SBT v Wright
[2021] ACTSC 322
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | SBT v Wright |
Citation: | [2021] ACTSC 322 |
Hearing Date: | 3 November 2021 |
DecisionDate: | 21 December 2021 |
Before: | Mossop J |
Decision: | See [86] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – sentence appeal – whether sentences imposed were manifestly excessive – common assault – property damage – fail to appear – resist arrest – fail to stop – drive unlicensed as a repeated offender – drive motor vehicle without consent – six offences committed while appellant was a young person – where appellant has mental health diagnoses – sentences not manifestly excessive – appeal dismissed APPEAL – ADMISSION OF FURTHER EVIDENCE – Where appellant sought to admit further evidence on appeal – whether admission of further evidence means that it is no longer necessary to establish an error prior to resentencing – operation of s 214 of the Magistrates Court Act 1930 (ACT) – error is necessary for an appeal even if further evidence is admitted – further evidence not admitted |
Legislation Cited: | Bail Act 1992 (ACT), s 49(1) Crimes Act 1900 (ACT), ss 26, 116(3) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 5C |
Cases Cited: | Allesch v Maunz [2000] HCA 40; 203 CLR 172 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 R v Dowling (No 2) [2021] ACTSC 200 R v Prior [1966] VR 459 The Queen v Nguyen [2006] VSCA 184 |
Parties: | SBT ( Appellant) Robert Wright (First Respondent) Tristian Halstead (Second Respondent) Danielle McCormick (Third Respondent) Fern Dredge (Fourth Respondent) |
Representation: | Counsel S Robinson ( Appellant) M Howe (Respondents) |
| Solicitors Legal Aid ACT ( Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 29 of 2021 |
Decision under appeal: | Court: Magistrates Court of the ACT Before: Special Magistrate Campbell Date of Decision: 12 August 2021 Case Title: Wright v SBT Court File Numbers: 220687 812053 812069 812032 |
MOSSOP J:
Introduction
The appellant has appealed against sentences imposed upon him by the Magistrates Court and Childrens Court on 12 August 2021. The sole ground of appeal is that the sentence imposed by the magistrate was manifestly excessive in all the circumstances. The appellant seeks that the sentences be set aside and that he be resentenced.
The sentences imposed
The sentences imposed are summarised in the following table.
Some of the offending for which the appellant was sentenced occurred when he was under 18 years old and hence was subject to the jurisdiction of the Childrens Court. Some offences were committed when he was over 18 years old and hence subject to the jurisdiction of the Magistrates Court. Those offences for which the court number commences with CH are the ones that were subject to the jurisdiction of the Childrens Court and those with CC were subject to the jurisdiction of the Magistrates Court.
| Series | Court Number | Offence | Date Committed | Maximum Sentence | Sentence Imposed | Start – End Date |
| 1 | CH2021/189 | Common assault, contrary to s 26 of the Crimes Act 1900 (ACT) | 1/4/2021 | 2 years | 3 weeks | 1/7/21 – 21/7/21 |
| 2 | CH2021/241 | Destroy/damage property, contrary to s116(3) of the Crimes Act | 12/4/2021 | 2 years | 3 weeks | 15/7/2021 – 4/8/2021 |
| 2 | CH2021/242 | Destroy/damage property, contrary to s116(3) of the Crimes Act | 13/4/2021 | 2 years | 3 weeks | 15/7/2021 – 4/8/2021 |
| 3 | CH2021/287 | Fail to appear, contrary to s49(1) of the Bail Act 1992 (ACT) | 19/4/2021 | 2 years | 3 weeks | 22/7/2021 – 11/8/2021 |
| 4 | CH2021/286 | Resist Territory public official, contrary to s 361(1) of the Criminal Code 2002 (ACT) | 3/5/2021 | 2 years | 6 weeks | 5/8/2021 – 15/9/2021 |
| 4 | CH2021/289 | Destroy/damage property, contrary to s 116(3) of the Crimes Act | 3/5/2021 | 2 years | 6 weeks | 5/8/2021 – 15/9/2021 |
| 5 | CH2021/7701 | Fail to stop motor vehicle for police, contrary to s 5C of the Road Transport (Safety and Traffic Management Act) 1999 (ACT) | 27/7/2021 | 3 years (repeat offender) | 9 months | 1/9/2021 – 31/5/2022 |
| 5 | CH2021/7702 | Unlicensed – license never held, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT) | 27/7/2021 | 6 months (repeat offender) | 2 months | 1/9/2021 – 31/10/2021 |
| 5 | CH2021/7703 | Drive motor vehicle without consent, contrary to s 318(2) of the Criminal Code | 27/7/2021 | 5 years | 9 months | 1/9/2021 – 31/5/2022 |
As will be apparent from the table, the Childrens Court offences all involve short sentences of imprisonment in relation to which there was a degree of concurrency. The three Magistrates Court sentences included two sentences of nine months and a sentence of two months but they were all concurrent with each other. The aggregate sentence was 11 months’ imprisonment to be served as full-time detention. Because the sentence was less than 12 months, no non-parole period was set: s 65 of the Crimes (Sentencing) Act 2005 (ACT). No portion of the sentence was suspended.
The facts
The facts relating to the offending were contained in Statements of Facts which were admitted without objection.
Series 1
This involved a single charge of assault. It occurred at the home of the appellant’s mother. The victim of the offending was the appellant’s half-sister who lived in the same house. She heard aggressive yelling and screaming coming from the kitchen. She told the appellant to shut up or she would call the police. She observed that there were fresh stab marks on the walls and the appellant was holding a knife. The appellant yelled at her aggressively saying “you dog, you slut, I’ll bash you, I’ll bash your head in”. She said “well do it”. He moved towards her. The knife was not in his hand. He came face-to-face within centimetres of her and aggressively threatened to bash her. He closed his right fist and held it above his shoulder. The victim feared that she would be hit by the appellant. Their mother stepped between the parties and separated them. The threat to punch constituted the assault (CH2121/189).
Series 2
This involved two charges of destroying or damaging property. The first occurred on 12 April 2021. While in a car, the appellant had been arguing with his other half-sister, saying that he was going to hit her. The car was stopped and he was told to get out. He stayed in the car screaming and aggressively kicking the inside of the vehicle. This continued for about 10 minutes and then the vehicle continued with him still inside. When they got home, the appellant continued to argue with his half-sister and ran around the house. He said words the effect of “I’ll fucking bash you slut”. As he was walking away from the argument along the hallway, he swung his left arm and punched a hole in the wall. This is the first damage property offence (CH2021/241).
The next day at midday, the appellant had an argument with his mother. This continued for about an hour during which time his mother repeatedly asked him to leave. At about 1pm, he grabbed a bottle of chocolate milk and threw it up the hallway. He walked up and down the hallway screaming to his girlfriend that they needed to leave. He walked past the hole created the night before and punched a second hole in the wall. This left a fist-size hole in the wall. This is the second damage property offence (CH2021/242)
Series 3
On 19 April 2021 the appellant failed to appear in court for a mention of family violence proceedings. This gave rise to the charge of failing to appear pursuant to a bail undertaking (CH2021/287).
Series 4
These offences involved events on 3 May 2021. The appellant was at his mother’s house. He was yelling in his bedroom. His mother said that if he did not stop, she was going to call the police. He spoke to his mother in her bedroom. When he was leaving the bedroom, he punched the wall twice creating two large holes. He then ran to the front door and punched two small holes and one large hole in the wall next to the front door and broke a pot plant before leaving the house. The damage to property is identified as having an approximate value of $2000. It gives rise to the rolled-up charge of damaging property (CH2021/289).
Later that evening police attended the house and attempted to arrest the appellant. He backed away from police. His girlfriend was hugging him. As an officer attempted to grab his left arm, the appellant flailed his arms around while yelling “fuck off” and calling his brother for help. He ripped his arm out of the officer’s grip. Another officer present ultimately pulled the appellant towards the bed, laid him on his stomach and handcuffed him. The resistance of arrest gives rise to the charge of resisting a territory public official (CH2021/286).
Series 5
These offences occurred on 27 July 2021. On Sunday, 25 July 2021 a white Kia Sportage had been stolen from a person known to the appellant. It had been rented from Thrifty Car Rentals and was due to be returned on that day.
On 27 July 2021 police were investigating concerns about the welfare of a 15-year-old girl. She was believed to be travelling around in a white SUV driven by a male known to her by a name consistent with the appellant’s name. Her location was tracked using the “Find my iPhone” app. Consistent with the movements shown on that app, police observed the stolen white Kia Sportage travelling towards Higgins. Police believed the missing young woman was in the car. She was, in fact, in the car along with another young woman aged 14 years. The offender was driving the vehicle.
A police motorbike activated its emergency lights and sirens in an attempt to stop the vehicle and speak with the occupants. The vehicle immediately accelerated away from police and subsequently failed to stop for police while weaving in and out of lanes of traffic in an attempt to evade police. This is the offence of failing to stop a motor vehicle for police (CC2021/7701). Police lost sight of the vehicle. A short time later, it was observed in Kambah and the app identified that the missing person was at an address in Wanniassa. Police attended. The appellant exited the residence but, upon seeing police, ran back towards the front door of the house and entered the house. Police entered the house and arrested the appellant.
In a digitally recorded interview, the appellant denied ever having been in the stolen vehicle and said he had no knowledge of a failure to stop for police on William Hovell Drive. The appellant was unlicensed, giving rise to the charge of unlicensed driving (CC2021/7702). The driving of the vehicle gives rise to the charge of driving a motor vehicle without consent (CC2021/7703).
The proceedings below
The proceedings were before the magistrate on 12 August 2021. Four Statements of Facts were tendered, as well as a criminal history. Three photographs taken on 13 April 2021 were tendered in relation to charge CH2021/241. A bundle of photographs were tendered in relation to charge CH2021/289. A report under s 74L of the Court Procedures Act 2004 (ACT) was also tendered. No evidence was tendered on behalf of the appellant.
Counsel for the appellant then made submissions. In relation to common assault, counsel drew attention to her instructions that it occurred in circumstances where the appellant had missed his depot injection. She submitted that this conduct and the property damage had made the appellant realise that his family home is not a suitable place for him and it brings out the worst in him.
She referred to his diagnosis of conduct disorder and trouble with emotional regulation as being part of his mental health presentation. She referred to the history of family turmoil referred to in the s 74L report. She submitted that the property damage was in the mid-range of objective seriousness for offences of this type.
In relation to the failure to appear offence, she submitted that this was not a deliberate attempt to avoid court but rather a result of him sleeping through his alarm and then not wanting to present himself because he thought he would be locked up.
In relation to the next property damage charge, she submitted that he was highly agitated and upset.
In relation to the charges relating to the driving of the stolen hire car, counsel for the appellant said that the appellant accepted that he should not have been driving because he was unlicensed and that he should have known the car was probably stolen. She submitted that he was not the one who was responsible for returning the vehicle.
In relation to missing his medication, she submitted that he had missed his depot injection by seven days and “he instructs that the depot injection is something that really keeps him on the level and stops him from making stupid decisions. He is on the whole compliant with his medication regime and is subject to a treatment order, which he is willingly engaging in.”
In relation to the age of the girls in the car with him, she submitted that he thought they were 17 years old. Counsel for the appellant conveyed her instructions that they were “egging him on” and he felt pressured by them.
She submitted that the time spent in custody at the Alexander Maconochie Centre (AMC), some 42 days, had been “a bit of a wake up call for him” because he was in an adult prison.
She made reference to the offender’s motivation to maintain his relationship with his girlfriend and avoid “messing up” by taking drugs and not complying with his depot injection. She submitted that the principle in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 clearly applied and that the s 74L report (referred to as a s 74K report) explained his difficult background, which was a contributing factor to his behaviour and how he deals with those situations.
Counsel for the appellant referred to his mental health issues including ADHD, conduct disorder and schizophrenia. The magistrate enquired where that information came from and counsel referred her to page 4 of the s 74L report.
Counsel made the submission that pursuant to the psychiatric treatment order, when the appellant is compliant with his depot injections is when things went well but that he had missed the injection and “that led to kind of a spiral which resulted in the last four or so months of re-offending and behaviour resulting in him being before the court today”. She submitted that as a result of his diagnosis, he was not a good vehicle for general deterrence.
The magistrate enquired as to whether the submission was that the Verdins principles applied. Counsel submitted that people with mental health issues are not good vehicles for general deterrence. She said that she did not make submissions in relation to moral culpability as there was not enough evidence before the court. The submission was “I would not be asking your Honour to apply the Verdins principles otherwise I would have made more significant submissions about them but nevertheless, in my submission, he is not a good vehicle for general deterrence due to his conditions as well as his deprived background which should always be taken into account in matters like this.”
She made reference to his plans to reside with his girlfriend, to contact the Ted Noffs residential facility and his interest in playing football with the Gungahlin Bulls Rugby Club and in completing a program to get his white card and asbestos certification. There was then some discussion of an aspect of his criminal history and the utilitarian value of his pleas of guilty.
Counsel for the prosecution then made submissions. He submitted that the common assault, even though it involved no contact was in the mid-range of objective seriousness. He submitted that the series 2 offences were committed in anger after the offender lost control after an argument with his mother.
In relation to series 3, he pointed out that the court appearance missed was only a mention date so there was no overall significant detriment to the criminal process.
In relation to the property damage, he submitted that that was indicative of the appellant’s loss of control. The charge of resist was indicative of someone who has had negative interactions with the police in the past.
In relation to the failure to stop offence, counsel read an extract of the explanatory memorandum for the legislation which inserted s 5C in the Road Transport (Safety and Traffic Management) Act 1999 (ACT). That extract referred to the enactment of the new provision as part of the plan to reduce the use of police pursuits.
Counsel for the prosecution agreed that the appellant had spent 42 days in custody. He assisted the magistrate by pointing to maximum penalties and periods of disqualification relating to the offences.
At the conclusion of submissions, the magistrate adjourned for just over half an hour before delivering her reasons orally. Those reasons extended over seven pages of transcript.
In relation to the two offences committed as an adult in July 2021 these were described by the magistrate as follows:
In relation to the offences committed whilst - as an adult in July, they involve [SBT] driving a hire car that someone else had hired and he was seen to be driving. He does not have a licence. The police attempted to stop him by activating their lights. He accelerated away from the police and the police did not continue to pursue the vehicle. At the time he had two passengers. They were both two girls aged 14 in his vehicle. Clearly, the objective seriousness of the matter is of course that he was driving a vehicle that was not his and he knew that he did not have the consent of the person who owned the vehicle to be driving it. And of course failing to stop from police is - the seriousness of that offence is marked by a significant penalty of three years and that is because of the danger that police pursuits present to the community and the very fact that there is an automatic disqualification on those matters also demonstrates that the community take that offence - a serious offence.
In the course of her reasons, her Honour made reference to the following matters:
(a)The appellant’s extensive criminal history and difficulty in complying with community based orders.
(b)That at the time of the offences on 3 May and 27 July 2021, he was on bail.
(c)That when taking his depot injections, he can remain crime free.
(d)That he was diagnosed with schizophrenia in December 2019 and that he knew the consequences on his mental state if he fails to present himself for depot injections.
(e)That it was not a matter where the Verdins principle applied, however, the magistrate could take into account the mental health issues that the appellant has.
(f)As part of the youth justice principles, she could take into account his maturity, age and level of responsibility or moral culpability.
(g)That he was nearly 18 years old and that his level of maturity is such that he knows the consequences of his criminal offending.
(h)That there were not good prospects of his rehabilitation by way of a sentence which would see him being supervised and addressing some of his criminogenic risks.
(i)General deterrence played a lesser role when sentencing him for offences committed while under the age of 18.
(j)General deterrence “plays a very prominent role” in relation to the offences committed on 27 July 2021.
(k)Specific deterrence was a “very relevant purpose” because the appellant had been before the courts a number of times.
(l)He would receive a discount of 25 percent for the offences because they were entered at an early opportunity.
(m)While imprisonment was a last resort for a young person, there was no other sentence that was warranted for each of the offences before the court.
(n)The sentences would be backdated to take into account the 42 days in custody and there would be a level of concurrency between the sentences.
The appellant’s personal circumstances
The personal circumstances of the appellant were identified in a report prepared pursuant to s 74L of the Court Procedures Act. The report identifies the following:
(a)The offender was 17 years and 10 months at the time of the report (making him 18 years and two months at the time of sentencing).
(b)He is of Aboriginal heritage but does not identify as Aboriginal.
(c)He and his twin brother are the youngest of his mother’s six children.
(d)His parents separated when he was very young and he has had no consistent male role model.
(e)He had grown up in a home environment characterised by family violence and conflict with both his mother and his siblings.
(f)His mother has had increasing difficulty in coping with the challenging risk‑taking behaviours of him and his brother.
(g)He has an extensive history of involvement with child protection services in Australian Capital Territory (ACT) and New South Wales (NSW).
(h)The report refers to his risk-taking behaviours and the difficulty that his mother has in protecting them from risks he and his brother seek out and expose themselves to.
(i)Since being released from custody in August 2020, he had primarily resided at his family home with his three siblings.
(j)His last contact with education was when he was in custody in 2020.
(k)He was not employed and was financially dependent upon his mother.
(l)He was diagnosed with schizophrenia in December 2019 and subsequently subject to a psychiatric treatment order. The treatment order lapsed in October 2020 but he continued to have monthly injections.
(m)He had demonstrated some interest in continuing education and joining the Gungahlin Bulls rugby league team.
(n)He continued to associate with antisocial peers.
(o)He was not considered to be a young person in need of care and protection.
Admission of further evidence
By application in proceeding dated 2 November 2021, the appellant sought to have admitted on the appeal certain evidence that was not before the magistrate. That material was as follows:
(a)A “Tribunal Review Report” dated 3 August 2021 by Dr Raviji Prematunga: This was a report that appears to have been prepared for the purposes of a review of the appellant’s psychiatric treatment order. The report included extracts from clinical notes prepared by Territory employees. The report expressed an overall opinion recommending that a further psychiatric treatment order be made for six months.
(b)A psychiatric treatment order dated 5 August 2021 of the ACT Civil and Administrative Tribunal.
(c)An order of the ACT Civil and Administrative Tribunal dated 25 October 2021 revoking the order dated 5 August 2021.
The Tribunal Review Report included reports from a nurse who attended upon the appellant while he was in custody following his arrest on 27 July 2021. It records that the appellant was aware that his medication was overdue and allowed an injection to occur. It describes his agitation and aggressive conduct following that. Three other sets of clinical notes from 3 and 20 March 2021 and 7 July 2021 were also included. Matters which those notes disclosed included the following:
(a)At the age of 15, the appellant had a prolonged period of psychosis as a result of ice use.
(b)He had a strong family history of schizophrenia.
(c)When he was unwell he was violent and had paranoid and persecutory beliefs.
(d)In March 2021, he was smoking marijuana daily and when asked about missing his injection appointment, he told a clinician “I just couldn’t be bothered” and smirked.
(e)As at 7 July 2021, he was not suffering from psychotic symptoms.
The evidence establishes that for the purposes of s 214(4) of the Magistrates Court Act 1930 (ACT), the evidence is likely to be credible. The evidence of the appellant’s solicitor in her affidavit dated 29 October 2021 was accepted by the respondent as providing a reasonable explanation for the failure to adduce it. The focus of the respondent’s submission in opposition to the admission of the evidence is that it “would not afford any ground for allowing the appeal” for the purposes of s 214(4).
The appellant submitted that it was significant that this evidence disclosed that the appellant had missed his depot injection prior to the driving offences.
Consequences of admission of further evidence
As I pointed out in Kibblewhite v Buik [2020] ACTSC 132 at [4]-[7], there has been a divergence of approach on the part of single judges of this court in relation to the consequences of the admission of further evidence under s 214 of the Magistrates Court Act. On the one hand there are a number of cases which have followed an approach associated with the decision of the Victorian Court of Criminal Appeal in Eliasen v The Queen (1991) 53 A Crim R 391 (Eliasen) at 396. The approach in Eliasen involved treating the admission of further evidence as reopening the sentencing discretion so that it is no longer necessary to establish error prior to the court engaging in a resentencing exercise. The cases that have followed the Eliasen approach are Edwards v Marinus [2010] ACTSC 57 (Edwards); Saga v Reid [2010] ACTSC 59 (Saga); Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 (Grooms); Islam v Wasley [2014] ACTSC 127; Subasic v Williams [2018] ACTSC 207; 85 MVR 209; Fallon v Baker [2018] ACTSC 319 (Fallon) and IT v Knight [2020] ACTSC 101.
On the other hand, in SE v Ruhen [2019] ACTSC 190 (SE), Murrell CJ maintained the position that having regard to the nature of the appeal, it was still necessary to establish error in a case where further evidence is admitted.
In my view, notwithstanding my acquiescence to the Eliasen approach in Fallon, as a general proposition, the position is as outlined in SE. That is because the admission of further evidence under s 214 of the Magistrates Court Act does not alter the nature of the appeal. The decision in Eliasen does not require any different approach.
The relevant provisions relating to the admission of further evidence in criminal appeals is s 214 of the Magistrates Courts Act.
214Appeals in cases other than civil cases
(1)This section applies to an appeal mentioned in section 208 (Appeals to which div 3.10.2 applies).
(2)In an appeal to which this section applies, the Supreme Court must have regard to the evidence given in the proceeding out of which the appeal arose, and has power to draw inferences of fact.
(3)In an appeal to which this section applies, the Supreme Court must—
(a)if it considers it necessary or expedient to do so in the interests of justice—
(i) order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and
(ii) order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and
(iii) receive the evidence, if tendered, of any witness; and
(b)receive evidence with the consent of the parties to the appeal.
(4)If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if—
(a)it appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the which the appeal arose on an issue relevant to the appeal; and
(b)the Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.
The orders that may be made on an appeal are set out in s 218 of the Magistrates Court Act:
218Orders by Supreme Court on appeals
(1)On an appeal to which this division applies, the Supreme Court may—
(a)confirm, reverse or vary the conviction, order, sentence, penalty or decision appealed from; or
(b)give the judgment, or make the order, that, in all the circumstances, it considers appropriate, or refuse to make an order; or
(c)set aside the conviction, order, sentence, penalty or decision appealed from, in whole or in part, and remit the proceeding to the Magistrates Court for further hearing and decision, subject to the directions the Supreme Court considers appropriate.
(2)A judgment or order of the Supreme Court under subsection (1) (a) or (b) has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.
These provisions have been interpreted as giving rise to an appeal by way of rehearing as distinct from an appeal in the strict sense, or alternatively an appeal de novo: Lukatela v Birch [2008] ACTSC 99; 223 FLR 1 at [19]. On such an appeal, error is required to be established: Allesch v Maunz [2000] HCA 40; 203 CLR 172 at [23]. Neither of s 214 or s 218 of the Magistrates Court Act provide an explicit statutory basis for the proposition that upon a rehearing, error is no longer required to be established if further evidence is admitted.
The decision in Eliasen is the source of the contention that the admission of new evidence has this effect. The decision in that case involved a diagnosis of AIDS after the sentencing hearing. The Crown did not oppose the admission of additional evidence. The court said (at 394):
However, it is plain that authority now establishes that this Court may, if it considers the case an appropriate one so to do, permit evidence of matters or events that have occurred since the date of the passing of the sentence upon an applicant to be placed before this Court with a view to this Court’s reconsidering the matter in the light of that additional evidence. It must follow that, if the Court does think that the additional evidence should lead to the imposition of a sentence different from that imposed by the judge, then even where the judge’s sentencing discretion has not miscarried the case must be treated as one calling for appellate intervention.
It has been said by this Court that if, on the material placed before it for the hearing of an application for leave to appeal against sentence, it considers that the sentence imposed was not an appropriate sentence, then the application may be allowed and a different sentence passed in lieu of that imposed below: see Prior [1966] VR 459; Tutchell [1979] VR 248; Martin (unreported, Court of Criminal Appeal, Vic, 19 March 1990).
Upon the application being made to us, we considered that in all the circumstances it was appropriate in this case to allow the additional evidence sought to be placed before us to be admitted in evidence. No opposition to the adoption of that course was raised by the Crown.
The statutory basis for this approach was not identified in the reasons of the court. However, the statutory basis for the conclusion is made clear when regard is had to the decisions referred to in quoted passage.
R v Prior [1966] VR 459 (Prior) involved a sentence appeal relating to a young woman who had pleaded guilty to housebreaking and stealing. The reasons record that the court permitted oral evidence to be given by a “Sister Agatha” who gave evidence about a practical scheme for rehabilitation of the offender. The court was satisfied, because of the additional material, that “on the material now before it, that the sentence imposed was not an appropriate sentence, and that, accordingly, the application against the sentence should be allowed and that the sentence should be quashed and in lieu thereof some other appropriate action should be taken by this Court” (at 460). Once again, the statutory foundation for this approach was not identified in the reasons.
R v Tutchell [1979] VR 248 (Tutchell) involved an appellant who had been convicted of sexual and other offences and sentenced to be imprisoned. The relevant statutory provision governing the appeal (s 568(4) of the Crimes Act 1958 (Vic)) is set out in the reasons at 250:
On an appeal against sentence the Full Court shall, if it thinks that a different sentence should have been passed or a different order made, quash the sentence passed at the trial and pass such other sentence or make such other order warranted in law (whether more or less severe and including an order for probation) in substitution therefor as it thinks ought to have been passed or made, and in any other case shall dismiss the appeal.
The difference in statutory language between this and the general terms of s 218 of the Magistrates Court Act is of significance.
In Tutchell, the court made reference the decision of the majority in R v Taylor and O’Mealley [1958] VR 285 (Taylor and O’Meally) at 299, which explained the proper approach to the provision. That involved the establishment of an error rather than giving the court a function more akin to original jurisdiction exercisable without reference to what had already been done: Tutchell at 250-251. That was established by cases such as Griffiths v The Queen (1977) 137 CLR 293 (Griffiths), which related to the similarly worded s 5D of the Criminal Appeal Act 1912 (NSW), and the court quoted from Barwick CJ’s reasons in that decision. Consistent with that overall explanation, the court (at 251) referred to cases in which “the trial judge made no mistake as to the facts on the material before him but additional material before the Full Court shows that the facts shown by the material before him were wrong”. The example of Prior was given. Subsequently (at 252) the court said:
It follows that the first step is to decide whether error was involved in the imposition of the sentence. Error may appear if it is shown or inferred that the sentencing judge made a mistake or it may appear from additional material before the Full Court. If error was involved in the imposition of the sentence it is incumbent on the Full Court to re-exercise the discretion and form its own view as to the sentence which it is appropriate to be passed upon the applicant … Thus the initial step is the decision whether error was involved in the imposition of the sentence.
The third decision referred to in Eliasen was that of Martin (unreported, Victorian Court of Criminal Appeal, 19 March 1990). In that case, the court (at 5) was of the view that in the absence of further evidence, the application for leave to appeal could not succeed. However, the Crown had no objection to leading additional evidence that after the sentence, a cheque for the amount stolen had been provided by way of attempted restitution. The court relied (at 7) upon Prior and Tutchell to establish that the Court of Criminal Appeal had power to intervene having regard to the evidence placed before it.
Having regard to the starting point in Taylor and O’Mealley as adopted in Tutchell, it is not abundantly clear how the Court of Appeal in Eliasen came to be understood in The Queen v Nguyen [2006] VSCA 184 (Nguyen) as not requiring the establishment of error. Some of the authorities referred to in the footnotes in Nguyen appear to base intervention on the proposition that, in light of the additional evidence, it can be seen that there would be a miscarriage of justice if that did not occur. That, in my view, would probably provide a sounder conceptual foundation for the approach adopted.
Notably, in South Australia, when considering this issue, Doyle CJ left open the precise basis for intervention when further evidence was admitted in R v Brain [1999] SASC 358; 74 SASR 92 at [93] and R v C [2004] SASC 244; 89 SASR 270 at [32].
Two fundamental points arise from the brief examination of Victorian authority that I have made.
First, the statutory provision empowering appeals that provide the foundation for Eliasen contained statutory language very different to that in the ACT. As the discussion in Griffiths makes clear, the language of such a provision provides a textual basis upon which an approach more akin to a hearing de novo might be adopted. That language is conspicuously absent from the appeal provisions in question here. It is wrong to pick up and adopt judicial statements made in relation to different statutory provisions in other jurisdictions and apply them in the Territory unless, having regard to underlying principles, the same approach is appropriate notwithstanding the difference in statutory language.
Second, if the differing statutory language is ignored, even on the approach articulated in Tutchell, error is still required to be shown, even if that error may be exposed by the admission of further evidence.
A review of the decisions of single judges of this court indicates that the judges who have applied the decision in Eliasen have done so without consideration of whether or not the different statutory foundation in Victoria made it inappropriate to adopt the approach identified in that case.
While adopting the approach in Nguyen and Eliasen, the reasons in Saga at [73]-[79] did not consider the difference in the statutory provisions relating to appeals. Similarly, Grooms at [44]-[52] did not give specific consideration to the statutory foundation for the decision in Eliasen or Nguyen or the earlier cases on which they were based.
One of the decisions adopting the approach in Nguyen – Edwards – also relied upon the decision of Miles CJ in Campbell v Fortey (1987) 85 FLR 462 (Campbell) at 465-466 for the proposition that if further evidence was admitted it was not necessary to find error. That, in my view, involves a misunderstanding of the reasons in that Campbell. In that case, which was decided shortly after amendments to s 214 of the Magistrates Court Act were made in 1984, the court was addressing the submission that further evidence should only be received “in exceptional cases, or where error has been shown” (at 465). The conclusion reached was that:
In the light of the above, I come to the conclusion that the discretion to allow further evidence on an appeal under s 214(3) is unfettered and not circumscribed by any consideration that the appellant must show that the magistrate was in error on some question of law or fact or that special circumstances exist.
This passage does not establish that after the admission of evidence, it is unnecessary to establish error. It must, however, be accepted that the later reasoning in that decision does not clearly disclose whether error was found or not and might be read as consistent with the proposition that it was unnecessary to establish error.
In my view, an approach consistent with the terms of the statute is that identified in SE. The effect of that decision, which builds upon the uncontroversial proposition that the appeal is one by way of rehearing, gives appropriate effect to the specific language of s 214 in relation to the admission of further evidence but requires the establishment of error before the decision is reopened. Having regard to the availability of further evidence, it necessarily follows that the error may be able to be established by reference to that further evidence. However, the admission of further evidence does not of itself establish error or require that the usual rules for the reopening of the exercise of a discretion not apply. The approach is consistent with that articulated in Tutchell. It is not, however, consistent with the decision in Eliasen, at least as explained in Nguyen, which dispenses with the requirement for the establishment of error.
For these reasons, pending a case in which the matter is properly argued or a decision of the Court of Appeal, I approach the admission of further evidence on the basis that even if further evidence is admitted, it is still necessary in order for an appeal to succeed that an error be established in the decision below. Plainly enough, the establishment of error may become easier if further evidence is admitted, and as a result, the prospects of an appeal will be very significantly influenced by the scope of the statutory provisions in the various paragraphs of s 214 of the Magistrates Court Act which allow the admission of further evidence.
In the present case, the position is made easier by the fact that the only relevant statutory provision is s 214(4) as there was no consent for the purposes of s 214(3)(b). Section 214(4) incorporates within it, a requirement that the evidence provide a basis for allowing the appeal. Having regard to the nature of an appeal, that necessarily contemplates the establishment of error, even if by way of additional evidence. It invites an examination of the material in order for the court to be satisfied that the criterion that “the evidence would not afford any ground for allowing the appeal” does not exist. In a case alleging manifest excess, that involves asking whether, in light of the additional evidence, manifest excess is established. For the reasons that I give below, I consider that “the evidence would not afford any ground for allowing the appeal” and therefore I do not admit it.
Submissions
The submissions put on behalf of the appellant carefully dissected the various factual matters referred to in the reasons of the magistrate. They drew attention to the statistics available on the ACT Sentencing Database, which suggested that the sentence of nine months would be the longest sentence imposed for failing to stop in either the Magistrates Court or the Supreme Court. Counsel for the appellant drew attention to two decisions of the Supreme Court: R v Dowling (No 2) [2021] ACTSC 200 (Dowling) and R v Po’oi [2021] ACTSC 151 (Po’oi), which both postdate the Sentencing Database statistics. Dowling involved two offences. The first involved a starting point of eight months’ imprisonment and a sentence of six months’ imprisonment. On the repeat offender count, the starting point was 11 months’ imprisonment and the sentence imposed was eight months’ imprisonment. While Po’oi involved an offence of failing to stop, the reasons do not disclose what sentence was imposed for this offence.
The submissions pointed to the following:
(a)There was no evidence that the appellant was travelling above the speed limit.
(b)There was no evidence that other road users were endangered.
(c)There was no evidence of any pedestrians in the vicinity.
(d)There was no evidence that the policeman signalling the appellant was endangered by the appellant’s driving.
In relation to the driving without consent charge, the submissions referred to sentencing statistics from the ACT Sentencing Database which appeared to indicate that in the Magistrates Court and Supreme Court between 2012 and 2020, only one case of drive motor vehicle without consent involved a sentence of imprisonment. That was of approximately nine months. The submissions referred to the observations of Refshauge AJ in R v Massey (No 1) [2020] ACTSC 256 at [76]-[78] where his Honour noted the recent general approach to be a sentence in the order of six months’ imprisonment for either the taking or driving offence.
Counsel for the appellant made the following submissions:
(a)The magistrate did not take into account the appellant’s youth and the fact that he was being sentenced to an adult prison for the first time which would cause prison to weigh more heavily upon him.
(b)The magistrate gave too little weight to the need for rehabilitation.
(c)Deterrence, particularly general deterrence, played too great a role in the magistrate’s reasoning considering that the appellant was then subject to a psychiatric treatment order for schizophrenia, was 18 years old and suffered from a history of abuse and neglect.
The submissions of the respondent identified the following:
(a)The sentences for the three driving offences were all concurrent, they were offences committed as an adult and involved two younger passengers.
(b)The offender was on bail and had been sentenced on 10 March 2020 to 8 months’ imprisonment for aggravated dangerous driving.
(c)The starting point of 12 months represented “stern punishment”.
(d)The sentences imposed for the offences committed as a minor were all modest.
(e)The fact that the sentence was of full-time imprisonment with no period of suspension was unusual. Her Honour considered the imposition of a combination sentence. Her Honour’s reasons for not doing so focused on the appellant’s criminal history and his past failure to comply with court orders.
(f)Her Honour was obliged to give rehabilitation some weight as part of the sentencing process. The respondent submitted that imposing a sentence in the way that she did was a course which was open.
Consideration
Each of the sentences imposed in relation to the Childrens Court proceedings was relatively modest and incorporated a degree of concurrency. The focus of the appellant’s submissions was upon the two sentences of nine months’ imprisonment imposed by the Magistrates Court (drive motor vehicle without consent and fail to stop for police) and the failure to suspend any portion of the aggregate sentence.
As pointed out above, the appellant emphasised the proposed further evidence that he was overdue for his depot injection. The fact that the appellant was overdue for his depot injection gives rise to the possibility that some aspects of his offending were contributed to by his schizophrenia. The further evidence referred to the potential for a rapid deterioration in his mental state when it was not treated. However, there is no evidence of paranoid or persecutory beliefs at the time of the adult offending. There is no expert evidence of a connection between the possible deterioration in his mental state and his driving the stolen motor vehicle or failing to stop for police.
The fact that the appellant was overdue for his injection was the subject of submissions below (see [22], [27] above).There was no challenge to the finding of the magistrate referred to at [37](d) above that the appellant was aware of the consequences of not submitting himself to his depot injection.
There was no explanation of the reason for the revocation on 25 October 2021 of the psychiatric treatment order dated 5 August 2021. However, this was a time when the appellant was in custody and hence, I infer, his medication regime was able to be managed in that context.
Thus, the position is that the proposed further evidence elaborates upon the history and nature of his schizophrenia and by doing so would make it more prominent as an aspect of his subjective circumstances. However, it does not prove on the balance of probabilities a link between being overdue for his medication and the conduct associated with the two sentences principally complained of. It does not undermine the magistrate’s findings that the appellant was aware of the consequences of not getting his depot injection.
The sentence for failing to stop is undoubtedly a stern one. However, it was imposed against a background of significant previous offending by the appellant. It represented a starting point of approximately 33 percent of the maximum penalty. It was imposed in light of the clearly expressed legislative intention to impose significant penalties upon persons who fail to stop in order to allow a change in police policy which would reduce the incidence of dangerous police pursuits. While, as the appellant submitted (see [69] above), some possibly aggravating features were not present, many of those identified would have involved additional or more serious offending and hence their absence is not a significant factor in assessing whether or not the sentence imposed was manifestly excessive.
Similarly, the sentence for driving a motor vehicle without consent was also a significant punishment for that offence. It represented a starting point of 20 percent of the maximum penalty. However, the submission of the appellant based upon the contents of the ACT Sentencing Database in relation to driving a motor vehicle without consent (see [70] above) was unhelpful because it did not reflect reality. An unfiltered selection of decisions of this court from 2021 alone demonstrates that the court routinely imposes sentences of imprisonment for this offence: see R v Blackburn; R v QH [2021] ACTSC 284; Dowling; R v Elphick [2021] ACTSC 9; R v Goolagong (No 2) [2021] ACTSC 131; R v Fry [2021 ACTSC 138.
In relation to the claim that the aggregate sentence was manifestly excessive, it is obviously significant that the two nine-month sentences for driving a motor vehicle without consent and failing to stop for police were made wholly concurrent in circumstances where a degree of cumulation might readily have been imposed on shorter individual sentences.
The approach taken by her Honour to rehabilitation was one which was open to her. The consideration of rehabilitation does not, in every case, require that a portion of the sentence be served in the community on parole or subject to a good behaviour order. In most cases, that will be an approach which is consistent with the advancement of an offender’s rehabilitation. However, it cannot be said that the failure to adopt such a sentence structure necessarily involves a failure to give appropriate weight to the rehabilitation of an offender. That is so even where the offender is young and has not spent time in an adult prison. Her Honour made clear that she considered that it would be counter-productive for the offender to serve part of his sentence in the community. That was because of his history of failing to comply with community-based orders. It was within her Honour’s discretion to treat as undesirable a sentence which would be likely to result in a failure to comply with the requirements of supervision and the likelihood of having to be dealt with again for breaches of the conditions of a good behaviour order. It was open to the magistrate to determine that a sentence served by full-time detention would be more appropriate for the offender.
The additional information about the offender’s mental health does not indicate that this approach was incorrect. It is equally open to treat the additional information about the offender’s mental health as reinforcing the desirability of adopting the approach that her Honour did, both because of the difficulty of achieving compliance with a community‑based order and the need for specific deterrence of the offender from future offending.
In my view, the total sentence imposed in terms of its length and manner of service was not manifestly excessive. Further, neither of the individual sentences for failure to stop or drive motor vehicle without consent were manifestly excessive. The position remains the same even if the additional evidence was admitted and taken into account.
Because the additional evidence “would not afford any ground for allowing the appeal” for the purposes of s 214(4) of the Magistrates Court Act, it will not be admitted.
The appeal will be dismissed.
Orders
The orders of the Court are:
1. The application in proceeding dated 2 November 2021 is dismissed.
2. The appeal is dismissed.
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 21 December 2021 |
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