Rogers v The Queen
[2004] ACTSC 133
ROGERS v THE QUEEN [2004] ACTSC 133 (17 December 2004)
APPEAL – Magistrates Court – appeal from sentence – time held in custody to count – s 360 Crimes Act 1900 – statement by Magistrate that time taken into account would indicate a disproportionate sentence for the offence – calculation to be meaningfully expressed – power to backdate sentence should have been utilised – s 352 Crimes Act 1900 – appeal upheld.
Remand Centres Act 1976 (ACT), s 18
Drugs of Dependence Act 1989 (ACT), s 164
Criminal Code, s 44
Crimes Act 1900 (ACT), s 352, 354, 360
Sullivan v The Queen [2004] NSW CCA 99 unreported, 19 May 2004
Pearce v The Queen (1998) 194 CLR 610
Johnson v The Queen [2004] HCA 15 (30 March 2004)
AG v Tichy (1982) 30 SASR 84
ON APPEAL FROM THE MAGISTRATES COURT
No. SCA 77 of 2004
Judge: Gray J
Supreme Court of the ACT
Date: 17 December 2004
IN THE SUPREME COURT OF THE )
) No. SCA 77 of 2004
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT
BETWEEN:TERRENCE NEVILLE ROGERS
Appellant
AND:THE QUEEN
Respondent
ORDER
Judge: Gray J
Date: 17 December 2004
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
On 15 December 2004 I upheld the appeal in this matter and ordered that the period of imprisonment commence at an earlier date than that originally fixed. These are my reasons for so doing.
Terrence Neville Rogers (the appellant) appealed against a sentence of imprisonment imposed on him by a Magistrate on 6 April 2004 in respect of an offence of unlawfully conveying an article into a remand centre for which he was sentenced to three months imprisonment and attempted supply of heroin for which he was sentenced to nine months imprisonment cumulative upon the first sentence. Those offences were committed on 7 September 2003. He was also dealt with in respect of a number of theft and dishonesty offences in respect of which imprisonment was ordered concurrent with those offences. Those sentences are not the subject of appeal.
The offence of unlawfully conveying an article into a remand centre is a contravention of s 18(d) of the Remand Centres Act 1976 (ACT) and the penalty provided is imprisonment for six months.
The offence of attempted supply of heroin is a contravention of s 164(3)(A) of the Drugs of Dependence Act 1989 (ACT) and s 44 of the Criminal Code. The penalty for an attempt is the same as for the offence itself and is imprisonment for five years.
The circumstances of the offences
The appellant made arrangements for his 76 year old mother to visit his 20 year old son, her grandson, an inmate at the Belconnen Remand Centre. Although he or his wife were to accompany his mother to the Remand Centre, it was not until she had arrived at the waiting room that he appeared and handed her a plastic bag containing a pair of running shoes and three CD’s. He asked his mother to give them to his son. After she had lodged the bag and its contents with a Custodial Officer, it was discovered that the sole of one of the shoes had been removed and reglued holding two cut down syringes, five small packets of cannabis and a small package of heroin.
An aggravating feature was the deception employed to use his mother to attempt to get the drugs to his son. She had suffered a stroke some four months prior and this was her first visit since that time to see her grandson. She was a completely innocent agent. The appellant, who is 43 years of age, has an extensive criminal history of drug and dishonesty offences. Apart from the utilitarian value of his plea of guilty, he has no other mitigating circumstances justifying leniency. A sentence of imprisonment was inevitable and I do not understand Mr Thomas, who appeared as counsel for the appellant, to argue otherwise.
The appellant’s reason for the commission of the offence was that he had received a letter from a detainee in the remand centre indicating that if he did not supply cannabis to him through his son, his son would be “in trouble”. This is said to be duress and the subject of the first particularised ground of appeal; it being said, that proper weight was not given to this factor. The ground was rightly abandoned at the outset.
A further ground that the Magistrate failed to give proper weight to rehabilitation was also abandoned. That ground clearly had no merit in light of the Probation and Parole report before the Magistrate describing the appellant’s “ambivalent and specified attitude in regards to attending supervision with the Probation and Parole Service” together with the reporting officer’s assessment of a medium to high level risk of the appellant reoffending.
Additional submissions
At the outset, Mr Thomas put a submission that the appellant should have been credited with time that he had spent on remand in respect of a charge of armed robbery well before the appellant was placed in custody as a consequence of these offences. The submission did not relate to any of the grounds of appeal, was not put to the Magistrate and was unsupported by any authority. I declined to entertain it.
He further submitted that the Magistrate had not given the appellant credit for his plea of guilty and cited Sullivan v The Queen [2004] NSW CCA 99 unreported, 19 May 2004. Not only is that case not authority for the proposition that the Magistrate erred in not identifying the discount he applied, but also it does not support the proposition he put that the appropriate discount was 30%. In that case, the conventional discount was referred to as 25% or 20% and as low as 10%, see Kirby J at [11]. In the present case, the Magistrate remarked, “The defendant has pleaded guilty to all those offences and is of course entitled to the benefit of those pleas of guilty”. Having regard to the sentence of nine months imposed in respect of the attempt supply heroin, I am quite unable to see how it can be said that the appellant was not allowed a generous discount for his utilitarian plea.
Both these submissions were contained in written submissions handed up at the hearing rather than being provided two clear days before the hearing as the practice directions require. The purpose of the rule is to assist the court and it does not reflect well on counsel to not comply with it. That is particularly so where an amendment to the grounds of appeal would have been required if there was any substance in the matters addressed in those submissions. Their late receipt has led to these reasons having to be reserved. As it turned out, those written submissions were not well founded and further, did not really address the two grounds of appeal that were pressed in oral submissions. It is to those grounds that I now turn.
Cumulation of sentences
It was said that the Magistrate erred in law in making the sentence in respect of attempted supply of heroin cumulative upon the offence of unlawfully conveying an article into the remand centre. Section 354 of the Crimes Act 1900 (ACT) provides for sentences to be concurrent or cumulative or partly concurrent and partly cumulative. Section 354(5) provides,
A court may direct that part of a sentence to be served concurrently with or cumulatively on another sentence.
The principle
In Pearce v The Queen (1998) 194 CLR 610 at 623 [40], McHugh, Hayne and Callinan JJ set out the principle in respect of offences based on the same facts,
To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just deserts.
That passage was cited with approval in Johnson v The Queen [2004] HCA 15 (30 March 2004) in the joint judgment of Gummow, Callinan and Heydon JJ at [27] and Kirby J at [44].
In the present case there is no indication that the Magistrate gave consideration to this aspect. If he took into account in respect of the offences of attempted supply, that the supply was to a person or persons in a remand centre, then that is clearly an aggravating factor that may be reflected in the penalty imposed for those offences. However, that circumstance could call for all the offences arising out of that circumstance to be concurrent with each other.
It was, of course, open to the Magistrate to lower individual sentences rather than making them wholly or partly concurrent. In Johnson (supra), Gleeson CJ cited a passage from AG v Tichy (1982) 30 SASR 84 at 93 where, in part, Wells J said,
Where there are truly two or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct, the judge is likely to find concurrent sentences just and convenient.
Gleeson CJ then remarked at [5],
It may be added that the Crimes Act 1914 (Cth), in s 19, allows for sentences that are partly cumulative, and partly concurrent. And, as was observed in Mill (1988) 166 CLR 59 at 63, a sentencing judge, in a suitable case, may respond to considerations of the kind discussed by Wells J by lowering individual sentences rather than by making sentences wholly or partly concurrent. Ultimately, justice requires due consideration of whether, and to what extent, the appellant “was truly engaged upon one multi-faceted course of criminal conduct”, and whether the sentences imposed properly reflected the outcome of that consideration.
The circumstance of attempting to supply heroin to an inmate of a remand centre is clearly an aggravating factor in respect of that offence. However, in this case, the penalty imposed (nine months imprisonment) does not seem to really reflect that circumstance. If that factor is to be reflected in the overall penalty, then at the least it would be appropriate to reflect it in the sentence imposed for the unlawful conveyance of all the articles, including the heroin and cannabis, into the remand centre. In such a circumstance, it could be proper to cumulate the penalties imposed in respect of each offence that arises out of the same circumstance although the act of supply of the two drugs would merit concurrence. Accordingly, I do not consider that the Magistrate erred in the approach that he took.
Time spent in custody
The remaining ground of appeal relates to the period that the appellant was held on remand. At the time of sentencing for the offences the subject of this appeal, the appellant was also dealt with for other offences. One charge alleged a minor theft relating to six DVD’s with a value of $120.81 stolen on 9 March 2003. There were a further series of charges of entering premises as a trespasser with intent to steal and stealing items valued at $4,000.00, making a false instrument and using a false instrument. He was convicted on each and sentenced to imprisonment for one month on the minor theft charge and six months imprisonment on each of the others. The sentences were all made concurrent with each other and with the sentence the subject of this appeal. The appellant was also sentenced to a concurrent sentence of six months imprisonment for the attempted supply of cannabis found in the running shoe. That too is not the subject of this appeal.
The Magistrate remarked at the time of sentencing for all these offences,
I am told in relation to these matters, that as a result of other matters that he [the appellant] is charged with he was refused bail and he spent some two months in custody. I will take those two months into consideration in relation to the penalties that I will impose today.
He then proceeded to convict and sentence the appellant to three months imprisonment in respect of the offence of unlawfully conveying an article into a remand centre.
After sentence had been passed, the following exchange took place with prosecuting counsel,
MR STANDISH: And your Worship in your sentencing remarks referred to that pre-sentence custody. For completeness, that was from 15 October until 19 December 2003, your Worship.
HIS WORSHIP: All right.
MR STANDISH: So are you minded to say that that time has been served or is that something you take account?
HIS WORSHIP: No, I’ve taken that into account and that’s why I arrived at the three months rather than longer a period.
The reference to the three months I take to be a reference to the three months imprisonment imposed in respect of the offence of unlawfully convey articles into a remand centre.
That exchange with counsel gives me an uncomfortable feeling that the Magistrate did not truly give effect to the prescription in s 360 to “count” the time.
Section 360(1) of the Crimes Act 1900 specifically requires the court to,
(a)count any period when the offender was held in custody in relation to proceedings for that offence, or proceedings arising from those proceedings, as a period of imprisonment already served under the sentence; and
(b)state in the sentence the period counted under paragraph (a).
As I understand the approach that the Magistrate took, he must have regarded the period in custody as giving a notional period of five months and four days as the sentence but counting the period in custody by reducing that sentence to three months imprisonment to be served. I regard that as an unsatisfactory approach and quite inappropriate from the perspective of proportionality in respect of that individual offence.
The further matter of concern is that the time in custody is only made referrable to one of a number of offences which are to be served concurrently with the sentence of which account is taken. That is particularly pertinent to the concurrent sentence of one month imposed for minor theft. The appellant enters prison in a situation where the proper application of s 360 would regard that sentence as having been served.
The point may be said by some to be a technical one, but nonetheless the requirement in s 360 is to “count” by which expression I take to mean “to reckon up, calculate or compute” (the Macquarie Dictionary). I consider that whatever method is used to achieve that objective should ensure the transparency necessary to enable compliance with the requirements of s 360 to be seen. In some cases, and I think this one, the credit may only properly be seen to be given by backdating the commencement of the sentence as s 352 of the Crimes Act 1900 plainly authorises. Section 352 provides,
When sentence takes effect
If a court passes a sentence, the sentence shall, subject to this part, take effect from the date when it is passed unless the court otherwise orders.
NoteSection 360 deals with how time spent by an offender in custody for an offence is to be taken as a period of imprisonment served for the offence.
(My emphasis)
Accordingly, I upheld the appeal for the purpose providing that the sentence imposed by the Magistrate was to take effect from 31 January 2004 so as to count the period of two months and four days time held in custody in respect of the offences in respect of which the Magistrate ordered to be served concurrently.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.
Associate:
Date: 17 December 2004
Counsel for the appellant: Mr R Thomas
Solicitor for the appellant: Frank Wilson Solicitor
Counsel for the respondent: Mr B Standish
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 15 December 2004
Date of reasons: 17 December 2004
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