R v Forrest (No 4)
[2017] ACTSC 200
•10 May 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Forrest (No 4) |
Citation: | [2017] ACTSC 200 |
DecisionDate: | 10 May 2017 |
Reasons Date: | 3 August 2017 |
Before: | Refshauge J |
Decision: | That [91] in the reasons for decision in R v Forrest (No 3) be amended by deleting “wholly” in sub-paragraphs 13, 29 and 36. |
Catchwords: | PRACTICE AND PROCEDURE - JUDGMENTS AND ORDERS - Orders of the Court - complex sentencing procedure - multiple charges - global sentencing - general sentences - no error in Court order - amendment to the reasons of the Court |
Legislation Cited: | Crimes Act 1914 (Cth), s 4K(4) |
Cases Cited: | A (A Child) (Appeal: Jurisdiction) [2014] EWCA Civ 871; [2014] 1 WLR 4453 Bruce and Curtis v The Queen [1971] Tas SR 22 Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 |
Texts Cited: | Kate Warner, “General Sentences” (1987) 11 Criminal Law Journal 335 |
Parties: | The Queen (Crown) Michael Paul Forrest (Accused) |
Representation: | Counsel Ms T Skvortsova (Crown) Dr J De Bruin (Accused) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT (Accused) | |
File Numbers: | SCC 128 of 2016 SCC 129 of 2016 SCC 104 of 2017 SCC 105 of 2017 |
REFSHAUGE J:
In R v Forrest (No 2) [2017] ACTSC 83 at [1], I described the background to this matter as follows:
Between 13 and 25 July 2015, Michael Paul Forrest engaged in what might fairly be called a sustained rampage of criminality resulting in him being charged with 95 offences. He has also been charged with two offences arising out of events occurring between 9 and 12 September 2014.
Because of those events, Mr Forrest was committed to this Court on the 97 charges but an indictment containing 37 counts was ultimately presented and Mr Forrest pleaded guilty to all of them. The reduced number of counts from the committed offences was because a number of the counts were what are called “rolled-up counts”, the history and meaning of which I have explained in R v Forrest (No 2) at [161]-[164] and R v John [2017] ACTSC 144 at [106]-[107].
Nevertheless, the number of counts, much less than the number of offences, provides a challenge to sentencing, especially in the absence of a power in the Court to impose a single sentence, sometimes called a “global sentence”, for the whole of the criminality: Lowe v Visser [1988] Tas R 17 at 19. Thus, each sentence had to be imposed for each individual offence and, more relevantly in the present context, specify the date on which each sentence started and its length.
On 10 May 2017, I sentenced Mr Forrest for the various offences in the way currently required: R v Forrest (No 3) [2017] ACTSC 168. In pronouncing the sentence, I also noted the date on which each sentence commenced and its length but to permit Mr Forrest to understand the relationship between each of them, also described the relevant concurrency or cumulation.
An officer in the Sentence Administration section of ACT Corrective Services has now queried three of the sentences, all on the same basis. That basis is that the sentence queried is expressed in each case to commence on a named date, but to be “wholly concurrent” on a prior sentence which, in each case, is shorter than the sentence the subject of the query.
The query suggests that this is a “mistake” since a sentence cannot be wholly concurrent on an earlier sentence that is shorter. That appears to be correct as a matter of grammar and logic.
The queried sentences all ended on the same day as the earlier, shorter sentences that were imposed and on which they were said to be “wholly concurrent”. This is clear from the two essential elements of the sentence, which were translated into the actual order made, namely the length of the sentence and the start date.
The reference to the concurrency is not contained in the formal order made as set out in R v Forrest (No 3). The articulation of the extent of the sentence and the degree of concurrency in R v Forrest (No 3) at [91], in my view, is not part of the order. See Millard v The Queen (No 2) [2016] ACTCA 41 at [11].
Nevertheless, I accept that the reference may have caused some confusion, though it cannot have affected the sentence in any sense as this is set out in the sealed order of the Court. The start date and length of each sentence and, indeed, of the whole sentence is clear from those essential elements of the sentences imposed in the order and in the sealed order of the Court. The accurate degree of concurrency can also be calculated from this information if required.
This shows, again, the problems that can arise in sentencing for a large number of offences. The High Court has, in Pearce v The Queen [1998] HCA 57; 194 CLR 610 made it clear that individual sentences appropriate to each offence should be imposed and then cumulation and concurrency considered. That is the law.
This process can result in problems. See R v Debrueys [2011] ACTSC 178 at [5]. I have, in the past, suggested that, by statute, the Court could be given power to make global sentences, sometimes called “general sentences”, where there are such large numbers of multiple sentences: R v Ware [2016] ACTSC 264 at [139]. The apparent mathematical precision of multiple sentences is often artificial: Law v Ilievski [2016] ACTSC 291 at [1]; Bruce and Curtis v The Queen [1971] Tas SR 22 at 36.
It is, of course, incumbent on the Court to be careful, indeed, scrupulously so, when dealing with complex sentencing such as this, even if that results in some delay in the imposition of the sentence: Saga v Reid [2010] ACTSC 59 at [27].
Despite this, errors can occur. As I pointed out in Scheele v Watson [2012] ACTSC 196 at [31], even judicial officers are human and many are not so mathematically adept that mistakes will never occur. The possibility of mistakes is increased with the greater complexity of the sentencing task.
The general or global sentence has an interesting history. It has been helpfully traced by now Her Excellency Kate Warner in her article, “General Sentences” (1987) 11 Criminal Law Journal 335. They are, it appears, used commonly in Tasmania. See also J by his litigation guardian Vardanega v ACT [2009] ACTSC 170; 234 FLR 399.
Her Excellency’s article at 341-2 sets out the advantages of such sentences as follows:
The imposition of a general sentence in cases of multiple offences has some obvious advantages. When dealing with multiple counts in an indictment or complaint, the judge is entitled, and indeed obliged, to have regard to the entire course of criminal conduct and to impose an appropriate sentence which is at the same time not a “crushing penalty”. It is difficult, particularly when a large number of offences are involved, to avoid a degree of artificiality in imposing separate sentences on each count which must be adjusted to add up to an appropriate total by orders for concurrent and cumulative sentences. Great care must be taken to award separate sentences which do in fact reflect the gravity of individual counts. Illogical sentences which cannot be reconciled can easily result. Care must also be taken to ensure that if concurrent sentences are ordered, that it is a proper case for concurrency, and that if consecutive sentences are ordered that the circumstances are appropriate for cumulative sentences. The rules relating to the exercise of the discretion to impose concurrent or cumulative sentences are not always easy to apply. For example, if offences are committed in the course of a single transaction or are part of a continuing episode, concurrent sentences are indicated. But what is “one transaction” or a “continuing episode” is difficult to define precisely. If no concurrency can be ordered as in the case of a fine, a cumulative penalty for multiple offences may quickly reach an oppressive level, whereas a small fine on an individual count may be inadequate.
The difficulty is compounded by the fact that the total number of offences although technically correct may be artificially inflated. In the case of burglary, for example, the fact that the same premises were entered twice on the same night may result in separate counts or separate counts may be laid when different parts of a large building are entered on the same occasion. In such cases appeal courts have warned against giving undue emphasis to the number of convictions.
(footnotes omitted)
In addition, the general sentence avoids some of the pitfalls that otherwise attend alternate approaches. As Her Excellency said at 343:
In States where general sentences are not imposed, courts sometimes use equal concurrent sentences for different offences with each sentence being appropriate to the total criminality exhibited by the offences. This practice has been condemned because it can result in an appellant who successfully appeals against some convictions being left with the same sentences as before the quashing of the convictions. There is also a danger if the desired aggregate is obtained by overloading the most serious offence. If an appeal is taken only on the most serious charge and the conviction is quashed, the remaining sentences may fail to adequately reflect the gravity of the charges but the court will have no power to interfere with the sentences not subject to appeal. General sentences avoid such difficulties for if an offender successfully appeals against some of the convictions, the court can resentence the offender in respect of the remaining offences.
(footnotes omitted)
Of course, this was written before the High Court decided Pearce v The Queen and some of these problems will be solved by the application of the principles in that case. Indeed, in this jurisdiction, there is some support for equal and largely concurrent sentences for multiple charges of the same offence and which would have a similar effect: R v Thorn [2010] ACTCA 10.
The Commonwealth has made a relevant statutory provision permitting general sentences: Crimes Act 1914 (Cth), s 4K(4).
It has been said that a disadvantage is that a general sentence cannot make a contribution to the ACT Sentencing Database. That is not necessarily so, as the sentencer could specify in general terms the length of the sentences in contemplation for each individual sentence, such as 18 months imprisonment for each of the burglaries | there being no requirement that a second or subsequent one have a more severe sentence imposed: R v Thorn at [35].
In any event, the almost inevitable concurrency made between multiple sentences dilutes the actual value of such sentences for statistical analysis and the failure to take that into account distorts the results in the Database for it shows, as, for example, in Rv Thorn that 18 months imprisonment was imposed when, in fact, only six months was actually to be served just for that offence, the balance being concurrent and so not fully served for the offence.
Further, there is value in the information that could be collected for general sentences which would show the sentencing practice for multiple offences, for which there is no current information.
Finally, it has been said that it does not allow for appeals against individual sentences. If a conviction is appealed and the appeal upheld, then the whole sentence must be set aside and the offender re-sentenced: O’Connell v The Queen (1844) 11 Cl & F 155; 8 ER 1061.
This does make it difficult to challenge what may be seen as a too severe sentence for one of the many offences. If the sentencer gives an indication of the sentence as suggested above (at [19]), then there is still some basis for such an appeal were that sentence indication to show a manifestly inadequate or manifestly excessive sentence.
The more likely, but, I accept, not only, challenge to sentences in a multiple offence situation, especially for sentences for 10 offences or more, seems to me to be to the general sentence and, indeed, if it is more or less proportionate to the total criminality involved, an appeal may be successful on the ground of manifest excess or inadequacy. This seems to me to be just as important for, again, there is an artificiality in the setting aside of one of many sentences without being required to review the exercise of totality for the whole criminality when that sentence’s place in the concurrency is disturbed.
Indeed, as is shown by cases such as Richards v The Queen [2006] NSWCCA 262; 46 MVR 165, alteration of one of multiple sentences on appeal will not necessarily require the variation of the whole sentence unless it is manifestly excessive or inadequate.
In any event, a general sentence would have resolved the problem in this case and in others, such as R v Dubrueys.
In this case, the settled order had not been issued from the Court when the query was made, so the order could be recalled and remade: DJL v The Central Authority [2000] HCA 17; 201 CLR 226 at 244; [34].
As I have indicated, however, in this case the error was not in the order but in the reasons for the sentence. There is no bar to a judge amending his or her reasons so long as the substance remains the same: Todorovic v Moussa [2001] NSWCA 419; 53 NSWLR 463 at 467; [41]. This is not done under the slip rule which is confined to amending orders: A (A Child) (Appeal: Jurisdiction) [2014] EWCA Civ 871; [2014] 1 WLR 4453 at 4459; [23], 4463; [40].
Accordingly, I shall amend the reasons so that the three sentences will be shown to be “concurrent” rather than “wholly concurrent” in the relevant part of the reasons. There is, for the reasons already identified, no occasion to amend the order.
I will, accordingly, so order.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 3 August 2017 |
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