Stafford, Christopher v The Queen

[1997] FCA 1068

FEDERAL COURT OF AUSTRALIA

CRIMINAL LAW - appeal against severity of sentence - sentencing principles - effect of s.429-429C of the Crimes Act 1900 (ACT) on established principles - rehabilitation - reparation - prevalence of offence.

CRIMINAL LAW  - appeal against severity of sentence - whether sentencing judge considered probable effect of sentence on accused’s family - whether sentencing judge considered prospect of accused’ rehabilitation.

Crimes Act 1900 (ACT) - ss 429, 429A, 429B, 429C, 437, 454, 455
Crimes Act 1914 (Cth), s.16A, 16B
Crimes Act 1914
Crimes (Amendment) Act (No 2) 1993 (ACT)
Interpretation Act 1967 (ACT) - ss 11B(1), (2)(c), (2)(da), (2)(db)
Proceeds of Crime Act 1991 (ACT)

R v. Maclay (1990) 19 NSWLR 112 at 122 and 126
Kear (1978) 2 Crim. LJ 40 at 42
DPP v. El Karhani (1990) 97 ALR 373
Australian Law Reform Commission Report No. 15 on Sentencing
Australian Law Reform Commission Report No. 44 on Sentencing
NSW Law Reform Commission Report 79 on Sentencing
Braithwaite & Pettit: Not Just Deserts, 1990
The Concept of  Uniformity in Sentencing (1996) 70 ALJ 112
The Victim in the Criminal Justice System (1995) 19 Crim LJ 193
The Queen v. P (1992) 39 FCR 276
Quang Be Tran v The Queen (Full Court, 12 June 1997, unreported)
R v Rowe (1982) 7 A Crim R 39
R v Ciccone (1974) 7 SASR 110
Duncan v R (1983) 47 ALR 746
The Queen v Valentini (1980) 48 FLR 416
R v Ryan & Vosmaer (1988) 33 A Crim R 288
R v Williscroft [1975] VR 292
Channon v The Queen (1978) 33 FLR 433
R v Hay & Wells (1981) 3 A Crim R 282

CHRISTOPHER STAFFORD v THE QUEEN
AG 14 OF 1997

MILES, O'LOUGHLIN AND DRUMMOND JJ
CANBERRA
10 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
DISTRICT REGISTRY	AG 14 OF 1997
GENERAL DIVISION

BETWEEN:	CHRISTOPHER STAFFORD APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGE(S):	MILES, O’LOUGHLIN AND DRUMMOND JJ
DATED:	10 OCTOBER 1997
PLACE:	CANBERRA

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA	GENERAL DISTRIBUTION
DISTRICT REGISTRY	AG 14 OF 1997
GENERAL DIVISION

BETWEEN:	CHRISTOPHER STAFFORD APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGE(S):	MILES, O’LOUGHLIN AND DRUMMOND JJ
DATED:	10 OCTOBER 1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

MILES J.      
The legislative and factual background of this appeal is outlined in the judgment of Drummond J.  I am indebted to his Honour for furnishing me with a draft.

The ordinary reader, not too closely acquainted with the criminal process, would conclude from a reading of s.429 and s.429A of the Crimes Act 1900 (ACT) that there was something special about rehabilitation and reparation which needed particular attention from a sentencer. The ordinary reader might or might not wonder whether such attention would tend to result in a sentence less harsh than would otherwise be imposed and that reader might or might not approve of the tendency and be interested in looking at parliamentary speeches and law reform reports to see why the legislature had chosen that path.

On the other hand, a lawyer experienced in sentencing might read the sections for the first time and the initial reaction might be one of surprise at their apparent meaning and effect.  On reflection, the lawyer might think of looking elsewhere in order to check whether the legislature really meant what the words appear to say.

It is clear, in my view, that the approach of the ordinary reader, rather than that of the experienced criminal law practitioner, is the correct method of statutory interpretation of the words in question.  Those words are plain in their meaning and on their face.  If the application of the words has the effect of changing the law, then the law is changed.  It is the function of a legislative body to make law, which often means changing existing law.  Certainly there is a principle of statutory interpretation that basic common law principles are not to be abrogated unless by plain language but here there is plain language and it is at least doubtful whether a shift in sentencing practice by an emphasis on rehabilitation and reparation is at odds with any principle of the common law.  As it was put by the NSW Court of Criminal Appeal (Gleeson CJ, Hunt and Loveday JJ) in R v. Maclay (1990) 19 NSWLR 112 at 122 and 126:

“It would be a strange thing if, in giving effect to legislation designed to introduce a new approach to sentencing, judges were intended to work out what they would have done under the old and discarded regime .... and seek to replicate the net result in their future decision making.

.....

The primary task of sentencing judges is to apply the new sentencing system according to the terms of the statute paying due deference to established principles of sentencing.  It is not their primary function to do their best to replicate what they would have done under the old system.”

The words of sub-s. 429(1) are too general to have any meaning at all.  Of course sentencing judges and magistrates will strive to make sentences “just and appropriate”.  They always have.  They continue to do so in accordance with the judicial oath which requires them “to do justice to all manner of people according to law”.  Indeed, if I had not had the benefit of reading the Minister’s Second Reading Speech, I would have thought that sub-s.429(1) is simply a paraphrase of the judicial oath.

The problem, as ever, is to decide what is just and appropriate in a particular case.

Until these provisions were enacted, sentencing took place in a context of recognized but not precisely defined criteria which had to “jostle with one another in their endeavours to gain paramountcy” (Kear (1978) 2 Crim. L.J. 40, Wells J. at 42).  To those who had experience working in the system, the outcome of a particular case was more or less, but never quite, predictable.  There was always tension between certainty of outcome and a decision to suit a particular set of circumstances which occurred in a context of an almost infinite variety of circumstances in other cases.

An attempt to relieve this tension may be seen in s.429A which provides a list of criteria (23 in number) to which regard must be had before determining what sentence is just and appropriate. In some respects s.429A recognizes that it does not quite solve the problems. The list is expressed to be non-exhaustive and the criteria are to be applied only so far as they are “relevant and known to the Court”. The latter provision is somewhat otiose, but it does indicate a certain lack of legislative confidence.

However, the determination of what is a just and appropriate sentence cannot be made simply by having regard to the criteria set out in sub-s.429A(1).  Sub-s.429(2) provides, in effect, that, without limiting the generality of the requirement that a sentence be just and appropriate (a meaningless provision), the sentence shall, as far as practicable, “be such as to” (also meaningless):

“(a) facilitate the offender’s rehabilitation into society; and

(b)encourage the offender to make appropriate reparation to any victim of the offence.”

There appears to me to be no ambiguity or confusion here.  Although the sentencer must have regard to the criteria specified by sub-s.429A(1), so far as they are considered relevant and are known, and although the sentencer must consider any other permissible but unspecified criteria, the sentencer is not to determine what the sentence should ultimately be without ensuring, within the limits of practicability, that the sentence facilitates rehabilitation and encourages reparation.  The legislation does not necessarily assist to make the process any clearer by including in the criteria listed in sub-s.429A(1) what appear to be matters very similar to what is provided for in sub-s.429(2), namely:

“(e)any injury, loss or damages resulting from the offence;

(f)any action the person may have taken to make reparation for any injury, loss or damage resulting from the offence;

....

(l)the prospect of rehabilitation of the person.”

However, in my view, what does emerge clearly from reading the two sections together is that rehabilitation and reparation are elevated in importance beyond all the other criteria which are specified in sub-s.429A(1), and beyond those, which although not specified in sub-s.429A(1), are envisaged or contemplated by the provision that the criteria are not limited to those specified.  In general terms it seems to me that rehabilitation and reparation are to be regarded not simply as criteria but more fundamentally as objectives or goals of sentencing.

I am not able to give the words in the two sections a meaning which requires a sentencer to proceed through two stages: first, to determine a just and appropriate sentence in accordance with the criteria and then, and only then, to structure or tailor the sentence as far as practicable to facilitate rehabilitation and encourage reparation in accordance with sub-s.429(2).

Much of the argument put on behalf of the Director of Public Prosecutions was concerned with whether sub-s.429(2) elevates rehabilitation and reparation to a level beyond those of other traditional objectives of sentencing, namely, general deterrence and denunciation, and, perhaps, the protection of society (howsoever called) and incapacitation. The argument, as I understand it, contained the premise that to undermine the importance of these traditional objectives would put the present system of criminal justice at risk of collapse. I do not agree. Nothing in either s.429 or s.429A provides that rehabilitation and reparation are paramount. The extent to which either objective will contribute to the determination of the sentence is expressly limited to its practicability (again a provision which would be unnecessary and superfluous, unless it is intended to reflect the legislative intent that the two objectives are not paramount). For instance, for many, perhaps most, offenders, the imposition of an immediate custodial sentence will be inimical to rehabilitation. However, an immediate custodial sentence may be inevitable having regard to all considerations including rehabilitation. But the length of the custodial term may be affected by considerations of rehabilitation, even, in some cases, by considerations of reparation.

The Director of Public Prosecutions relied upon decisions relating to s.16A of the Crimes Act 1914 (Cth) to support the proposition that by analogy sub-s.429A has not overthrown the traditional purposes and principles of sentencing. However, the decisions on s.16A are of little assistance because there is no equivalent of sub-s.429(2) in the Crimes Act 1914.  Moreover, sub-s.16A(1) provides not that a sentence “shall be just and appropriate”, but that “a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence”.   It would be strange if the ultimate aim of sentencing differed as between Commonwealth and Territory offences but the fact is that the two legislatures have chosen to use different language.  The respective words place emphasis, in the Commonwealth legislation, on severity and in the Territory legislation, on rehabilitation and reparation.

The Attorney-General in his Second Reading Speech acknowledged that the report of the Australian Law Reform Commission on Sentencing, Report No. 44 (ALRC 44) was the foundation for the introduction of the provisions in question. If that is so, it is all the more curious that they should differ from their counterpart in s.16A of the Crimes Act 1914 (cp. in DPP v. ElKarhani (1990) 97 ALR 373 in which the NSW Court of Criminal Appeal expressed a view that the terms of s.16B cannot be traced to the ALRC recommendations).

Reliance was also placed on the Attorney-General’s Second Reading Speech and the Explanatory Memorandum accompanying the amendments at Bill stage, and ALRC 44. As I have already said, I do not think that recourse to such extrinsic materials is necessary (or even permissible having regard to the clear language of the legislation and the provisions of s.11B of the Interpretation Act 1967 (ACT)). But having considered that material, I am bound to say that it does not support the proposition that ss.429 and 429A were not intended to change the established principles of sentencing. It is clear from ALRC 44 as a whole, that the Australian Law Reform Commission did not conclude that the law on sentencing should simply be codified, consolidated or restated. A similar impression is gained from a reading as a whole of the Second Reading Speech. Some change was clearly intended. Certain passages in both the speech and ALRC 44 suggest that the change was intended to be more than cosmetic or minor.

There is something to be said for approaching the provisions of s.429 with caution, insofar as they appear to be intended to provide a formula by recourse to which, in a particular case, a sentencer may achieve resolution of the competition among the various sentencing criteria. There is much to be said for the approach of the NSW Law Reform Commission which in its recent Report 79, Sentencing, at para.14.14 recommended strongly that, contrary to the trend in sentencing legislation elsewhere in Australia, it was undesirable to attempt to reduce to statutory form common law principles and practices relating to sentencing.  The NSW Law Reform Commission noted that overwhelmingly submissions supported this recommendation.  I would respectfully agree with the Commission’s view that, apart from anything else, such legislative attempts defeat their purpose and make sentencing more time-consuming without compensatory gain.  As this case illustrates, the grounds on which sentences may be appealed may well increase and the concurrence of judicial approaches to sentencing may be reduced.

In any event, having read ALRC 44 (and its predecessor, the lengthy interim report on sentencing ALRC 15), I am bound to say further that it only reflects the intractable nature of the problems addressed.  Nowhere does either ALRC Report express a clear opinion, either that rehabilitation and deterrence should simply remain as they were regarded previously, or that they should be given a new emphasis.  It is worthy of note that the impetus for  the ALRC reference appears to have been the desirability of consistency in sentencing across Australia for federal offences (see DPP v. El Karhani).  I venture to say that inconsistency in sentencing is less of a problem in a small jurisdiction such as the Australian Capital Territory, where sentences both in the Magistrates Court and in the Supreme Court, are well publicised and are subject to supervision by the single court that constitutes the court of criminal appeal for the Territory, namely this Court.  Hence the need for legislation for the purpose of consistency in sentencing appears to have been less pressing in the Territory than it was in the Commonwealth sphere and it is more likely that some sort of change was intended in the Territory legislation.

The objectives of sentencing and the function of a sentencing court are complex and sensitive matters over which shades of emphasis have differed from time to time and continue to differ between cultures, within countries and from person to person.  A view about such matters is not confined to sentencing judges and courts of law.  Some of the so-called principles of sentencing are not principles of law at all but statements of social and moral philosophy which courts are not particularly well suited to formulate or enunciate.  Some of the unresolved problems of sentencing in our society can be seen in biblical times and beyond.  It is not unfair or disrespectful to say that the principles, objectives and problems of sentencing have not been resolved by ALRC 44 or the Crimes Act 1900.

In recent years, the goal of rehabilitation of the offender has ridden upon the pendulum of community demands and penological and criminological theory.  A decade or two ago the recognition that imprisonment is less a deterrent than had been assumed led to the perception that it was in the public interest to avoid corrupting an offender by lengthy incarceration, and that it was preferable to seek to reduce the incidence of crime in the long term by rehabilitating offenders.  When the crime rate seemed unaffected by the emphasis on rehabilitation, this approach was replaced by the so-called doctrine of “just deserts”, a term which was used in the Explanatory Memorandum.  However, it is doubtful whether the Explanatory Memorandum used the term in the same sense as it is generally used in the literature.  According to the Explanatory Memorandum (p.3):

“Proposed section 429 establishes in legislation the common law principle of just deserts, that is the overriding consideration that the punishment should be just and appropriate in the circumstances. Within this principle, appropriate reparation to the victim and rehabilitation of the offender are important considerations which should be encouraged where appropriate.”

At the present time there appears to be a swing away from a true just deserts approach and a return to a sentence that reflects the circumstances of the offender rather than one that emphasises the circumstances of the offence: see Braithwaite & Pettit: Not Just Deserts, 1990; Hon. Sir Guy Green, The Concept of Uniformity in Sentencing (1996) 70 ALJ 112.

I do not think that it is correct that there is a common law principle that rehabilitation can be given a primary significance only in exceptional circumstances.  If Duncan v. R (1983) 47 ALR 746 is considered to reflect such a principle, then I think, with respect, that the Court of Criminal Appeal of Western Australia was wrong. I agree, however, as was said in R v. Ciccione (1974) 7 SASR 110 at 113, that sometimes counsel need to be reminded that rehabilitation is not the overriding consideration of all sentencing. Sub-section 429(2) does nothing to change that.

I turn now to reparation.  It is significant, on the face of it, that sub-s.429(2) places reparation on the same footing as rehabilitation.  Reparation, under whatever name, has been a somewhat neglected aspect of sentencing for a long time.  I have tried to discuss the historical and other aspects elsewhere: see The Victim in the Criminal Justice System (1995) 19 Crim LJ 193.  I do not agree that traditional sentencing principles allow reparation to be taken into account only if the offender has shown initiative in that regard, or that it is for the prisoner to place before the court a workable scheme for restitution.  It is true that, in general, sentencing practice in this and similar jurisdictions looks unfavourably on the notion that an offender can buy his or her way out of punishment by paying “blood money” or by placating the victim in some other way: see R v. Phelan (1993) 66 A.Crim.R 446 at 448; R v. O’Keefe [1959] Qd.r. 395 at 400-401 cf Mickelburg v. The Queen (1984) 13 A.Crim.R 365 at 370; R v. Allen (1989) 41 A.Crim.R 51.  However, the fact that an offender has made whole or partial reparation, or offers to do so (or indeed is in a position to do so, but does not offer) are all matters which it is well recognized are proper to take into account when determining a sentence.  In that respect I do not think that R v. Rowe (1982) 7 A.Crim.R 39 lays down the broad principle contended for, or, if it does, I think, with respect, that the Court of Criminal Appeal of South Australia was wrong.  There is plenty of authority for the proposition that future or past payment of compensation will be taken into account in the prisoner’s favour even if the payment is made under compulsion such as under the Proceeds of Crime Act 1991 (ACT) or under such a provision as s.437 of the Crimes Act 1900: e.g. McDermott v. R (1990) 49 A.Crim.R 105.

The reference in sub-s.429(2) to the encouragement by way of sentence of reparation to a victim is consistent with s.429AB, which was introduced into the Crimes Act 1900 following the decision of this Court in The Queen v. P (1992) 39 FCR 276. The provisions of s.429AB reflect what the Court had to say about the utility, as well as the possible misuse, of victim impact statements. It provides, inter alia, that on certain conditions “A court determining the sentence to be imposed in respect of an offence - (a) shall have regard to any victim impact statement tendered in respect of the offence ....”. It is obvious that a victim impact statement may be a very useful basis for a sentence which recognizes or requires reparation to a victim and that, conversely, the matter of reparation can hardly be considered for the purposes of compliance with sub-s.429(2) without evidence in the nature of a victim impact statement.

Another legislative change that was effected at the time of the introduction of s.429 and s.429A is the provision in s.454 for the ordering of and obtaining by the sentencer a pre-sentence report. The nature of a pre-sentence report by an experienced social welfare officer is of particular assistance in considering non-custodial options for the purpose of rehabilitation of the offender. A pre-sentence report is also useful for considering the genuineness of any contrition expressed by the offender as well as the offender’s means of paying any compensation ordered, both of these matters being relevant to reparation and the concept of “restorative justice”. It is not the function of a pre-sentence report to reflect upon the gravity of the offence or on the need for punishment. The statutory recognition of pre-sentence reports and the prescription of their contents (s.455) is consistent with the legislative intent to place a new emphasis on rehabilitation and reparation.

It follows, in my view, that the effect of the Crimes Act 1900 now is that rehabilitation and reparation have been elevated to an importance beyond that which they had among the various matters that were traditionally regarded as the objectives of sentencing, and further, that as objectives of sentencing, they are elevated to an importance beyond the various criteria that are listed in s.429A and beyond any other criteria to which a court may have regard in determining sentence. Ultimately, of course, the sentencer must strive to ensure that the sentence is “just and appropriate” and to that end, other objectives, such as the protection of society, punishment, general deterrence (to the extent that they differ from each other) are to be taken into consideration. Whilst the increased importance of rehabilitation and reparation must not be overlooked by the sentencer, current sentencing practice (criterion (t) of sub-s.429A(1)) requires that those other objectives be considered as well. The extent to which one or more of any of the objectives will outweigh any other one or more of the objectives, including rehabilitation and reparation, will depend on the circumstances of the particular case. Whether this means in the long run, and as a result that sentences in the Territory will become more “lenient” than previously, remains to be seen. I agree with the remarks of the NSW Court of Criminal Appeal in Maclay at 126, namely:

“The question as to how prison terms resulting from sentences imposed under the new Act will compare with those resulting from earlier sentences is one, the answer to which will emerge in due time.  Pre-conceptions as to how they should compare cannot be allowed to dominate the appreciation of the new statute.”

In the circumstances of the case presently on appeal, the practicability of rehabilitation by a non-custodial or shorter head sentence or shorter non-parole period is remote.  Reparation is out of the question.  Otherwise I agree for the reasons advanced by Drummond J. that the appeal should be dismissed.

I certify that this and the twelve (12) preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Miles.

Associate:

Date:  10 October 1997

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

 AG 14 of 1997

ON APPEAL FROM THE SUPREME COURT OF THE
AUSTRALIAN CAPITAL TERRITORY

BETWEEN:	CHRISTOPHER STAFFORD APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGES:	MILES, O'LOUGHLIN AND DRUMMOND JJ
DATE:	10 OCTOBER 1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

O’LOUGHLIN J.                I have had the opportunity of reading a draft of the reasons for judgment of Drummond J and I agree with him that this appeal should be dismissed.  Subject to a minor divergence, I also find myself in substantial agreement with his Honour’s reasons.  I will mention that divergence shortly.

The facts of this case indicate that the appellant’s criminal antecedents wholly justify the sentence and non-parole period that were fixed in the Court below. Reparation was out of the question and the appellant rated very poorly as a candidate for rehabilitation. Irrespective of the interpretation to be placed on s 429 of the Crimes Act 1900 (ACT) (“the Act”), the twin subjects of rehabilitation and reparation would not have been able to assist this appellant. Normally, that would have been the end of this appeal but counsels’ arguments raised the very important question whether the recent amendments to the Act have effected a material alteration to the principles of sentencing. It is therefore appropriate that this Court should state its views on that subject.

Were it not for the fact that there are repetitive references to the subjects of rehabilitation and reparation in pars (e) and (f) of subs 429A(1) of the Act, I would have been inclined to consider that the specificity in subs 429(2) had elevated them to a major degree of prominence in the sentencing process. But if that had been the intention of the legislature, there would not have been the need to repeat either of those subjects when setting out the check-list that constitutes subs 429A(1). Their presence in this last-mentioned subsection introduces a measure of uncertainty that warrants reference to the extraneous material to which Drummond J has extensively referred. Once that material is assimilated it becomes clear, in my opinion, that Parliament did not intend to do other than state general principles in s 429 of the Act. That is why I find that I cannot agree with Drummond J that subs 429(1) identifies, as the fundamental objective of sentencing, that the sentence for an offence is to “be just and appropriate”, for to do so, would be to elevate the contents of subs 429(2) to the same level. In my opinion, sentencing judges are obligated, as they always have been, to impose a sentence that is “just and appropriate” and judges are also charged, but only “as far as practicable”, with the task of facilitating rehabilitation and encouraging reparation.  To place emphasis on these two subjects is not the same as altering deeply entrenched principles of sentencing.

I certify that this and the preceding one (1) page are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin

Associate:

Dated:            

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	AG 14 of 1997

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:

CHRISTOPHER STAFFORD

APPELLANT

AND:

THE QUEEN
RESPONDENT

JUDGES:

MILES, O’LOUGHLIN AND DRUMMOND JJ

DATE:

10 OCTOBER 1997

PLACE:

CANBERRA

REASONS FOR JUDGMENT

DRUMMOND J

The appellant pleaded guilty in the Supreme Court of the Australian Capital Territory to five counts of burglary and five counts of theft; 28 similar offences were taken into account, pursuant to s 448 the Crimes Act 1900 (ACT). Gallop J sentenced the appellant to an effective term of imprisonment of ten years with a non-parole period of five years. The appellant appeals against the severity of this sentence on three grounds:

(1)       that the sentence was manifestly excessive;

(2)that his Honour erred in that he did not impose a sentence that would, as far as practicable, facilitate the appellant’s rehabilitation into society; and

(3)that his Honour erred in that he gave insufficient weight to the probable effect of the sentence he imposed on the appellant’s family.

In accordance with directions given with respect to the hearing of this appeal, following the course foreshadowed by Miles J, with the concurrence of Finn J, in Quang Be Tran v The Queen (Full Court, 12 June 1997, unreported), the question whether the amendments made by Part XII the Crimes Act 1900 (ACT), introduced by the Crimes (Amendment) Act (No 2) 1993 (ACT), altered the principles of sentencing, particularly with respect to the relevance of rehabilitation and reparation in the sentencing process, was the subject of specific argument.
It is appropriate to deal with this important issue first.

Section 429 the Crimes Act now provides:

(1)The sentence imposed by a court for an offence shall be just and appropriate.

(2)Without limiting the generality of subsection (1), the sentence shall, as far as practicable, be such as to -

(a)facilitate the offender’s rehabilitation into society; and

(b)encourage the offender to make appropriate reparation to any victim of the offence.

Section 429A provides:

(1)In determining the sentence to be imposed on a person, the matters to which a court shall have regard include, but are not limited to, such of the following matters as are relevant and known to the court:

(a)the nature and circumstances of the offence;

(b)other offences (if any) that are required or permitted to be taken into account;

(c)if the offence forms part of a course of conduct consisting of a series of criminal acts of the same or a similar character - that course of conduct;

(d)where the personal circumstances of any victim of the offence were known to the offender at the time of committing the offence - those circumstances;

(e)any injury, loss or damages resulting from the offence;

(f)any action the person may have taken to make reparation for any injury, loss or damage resulting from the offence;

(g)the degree of responsibility of the person for the commission of the offence;

(h)the degree to which the person has cooperated, or undertaken to cooperate, with law enforcement agencies in the investigation of the offence or other offences;

(i)the deterrent effect that any sentence or order under consideration may have on any person;

(j)the need to ensure that the person is adequately punished for the offence;

(k)the cultural background, character, antecedents, age, means and physical or mental condition of the person;

(l)the prospect of rehabilitation of the person;

(m)the probable effect that any sentence or order under consideration would have on any of the person’s family or dependants;

(n)whether the person was affected by a drug or alcohol and the circumstances in which the person became so affected;

(o)the degree to which the offence was the result of provocation, duress or entrapment;

(p)whether the recording of a conviction or the imposition of a particular sanction would be likely to cause particular hardship to the person;

(q)a jury recommendation for mercy;

(r)whether the person is voluntarily seeking treatment for any physical or mental condition which may have contributed to the  commission of the offence; 

(s)whether the person was in a position of trust or authority at the time of the commission of the offence;

(t)current sentencing practice;

(u)whether the person has pleaded guilty;

(v)whether the person has demonstrated remorse;

(w)the reason or reasons why the person committed the offence.

(2)…

Section 429B provides:

(1)The court shall not, in determining the sentence to be imposed on a person, increase the severity of the sentence that would otherwise be imposed because of any of the following:

(a)legislation which has not come into operation;

(b)any alleged offences which the person has not admitted in accordance with section 448;

(c)that the person chose not to give evidence under oath;

(d)that the person may have committed perjury or  been guilty of contempt of court during the course of proceedings;

(e)the prevalence of the offence;

(f)the person’s behaviour in court;

(g)that the person chose to plead not guilty.

Section 429C provides:

(1)A court shall not pass a sentence of imprisonment on any person for an offence against a law of the Territory unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.

(2)      …

(3)      …

(4)      …

Support for the argument that s 429(2) elevates the two objectives of rehabilitation and reparation, as matters relevant to the fixing of a proper sentence, to objectives of fundamental importance in criminal sentencing is to be found in the wording of ss 429 and 429A. While s 429(1) identifies, as the fundamental objective of sentencing that the sentence for an offence is to "be just and appropriate", s 429A(1), in a non-exhaustive way, identifies a range of matters to which the Court is to have regard, in so far as each matter is "relevant and known to the Court", in fixing the sentence in the particular case. These matters include any action the offender may have taken to make reparation for any harm resulting from the offence (sub-par (f) of the sub-section) and the prospect of rehabilitation of the offender (sub-par (l) of the sub-section). Both are matters long recognised as considerations of relevance in fixing the sentence in the particular case. The first focuses on action voluntarily undertaken by the offender, prior to being sentenced, to make reparation for his or her offence. R v Rowe (1982) 7 A Crim R 39 emphasises that if reparation is to mitigate punishment: "It is for the prisoner … to place before the court some workable, practical and realistic proposition for the payment of restitution" (p 42, and also p 41). The second focuses on the personal circumstances of the offender, in so far as they indicate whether or not the particular offender might respond to leniency by being encouraged to avoid re-offending. The traditional view is that rehabilitation, while a relevant sentencing objective, is subsidiary to the punitive and deterrent aspects of sentencing. For example, in R v Ciccone (1974) 7 SASR 110, the Full Court said, at 113:

…We have been addressed by counsel as if rehabilitation was the overriding aspect of all sentencing.  This is of course not so, and we deal with the matter here so that Courts of Criminal Appeal will not be troubled with similar arguments in future.  The criminal law is intended for the protection of the public against criminals, for the punishment of those who commit offences, and the deterrence of others who might be minded to offend in like manner.  One of the matters which a judge always considers is whether an accused person will respond to leniency and to supervision.  If he does so respond, there is one less member of the criminal class, the public are to that extent protected, and the accused and others are encouraged to lead honest lives.  However, as has been many times pointed out there are four general aspects of punishment:  retribution, deterrence, prevention and reformation; and it is for the sentencing judge addressing himself to the accused, and having considered the matters put in mitigation and other matters including the prevalence of the offence, the accused's past conduct, his age, and the likelihood of his responding to reformative process, to decide in the exercise of a sound judicial discretion what ought to be done in the case of that particular accused …

(In special circumstances, rehabilitation can be given primary significance, eg, where, due to delay in sentencing an offender, there has been prior to sentencing a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process will not be allowed to prevail, so as to possibly destroy the results of that demonstrated rehabilitation:  Duncan v R (1983) 47 ALR 746 at 749. But the traditional view is that stated in Ciccone). Section 429A(1), in my opinion, does nothing more than confirm the relevance that both matters have under well-established approaches to criminal sentencing.

But s 429(2) also deals with these two matters of reparation and rehabilitation. In so far as s 429(2) requires the sentencing court to take the initiative in framing a sentence which will provide for the offender's rehabilitation into society, I do not think it does anything more than re-state the significance which the court is required to attach to rehabilitation under established common law principles of sentencing. As Ciccone shows, rehabilitation, while not the paramount objective of sentencing, has long been regarded as one of the fundamental objectives to which sentencing courts must have regard, a point perhaps more clearly made by the comments of this Court in The Queen v Valentini (1980) 48 FLR 416 at 420:

… It has been said many times that the dominant theme in sentencing is to provide protection to society.  To achieve this, the sentencing judge must balance retribution - in the sense of the infliction of a just punishment to express the moral outrage of the community:  deterrence - of the particular offender and others in the community who may consider similar action:  and rehabilitation - ensuring that the sentence imposed is consistent, if possible, with the offender's returning to society as a contributing member.

However, s 429(2) does deal with reparation in a different way which suggests that the Act gives it a significance different from that traditionally accorded to it, ie, from the way in which it is dealt with in s 429A: s 429(2) casts an obligation on the Court to take the initiative in framing a sentence which will encourage the offender to make appropriate reparation to the victim for the offence. Under the traditional approach to sentencing, it was, as I have explained, for the offender to demonstrate that the sentence to be imposed should give recognition, in mitigation of punishment, to the offender's own initiative in attempting to make reparation for his or her offence. The sub-section, in my opinion, to this extent requires the sentencing court to place a significantly different emphasis on the matter of reparation from that accorded to it under traditional sentencing principles. It is also noteworthy, in seeking the answer to the question as to the effect of s 429(2), that the 1993 amendments to Part XII do explicitly change established sentencing principles at least in one other respect in so far as, by s 429B(e), the court is prohibited from having regard to the prevalence of the offence, a matter widely acknowledged in the cases as ordinarily relevant to sentence: see, eg, R v Ryan & Vosmaer (1988) 33 A Crim R 288 at 293 and R v Williscroft [1975] VR 292 at 299. (The practical implementation of this change, however, is not made easy by s 429A(1)(i), which retains general deterrence as a relevant sentencing objective.)

However, I cannot accept that the 1993 amendments change, in any significant way, the fundamental objectives of sentencing from punishment of the offender to rehabilitation of the offender and restoration of the victim to his or her situation pre-offence. The express words of s 429(2) do not permit the duty imposed on the sentencing court to take the initiative in framing a sentence which will promote rehabilitation and encourage reparation to override the principle identified in s 429(1) as of fundamental importance, viz, that the sentence imposed for each offence must be "just and appropriate". Moreover, the court is duty bound, by s 429(2), to act to facilitate rehabilitation and encourage reparation only "as far as practicable", a limited duty incompatible with rehabilitation and reparation having paramount significance in sentencing. These two features of the sub-section, in my opinion, show that the emphasis placed by s 429(2) on rehabilitation and reparation is nevertheless not to prevail over the primary objective of sentencing described in s 429(1), viz, the imposition of punishment appropriate to the offence.

In my opinion, if the Legislature intended that the 1993 amendments would make the sort of basic change to sentencing principles contended for, clearer words than those used in the relevant provisions and, in particular, in s 429(2), would be required to achieve that. And that the Legislature intended no such basic change is, I think, made clear when regard is had to the presentation speech made during the passage of the amending legislation through the Assembly, to the Explanatory Memorandum relating to the legislation and laid before the Assembly before its enactment, and to the Law Reform Commission Report No 44 - "Sentencing" - about which the Minister, in his presentation speech, said:

Measures to promote consistency in approach amongst sentences and to state clearly the principles upon which sentencing decisions are made were recommended by the Australian Law Reform Commission in its 1988 report on sentencing.  Members of the commission have, in fact, provided valuable assistance in drafting this Bill, for which this Government is grateful.

The Minister also made extensive reference to the Law Reform Commission Report, as did other members of the Assembly, in the debate following the Minister's presentation speech. All this is material the court can take into account in construing the legislation: see s 11B(1) and (2)(c), (da) and (db) the Interpretation Act 1967 (ACT). As to the Law Reform Commission Report, in his presentation speech, the Minister said:

While it is crucial that courts retain flexibility in order to deal appropriately with individual cases, it is also important in administering an effective criminal justice system that punishments are imposed, and are seen by the community to be imposed, consistently so that similar offenders in like circumstances will receive similar penalties.  Measures to promote consistency in approach among sentences and to state clearly the principles upon which sentencing decisions are made were recommended by the Australian Law Reform Commission in its 1988 report …

…

This Bill recognises that the overriding purpose of a criminal sentence is to impose a punishment which is just and appropriate in the circumstances.  Within that context, other considerations, such as appropriate reparation to any victim of the offence and rehabilitation of the offender in an effort to break the cycle of criminal behaviour, are encouraged.

In the Explanatory Memorandum, in addition to comments to the same effect, the following appears in the Notes to cl 4 of the Bill, "Sentencing Guidelines":

This clause establishes the purposes of criminal sentencing and general principles of sentencing, in a new Division of Part XII of the Principal Act.

Proposed s 429 establishes in legislation the common law principle of just desserts, that is, the overriding consideration that the punishment should be just and appropriate in the circumstances.  Within this principle, appropriate reparation to the victim and rehabilitation of the offender are important considerations which should be encouraged where appropriate.  The section is not intended to exclude other considerations which may be relevant in individual cases.

Proposed s 429A sets out those factors which should where relevant and known to the court be taken into account in determining an appropriate sentence, bearing in mind the basic principles set out in proposed s 429.  The section is not intended to be an exhaustive list.  Nor is it intended to exclude the common law principles which govern the relevance of listed factors …

It is apparent from this material that the fundamental objective of sentencing recorded in s 429(1) is that the sentence, must, in its punitive effect, be just and appropriate for the particular offence, ie, punishment remains the fundamental objective of sentencing: cf Williscroft at 299; Channon v The Queen (1978) 33 FLR 433 at 437, a decision of Brennan J cited with approval by this Court in Valentini at 420-421. See also the decision of this Court in R v Hay & Wells (1981) 3 A Crim R 282 at 285. Section 429(2) cannot be read as authorising the Court to give effect to considerations raised by the matter of rehabilitation and the matter of reparation in a way which would conflict with the fundamental objective of imposing, by its sentence, a punishment appropriate to the particular offence. The qualification that the court is only obliged to facilitate rehabilitation and encourage reparation, as far as practicable, also recognises that the court cannot allow rehabilitation or reparation to dictate the sentence, where the result would be to conflict with the court's overriding duty to impose a sentence that sets an appropriate punishment for the particular offence.

Reference to the Law Reform Commission Report provides additional confirmation that s 429A(2) does not overturn the fundamental rule that sentencing must result in punishment appropriate to the offence. The Commission's summary contains the following:

The place of punishment in the criminal justice system

1.The punishment process, including sentencing, is part of the criminal justice system.  It is the criminal justice system as a whole, not simply the punishment or sentencing component of that system, that deters crime (paragraph 24).

Paragraph 24 of the Report itself states:

… It is inherent in the notion of law that it be observed …  The purpose of the criminal justice system is to make criminal laws real and meaningful by providing the means to ensure that a breach will attract significant consequences - punishment …

Paragraph 2 of the Summary states:

Just punishments

2.Punishment, to be just, must be linked to a criminal offence (paragraph 27).  Further, punishments themselves must be just.  Two things follow:

·there must be an appropriate degree of severity in the range of punishments available so that the community can be rationally satisfied that a breach of the criminal law is attended by significant consequences (paragraphs 26, 28)

·the punishment imposed for a particular offence must be just, that is, of a severity appropriate to the offence (paragraph 28).

The paragraphs in the body of the Report here referred to are to the following effect:

26.There are two main criteria by which the community will judge the justice of the criminal justice system.  First, the criminal justice system must involve imposing on offenders punishments of sufficient severity that it is possible rationally to say that a breach of the law, when detected, is attended by significant consequences.  Secondly, the system must be consistent in the apprehension, identification and punishment of offenders …

…

27.The analysis of the place of sentencing and punishment within the criminal justice system has a number of implications for punishment policy generally.  The first concerns the link of punishment with crime.  The Commission accepts that it is fundamental to punishment policy that punishment can be imposed only for criminal offences …

…

28.Severity of punishment.  The second implication of the overriding requirement that the criminal justice system be a fair and just one is that the punishments inflicted for crimes must themselves be just punishments.  There must be an appropriate degree of severity in the range of punishments available in order that the criminal justice system as a whole can rationally demonstrate that a breach of the law is attended by real consequences …

The Summary also contains the following:

Just punishment

7.Fundamentally, punishment should be just - a real punishment, appropriate but not excessive - and consistently applied (paragraph 35)

Rehabilitation and restitution

8.Rehabilitation of the offender, and restitution of property, where they can be advanced within the context of a just punishment for the crime, should be encouraged (paragraph 36)

The paragraphs here referred to in the body of the Report are as follows:

35.Other objectives.  This Report is, therefore, based on the view that punishment should be just - in the sense of being a real punishment, appropriate but not excessive - and consistently applied.  Within those principles, however, certain other objectives may be pursued in the circumstances of a particular offence or a particular offender.  These objectives are sometimes described as the traditional "goals of sentencing".

36.Rehabilitation and restitution.  Rehabilitation aims at changing the offender's behaviour so as to reduce the likelihood of further occurrence of the offending conduct …  The focus is on changing the future behaviour of the offender.  As a means of promoting one of the overall goals of the criminal justice system - crime control and crime reduction - rehabilitation for individual offenders should be encouraged.  Restitution, where this is possible, should also be encouraged.  In the final analysis, however, punishments are not imposed on offenders for the purpose of rehabilitation, or for restitution.  They are imposed to punish the offender for having broken the law.  But, where rehabilitation can be advanced, or restitution ensured, within the context of a just punishment for the crime, this should be encouraged.

It is, I think, clear from these passages from the Law Reform Commission Report and clearest of all in paragraph 36 last quoted, that the Commission, whose work was the source of the new Part XII of the Act, was unequivocally of the opinion that rehabilitation and reparation were desirable objectives of sentencing and should be encouraged, but that they could never justify the imposition of a sentence which did not provide for punishment of the offender for the particular offence in a degree sufficient to serve the public interest in an offence attracting a punishment that would demonstrate that a breach of the criminal law will have significant consequences. Consistently with that, the presentation speech and the Explanatory Memorandum both emphasise that the primary objective of sentencing is the fixing of an appropriate punishment for the offence: this objective focuses on meeting the public interest in knowing that a breach of the criminal law will have significant adverse consequences for the offender. While rehabilitation and reparation can be said to serve other aspects of the public interest, they focus on the demands the offender can legitimately make on the sentencing court to mitigate, for reasons personal to him or her, what would otherwise be the proper punishment: but s 429(2) does not allow either matter to override this primary objective when the Court engages in the process of fixing a sentence.

I turn now to the facts of the present case.

The appellant is twenty-six years of age.  He has, as his own solicitor told Gallop J, a “significant criminal history”.  He has committed many offences, including offences of breaking and entering, since turning 15 years of age, for which he has been dealt with by the Children’s Court, Magistrates Court and Supreme Court.  Up to December 1991, he received very considerable leniency from the courts, leniency he ignored by re-offending, so promptly.  In the Supreme Court in December 1991, he was convicted of two charges of burglary, two charges of theft, an act of indecency without consent, robbery and breach of recognisance; he was sentenced to five years imprisonment, with a non-parole period of three years from 19 August 1991.  He once again received considerable leniency in the form of opportunity for early parole:  the court was sentencing him for a number of serious offences and also for his breach of a recognisance which he entered into in March 1991 when the Supreme Court, on his plea of guilty to an armed robbery, fully suspended the sentence then imposed.

So far as concerns the offences the subject of this appeal, he committed three offences of burglary and three of theft between October 1995 and April 1996, ie, while on parole in respect of his December 1991 sentence.  He was arrested, charged and released on bail on 15 April 1996.  Whilst on bail, he committed a further two burglaries and two thefts.  It is for these ten offences and the twenty-eight other offences I have referred to, involving nearly $30000 in property stolen, that Gallop J imposed the sentences which are the subject of this appeal.  One of the appellant's victims was twice burgled by the appellant on each of which occasion he stole from her cash and, on the first occasion, a credit card; immediately after this first burglary, he telephoned his female victim, who was asleep at the time of the offence, and threatened her if she did not give him the PIN for her credit card.  The following night, he burgled another residence in which another female victim was sleeping, stole money and a credit card and, immediately afterwards, telephoned her too, to threaten her if she did not give him the PIN for her credit card.  Understandably, as the court was told, both these victims were very upset at receiving the appellant's telephone calls.

In the course of sentencing the appellant, his Honour said:

The offences are so serious and repetitive and the accused's record so bad that no sentence other than a substantial sentence of imprisonment is appropriate.

I consider that these comments were fully justified.  But nevertheless, his Honour fixed a non-parole period of five years.

The appellant had formed a relationship, following his release on parole in August 1994, with a woman who bore him twins in August 1996.  The evidence indicates that this relationship had a real element of stability.  There must be a substantial risk that the term of imprisonment to which the appellant was sentenced will lead to the destruction of this relationship.  It is therefore reasonable to infer that incarceration of the appellant will burden his companion and his new daughters.  But the impact of his imprisonment on his family is not a matter which could justify the imposition here of a non-custodial sentence or a sentence of such limited duration as might be thought to reduce to a real extent the burden on his family.  It is clear that his Honour considered the impact the sentence he ultimately imposed would have on the appellant's wife and twin daughters.  But, given the gravity of the offences and the other circumstances to which his Honour referred, I do not accept that his Honour's sentence reflects any error in its failure to give more weight to this consideration.

So far as the appellant's rehabilitation is concerned, it is, in my opinion, clear that the substantial non-parole period that his Honour set shows that he gave considerable weight to this factor.  I do not accept that his sentence was, in this regard either, in any way erroneous:  the appellant has repeatedly ignored opportunities given him by the courts to reform, by promptly re-offending.  His response to being released on bail after his arrest on a number of the charges for which the present sentences were imposed was to commit more offences.  The financial pressures that contributed to his offending appear to be due, in part, to his need to fund his usage of cannabis.  Yet it appears that immediately his parole terminated on 19 August 1996 and there was no longer any means of requiring him to do so, he discontinued the drug dependency counselling course he started to attend in July 1996, under direction:  the pre-sentence report notes that the appellant's only regular source of income was social security payments and that, when the report was prepared in early 1997, the appellant told the reporting officer that "he was spending no more than $50 per week on the drug at present" and that "he did not wish to complete a residential rehabilitation as this would seem the same as incarceration".  The reporting officer, as late as February, noted that the appellant "shows little insight into either the causes of his offending behaviour or its effect upon the victims".  Moreover, the existence of a previous relationship of some duration which resulted in the birth of a child did not prevent the appellant from committing the offences for which he served the term of imprisonment imposed on him in 1991; nor did the loss of this relationship, no doubt in part due to his being imprisoned in 1991, deter him from putting his most recent relationship at risk by the commission of the offences the subject of the appeal.

Neither the traditional principles of sentencing nor s 429(2)(a) entitles an offender, as of course, to a reduction in the sentence otherwise appropriate because of the fact that rehabilitation is a matter for the sentencing court to take into account: before rehabilitation can operate to justify significant mitigation of punishment, there must be some basis upon which the court can rationally consider that the particular offender may respond to leniency. For the reasons given, the appellant has shown little capacity or desire to reform despite the opportunities in that respect given to him by the courts who have dealt with him and despite personal circumstances of the kind that can operate, in many cases, to induce an offender to keep out of trouble.

In my opinion, the prospect of rehabilitation of the appellant could not justify any more consideration than is reflected in Gallop J's sentence.

The appeal should, in my opinion, be dismissed.

I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Associate:
Dated:            10 October 1997

Counsel for the Appellant:	T  O’Donnell
Solicitor for the Appellant:	ACT Legal Aid Office
Counsel for the Respondent:	T Buddin SC
Solicitor for the Respondent:	ACT Director of Public Prosecutions
Date of Hearing:	23 June 1997
Date of Judgment:	10 October 1997