Reid v Smith
[2014] ACTSC 349
•21 October 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Reid v Smith & Anor |
Citation: | [2014] ACTSC 349 |
Hearing Dates: | 17 October 2014; 21 October 2014 |
DecisionDate: | 21 October 2014 |
Before: | Penfold ACJ |
Decision: | 1. The appeal is dismissed. 2. The Magistrates Court sentences are confirmed, subject to correction to specify that the 12-month non-parole period set by the Magistrate applies to the total sentence imposed on 2 May 2014. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court Below – appeal against sentences imposed in Magistrates Court – Magistrate’s failure to give specific credit for time spent in pre-sentence rehabilitation program – Magistrate’s alleged failure to give adequate weight to principles in relating to sentencing Aboriginal offenders – failure to give adequate weight to sentencing consideration does not invoke either category of appellable error as described in House v The King – whether sentence was manifestly excessive – appeal grounds not made out – appellable error relating to setting of non-parole period conceded by respondent in submissions – no other sentence appropriate – appeal dismissed – Magistrates Court sentences confirmed except as required to set non-parole period correctly. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 7(1)(d), 33(2)(t), 33(2)(x), 65, 65(4) Court Procedures Rules 2006 (ACT), rr 5140(1), 5140(1)(c) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37 Dutton v The Queen [2013] ACTCA 48 Rv Ang [2014] ACTCA 17 |
Parties: | Nathan Kerry Reid (Appellant) Jeffrey Smith and Susan Corey (Respondents) |
Representation: | Counsel Ms K Bolas (Appellant) Mr M Reardon (Respondents) |
| Solicitors Kim Bolas Criminal and Family Lawyers (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 38 of 2014 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 2 May 2014 Case Title: Jeffrey John Smith v Nathan Kerry Reid Susan Corey v Nathan Kerry Reid Court File Numbers: MC 159 763; 160 814 |
Introduction
Nathan Reid has appealed against sentences imposed in the Magistrates Court on 2 May 2014. On that date, he was sentenced for assault (CC12/9846), damage property (CC12/9845), breach of a domestic violence order (CC12/9847) and being a prisoner at large (CC13/1257).
An amended notice of appeal filed on 27 May 2014 identified the appeal as relating to all the sentences. The grounds of appeal are as follows:
(a)that the sentence is manifestly excessive.
(b)that the Honourable Magistrate failed to take into account time spent at Oolong House Rehabilitation Centre; and
(c)that the Honourable Magistrate failed to give adequate weight to the decision in Bugmy v The Queen [2013] HCA 37 (Bugmy).
Mr Reid did not turn up for his appeal hearing and accordingly breached his bail (a warrant had already been issued in the Magistrates Court relating to his failure to appear in the Magistrates Court several days previously in breach of Magistrates Court bail). However, he was represented at the hearing by his lawyer.
Counsel for the respondent invited me to dismiss the appeal under r 5140(1)(c) of the Court Procedures Rules 2006 (ACT). However, given that Mr Reid, although not present in person, was represented in court, it seemed to me that even if such an approach were available (which would seem to depend on the specific meaning to be given to the reference in r 5140(1) to “a party” not being “present”), it would be more appropriate to proceed to hear the appeal and to deal with the breach of Mr Reid’s bail separately.
Background
The Pre-Sentence Report provided a large amount of information about Mr Reid’s background and circumstances:
With his mother of Irish Australian heritage and father an Aboriginal man, Mr Reid is the third born of four children. He stated his father had four children from a previous relationship however, these children did not reside in the family home. He said he lived in the ACT until he was 12 years old. At this time he relocated to Sydney, NSW to live with his father, who had separated from his mother two years earlier. He indicated he lived with his father for three years before returning to his mother’s home in the ACT.
It appears from ACT Corrective Services’ records Mr Reid’s father suffered a stroke which left him unable to walk and without employment. This along with issues of conflict between them appeared to precipitate the separation in 1994.
Until the separation of his parents when he was 10 years old, Mr Reid stated his upbringing was good. However, with the separation, he recalled his mother struggled to raise the children due to her escalating alcohol use. He suggested this resulted in reduced care and structure.
Mr Reid recalled the time spent living with his father was positive. He indicated he attended school every day, he regularly participated in team sports and he benefitted by his father’s “strict” parenting. He said although his father consumed alcohol, it was not to the same extent as his [mother?].
Stating his father’s health has deteriorated due to the earlier stroke, Mr Reid said he maintained regular contact with his father whose speech is limited. Whilst he said the relationship with his mother is “good”, he said he tried to limit contact due to the negative influence of her chaotic lifestyle.
Commencing the relationship with the victim in 2008, Mr Reid stated the relationship was “caring and loving” at times but had its “ups and downs”. He indicated they have enjoyed intermittent periods of living together. Mr Reid said he and the victim have a son, now three years old currently under an order managed by ACT Care and Protection Services. Mr Reid said he has not seen his son for approximately two years. He said the victim also has a six year old daughter from a previous relationship.
ACT Corrective Services’ records indicate ongoing concerns expressed by Care and Protection Services about the welfare of the children due to the volatility of the relationship.
Mr Reid advised he has [a] daughter, aged nine years old, from .a previous relationship of seven years which ended in 2005. He claimed to have regular contact with his with his daughter who was recently treated for a heart condition now stabilised. His contact with his daughter was not confirmed.
Education
Although he left school prematurely, Mr Reid stated he returned to the Canberra Institute of Technology to complete his Year 10 Certificate. He indicated numeracy and literacy skills were a barrier to academic progress and he continued to experience difficulties in this area.
Employment
Mr Reid confirmed he has predominantly remained unemployed since completing his formal schooling.
Describing his limited history of employment, Mr Reid said he has undertaken casual employment in the building and construction industry. Most recently he was employed as a painter. He indicated his longest period of continuous employment was three months in 2007 however, this ceased when the position was terminated due to his habitual tardiness.
...
Drug and/or Alcohol History
Mr Reid reported first drinking alcohol at the age of 15 years. He stated he felt pressured at the time to drink alcohol by his peers. He indicated his consumption of alcohol escalated at the time he ceased the dependent use of heroin in 2008. He confirmed he commenced consuming alcohol daily, often to the point of passing out.
He added he would spend whatever money was available to him to purchase alcohol and he recalled days when he would consume up to nine 750 millilitre bottles of beer and one 750 millilitre bottle of spirits. He said he would start drinking when he woke up.
At 16 years, Mr Reid said he first smoked cannabis but over a 12 month period he started experiencing paranoid delusions and consequently ceased cannabis use. He admitted to ongoing occasions of use, mostly if it was made available to him when intoxicated.
Around the time he ceased smoking cannabis regularly, Mr Smith said he commenced using heroin which escalated to daily use. He recalled it was about five years since he was dependent on heroin although he acknowledged lapses, claiming the last lapse was in 2010. ·
Mr Reid stated he first experimented with amphetamines when he was 19 years old. He confirmed his use of this substance continued to be sporadic although there was a period of regular use in 2010. At this time he was injecting three points of the substance per fortnight. He stated his use is now limited to occasional use when he has funds for it.
[Since 2003, Mr Reid has been on and off methadone and in and out of residential rehabilitation.]
Medical and Mental Health
Although he said he enjoyed good physical health, Mr Reid reported a history of depression of approximately seven years duration. He said he experiences stress and anxiety associated with this. He described feeling “black” and as if “there is no hope for me”. He said it is difficult for him to sleep, primarily due to the level of rumination he experienced. He added he finds it difficult to talk to people. He admitted depression contributed to his risk of hazardous alcohol use.
[A] release of information report confirmed Mr Reid has been diagnosed with a Generalised Anxiety Disorder (2011), Dysthmia (2013), Antisocial Personality Disorder, Anxiety and Depression. The report indicated he was first diagnosed with a severe Depressive episode in 2009 and “possible Non Organic Psychosis” in 2011. He was last assessed on 11 November 2012 and is prescribed Avanza (30 milligrams) to treat his depression. Whilst he has been a client of Mental Health Services since 2003, the report noted only intermittent contact, primarily in custody.
The record indicates Mr Reid has remained in the AMC Crisis Support Unit since his remand on 31 January 2013, due to his risk of suicide and/or self harm. Although his Prisoner at Risk status has been removed at 10 April 2013, he remained subject to regular observation.
Offending History, including compliance with ACT Corrective Services
Mr Reid has an extensive history of criminal offending with convictions for motor vehicle, traffic and licensing offences. He has been convicted of property offences including burglary, damage to property and theft. Mr Reid has also been convicted of alcohol and drug related offences. Prior to 2010 there were three convictions for assault offences.
In 2009, Mr Reid was convicted for Common Assault ..., a family violence offence against the current victim. A further conviction was recorded for Assault Occasioning Actual Bodily Harm ... with the victim being the current victim. A conviction for Damage Property ... appears to have occurred in the domestic context. Mr Reid has subsequently been convicted for offences involving the contravention of protection orders granted to the current victim ... .
The record indicates a number of convictions for breaches of Court Orders and failure to comply with Court conditions.
...
Assessment
A 28 year old man of Aboriginal heritage, Mr Reid appreciated some stability in his early years. The separation of his parents however, appeared to precipitate a breakdown in the family unit with a negative impact on Mr Reid. There was instability in residence, a difficult experience of education and lack of long term engagement in the work force.
The emergence of alcohol and drug issues from an early age has played a significant role in undermining Mr Reid’s capacity for a pro social lifestyle. They have been a major contributor to a significant and ongoing history of offending behaviour. Despite some demonstration of motivation and opportunities, Mr Reid has yet to achieve the state of abstinence that could assist his personal well-being and propensity for antisocial behaviour.
The current offences continue a pattern of behaviour that appears entrenched in the context of the relationship with the victim. Despite legal sanctions and protection orders, Mr Reid has yet to demonstrate the responsibility to abide by conditions to uphold the safety of vulnerable people in his life. Under the influence of substances his behaviour poses unacceptable risks for such people.
Motivated once again to undertake treatment for drug and alcohol issues, Mr Reid has the insight to realise his future depends on a capacity to address these issues. The history however, indicates uncompleted attempts within residential treatment programs. The relationship with the victim would suggest he is less likely to remain in a program.
Whilst Mr Reid can articulate some responsibility for his offending behaviour and the impact it may have [on] the victim, it is limited. He seeks to attribute his behaviour to the effects of alcohol. He also seeks to blame the victim and circumstances that result in his offending behaviour which he minimises.
The offences
The first three offences were committed in the course of a single incident on 10 November 2012. They involved the same complainant, a woman with whom Mr Reid had previously been in a relationship and with whom he had a child. Mr Reid was arrested that day and charged with the three offences.
After he had been in custody for some time, he was granted short‑term bail to travel to Sydney where his daughter was in hospital. His bail permitted him to be released from the Alexander Maconochie Centre (AMC) on 23 January 2013 and required him to return to the prison before 11.00 pm on 25 January 2013. Mr Reid did not return to the prison, and did not otherwise make himself known to the authorities. On 31 January 2013 he was arrested in Gordon by ACT Police attending an incident at the shopping centre, and again remanded in custody. As a result of his failure to return to the AMC, Mr Reid was charged with being unlawfully at large (referred to as the “prisoner at large” offence).
On 31July 2013, the Magistrate made a deferred sentence order, adjourned the matter to 4 December 2013 and granted Mr Reid bail to attend residential rehabilitation at Oolong House in Nowra. The bail required that on completion of the program he return to the AMC.
Mr Reid apparently completed the first stage of the rehabilitation program at Oolong House, but instead of presenting himself at the AMC after he was discharged, he contacted his solicitor and asked her to list his matter for a bail variation, which she did. This was because he hoped to return to the next stage of the Oolong House rehabilitation program. When Mr Reid turned up at the court on 22 November 2013 (according to the police Statement of Facts), he was arrested for breaching his bail and remanded in custody for several days. He then appeared before Magistrate Boss and pleaded guilty to a charge of being a prisoner at large. Magistrate Boss sentenced Mr Reid for the prisoner at large offence to 12 months imprisonment, immediately suspended, and granted him bail to return to Oolong House.
It seems that Mr Reid again breached his bail and was remanded in custody on 5 December 2013, where he stayed until he was sentenced on 2 May 2014.
Apart from the period between 23 January and 31 January 2013, Mr Reid had spent the period from 10 November 2012 until 31 July 2013 and from 5 December 2013 until 2 May 2014 in custody. For the purposes of the sentencing on 2 May 2014, the prosecutor identified these periods as 261 days and 148 days respectively, totalling 409 days.
12. Magistrate Boss sentenced Mr Reid as follows:
(a)For the assault and damage property offences – 12 months imprisonment each to run concurrently, backdated to 18 March 2013 and therefore expiring on 17 March 2014.
(b)For the breach of the domestic violence order – two years imprisonment, backdated to 18 March 2013 and therefore expiring on 17 March 2015. For this sentence a non-parole period of 12 months, starting on 18 March 2013 and ending on 17 March 2014, was set.
(c)For the prisoner at large offence – 12 months imprisonment to run from 1 January 2015 until 31 December 2015. For this sentence, a non-parole period of 12 months was separately set, although no start date was specified.
13. In sentencing for the latter two offences her Honour said this:
In relation to breach of protection order, being charge 12/9847.., [you] are therefore sentenced to 2 years imprisonment. That period of imprisonment commenced on 18 March 2013. It will be concluded on 17 March 2015. For the abundance of caution, I note there was a non-parole period of 12 months, although technically that period has now completed, that is, the non-parole period. ...
In relation to charge 13/1257 (the prisoner at large charge), I convict you of that offence ... I sentence you to 12 months imprisonment, to be served by way of full‑time custody. That period of imprisonment will commence on 1 January 2015 and will conclude on 31 December 2015. There’ll be a 12 month non-parole period. I note that the sentence is partly concurrent and partly cumulative on 12/9847.
14. The backdating date for the sentences reflected 409 days in pre-sentence custody.
At some point, the original sentence order was amended to specify that the non-parole period for the prisoner at large sentence also ran from 18 March 2013 to 17 March 2014 (and would therefore have expired before the prisoner at large sentence started).
16. Mr Reid was at the time of her Honour’s sentencing remanded in custody on several other matters, and appears to have remained in custody after this sentencing.
On 19 August 2014 Mr Reid was granted bail in the Supreme Court, effective from 20 August, to attend Oolong House yet again. Oolong House reported to this court that he discharged himself on 9 September 2014, citing “family problems”. He did not appear at the hearing of this appeal and his whereabouts are currently unknown.
18. It is convenient to consider the three specified appeal grounds out of order.
Failure to take account of time spent in Oolong House
As to whether her Honour should have backdated Mr Reid’s sentence further to take account of Mr Reid’s time in Oolong House, there is no requirement for credit to be given in sentencing for time spent in residential rehabilitation between the commission of an offence and the sentencing for that offence. In Mazeika v David [2014] ACTSC 95 I said, in relation to a similar ground of appeal framed on the basis that the giving of such credit “happens all the time”:
I have myself on occasions given credit for successful completion of rehabilitation programs to offenders subject to deferred sentence orders for which attendance at residential rehabilitation is a condition of their bail. Where the aim of the deferred sentence order is to provide an incentive for an offender to complete a rehabilitation program, and it is expected that an offender who complies with the conditions of the deferred sentence order will receive a less severe sentence than if he had not done so, it seems to me to make sense to give some credit for time spent in an environment which, although not equivalent to full‑time custody, certainly imposes considerable restrictions on a participant’s freedom.
On the other hand, it should be clear that such an approach is not intended simply to give offenders the option of serving part of a prison sentence in residential rehabilitation, irrespective of the offender’s commitment to rehabilitation or the success of his participation in the program.
20. Furthermore, the fact that there may be circumstances in which it is appropriate to give credit for time spent in residential rehabilitation does not establish that a failure to do so is a sentencing error. Section 7(1)(d) of the Crimes (Sentencing) Act 2005 (ACT) refers to the rehabilitation of the offender as a legitimate sentencing purpose, and it may be that the sentencer who fails to consider rehabilitation efforts, including time spent in residential rehabilitation, or at least those efforts that would be explicitly covered by s 33(2)(t) or (x) of that Act , might be said to have fallen into the error of failing to take account of a relevant consideration. However, this is a long way short of saying that there is any obligation on a sentencer to give either a direct or partial credit for time spent in residential rehabilitation, by way of either a specified sentencing discount, or the increased backdating of a sentence.
21. It is clear from the transcript of the sentencing proceedings that Mr Reid’s successful completion of the four‑month Oolong House program had been brought to Magistrate Boss’s attention. Although her Honour did not refer to it explicitly in her own sentencing remarks, she did, in setting sentences and non-parole periods that entitled Mr Reid to apply for parole immediately, effectively respond to counsel’s submission, made by reference to the Oolong House program, that her Honour should sentence Mr Reid to time served and allow him to return to the community.
22. This alleged error is not made out.
Failure to give adequate weight to the decision in Bugmy
23. Counsel indicated that this appeal ground was intended to refer to the comments made by the High Court in Bugmy about the significance of early disadvantage in sentencing aboriginal and indeed other offenders. The Magistrate said:
I take into account specifically the principles enunciated by the High Court in the case of Bugmy v The Queen [2013] HCA 37, 2 October 2013. It seems to me, from all the evidence before me, that it is appropriate to take into account those principles.
24. In the ACT Court of Appeal case of Dutton v The Queen [2013] ACTCA 48 (Dutton), I said:
16. On behalf of the appellant it was submitted that, in accordance with the High Court’s recent decision in Bugmy v The Queen (Bugmy), the sentencing judge should have given more weight to the appellant’s deprived background. In Bugmy the court said at [37]:
An Aboriginal offender’s deprived background may mitigate the sentence that would otherwise be appropriate for the offence in the same way that the deprived background of a non-Aboriginal offender may mitigate that offender’s sentence.
17.At [41]:
the appellant’s submission that courts should take judicial notice of the systemic background of deprivation of Aboriginal offenders cannot be accepted. It, too, is antithetical to individualised justice. Aboriginal Australians as a group are subject to social and economic disadvantage measured across a range of indices, but to recognise this is to say nothing about a particular Aboriginal offender. In any case in which it is sought to rely on an offender’s background of deprivation in mitigation of sentence, it is necessary to point to material tending to establish that background.
18.And then at [43] and [44]:
The experience of growing up in an environment surrounded by alcohol abuse and violence may leave its mark on a person throughout life. Among other things, a background of that kind may compromise the person’s capacity to mature and to learn from experience. It a feature of the person’s make-up and remains relevant to the determination of the appropriate sentence, notwithstanding that the person has a long history of offending.
Because the effects of profound childhood deprivation do not diminish with the passage of time and repeated offending, it is right to speak of giving “full weight” to an offender’s deprived background in every sentencing decision. However, this is not to suggest, as the appellant’s submissions were apt to do, that an offender’s deprived background has the same (mitigatory) relevance for all of the purposes of punishment. Giving weight to the conflicting purposes of punishment is what makes the exercise of the discretion so difficult. An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
19.I have already referred to the Pre-Sentence Report about the appellant’s background. Counsel conceded that nothing in that evidence as it stood connected the appellant’s generally deprived background with the current offence to any extent beyond what would, as a matter of course, have been taken into account by the sentencing judge before the decision in Bugmy and was specifically referred to by his Honour.
25. Refshauge and Burns JJ agreed with those comments in Dutton.
26. The difficulty for Mr Reid is that, although Bugmy dealt in significant ways with questions arising in sentencing aboriginal offenders, the case is also significant for clarifying the fact that a failure to give “adequate weight” to a particular matter in the course of sentencing is unlikely to constitute an appellable error of either kind described in House v The King (1936) 55 CLR 499. This was explained by Gageler J explicitly in Bugmy at [51] to [53] and by the plurality less directly at [22] and [23] and has been relied on by the ACT Court of Appeal in, among other things, Rv Ang [2014] ACTCA 17 (Ang). In Ang, the Court of Appeal said:
22. That is, appeal grounds framed to assert “failures” by the sentencing judge to have proper or adequate regard to a matter, or to complain about the weight given to particular matters by the sentencing judge, do not properly “invoke either category of appellate intervention”.
23. The Crown’s particulars of manifest inadequacy in this case, still framed as failures on the part of the sentencing judge, suggest an ongoing misunderstanding of the difference between a claim of specific error of the kind described in House v The King (1936) 55 CLR 499 and a claim of manifest inadequacy or excess. The former is an explicit claim that the sentencing process has gone wrong in an identifiable way, which might or might not have produced an inappropriate result; this is why an identifiable error in the sentencing process will only require re-sentencing if the appeal court considers that another sentence is appropriate (that is, that the outcome of the flawed process is also flawed).
24. A claim of manifest inadequacy or excess is a claim that despite the absence of identifiable error in the process, the outcome is so dramatically inappropriate that error of some kind must be inferred. We note in relation to inferred error Gageler J’s comments in Barbaro v The Queen (2014) 305 ALR 323 at 336; [61] to the effect that the inferred error:
may be found in nothing more or less than effect having been given in the exercise of the discretion to “views which are extreme or misguided”. A sentence may be “unreasonable or plainly unjust” simply “because the sentence imposed is manifestly too long or too short” and a sentence which is manifestly too long or too short is, without more, erroneous “in point of principle”. [citations omitted]
27. Thus, while the decision in Bugmy is certainly relevant to the sentencing of aboriginal offenders, it is also relevant in clarifying that a claim of failure to give adequate weight to particular considerations arising in such a sentencing is not a useful appeal ground. While it might have been an error on the Magistrate’s part if she had entirely disregarded Mr Reid’s somewhat troubled background, her Honour instead made specific mention of it. The fact that she did not as a result grant as much leniency to Mr Reid as he apparently hoped for does not establish a specific error of the kind alleged.
28. This appeal ground also fails.
The sentence is manifestly excessive
29. In Bugmy it was recognised (at [22] and [53]) that claims of inadequate (or indeed excessive) weight being given to particular sentencing considerations may on occasion be able to be identified as particulars of a claim that a sentence is manifestly excessive or manifestly inadequate.
30. In oral submissions, Mr Reid’s counsel did not argue that the first three sentences were excessive but concentrated on the 12‑month sentence imposed for being a prisoner at large. However, she conceded that:
(a)the prisoner at large offence carried a maximum penalty of five years imprisonment;
(b)Mr Reid had several previous convictions for failing to appear on bail undertakings, thus depriving him of any claim to particular leniency in relation to the offence; and
(c)no excuse had been offered for the conduct constituting the offence, namely his failure to return to the prison at the end of the period of bail granted to enable him to visit his daughter in hospital.
31. I am not convinced that in those circumstances, and even having regard to all aspects of Mr Reid’s subjective circumstances including his attendance at residential rehabilitation and, in particular, circumstances of the kinds addressed in Bugmy including a relatively disrupted childhood and adolescence, that there is any basis on which to find that the 12‑month sentence was manifestly excessive.
Another possible appeal ground
32. The respondent provided written submissions despite not having received any written submissions on behalf of the appellant. In those submissions, counsel conceded that there had been an error in the Magistrate’s approach to non-parole periods.
33. I have already quoted her Honour’s comments (set out at [13] above). They reveal an erroneous approach to the setting of non-parole periods.
34. First, s 65 of the Crimes (Sentencing) Act provides for a non-parole period to be set:
if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.
35. Where two or more terms of imprisonment are imposed, the non-parole period is clearly intended to be set for the total term of the sentences.
36. Instead, her Honour has purported to set separate non-parole periods for two of the sentences imposed at the same time, but, curiously, no non-parole periods for the other two 12‑month sentences.
Secondly, in purporting to set a non-parole period of 12 months for the prisoner at large sentence of 12 months imprisonment, her Honour appears to have excluded release on parole under the relevant sentence, without explaining or even recording a conclusion that it would be inappropriate to set a non-parole period having regard to the nature of the offence or offences and the offender’s antecedents (as required by s 65(4) of the Crimes (Sentencing) Act).
38. The proper way to have dealt with the non-parole period for these various sentences would have been to identify the total sentence of roughly 33 months and then to set a non-parole period for that roughly 33‑month sentence. There would then have been no doubt that parole granted at the end of the non-parole period would have applied to the total sentence. This would have avoided the possibility that had apparently concerned Mr Reid, that despite being eligible for parole on the sentence for the breach of the domestic violence order, he might have been returned to prison when the prisoner at large sentence commenced several months later.
39. This approach to setting non-parole periods would have been enough to justify a finding of error that would permit the re-opening of the sentence if another sentence had been warranted. However, for reasons already explained, I can see no reason for finding that a 12‑month term for the prisoner at large offence, accumulated as to about nine and a half months, is inappropriate, or that the imposition of a total sentence of just over 33 months (18 March 2013 until 31 December 2015) with a non-parole period of 12 months is inappropriate for the four offences involved.
Conclusion
40. The appeal is accordingly dismissed and the Magistrates Court sentences, subject to the correction required by the erroneous setting of the non-parole period, are confirmed. That correction is that the 12-month non-parole period is specified to apply to the total sentence imposed by the Magistrate on 2 May 2014.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Chief Justice Penfold. Associate: Kate Harris Date: 12 June 2015 |
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Amendments:
12 June 2015 ’18 March 2017’ amended to ’18 March 2013’. Paragraph: [15]