Stanley v Koehler
[2020] TASSC 44
•9 September 2020
[2020] TASSC 44
COURT: SUPREME COURT OF TASMANIA
CITATION: Stanley v Koehler [2020] TASSC 44
PARTIES: STANLEY, Braydon William
v
KOEHLER, Renee (Senior Constable)
FILE NO: LCA 85/2020
DELIVERED ON: 9 September 2020
DELIVERED AT: Hobart
HEARING DATE: 19 June 2020
JUDGMENT OF: Brett J
CATCHWORDS:
Criminal Law – Sentence – Appeal and new trial – Appeal against sentence – Interference – Sentence manifestly excessive or inadequate – Cumulative sentences in aggregate term of two years – Failure to fix non-parole period – Whether failure to provide for parole renders sentence manifestly excessive – Manifest excess not made out – Motion dismissed.
Sentencing Act 1997 (Tas), s 17.
Groenewege v Tasmania [2013] TASCCA 7; Deakin v Tasmania [2016] TASCCA 19; Power v The Queen (1974) 131 CLR 623; Gill v The Queen [1990] TASSC 37; Hoare v The Queen (1989) 167 CLR 348; Dinsdale v The Queen [2008] HCA 54, 202 CLR 321; Evans v Job [2018] TASFC 3, referred to.
Aust Dig Criminal Law[3521]
REPRESENTATION:
Counsel:
Appellant: A Hilly
Respondent: E Bill
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2020] TASSC 44
Number of paragraphs: 19
Serial No 44/2020
File No LCA 85/2020
BRAYDON WILLIAM STANLEY
v SENIOR CONSTABLE RENEE KOEHLER
REASONS FOR JUDGMENT BRETT J
9 September 2020
The applicant seeks a review of a sentence imposed by Magistrate Topfer on 23 December 2019, in respect of his plea of guilty to a number of offences committed between 18 February and 25 September 2019. The magistrate imposed cumulative sentences in an aggregate term of two years. Her Honour did not fix a non-parole period in accordance with s 17(2)(b) of the Sentencing Act 1997, and accordingly, by virtue of s 17(3A), the applicant is not eligible for parole in respect of the sentence. The sole ground of review is that the aggregate sentence is manifestly excessive in all the circumstances. On the hearing of the motion, the applicant did not press a further ground asserting that the magistrate erred in law by not fixing a non-parole period. However, the applicant's argument is that, although the head sentence of two years is not itself manifestly excessive, the failure to provide for parole eligibility renders it so.
The applicant's criminal conduct
A summary of the offences for which the applicant was sentenced, and the facts asserted by the prosecution, are as follows:
· 18 February 2019 – stealing – the applicant walked up to a man who was seated inside the waiting area of a bank, counting money in preparation for banking, and stole cash from him to a total value of $2,600. He then ran from the bank carrying the money in his hand.
· 28 February 2019 – motor vehicle stealing – the applicant stole a motor vehicle which had been left by its owner outside a friend's house. The owner located the vehicle the following day in the driveway of another house, in the possession of the applicant. The applicant ran away when told that the police were coming.
· 1 March 2019 – stealing – the applicant stole clothing to the total value of $212 from a shop. He did this by collecting the clothing, diverting the store attendant and then running from the shop.
· 18 March 2019 – motor vehicle stealing – the applicant stole a motor cycle from the location in which it had been parked at the owner's workplace.
· 27 March 2019 – burglary and stealing, motor vehicle stealing – the applicant, in company with another male person, broke into the cabin of a delivery truck while the driver was in the rear of the truck, and stole property to the approximate value of $250. This occurred in the mid-afternoon. Shortly after, the applicant and his companion entered a car dealership in Launceston and stole a black Range Rover valued at $136,000. The vehicle had been parked, unlocked and with the keys inside, in a wash bay on the dealership property. The applicant drove the vehicle from the car yard at speed.
· 29 April 2019 – recklessly throw missile to the danger of property of another person – during the course of an argument with a female, the applicant angrily threw a drink can which he was holding. He was standing in the car park of a shop at the time. The can smashed through the rear side window of a nearby parked car. He told police that he had thrown the can because he had become angry during the argument, and threw it out of frustration rather than directing it towards the female. He did not aim for the car and had not intended to cause damage to it.
· 23-30 June 2019 – three counts of breaching a police family violence order – the applicant had been served with the relevant order on 19 June 2019. In breach of the order, the applicant stayed at the protected person's premises for a week. During the course of an argument at the end of that period, he threatened her by saying "I will kill you this time. If I can't have you no one will." There were children present in the house at the time, although it is not clear that they heard this threat. The applicant ran away from the house when police arrived.
· 13 August 2019 – assault – at about 1pm, the applicant approached a man who was standing outside a building in the street in Burnie, with his mother and another woman. The applicant asked him if he was a particular person. When the victim did not respond, the applicant grabbed hold of his jumper, pushed him into the building and punched him to the face with his fist. He did not explain his conduct to the police and no explanation for it was offered by his counsel during the plea in mitigation. It is not asserted that the victim suffered any injury. However, I would observe that it does appear to be a relatively serious assault committed in public in front of others.
· 21 August 2019 – stealing – the applicant stole a pair of work boots from the Bunnings Warehouse in Burnie. He picked them up, walked out of the store wearing the boots, and made no attempt to pay for them. When approached by a staff member, he ran away.
· 22 September 2019 – breach of bail – the applicant failed to appear in court after having been bailed in respect of charges relating to the offending already discussed.
· 22-23 September 2019 – two breaches of an interim family violence order – on the day on which the applicant was arrested for the breaches of the police family violence order already discussed, the Magistrates Court made an interim family violence order protecting the female person and her children. Between 22 and 23 September, the applicant contacted the protected person by telephone on numerous occasions. In the course of conversations, he made a number of threats and was verbally abusive. The relevant breaches included a threat to kill the protected person and the children, and the abuse included calling her a slut.
· September 2019 – escape, motor vehicle stealing, negligent driving, driving while disqualified and evading police – these offences were committed during a course of conduct which commenced after the applicant had been arrested pursuant to a warrant issued when he had failed to answer a summons to witness. He escaped from the police station during the course of custody procedures. He did this by running from the station through a fire door exist, through the CBD and then to a railway yard where he used the slowly moving carriages of a train to provide cover and make good his escape. He then stole a motor vehicle from the railway yard which had been left running by a worker, who was a short distance from the vehicle. The applicant drove the vehicle out of the railway yard and through a number of streets in Burnie before alighting from the vehicle and running from it. During the course of the driving, he drove on the wrong side of the road on several occasions. He was able to make good his escape, but two days later was arrested by police at the Spirit of Tasmania terminal, just prior to fleeing the State. He was wearing make-up in an effort to disguise his identity.
· The applicant also pleaded guilty to two breaches of bail, the first on 22 September which was a breach of a condition requiring him to live at a particular residence, and then on 25 September 2019, by failing to attend court.
In the plea in mitigation, the applicant’s counsel did not challenge these facts. Accordingly, they properly constituted the factual basis of the sentence.
The applicant's personal circumstances
The applicant was aged between 25 and 26 years during the course of the relevant offending. A drug treatment order assessment report provided to the magistrate indicated a difficult childhood and a lengthy history of substance abuse. He was introduced to drugs at 8 years of age and was regularly using cannabis by the age of 12. He had been using methylamphetamine since he was 17.
The applicant also had a lengthy and concerning criminal history. He commenced offending, in particular by committing a number of offences of a number of counts of burglary, stealing, attempted motor vehicle stealing and assault, when he was 14 years of age. Thereafter, he was sentenced on a regular basis as a youth for similar offences. On 16 November 2010, he was convicted of offences by the Supreme Court which included aggravated armed robbery and sentenced to 15 months' detention. He was 17 years of age when he committed those crimes. At the age of 18, he was sentenced to a wholly suspended sentence of imprisonment and probation for offences which included aggravated burglary. In 2014, when he was 23 years of age, he received a partially suspended sentence of imprisonment for numerous offences, including evade police, assault and breach of family violence orders and bail orders. In 2015, he was sentenced to a cumulative term of 20 months' imprisonment, which included the activation of a suspended sentence, and sentencing for numerous offences including resisting and threatening police, stealing, breaching a family violence order, and a number of other dishonesty offences, assaults and firearms offences. He was sentenced to further terms of imprisonment in 2016 for offences of dishonesty. In 2017, he was sentenced to 18 months' imprisonment for a large number of offences committed earlier that year. These included a number of assaults, dishonesty offences, family violence offences, driving offences, including evade police, and firearms offences. He was released after completing this sentence in December 2018. I observe that this was approximately two months before he commenced the offending which is the subject of this review.
The drug treatment order assessment report assessed the applicant as a very high risk of re-offence, but unsuitable for diversion to treatment by the CMD program. Some of the significant points made by the report are as follows:
· The applicant had a poor history of compliance with prior community-based supervision orders. This included his performance in respect of his inclusion in the CMD bail program in 2015. During his involvement in that program, he continued to use drugs and achieved only "minimal compliance". He was banned from the pathology centre because of behavioural problems which included threatening behaviour and driving dangerously in the pathology car park, and accordingly could not comply with the requirements for testing.
· During his most recent prison sentence, he had been denied parole, because of unsuitable accommodation.
· He failed to demonstrate insight or remorse in respect of the offences relevant to the sentence. The report noted that during discussion of the offences the applicant spoke "with an element of pride when discussing the prolific nature of his offending and the rate with which he was able to meet his daily quota of stealing things for his dealers".
The report also recorded an incident which had occurred in May 2019, in which the applicant was shot and wounded in circumstances connected to his use of illicit drugs. The applicant referred to this incident in a letter written by him and provided to the sentencing magistrate. The purpose of that letter was to express his commitment to rehabilitation. He referred to the shooting incident as a catalyst for motivating him to pursue reform, although as the magistrate pointed out in her sentencing comments, he had committed a number of the offences for which he was to be sentenced after the incident. The shooting was also referred to by the applicant's counsel in the plea in mitigation, but in the sense that it provided motivation for him to escape from police custody because he believed he would be in danger if placed into custody. However, his counsel did assert that he was committed to rehabilitation and had been drug free in recent times.
Sentencing comments
After hearing the prosecution facts and plea in mitigation, the magistrate adjourned for six days, to consider sentence. In her sentencing comments, her Honour noted the sustained, varied and serious nature of the offending. She referred to the applicant's criminal record, considered in some detail the contents of the drug treatment order assessment report, and confirmed that she was bound to take into account the principle of totality. Her Honour also engaged in a detailed consideration of the applicant's prospects of rehabilitation. In particular she said:
"Your lawyer has indicated that you would not be rehabilitated by gaol and urged me to consider a CMD order. However for the reasons as stated previously I will not make such a order. I accept that you are unlikely to be rehabilitated in prison, but Mr Stanley you are unlikely to be rehabilitated out of prison either, until you acknowledge and take responsibility for your actions. Until you realise the consequences of your anti-social, aggressive and violent behaviour toward other people. There is still time for this. You are still only 25, so there is time for this, after you've served the custodial sentence that I'm going to impose. And I must impose a sentence which will act as a general deterrent for this type of offending. The sanction must be one which appropriately reflects the community's condemnation of these sorts of behaviours and also the general need for protection of the public. And particularly in relation to the family violence offences, it must be a penalty which will vindicate the victim and act as a special deterrent for you. This is a subsequent offence and there is a recidivist premium for subsequent offending."
Her Honour then imposed the following sentences:
(a)Evade police – six months' imprisonment.
(b)The remainder of the offences – a global sentence of 18 months' imprisonment to be served cumulatively upon the six month sentence.
Her Honour also imposed driving disqualifications in the aggregate period of four years. The sentences were backdated to the date that the applicant went into custody, 27 September 2019.
As already noted, the magistrate did not provide for a non-parole period, nor did she mention at all the question of parole.
Discussion
As already mentioned, the applicant's counsel did not submit that a cumulative head sentence of 24 months' imprisonment was manifestly excessive. Clearly, it was not. The applicant had committed a significant number of diverse and serious offences within weeks of being released from custody after serving a long sentence for similar offences. The offending had been committed on a sustained and repeated basis over a lengthy period and the objective seriousness of many of the offences was very high. There was nothing that mitigated the applicant’s culpability for the criminal conduct. It was clear that the sentence needed to emphasise general deterrence and personal deterrence. Given the applicant's age, rehabilitation was an appropriate sentencing consideration, but in the circumstances, the magistrate's assessment of this question was clearly correct. Although the applicant claimed to have made a commitment to rehabilitation, he had not demonstrated that commitment in a cogent way, and had squandered many prior opportunities for supported rehabilitation. Her Honour's comment that, given his age, he would have time for rehabilitation after having served his custodial sentence, was a justified observation and an appropriate response to the recidivist nature of the applicant's offending conduct.
It is true that the magistrate did not expressly consider the question of parole. However, given the ground of review, the only question for me is whether the failure of the magistrate to provide the applicant with an opportunity to apply for parole before the expiration of his sentence, renders the sentence manifestly excessive. It is well established that the failure to provide for parole eligibility can make a sentence which is otherwise within the proper bounds of discretion, manifestly excessive: Groenewege v Tasmania [2013] TASCCA 7; Deakin v Tasmania [2016] TASCCA 19.
The proper approach to the determination of parole eligibility was set down by the High Court in Power v The Queen (1974) 131 CLR 623. In that case, the court rejected the proposition that the primary purpose of parole is rehabilitation of the offender. Rather, it is "to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum time that a judge determines justice requires that he must serve having regard to all the circumstances of his offence". The court made it clear that the determination of this question will depend on all relevant sentencing considerations. This approach is consistent with the statutory guidance set out in s 17(4) of the Sentencing Act.
In Gill v The Queen [1990] TASSC 37, Crawford J (as he then was) discussed some matters which are appropriately taken into account if parole eligibility is to be denied or extended beyond the minimum period:
"The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by sentencing judges before making an order removing eligibility for parole or extending the non-parole period."
In this case, rehabilitation was, of course, a relevant sentencing consideration. It is true that the sentence did not contain a component that could be said to respond specifically to the question of rehabilitation, and in particular provide encouragement and support for it. However, as has already been noted, the learned magistrate specifically addressed the applicant's lack of commitment to rehabilitation and properly determined that other sentencing considerations, in particular, general and specific deterrence, were to be given primary emphasis. The applicant's history suggested that any attempt to foster rehabilitation by offering leniency or support in the sentence was likely to be futile.
Further, although not specifically discussed by the magistrate, the structure of the sentence meant that the applicant will have available to him a greater period of remissions than if only one global sentence had been imposed: see Evans v Job [2018] TASFC 3. On my calculation, because two separate sentences have been imposed, the maximum aggregate remission available to the applicant will be five months, rather than three months if there had only been one global sentence. See reg 25 of the Corrections Regulations 2018; Evans v Job, per Brett J at [57]. In Hoare v The Queen (1989) 167 CLR 348, the High Court, after noting that the availability of remissions cannot be used as a basis to increase a head sentence beyond what would otherwise be appropriate or proportionate in the circumstances of the case, discussed the relevance of remissions to the fixing of a non-parole period:
"Somewhat different considerations govern the extent to which a sentencing judge may be influenced by the operation of a remissions system in fixing a non-parole period. The length of a non-parole period is necessarily confined within the period of the head sentence and there is no question of transgressing the basic principle that a term of imprisonment cannot properly exceed that which is justified as appropriate or proportionate punishment for the objective offence. Both a remissions system and a parole system are ordinarily predicated upon the functioning of ordinary sentencing procedures and apply to excuse or release the prisoner from service of the full term of the sentence which is appropriate to his crime. There is no reason in principle why a sentencing judge should be precluded from taking account of the likely effect of remissions against the head sentence in fixing a non-parole period. As a practical matter, the fixing of an appropriate non-parole period may, in some circumstances, require that regard be paid to the likely effect of remissions upon the head sentence."
This approach was followed by the Court of Criminal Appeal in Deakin v Tasmania [2016] TASCCA 19, per Wood J (with whom Tennent and Pearce JJ agreed) at [49].
Having regard to all of the circumstances of this case, including the potential availability of remissions, I am not satisfied that the aggregate sentence imposed by her Honour was manifestly excessive. The nature and circumstances of the offending, and consideration of the applicant's antecedents and character, required a sentence which placed emphasis on general and personal deterrence. The failure to make provision for eligibility for parole, undoubtedly increased the severity of the sentence, but not to such an extent that it rendered the overall sentence "unreasonable and plainly unjust": Dinsdale v The Queen [2008] HCA 54, 202 CLR 321. I conclude that the sole ground of review relied upon by the applicant has not been made out. The motion is dismissed.
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