Singh v Wilson
[2019] ACTSC 199
•17 July 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Singh v Wilson |
Citation: | [2019] ACTSC 199 |
Hearing Date: | 17 July 2019 |
DecisionDate: | 17 July 2019 |
Before: | Mossop J |
Decision: | See [36]-[37] |
Catchwords: | APPEAL – APPEAL AGAINST SENTENCE – Appellant convicted of minor theft in Magistrates Court – whether magistrate failed to take into account the appellant’s one night in custody – where counsel before the magistrate did not make submissions on the night in custody – whether the court is deemed to be aware of all factual matters derived from the contents of bench sheets – whether the magistrate should have exercised discretion under s 17 Crimes (Sentencing) Act (2005) to account for the appellant’s mental illness – where counsel before the magistrate did not rely on the Verdins principles |
Legislation Cited: | Criminal Code 2002 (ACT), s 321 Crimes (Sentencing) Act 2005 (ACT), ss 17, 33, 33(1)(za), 63 Sentencing Act 1991 (Vic) |
Cases Cited: | Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 Joyce v Baird [2013] ACTSC 79; 276 FLR 128 |
Parties: | Aneeta Singh (Appellant) Kristen Wilson (Respondent) |
Representation: | Counsel P Edmonds (Appellant) L Sutton (Respondent) |
| Solicitors Canberra Criminal Lawyers (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 13 of 2019 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Morrison Date of Decision: 9 January 2019 Court File Number: MC1223/2018 |
MOSSOP J:
Introduction
This is an appeal against a sentence imposed by a magistrate of the Magistrates Court. The appellant was convicted of minor theft. That was a contravention of s 321 of the Criminal Code 2002 (ACT). That section requires that the replacement value of the items stolen be $2000 or less. The maximum penalty is six months’ imprisonment or a fine of 50 penalty units. The appellant stole three dresses worth a total of $740. In addition to the conviction, she was given a good behaviour order with a supervision condition for a period of 12 months. The conditions on the good behaviour order made specific reference to treatment for her mental health.
The appellant has contended that the magistrate erred in failing to have regard to a material consideration, namely that the appellant spent one night in custody as a result of being arrested on a first instance warrant prior to being granted bail. Alternatively, if the magistrate did have regard to that matter, then it is alleged that he failed to give adequate reasons. Finally, the appellant contended that the magistrate misdirected himself as to the availability of his discretion under s 17 of the Crimes (Sentencing) Act 2005 (ACT). In this regard it is contended that the magistrate disregarded the fact that the appellant was suffering from depression at the time of the offence.
The principle contention put before the magistrate by the appellant’s then legal representative was that an order under s 17 ought to be made. The appellant had no criminal history. Her legal representative made reference to the personal and financial circumstances of the appellant. His Honour indicated that he did not need to hear counsel for the respondent in relation to the s 17 issue. Counsel for the respondent made brief submissions on particular factual issues.
First ground of appeal – time spent in custody
So far as the first ground is concerned, I am satisfied that the magistrate failed to have regard to time spent in custody. Before the magistrate, the appellant’s then legal representative and the lawyer appearing for the respondent made no mention of the appellant having spent any time in custody. It formed no part of their submissions. It was not referred to in any of the evidence tendered before the magistrate. There was a reference on the bench sheet for the offence to the appellant having spent “1 night in custody”. That was not an entry which, in the absence of any reference to it in the submissions, was likely to have come to the attention of the magistrate. I find that the magistrate was not aware that the appellant had spent one night in custody. That is because of the absence of any reference to it in the submissions by the parties, the lack of prominence on the bench sheet and the absence of any reference to it in his Honour’s reasons.
As articulated in argument in this court, the submission of counsel for the appellant was refined. He conceded that, in the absence of any reference on the bench sheet to the appellant having spent a night in custody, there would have been no error on the part of the magistrate in failing to make reference to that fact when the submissions of the parties did not refer to it. However, he submitted that the bench sheet and its contents should be taken to be within the knowledge of the magistrate. He submitted, relying upon R v Renzella [1997] 2 VR 88, that time spent in custody was a mandatory sentencing consideration, even if it fell outside the scope of a limited statutory provision requiring it to be taken into account in certain circumstances. He submitted that under the Crimes (Sentencing) Act, it was a matter within the scope of s 33(1)(za) “current sentencing practice”. Alternatively, he submitted that s 33 was not an exclusive list of sentencing considerations and that time spent in custody was a matter which was nevertheless required to be considered. He identified that the sentencing considerations in s 33 impose an obligation on a court to consider the matters there listed, insofar as they are “relevant and known” to the court. Therefore, he accepted that if within the scope of s 33, time in custody was only required to be taken into account to the extent that it was known to the court. He accepted that if consideration of time spent in custody was outside the scope of s 33, then the obligation of the court was not higher than if it was within s 33. In other words, the court was only required to take pre-sentence custody into account to the extent that it knew about it.
Counsel for the respondent submitted that the obiter dicta in Renzella extended only to the proposition that it was permissible to take into account pre-sentence custody and that it was not mandatory to do so. Further, she submitted that it was not mandatory to do so in circumstances where no reference was made to the issue in the course of submissions.
The failure of the appellant’s former legal representative to identify the fact that her client had spent one night in custody as a consequence of the execution of a first instance warrant is prima facie a matter of some concern. Of itself, it is at least possible that the fact of her having spent that time in custody might have made the difference between a disposition under s 17 and the course that was ultimately adopted. However, it is important to note that there is no ground of appeal asserting incompetence of counsel. Had there been such a ground, then that would have involved some exploration of what instructions had been given to the legal representative, the circumstances in which those instructions had been given and the manner in which those instructions were implemented. It is possible that the legal representative was not aware that the appellant had spent the night in custody. It is also possible that a forensic decision was made not to raise that issue because it might have opened up an examination of the reasons why the appellant had failed to attend court on the five occasions prior to the issue of a first instance warrant. Because the grounds of appeal did not extend that far, none of these issues were explored.
In Renzella, the court was addressing a circumstance where a statutory provision required certain pre-sentence custody to be taken into account, but not other pre‑sentence custody. The issue before the Victorian Court of Appeal was whether or not it was open to a trial judge to have taken into account pre-sentence custody that fell outside the scope of the statutory provision. The reasons of the court on this issue were obiter dicta, because an appeal against conviction was allowed and a retrial ordered. However, the court expressed the opinion that pre-sentence custody outside the scope of the statutory provision could be taken into account. Having referred to the statutory provision, the court said (at 97):
In other cases the section is silent and a court is not only empowered but obliged as a matter of justice to take presentence detention into account.
Later (at 98), the court referred to the submission that “there was nevertheless a discretion to take pre-sentence detention into account in cases not covered by [the statutory provision]”. That was a contention which the court accepted.
In the Australian Capital Territory (ACT), the statutory provision is s 63 of the Crimes (Sentencing) Act which relates to the backdating of sentences of imprisonment. That requires the court to take into account any period during which the offender has already been in custody in relation to the offence, but only in circumstances where the sentence being imposed is one of imprisonment. It does not apply to sentences that do not involve a sentence of imprisonment. The extent to which that section constrains in other ways the taking into account of pre-sentence custody in relation to sentences of imprisonment is discussed by Refshauge J in Hawkins v Hawkins [2009] ACTSC 148; 3 ACTLR 210 at [93]-[96].
In my view, the rationale for the conclusion in Renzella is equally applicable in the Territory. In Renzella, the issue was only whether it was open to the sentencing judge to take such custody into account. Notwithstanding that, in the passage quoted above the court referred to a sentencing court being “obliged as a matter of justice” to take such custody into account. I accept that to be the case. In Renzella the statutory basis for doing so appeared to be located in some of the general provisions of the Sentencing Act 1991 (Vic): see Renzella at 98. In my view, in the present case it is unnecessary to articulate precisely which provisions or combination of statutory provisions give rise to the obligation. It would be unjust if a person had spent a period in pre-sentence custody attributable to the offence and that period, if known to the court, was not taken into account when imposing a non-custodial penalty. Section 63 does not impliedly exclude the capacity to take into account such pre-sentence custody.
However, in the present case the magistrate was not made aware of that period of pre‑sentence custody. The appeal was argued on the basis that there would be no error if the court did not know of the pre-sentence custody. Having regard to the manner in which the argument was put, this ground of appeal turns on whether the court is deemed to have known of the pre-sentence custody by reference to the terms of the bench sheet which made reference to the issue of the warrant, the application for and grant of bail and included the marginal note referring to the appellant having spent one night in custody. I do not consider that there is a principle which deems a court to be aware of all factual matters that may be referred to in or derived from the contents of the bench sheet. More specifically, I do not consider that there is a principle which deems a court to be aware of periods of pre-sentence custody that may be derived from the terms of the bench sheet. No authority was identified for that contention. Reference was made to the possible reliance upon the terms of bench sheets as evidence of facts under s 157 of the Evidence Act 2011 (ACT): see Joyce v Baird [2013] ACTSC 79; 276 FLR 128 at [18]. However, that case relates to the circumstances in which bench sheets may be tendered to prove particular facts, rather than to what a court must be taken to have been aware of by reason of what is recorded on those bench sheets. For those reasons this ground of appeal is not made out.
Second ground of appeal – adequacy of reasons
The second ground of appeal relates to the adequacy of the reasons given by the magistrate. This ground of appeal would have been relevant if I had reached the conclusion that the magistrate had taken into account the period of pre-sentence custody but had failed to explain how that issue had been addressed. In circumstances where neither party referred to the issue and it is apparent that the magistrate did not take it into account, there is no inadequacy of reasons and this ground of appeal is not made out.
Third ground of appeal – extenuating circumstances
In relation to the third ground of appeal, the appellant submitted that she had adduced evidence of a long-standing mental illness being depression requiring medication and of a suicide attempt with hospitalisation in June 2017, eight months prior to the offence. Counsel pointed to the concession by the legal representative of the appellant before the magistrate that the “Verdins principles” were not engaged by the evidence. Counsel submitted that his Honour categorised the appellant’s mental illness as being a matter that was only “marginally relevant” and failed to consider whether it amounted to “extenuating circumstances” within the scope of s 17 of the Crimes (Sentencing) Act. Counsel submitted that an issue can amount to extenuating circumstances within the scope of s 17 regardless of whether the Verdins principles are properly engaged by the evidence or not.
Counsel for the respondent pointed to the Court of Appeal’s decision in R v DK [2016] ACTCA 7 at [21] where the court identifies that grounds of appeal asserting failures by the sentencing judge to have proper or adequate regard to a matter, or to complain about the weight given to particular matters, do not properly provide a basis for appellant intervention on the basis of specific error or manifest inadequacy.
In order to assess this ground of appeal it is necessary to consider in more detail how the Magistrates Court sentencing proceedings progressed.
The evidence that was tendered before the magistrate was a statement of facts, a statement of the loss prevention officer who caught the appellant undertaking the theft, a bundle of material tendered by the appellant which included medical documents concerning her mental and general health and a forensic mental health consumer assessment form prepared after her arrest. The representative of the appellant then made her submissions. Those submissions involved a rapid-fire description of a wide range of difficulties in the appellant’s life which painted an extremely bleak picture of her circumstances. The structure of the submissions seemed to be initially to address the following matters:
(a)matters of general background concerning her age, background, marital status and family history;
(b)her current living arrangements;
(c)her depression, anxiety and diabetes as referred to in the medical reports; and
(d)her husband, his business arrangements and financial difficulties arising from those.
There was then a submission which commenced “There is a plethora of academic articles on menopause and shopping”. Unsurprisingly, his Honour indicated that he was unable to take into account information presented in that manner, and could not consider a submission which was not based on the evidence. In response, the legal representative of the appellant pointed to the mental health and family issues to which she had referred. That prompted the following exchange:
His Honour: You’re not suggesting that any of these things trigger the application of the Verdins principles for sentencing purposes?
[Lawyer]: This is just giving you the background on what happened - - -
His Honour: Do you understand the point I am making to you?
[Lawyer]: Could you say that – could you repeat that, please, your Honour?
His Honour: Are you submitting that the evidence about the mental health issues triggers the application of the Verdins principles, R v Verdins, for sentencing purposes?
[Lawyer]: Yes, your Honour.
His Honour: Well, the evidence is inadequate. I’ll give you an adjournment to enable you to get further evidence if you wish to, otherwise it seems to me I can take it into account as general background.
[Lawyer]: Take it into account as general background, yes.
His Honour: But not on the basis of the application of the Verdins principles.
[Lawyer]: I understand.
His Honour: The Verdins principles have very particular requirements. There is an onus on a defendant on the balance of probabilities to establish (a) the existence of a condition, and (b), that the symptoms of the condition manifested themselves in particular ways.
[Lawyer]: Yes.
His Honour: What’s before me is inadequate to do that.
[Lawyer]: I understand.
His Honour: So I say I’ll give you an opportunity - I’ll grant you an adjournment to give you an opportunity to get additional psychological or psychiatric evidence specifically addressed to those things if you wish to. But if you don’t take that up I can indicate to you that I’ll be taking it into account as no more than general background.
[Lawyer]: I think general background, your Honour, because I know that she would like it completed today and I’ll - just as general background…
Plainly this interaction was significant as to how the appellant put her case before the magistrate in relation to mental health.
There was then reference to:
(a)the appellant having lost her job;
(b)the difficulties from her husband’s business;
(c)her diabetes, anxiety and depression;
(d)the fact that she has no family support in Australia;
(e)allegations about her husband’s conduct towards her;
(f)difficulties with her six-year-old child;
(g)proceedings in the Federal Court in relation to her husband’s business; and
(h)her financial losses as a result of her husband’s business.
The appellant’s legal representative then summarised a number of matters as follows:
When the event happened, which came to, what, $740, she actually had the money to pay for the goods. She had a credit card in her bag. Now, I’ve given you the background. There’s medical, there’s home conditions and there’s stress. She did have the money to pay for the goods in David Jones. This has never happened before. She gave an early plea of guilty. She has no priors.
She gave an explanation for why there were no personal references.
His Honour made reference to the fact that the evidence disclosed that the appellant had initially lied to the security officer about having returned the items. The appellant’s legal representative sought “a section 33 so that no conviction is recorded”. His Honour clarified that what was being referred to was in fact a s 17 order.
His Honour indicated that he did not need to hear from the respondent in relation to the s 17 issue.
The representative of the respondent made a submission about the appellant’s employment status, that the offence was at the lower end of objective seriousness although the value of the goods was not insignificant and there was an added element of dishonesty in that she lied to the staff.
So far as the manner in which the mental health conditions were dealt with, his Honour’s reasons first indicated that he was not persuaded that the circumstances warranted not recording a conviction. He said:
The outcome of not recording a conviction has been described as an “extraordinary outcome” in this jurisdiction because in the ordinary course of events when a person pleads guilty to an offence a conviction follows as a matter of course. I’m not persuaded on the basis of the evidence which is before me that your circumstances justify the “extraordinary outcome” of not recording a conviction.
No complaint is made in the present appeal concerning the reference to an “extraordinary outcome”. That may be a shorthand way of describing the circumstances in which s 17 applies, but obviously should not be taken as a gloss on the statutory language confining the circumstances in which s 17 is available.
The magistrate then continued:
I do, however, take into account the fact that you’ve entered a plea of guilty. That does demonstrate remorse and acceptance of responsibility and it saves time and cost for police for the prosecution and the court. On the basis of the evidence which is before me, I accept that you’re suffering from depression and a form of diabetes as indicated by the acronym DM referred to in the medical certificate.
I accept that you and your husband - or your husband has entered into a business venture, at least partly funded by you, which has not been successful and that you’re currently in strained financial circumstances, although you did have at the time of committing this offence the capacity to pay for the items which you took. Your background circumstances are things about which I have heard some detail from [Lawyer], although largely they are only marginally relevant to sentencing purposes for today.
Incorporated into the sentence was a condition of the good behaviour order, which required the appellant “to attend such educational, vocational, psychological, psychiatric or other assessments, programs or counselling as directed, particularly in relation to mental health”.
The first of the Verdins principles (see R vVerdins [2007] VSCA 102; 16 VR 269 at [32]) described that impaired mental functioning may be relevant because:
The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
This requires that there be a reasonably direct link between the mental health condition and the offending conduct. If there is not, it is hard to see how the condition could affect the moral culpability of the offender. In the present case, as a result of the exchange referred to above, his Honour was told that this principle (as well as the other five principles articulated in Verdins) was not being relied upon. He was therefore entitled to proceed on the basis that it was not being asserted by the appellant that there was a causal link between her mental health condition and the offending which would reduce the moral culpability of the offending conduct.
Section 17 compels consideration of three matters identified in s 17(3) and permits consideration of "anything else the court considers relevant". In Proud v Sladic [2014] ACTCA 26; 67 MVR 485 the Court of Appeal considered whether personal stress arising from difficulties of a family member could explain the offender’s behaviour and was relevant to culpability. The court said at [38]:
For the purposes of argument it may be accepted that, in order to constitute a s 17(3)(c) extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence that was committed.
In the present case, there was such a relationship. The respondent’s legal representative submitted that the respondent’s serious personal stress had caused an uncharacteristic lapse of judgment, as a result of which the respondent committed the offence. The asserted connection was not contradicted.
However, the court noted that in any event it was open for the court to take into account anything else it considered relevant under s 17(4) and as a consequence it was open to take into account personal stress under s 17(4), even if it was not open under s 17(3)(c). In the present case, the issue is whether his Honour erred in failing to treat depression as an extenuating circumstance for the purposes of s 17(3)(c) once the appellant’s legal representative had conceded that the Verdins principles were not engaged.
As I have indicated, the concession that the Verdins principles were not engaged involves, in my opinion, a concession that there was no causal link between the suffering of depression and the conduct engaged in. Such a causal link would have been necessary in order to establish that the appellant’s mental condition at the time reduced her moral culpability for the offending. A concession that there was not such a link also means that there was not “a direct relationship” (as referred to in Proud v Sladic) between the mental health condition and the offending, so as to require it to be considered because it was within the expression “any extenuating circumstances in which the offence was committed” in s 17(3). Clearly it was material that was open to the court to take into account under s 17(4), but the failure to do so would not amount to an error. In any event, I am satisfied that the magistrate did take the mental health material into account in the more limited way that he described both in relation to the possible making of a s 17 order as well as generally in relation to the sentence. His Honour was clearly motivated to address mental health issues but did so through the terms of the good behaviour order, rather than by finding them to be a basis for the making of a s 17 order.
For those reasons, having regard to the manner in which the case was put to the magistrate I do not consider that he erred in the way he treated the appellant’s mental health conditions for the purposes of s 17.
Conclusion
None of the grounds of appeal are made out. The appeal must therefore be dismissed.
The order of the Court is:
1. The appeal is dismissed and the sentence confirmed.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: |
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