Steep v Hall
[2024] ACTSC 320
•21 October 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Steep v Hall | ||
Citation: | [2024] ACTSC 320 | ||
Hearing Date: | 15 October 2024 | ||
Decision Date: | 21 October 2024 | ||
Before: | Baker J | ||
Decision: | (1) The appeal is dismissed. (2) The sentences imposed by the Magistrate on 5 April 2024, including the commencement and expiry dates of those sentences, are confirmed. | ||
Catchwords: | CRIMINAL LAW – Appeal – theft and minor theft offences – whether Magistrate erred in assessing objective seriousness of minor theft by reference to “monetary mid-point” – whether Magistrate erred in taking into account ‘normal’ ratio for non-parole periods when fixing the unsuspended portion of a suspended sentence – error established – appellant resentenced afresh – no lesser sentences than those imposed by the Magistrate are appropriate – appeal dismissed. | ||
Legislation Cited: | Bail Act 1992 (ACT), s 49(1) Criminal Code 2002 (ACT), ss 321, 754(1) Magistrates Court Act 1930 (ACT), pt 3 Road Transport (Driver Licensing) Act 1999 (ACT), s 32(2)(a) Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 5C | ||
Cases Cited: | Agarwal v Coutts (No 2) [2024] ACTSC 92 Bugmy v The Queen [1990] HCA 18 ; 169 CLR 525 House v The King [1936] HCA 40; 55 CLR 499 Kristiansen v Yeats [2022] ACTSC 351 MT v The Queen [2021] ACTCA 26; 17 ACTLR 26 Morrison v Maher [2021] ACTSC 312 New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 Rahman v Rahman [2024] NSWCA 198 Taylor v The Queen [2014] ACTCA 9 Wong v The Queen [2001] HCA 64; 207 CLR 584 | ||
Parties: | Mitchell Ryan Steep ( Appellant) Director of Public Prosecutions ( Respondent) | ||
Representation: | Counsel Self-represented ( Appellant) K McCann ( Respondent) | ||
| Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |||
File Number: | SCA 23 of 2024 | ||
Decision Under Appeal: | Court/Tribunal: Magistrates Court Before: Magistrate Temby Date of Decision: 5 April 2024 Case Title: The Police v Mitchell Ryan Streep
|
BAKER J:
Outline
1․The appellant, Mitchell Steep, pleaded guilty in the Magistrates Court to six charges of minor theft, a charge of drive whilst licence suspended (repeat offender), a charge of failure to appear after entering a bail undertaking and a charge of enter motor vehicle without consent. He entered a plea of not guilty to a charge of failure to stop vehicle for police (repeat offender), however, he was found guilty of this offence at hearing. These offences placed the appellant in breach of four suspended terms of imprisonment imposed in respect of one offence of theft and three offences of minor theft.
2․On 5 April 2024, the Magistrate sentenced the appellant in relation to the above charges and breach offences for a total effective sentence of 11 months and 14 days, commencing on 11 December 2023 and expiring on 24 November 2024. The overall term of imprisonment was suspended on 10 June 2024 upon the appellant’s entry into a good behaviour order for a period of 18 months.
3․By way of a Notice of Appeal filed on 29 April 2024, the appellant appeals from the above orders and seeks orders for the sentences to be reversed and other sentences to be substituted. The specific grounds of appeal are as follows:
(a)The learned Magistrate erred in taking into account a “monetary mid-point” for the offence of minor theft; and
(b)The learned Magistrate applied the wrong legal principles in determining the period of imprisonment to be suspended.
4․For the reasons outlined below, the first ground of appeal should be dismissed, but the second ground of appeal should be allowed. However, no lesser sentence than that imposed by the Magistrate is appropriate. Accordingly, the appeal must be dismissed.
Background
The offending
Drive while licence suspended (CC2023/5714)
5․On 5 June 2023 at about 1:21am, police conducting mobile patrols in Woden saw a Holden Cruze sedan travelling along Liardet Street. Police attempted to intercept the vehicle by activating their emergency lights and sirens. The vehicle pulled over and police conducted a vehicle check. Police identified the driver as the appellant and discovered that the appellant’s licence had been suspended on 6 October 2022 for failing to pay court-issued fines. The appellant was arrested and charged with driving whilst licence suspended.
6․The appellant pleaded guilty to this offence on 16 August 2023. This offence attracted a maximum penalty of 100 penalty units ($16,000), one year imprisonment, or both.
Minor theft (CC2023/6969)
7․On 14 June 2023 at about 2:42pm, the appellant walked into the Spotlight Store in Gungahlin. At approximately 2:57pm, the appellant left the store carrying two large boxes he had taken from an aisle close to the centre of the store. He did not pay for these items. Later that day an employee of the store reviewed the CCTV footage and reported the incident to police. The items stolen were two Comfort-Tech Wi-Fi electronic blankets totalling $680.00. At the time of this offence, the appellant was on bail.
8․The appellant pleaded guilty to this offence on 16 August 2023. This offence attracted a maximum penalty of 50 penalty units ($8000), 6 months’ imprisonment, or both.
Failure to appear after entering a bail undertaking (CC2023/6971)
9․The appellant was granted bail following his arrest in relation to CC2023/5714 to appear in the Magistrates Court on 29 June 2023. On this day, the appellant failed to appear in Court in relation to his outstanding charges, breaching his bail undertaking. A warrant for his arrest was issued on 3 July 2023 and he was arrested on 11 July 2023. The appellant was then granted bail on 12 July 2023.
10․The appellant pleaded guilty to this offence on 16 August 2023. This offence attracted a maximum penalty of 100 penalty units ($16,000), one year imprisonment, or both.
Minor theft (CC2023/7220)
11․On 1 July 2023 at about 4:40pm, the appellant entered the Priceline pharmacy store in the Westfield shopping centre in Woden. Another customer of the store saw the appellant placing several boxes of skin care products into a bag he was carrying. The customer informed an employee of the store. The employee requested to see the appellant’s bag. The appellant ignored the request and walked quickly to the store exit. The employee followed him and asked to see his bag again. The employee told the appellant that the police would be called if he did not pay for the items. The appellant ignored him and left the store without paying for the items. The products were worth a value of $559.95. The offending was captured on CCTV. At the time of the offence, the appellant was on bail.
12․The appellant pleaded guilty to this offence on 16 August 2023. This offence attracted a maximum penalty of 50 penalty units ($8,000), 6 months’ imprisonment, or both.
Minor theft (CC2024/134)
13․On 4 July 2023 at about 1:48pm, the appellant approached a scooter which was locked to a bike rack at the Belconnen bus interchange. The appellant removed the anti-theft lock cable by lifting it over the handlebars and dropping it to the ground. He then rode away on the scooter. The owner of the scooter (who was 15 years old) later attended the Belconnen police station and reported that the scooter had been stolen. Police reviewed the CCTV and identified the appellant. The value of the scooter was $1,200.
14․The appellant had been granted bail on 6 June 2023 (relating to the offence of drive whilst license suspended, outlined at [5] above). A warrant for his arrest had been issued on 3 July 2023 as a result of his failure to appear on 29 June 2023.
15․The appellant pleaded guilty to this offence on 13 February 2024. This offence attracted a maximum penalty of 50 penalty units ($8,000), 6 months’ imprisonment, or both.
Minor theft (CC2023/10720)
16․At about 5:00pm on 23 July 2024, a Hyundai Kona with Victorian licence plates drove into the Ampol service station in Weston. Two persons were observed in the car, one of which was the appellant. The appellant left the vehicle and entered the store while the other occupant of the car fuelled the vehicle. The appellant took various items from a shelf in the store and exited the store without paying. The appellant and his companion then left the service station. The items stolen by the appellant totalled $573.6. Police reviewed the CCTV and identified the appellant. At the time of the offending the appellant was on bail (bail having been granted on 12 July 2023).
17․The appellant pleaded guilty to this offence on 13 February 2024. This offence attracted a maximum penalty of 50 penalty units ($8,000), 6 months’ imprisonment, or both.
Minor theft (CC2023/8259)
18․At about 4:26pm on 25 July 2023, the appellant walked into a Bunnings store in Belconnen. He removed several items from the shelves in an isle and put them into a bag he was carrying, and down his pants. At about 4:40pm he left the store without paying for the items. The items stolen were various tools worth $1,113.90. The offending was captured on CCTV. At the time of the offending, the appellant was on bail.
19․The appellant pleaded guilty to this offence on 18 September 2023. This offence attracted a maximum penalty of 50 penalty units ($8,000), 6 months’ imprisonment, or both.
Minor theft (CC2024/19)
20․At about 9:45am on 15 August 2023, the appellant walked into the Rebel Sport store in Phillip. The appellant took several items of clothing from a clothes rack towards the back of the store and placed the items into a bag that he was carrying. He continued to look around the store before taking other clothing items from another section and putting them into his bag. The appellant then walked out of the store, which triggered an alarm. The value of the items stolen totalled $324.94. The appellant was on bail at the time of offending.
21․The appellant pleaded guilty to this offence on 13 February 2024. This offence attracted a maximum penalty of 50 penalty units ($8,000), 6 months’ imprisonment, or both.
Failure to stop vehicle for police (CC2023/9123)
22․At about 12:45am on 17 September 2023, while conducting mobile patrols in Gungahlin, police drove their vehicle into the Amaroo playing fields carpark and observed the headlights of a vehicle turn on at the other end of the carpark and it began driving toward them. The police conducted a check of the vehicle and identified it as linked to the appellant. Police followed the vehicle along Horse Park Drive until it came to a stop at a set of traffic lights. Police pulled alongside the vehicle and identified the appellant sitting in the driver’s seat. Once the lights turned green, the appellant drove through the intersection and police turned on their warning lights. The appellant stopped his vehicle and the police pulled up alongside him and exited their vehicle. As the police approached the vehicle the appellant drove off at speed and continued down Horse Park Drive, causing police to lose sight of the vehicle short time later. The appellant was on bail at the time of the offending. The appellant was located and arrested on 19 September 2023. He was granted bail.
23․The appellant was found guilty of this offence at hearing on 24 November 2023. This offence attracted a maximum penalty of 300 penalty units ($48,000), three years imprisonment, or both.
Enter motor vehicle without consent (CC2023/9681)
24․At about 10:42pm on 2 October 2023, the appellant was observed in the car park of a unit complex located in Forbes Street in Turner by a resident of the unit. The appellant was sitting inside a vehicle belonging to another resident of the complex. The resident approached the appellant and asked him whether he lived in the complex. The appellant quickly exited the vehicle and left the area. Police were then called. The appellant was seen running away from Forbes Street. Police attempted to stop the appellant who continued to run away. Police pursued the appellant and he was subsequently arrested. The appellant was on bail at the time of the offending.
25․The appellant pleaded guilty to this offence on 13 February 2024. The maximum penalty for this offence is 10 penalty units ($1,600).
Breach of suspended sentences
26․The above offences placed the appellant in breach of four suspended terms of imprisonment. On 27 April 2023, the appellant had been sentenced by Magistrate Lawton for one offence of theft (CC2022/9526) and three offences of minor theft (CC2022/7901, 7902 and 7903). In respect of each offence, the appellant had been convicted and sentenced of one month imprisonment commencing on 27 April 2023 and ending on 27 May 2023, fully suspended upon the appellant entering a good behaviour order for a period of 6 months.
The proceedings in the Magistrates Court
27․On 5 April 2024, the above charges and breach offences came before the Magistrate for sentence. In the sentencing hearing, the appellant gave evidence of his difficult childhood and his issues with substance abuse. This was further detailed in an updated pre-sentence report (PSR). Counsel for the appellant also tendered two letters of support.
28․After hearing the parties’ oral submissions, the Magistrate delivered an ex tempore decision. In that decision, the Magistrate considered the appellant’s “difficult upbringing”, although the appellant did not submit that this upbringing gave rise to the application of the principles in Bugmy v the Queen [1990] HCA 18; 169 CLR 525. His Honour had regard to the evidence that the appellant had been participating in the Solaris Therapeutic Community Program and the Karralika Residential Program. His Honour noted that the PSR author considered that the appellant demonstrated “a high level of insight and willingness to change”.
29․The Magistrate referred to the appellant’s criminal history, which included convictions for theft and minor theft convictions. His Honour considered that these convictions “demonstrate[d] a continuing attitude of his disobedience of the law”. The Magistrate was of the view that the appellant’s prospects of rehabilitation were guarded, but that his commitment to rehabilitation was genuine.
30․His Honour nevertheless considered the principles of specific deterrence, denunciation and protection of the community as particularly relevant to the sentencing task.
31․The Magistrate applied a 25% discount for the appellants pleas of guilty in relation to each charge, except the charge for failure to stop for police (which the appellant had pleaded not guilty). His Honour had regard to the need to consider questions of totality, accumulation and concurrence, noting that the overall sentence to be imposed “should not be crushing in that induces a sense of hopelessness and destroys prospects of rehabilitation”.
32․In sentencing the offender for the breach offences, his Honour noted that “most of the offences are precisely of the same kind as [the offences] subject to the good behaviour orders”, evincing the appellant’s intention “to disregard the obligations to be of good behaviour”. His Honour considered that the appellant offended throughout the six-month good behaviour order, noting the first offence occurred “a little over a month” into the good behaviour order.
33․His Honour determined that for several of the charges, no other penalty than imprisonment was appropriate. However, his Honour partially suspended some of those sentences of imprisonment, and imposed an overall sentence of imprisonment for 11 months and 14 days, to be suspended after 5 months and 30 days upon the appellant entering into a good behaviour order. His Honour backdated the term of imprisonment imposed by 117 days, commencing on 11 December 2023, referable to the period of time the appellant had served in pre-sentence custody.
34․In determining the period after which the sentences should be suspended, his Honour stated:
… the fact that there are 14 offences in total which are sentenced, that accords with principles of totality. I have provided for the sentences to be suspended after six months, which is a little over 50 per cent. That is towards the lower end of what might normally be allowed. The purpose of that is to facilitate the defendant's rehabilitation.(emphasis added)
35․The Magistrate imposed the following sentences:
(1)For the offence of drive whilst licence suspended by a Court (repeat offender) (CC2023/5714), contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), the offender was sentenced to a twelve month good behaviour order commencing on 10 June 2024 and expiring on 9 June 2025.
(2)For the offence of minor theft (CC2023/6969), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to one month and fifteen days imprisonment commencing on 11 January 2024 and expiring on 25 February 2024.
(3)For the offence of failure to appear after entering a bail undertaking (CC2023/6971), contrary to s 49(1) of the Bail Act 1992 (ACT), the offender was sentenced to a twelve month good behaviour order commencing on 10 June 2024 and expiring on 9 June 2025.
(4)For the offence of minor theft (CC2023/7220), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to one month and 15 days imprisonment commencing on 26 February 2024 and expiring on 9 April 2024.
(5)For the offence of minor theft (CC2024/134), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to two months imprisonment commencing on 10 April 2024 and expiring on 9 June 2024.
(6)For the offence of minor theft (CC2023/10720), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to one month and fifteen days imprisonment, suspended on 10 June 2024 upon entering into an eighteen month good behaviour order.
(7)For the offence of minor theft (CC2023/8259), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to two months imprisonment, suspended on 10 June 2024 upon entering into an eighteen month good behaviour order.
(8)For the offence of minor theft (CC2024/19), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to twenty two days imprisonment, suspended on 10 June 2024 upon entering into an eighteen month good behaviour order.
(9)For the offence of failure to stop vehicle for police (repeat offender) (CC2023/9123), contrary to s 5C of the Road Transport (Safety and Traffic Management) Act 1999 (ACT), the offender was sentenced to two months imprisonment, suspended on 10 June 2024 upon entering into an eighteen month good behaviour order.
(10)For the offence of enter motor vehicle without consent (CC2023/9681), contrary to s 754(1) of the Criminal Code 2002 (ACT), the offender was convicted and sentenced to a twelve month good behaviour order commencing on 10 June 2024 and expiring on 9 June 2025.
36․The Magistrate imposed the following sentences in respect of the breach offences:
(11)For the offence of theft (CC2022/9526), contrary to s 308 of the Criminal Code 2002 (ACT), the offender was sentenced to one month imprisonment commencing on 11 December 2023 and expiring on 10 January 2024.
(12)For the offence of minor theft (CC2022/7901), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to one month imprisonment commencing on 11 December 2023 and expiring on 10 January 2024.
(13)For the offence of minor theft (CC2022/7902), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to one month imprisonment commencing on 11 December 2023 and expiring on 10 January 2024.
(14)For the offence of minor theft (CC2022/7903), contrary to s 321 of the Criminal Code 2002 (ACT), the offender was sentenced to one month imprisonment commencing on 11 December 2023 and expiring on 10 January 2024.
Jurisdiction
37․The appellant appealed against the Magistrate’s decision pursuant to pt 3.10 of the Magistrates Court Act 1930 (ACT).
38․The principles to be applied on the appeal are well-established. The appellant is required to demonstrate the sentence was infected by an error of the kind specified in House v The King [1936] HCA 40; 55 CLR 499.
Determination
First ground of appeal – “monetary midpoint”
The appellant’s submissions
39․The appellant’s first ground of appeal related to the findings by the Magistrate that the value of the stolen items in respect of the charges of minor theft (CC2023/134 and CC2023/8259), exceeded the “monetary mid-point” of those offences.
40․For example, in respect of CC2024/134, his Honour held:
This is a charge of minor theft again. The maximum penalty for this offence is 50 penalty units and/or imprisonment for six months. The objective seriousness of this offence is above the mid-range. The bike was taken from an individual and in addition to the value of the item, it is likely to have caused the individual inconvenience, given that he was using it as a form of transportation. The value of the item at $1,200 exceeds the monetary midpoint for this offence. (emphasis added)
41․His Honour made a similar finding in relation to CC2023/8259.
42․The appellant contended that the Magistrate erred by applying the concept of a “monetary mid-point”. He said that “no such concept has been recognised at law”. He further submitted that the use of that terminology promoted “a mathematical approach to this sentence exercise in circumstances where such reasoning has no statutory foundation”.
43․In support of the latter proposition, the appellant referred to the decision of the High Court in Wong v The Queen [2001] HCA 64; 207 CLR 584 at [74]-[75]. Wong concerned the correctness of a guideline judgment for offences of importing narcotics which attributed chief importance in fixing the sentence to be imposed to the weight of the narcotic imported. A majority of the High Court (Gaudron, Gummow, Hayne and Kirby JJ, Gleeson CJ and Callinan J dissenting) upheld appeals against sentences imposed pursuant to that guideline judgment.
44․In their joint judgment, Gaudron, Gummow and Hayne JJ held (at [73]) that the guideline was based “on the false premise that gravity of the offence can usually (perhaps even always) be assessed by reference to the weight of narcotic involved”. Their Honours continued (at [74] – [75]):
… the reasons of the Court of Criminal Appeal suggest a mathematical approach to sentencing in which there are to be "increment[s]" to, or decrements from, a predetermined range of sentences. That kind of approach, usually referred to as a "two-stage approach" to sentencing, not only is apt to give rise to error, it is an approach that departs from principle.
It departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features.
45․The appellant submitted that in referring to a “monetary midpoint”, the Magistrate likewise impermissibly conducted the sentencing task in a “two stage approach”, which afforded too much significance to the monetary value of the property stolen.
The respondent’s submissions
46․In reply, counsel for the Director contended that the Magistrate’s reference to a “monetary midpoint” can “only be understood as a reference to the value threshold for an offence of minor theft”. In particular, she noted that whilst an offence of minor theft under s 321 of the Criminal Code arises where the property “has a replacement value of $2,000 or less when it is appropriated”, an offence of theft, which carries a significantly higher maximum penalty, arises regardless of the value of the property appropriated.
47․Counsel for the Director submitted that the Magistrate was obliged to take the value of the property appropriated into account, and observed that, where other things are equal, where property appropriated is of high monetary value, the offending will be more serious than where the property appropriated is of lower monetary value. She submitted that the Magistrate’s reference to a “monetary midpoint” should be understood “simply as describing where on the spectrum the value of property fell, noting in both instances, the value of the property was over $1,000.00”. The Director’s counsel concluded, “[w]hether or not his Honour’s description in this regard is particularly helpful, there is no demonstrated error in his Honour’s approach”.
Determination
48․The appellant was correct to observe that there is no legal concept of a “monetary midpoint”. The use of that terminology should be discouraged. Read in isolation, the reference to a “monetary midpoint” may suggest that the sentence to be imposed for an offence of minor theft should be a function of the monetary value of the property stolen. Such an approach would be wrong for the reasons explained by the majority of the High Court in Wong.
49․However, when the reasons are read as a whole, it is clear that his Honour did not approach the sentencing task in this manner. Rather, in determining the sentences to be imposed for CC2023/134 and CC2023/8259, the Magistrate appropriately considered all of the relevant objective features of the offending, and the relevant subjective features of the offender. Read in context, it is clear that the Magistrate did not impermissibly approach the sentencing task in two stages, nor did the Magistrate impermissibly assess the gravity of the offending chiefly by reference to the value of the property stolen.
50․Accordingly, this ground of appeal must be dismissed.
Second ground of appeal – suspension of sentences
The appellant’s submissions
51․The appellant’s second ground of appeal related to the following finding that was made by the Magistrate:
… the fact that there are 14 offences in total which are sentenced, that accords with principles of totality. I have provided for the sentences to be suspended after six months, which is a little over 50 per cent. That is towards the lower end of what might normally be allowed. The purpose of that is to facilitate the defendant's rehabilitation. (emphasis added)
52․The appellant submitted that there is no principle supporting that a suspension of approximately 50 per cent of a sentence is towards the lower end of what might normally be allowed. The appellant submitted that his Honour was likely referring to the usual non-parole period ratio in the ACT, which is typically 50% to 70% of a head sentence: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [83]; Taylor v The Queen [2014] ACTCA 9 at [20]. The appellant contended that “it is an error to apply principles relating to non-parole periods in determining the period of imprisonment to be suspended”. In this respect, the appellant referred to the decision of the Court of Appeal in MT at [96], in which it was held that the “exercise of setting the unsuspended part of a suspended sentence order does not parallel the exercise of setting a non-parole period”.
The respondent’s submissions
53․In reply, counsel for the Director accepted that the Magistrate’s reference to a 50% ratio as being “towards the lower end of what might normally be allowed” was “problematic”. However, she submitted that the Court should conclude that “when regard is had to all of the features that his Honour has considered … there is no error”.
Determination
54․I have carefully borne in mind the principles to be applied when assessing reasons that are provided ex tempore, in particular, that allowance must be made for the “linguistic infelicities” where the decision maker is giving oral reasons in the context of a pressing court list: Rahman v Rahman [2024] NSWCA 198 at [62], citing New South Wales Land and Housing Corporation v Orr [2019] NSWCA 231; 100 NSWLR 578 at [70].
55․However, the reference to a “normal” ratio of 50% cannot be explained as a linguistic infelicity. The reference to 50% being at the “lower end of what might normally be allowed” can only be understood as a reference to the typical ratio of a non-parole period to the total term in this jurisdiction: MT at [83].
56․As the appellant submitted, it was an error for the Magistrate to proceed on the basis that a 50% - 70% ratio was an appropriate guide to be applied when determining the period for which the sentence should be submitted. As the Court of Appeal held in MT at [85] (citations omitted):
There is no established practice regarding the relative lengths of the unsuspended and the suspended parts of suspended sentence orders, and it is very often the case that the unsuspended part occupies considerably less than 50 per cent of the total term.
57․For this reason, when a court fixes the unsuspended part of a suspended sentence, “there is no reason to do so by reference to the usual non-parole range of 50–70 per cent of the total term”: MT at [86].
58․On a fair reading of the Magistrate’s reasons, it is apparent that his Honour was guided by what he understood to be a “normal” ratio’ of 50 percent when determining the duration of the unsuspended portion of the sentences. So much is clear from the sentences that were imposed, namely an overall term of 11 months and 14 days, with a suspended portion of 5 months and 30 days (which his Honour described as “a little over 50 percent” of the total term). As there is no ‘normal’ or ‘usual’ ratio that applies to the determination of the unsuspended portion of a suspended sentence, his Honour erred by taking into account this irrelevant consideration.
59․This error was material to the Magistrate’s decision. Indeed, the Magistrate’s finding that a 50% ratio was “towards the lower end of what might normally be allowed” (emphasis added) tends to suggest that the Magistrate considered that it would not have been legally permissible for a lower suspended sentence to be imposed. Accordingly, it will be necessary for the appellant to be resentenced according to law.
Resentence
60․As the appellant has established error, it is necessary for the Court to resentence the appellant.
61․There is an unresolved question in this Court as to whether, upon a finding of error, it is necessary for the Court to engage in the resentencing exercise entirely afresh, or whether the Court is permitted to correct the error without re-engaging in the full sentencing exercise: Morrison v Maher [2021] ACTSC 312 at [38] - [48]; Kristiansen v Yeats [2022] ACTSC 351 at [66] - [71]. In the present case, the latter approach would permit the Court to reconsider only the question of suspension, without redetermining the appropriateness of the total term, or the individual sentences that were imposed.
62․The question as to whether the latter course is permissible under the Magistrates Court Act was not the subject of argument in these proceedings, and it is not necessary to resolve that issue to determine the present appeal. On an independent assessment, I am of the view that no lesser sentences than those imposed by the Magistrate are appropriate, either in respect of each individual sentence, or in respect of the overall term, or unsuspended portion of the sentences.
63․As counsel for the Director submitted, the offending in question was serious. At the time of the commission of many of the offences, the appellant was subject to suspended terms of imprisonment and bail conditions. The appellant’s criminal history (which included several offences of the same type, for which he had previously been sentenced to terms of imprisonment to be served in the community) disentitled to him to any significant leniency. The appellant’s continued offending and non-compliance with conditional liberty necessitates the imposition sentences which give weight to the purposes of punishment and personal deterrence. A suspension of the sentences after five months of imprisonment is adequate to encourage the appellant’s rehabilitation. Any lesser term of actual imprisonment would fail to meet the need for punishment and personal deterrence.
64․At the oral hearing of this appeal, the appellant (who appeared unrepresented) explained that the “whole point” of his appeal related to his pending sentence for unrelated offending. He said that he was hoping to receive a Drug and Alcohol Treatment Order (DATO) for this unrelated offending, but that the sentences of imprisonment which had been imposed by the Magistrate would preclude this from occurring.
65․As counsel for the Director submitted, this Court is not permitted to “craft a sentence which was not proportionate to the offending” simply so as to place the appellant in a better position to be considered for a DATO for unrelated offending. The appellant’s eligibility for any particular form of sentence to be imposed in future by this Court in respect of unrelated offending is not a relevant consideration in determining the sentences to be imposed.
66․It follows that the appeal must be dismissed.
67․The sentences imposed by the Magistrate were stayed pursuant to s 216 of the Magistrates Court Act pending the determination of this appeal. However, the appellant was not released from custody when the appeal was filed. If the dates referred to in the original orders were to take into account the period for which the sentence had technically been stayed, that would have the result of extending the appellant’s sentence, which would be an unjust outcome of the appeal: see similarly Millard v Pomeroy [2022] ACTSC 319 at [51]. The appellant should have the benefit of the time that he has spent in custody pending the determination of the appeal. Accordingly, I will make an additional order under s 218 of the Magistrates Court Act confirming the sentences imposed by the Magistrate, including the dates of commencement and expiry of those sentences.
68․The unsuspended portion of those sentences expired on 10 June 2024. However, as the appellant remains bail refused in relation to unrelated offending, the appellant is not eligible for release at this time. The suspended portion of the sentences imposed will expire on 24 November 2024.
Orders
69․For the above reasons, the following order is made:
(1)The appeal is dismissed.
(2)The sentences imposed by the Magistrate on 5 April 2024, including the commencement and expiry dates of those sentences, are confirmed.
| I certify that the preceding sixty-nine [69] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: A Watson Date: 21 October 2024 |
0
10
5