make orders amending the sealed Court order being the Good Behaviour Order made on 27 July 2012 and I will do so.
Sentencing
When Mr Carmody was initially before me, I proceeded to convict him of the two offences to which he had pleaded guilty and I was urged to make an order for an assessment report about whether he would be suitable for an Intensive Correction Order: R v Carmody (2016).
Such an order can only be made if a sentence of imprisonment is made and that the sentence is for not more than 4 years: s 11(3) of the Crimes (Sentencing) Act. That clearly requires the Court to consider that it will impose such a sentence. Hence, it is inevitable that the Court will have to proceed as if sentencing an offender and then adjourn the proceedings pending receipt of the assessment for an Intensive Correction Order, a pre-condition of the making of such an order: s 78(1)(b) of the Crimes (Sentencing) Act.
In R v Carmody (2016) at [158], I expressed the consideration that the balance of the sentence that had been suspended, namely 12 months imprisonment, should be imposed. That is now no longer the case; I cannot do it as there is now no such power in any event. The sentence imposed by Penfold J is spent.
That change will also be relevant to the sentencing discretion that I must exercise as the aggravating circumstance no longer applies.
I shall seek counsel’s submissions on how now to proceed.
| I certify that the preceding forty-one [41] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 16 February 2017 |
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