R v Perry (a pseudonym) (No 5)
[2016] ACTSC 380
•14 December 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Perry (a pseudonym) (No 5) |
Citation: | [2016] ACTSC 380 |
Hearing Date: | 15 November 2016 |
DecisionDate: | 14 December 2016 |
Before: | Penfold J |
Decision: | 1. On count 4 (obtain property by deception) Mr Perry is convicted and sentenced to imprisonment for 3 months from 20 June 2015. 2. On count 5 (obtain property by deception) Mr Perry is convicted and sentenced to imprisonment for 3 months from 20 July 2015. 3. On count 6 (obtain property by deception) Mr Perry is convicted and sentenced to imprisonment for 3 months from 20 August 2015. 4. A new non-parole period is specified in relation to the ACT sentences Mr Perry is currently serving, to expire on 5 July 2017. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – offender found guilty by a jury of three counts of obtaining property by deception – offender subject to conditional liberty at time of offending – significant criminal history – no expression of remorse – consideration of parity – whether inappropriate for prosecutor to submit that terms of imprisonment required – sentences of imprisonment imposed – sentences backdated to account for time spent in custody. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 65(2), 66, 66(2) Criminal Code 2002 (ACT), s 326 |
Cases Cited: | Barbaro v The Queen;Zirilli v The Queen [2014] HCA 2; 253 CLR 58 |
Parties: | The Queen (Crown) Tom Perry (a pseudonym) (Offender) |
Representation: | Counsel Mr A Williamson/Mr T Hickey (Crown) Mr J Masters (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Legal Aid ACT(Offender) | |
File Number: | SCC 218 of 2015 |
The offence
Tom Perry (a pseudonym) has been found guilty by a jury of three offences of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) and carrying a maximum penalty including 10 years imprisonment.
The offences were committed on 12 June 2015. Mr Perry used a stolen credit or debit card to obtain goods to a total value of about $200, consisting of:
(a)cigarettes from Woolworths at Erindale and from a Woolworths petrol station; and
(b)a bottle of alcohol from Supabarn at Wanniassa.
Mr Perry has been in custody in respect of these offences since 20 June 2015. It seems that he might have been remanded in custody at that point because he was also suspected of the burglary and theft in which the card had been stolen and which was committed very shortly before Mr Perry's deception offences. Mr Perry was acquitted of the burglary and theft offences by the same jury.
At the time of these offences, Mr Perry was on parole in respect of an earlier sentence for a number of offences including burglaries and thefts.
In February this year, that grant of parole was cancelled at Mr Perry's request. This means that since February this year he has been serving that earlier sentence, but that the period of around eight months between his arrest in respect of the current offences last year, and the cancellation of his parole this year, is now only attributable to the offences for which I am to sentence him.
Evidence
As well as the statement of facts, the following material is in evidence before me:
(a)Mr Perry’s criminal history;
(b)a pre-sentence report; and
(c)a CADAS report
all of which were tendered by the prosecution.
Objective seriousness
These are relatively minor examples of the deception offence, both because of the value of the property obtained and because of the fairly unsophisticated nature of the deception involved.
However, the offences are aggravated by the fact that they were committed while Mr Perry was on conditional liberty on parole.
The pre-sentence report records that Mr Perry "maintained he was not guilty of the current offences and stated an intention to appeal the convictions", but counsel for Mr Perry said that this did not demonstrate any lack of remorse. Counsel explained that, while Mr Perry conceded having engaged in the conduct said to constitute the offences, his appeal, if any, would raise only the question whether, in the relevant circumstances, his conduct was as a matter of law capable of constituting the offences.
However, even accepting that Mr Perry's comments are not indicative of any positive absence of remorse, there is nothing in the material before me that gives any indication of the presence of any remorse on Mr Perry's part.
Subjective circumstances
Mr Perry's subjective circumstances also provide no basis for leniency.
Mr Perry is now 26 years old. The prosecutor described his criminal history as horrendous, especially given his age. It includes offences involving the use of motor vehicles that range from being an unlicensed driver to culpable driving and, more directly relevant, a substantial number of dishonesty offences including nine burglaries (one of them aggravated) and nine thefts.
Since the commission of the current offences, Mr Perry has been sentenced for two Commonwealth offences described as “general dishonesty causing a loss”, although those offences, which related to fraudulent income tax returns lodged from the Alexander Maconochie Centre, were committed in 2011, well before the current offences.
As already noted, Mr Perry is currently serving sentences of imprisonment for burglary and theft offences which are due to expire on 14 September 2018, as well as the recently-imposed Commonwealth sentences which are to be suspended on 5 July 2017.
The pre-sentence report records that Mr Perry had a good childhood which does not provide any obvious explanation for his early involvement in substance abuse starting with alcohol and cannabis from the age of 11 and, in due course, in assorted criminal activities. He retains the support of his parents, and now has a partner and a son who has been born since Mr Perry was last remanded in custody. His partner says that she does not approve of Mr Perry's drug use and will not tolerate any further relapse into drug use. Mr Perry says that, for this reason, he wishes on release to enter a rehabilitation program provided by Karralika. However, this would not be a practical option until at least July next year, when his Commonwealth sentences are suspended.
The prosecution says that deterrence, both general and specific, are relevant in this sentencing exercise, although for reasons which will become apparent, the sentences that are appropriate in this case are not likely to provide any particular deterrent to Mr Perry. The prosecution also submits that, in the circumstances, terms of imprisonment are required.
Defence counsel, while not, as I understand it, disputing that terms of imprisonment would be within range in this case, took exception to the prosecutor's submission, in reliance on the High Court decision in Barbaro v The Queen;Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro). In doing so he relied on the following comments by the plurality in that case:
33. The statement by the prosecution of the bounds of an available range of sentences may lead to erroneous views about its importance in the process of sentencing with consequential blurring of what should be a sharp distinction between the role of the judge and the role of the prosecution in that process. If a judge sentences within the range which has been suggested by the prosecution, the statement of that range may well be seen as suggesting that the sentencing judge has been swayed by the prosecution's view of what punishment should be imposed. By contrast, if the sentencing judge fixes a sentence outside the suggested range, appeal against sentence seems well-nigh inevitable.
...
39. What is more, unless the sentencing judge gives some preliminary indication of the sentence which he or she intends to impose, there can be no occasion for the prosecution to anticipate possible error and make some correcting submission. Even in a case where the judge does give some preliminary indication of the proposed sentence, the role and duty of the prosecution remains the duty which has been indicated earlier in these reasons: to draw to the attention of the judge what are submitted to be the facts that should be found, the relevant principles that should be applied and what has been done in other (more or less) comparable cases. It is neither the role nor the duty of the prosecution to proffer some statement of the specific result which counsel then appearing for the prosecution (or the Director of Public Prosecutions or the Office of Public Prosecutions) considers should be reached or a statement of the bounds within which that result should fall.
(Citations omitted)
I note first that the sentencing submissions intended to be made in Barbaro were that the appropriate head sentences, and non-parole periods, fell within specific ranges. For instance, as the plurality noted at [15], in the course of discussions about possible pleas of guilty, the prosecution told Mr Barbaro's lawyers that "the 'sentencing range', in Mr Barbaro's case, was a head sentence of 32 to 37 years with a non-parole period of 24 to 28 years", and this was the information sought to be given to the sentencing judge.
This gives some flavour to the plurality's reference to “some statement of the specific result” sought by the prosecutor. The plurality went on in Barbaro to point out that:
40. The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence.
41. As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect.
(Citations omitted)
I am satisfied that, in the circumstances of this case, the prosecutor's submission that the current offences require prison sentences to be imposed did not offend against the principles set out in Barbaro. The submission did not “proffer some statement of the specific result [sought by the prosecutor] ... or a statement of the bounds within which the result should fall”. At worst, the prosecutor's submissions sought to identify a minimum sentence. However, that minimum sentence (that is, some term of imprisonment, without any submission that immediate custodial time was called for), was essentially a statement of the obvious:
(a)in the context of the offender's criminal history and other subjective circumstances, the aggravating features of the offences, and the failure to express any remorse; and
(b)in the context of the general knowledge, among both judges and counsel in a small jurisdiction, of the range of sentences previously imposed in similar cases on offenders with similarly minor or non-existent claims for leniency.
It may be that even in such cases it would be safer for the prosecutor not to make such a statement without backing it up with something in the way of sentencing statistics or other material indicating what sentences have been imposed in other (more or less) comparable cases. However, such an approach, especially to relatively minor examples of the offence concerned, would impose a significant burden on prosecutors (and probably involve an excessive use of court or judicial time) for no particular benefit to the parties, to the court, or to the justice system more generally. Those comments may be particularly relevant in relation to offences that, on their own, might well have been dealt with in the Magistrates Court, and in relation to sentences that, for reasons to be explained, are unlikely to have any direct impact on Mr Perry's position (provided, of course, that the sentences do not give a judicial officer sentencing Mr Perry in the future an incorrect impression of the gravity of the current offences).
Parity
Defence counsel noted that Mr Perry's co-offender, Lachlan Smith, who was also sentenced for deception offences arising out of the use of cards stolen in the same burglary, had been sentenced to 12-month good behaviour orders subject only to core conditions.
However, as the prosecutor pointed out, Mr Smith had not gone to trial but had entered pleas of guilty to the offences on his first appearance in the Magistrates Court. Furthermore, Mr Smith had no criminal history, and had been very forthcoming to police about the circumstances of the offences.
Thus, there are good reasons why sentences imposed on Mr Perry for these offences might be significantly more severe than those that were imposed on Mr Smith.
As already noted, Mr Perry has spent some eight months in custody (between June 2015 and February 2016) that is now only attributable to the three deception offences, and he is also in custody until at least July next year on other charges. In my view it would be unfair to Mr Perry not to backdate sentences for the current offences to the date when he was first remanded in custody after being charged with those offences, and I am satisfied that no appropriate sentence for these offences could run beyond the point at which he will otherwise be eligible for release: that is, only a sentence exceeding two years imprisonment (June 2015 until July 2017) would have any impact on Mr Perry's current custodial status. Such a sentence, even recognising that it would consist of sentences for three separate offences, would in my view be excessive given the nature of those particular offences. Thus, the most that my sentences will achieve in this context, apart from any significance by way of general deterrence, is to minimise the amount of time Mr Perry has spent in custody that will remain unattributable to any actual offending.
Sentence
Mr Perry, please stand. I record convictions on three charges of obtaining property by deception.
I now sentence you to three months imprisonment for each offence, the second and third sentences are accumulated so as to add one month each to the total sentence, giving a total sentence of five months. That sentence is backdated to 20 June 2015 and accordingly expired on 19 November 2015.
As noted, that sentence has no practical impact on your custodial status. However, it may be sufficient to engage the provisions of s 66 of the Crimes (Sentencing) Act 2005 (ACT), which would cancel the non-parole period originally set for the ACT sentences you are still serving. Although that non-parole period had been served before you were granted parole at the beginning of 2015, it remains in force at the moment (or at least it would have remained in force until I sentenced you) so as to permit you to re-apply for release on parole before the end of that sentence, for instance, from the point when the recently-imposed Commonwealth sentences are suspended.
Accordingly, in case it is required by ss 66(2) and 65(2) of the Crimes (Sentencing) Act, I specify that the new non-parole period for the ACT sentences you are currently serving will end on 5 July 2017. That means, as I have suggested, that if you re-apply for parole in respect of your current ACT sentences, that parole could be granted with effect from 5 July next year when your Commonwealth sentences are suspended, or from any later point.
You may sit down, Mr Perry.
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate: David Hoitink Date: 21 December 2016 |
| I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice Penfold. Associate to the Acting Judges with the permission of the Chief Justice. Date: 26 September 2025 |