Stewart v Greenup
[2017] ACTSC 345
•1 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Stewart v Greenup |
Citation: | [2017] ACTSC 345 |
Hearing Date: | 1 November 2017 |
DecisionDate: | 1 November 2017 |
Before: | Murrell CJ |
Decision: | Appeal partially upheld. Sentences of imprisonment confirmed. Nonparole period refixed. Good behaviour order set aside. |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – property offences – whether sentencing magistrate erred in imposing a good behaviour order which ran concurrently with the parole period – prospects of rehabilitation – failure to give reasons – lengthy nonparole period – error of law |
Cases Cited: | Peter v Wade [2017] ACTSC 122; 80 MVR 268 |
Parties: | Adam Stewart (Appellant) Lauren Eve Greenup (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr J De Bruin (Respondent) |
| Solicitors Self-represented (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 35 of 2017 |
Decision under appeal: | Court/Tribunal: ACTMC Before: Special Magistrate Mulligan Date of Decision: 26 April 2017 Case Title: R v Stewart Court File Numbers: CC16/4335; CC16/4336 |
MURRELL CJ:
On 26 April 2017, Special Magistrate Mulligan (the Magistrate) sentenced the appellant for four matters, including offences of burglary and theft that occurred on 24 March 2016. The offences were committed at about 5.00 am at the Canberra Antique Centre. They involved the theft of jewellery of significant value.
In his reasons, the Magistrate set the facts out in some detail. His Honour concluded that the offences involved a "well thought out plan" and did not occur on the spur of the moment. The total value of the items that were taken was $26 822. The Magistrate assessed the matter as having mid to high level objective seriousness. No issue could be taken with that assessment.
The Magistrate discussed the appellant's subjective circumstances at length. His Honour noted a significant criminal history for offences of dishonesty, a history of non-compliance with supervision, and the dysfunctional upbringing experienced by the offender. I observe that the expression "dysfunctional upbringing" understates the profound disadvantage that the appellant experienced in his youth. The Magistrate also noted some positive matters, including the appellant's current relationship with his mother, partner and young child, and the fact that he had a history of some employment. His Honour noted that the offender had "done fairly well at times" and was "not a man without talent."
However, the Magistrate went on to state that the CADAS report – although I note that there was no CADAS report – and pre-sentence report (PSR) "do not give me much comfort in your commitment to change, your commitment to not offending." This was perhaps too negative view of the PSR. The report referred to factors supporting a commitment to change, including stable accommodation, sporadic periods of employment, reduced substance abuse, and insight and responsibility in relation to offending behaviour. Having regard to these relatively positive matters, the author of the PSR assessed the appellant as at a:
…medium risk of general reoffending. Should he take steps to address his antisocial attitudes, employment status and illicit substance abuse issues, Mr Stewart's risk of reoffending may be reduced.
In other words, the prospects of rehabilitation, while uncertain, were moderately good.
It is against that background that the Magistrate imposed sentences of 15 months' imprisonment for each of the offences of burglary and theft, and fixed a nonparole period of 12 months (or 80 per cent of the head sentence). His Honour also placed the offender on a good behaviour order (GBO) "for a period of 12 months, which will start after [his] release from jail." His Honour did not impose any special conditions on the GBO, and in particular did not impose a supervision condition.
Appeal
There can be no real dispute that the sentences of 15 months' imprisonment were well within the available range of sentences. The Magistrate's starting point for the sentences was 20 months' imprisonment. His Honour deducted 10 per cent for late pleas of guilty to arrive at sentences of 18 months’ imprisonment. This was entirely appropriate. Although it is not entirely clear from the reasons, I infer that his Honour then took into account that the offender had spent the period from 21 July 2016 to 30 September 2016 in custody referable to these offences, by reducing the sentences to 15 months' imprisonment.
The notice of appeal complains that the head sentence of 15 months' imprisonment was manifestly excessive. There is no basis whatsoever for such a finding.
However, there is some merit to the appeal insofar as it relates to the length of the nonparole period and the imposition of a GBO partly concurrent with the parole period.
While the length of a nonparole period is always discretionary, it is common in this jurisdiction for the nonparole period to be between 50 and 70 per cent of the head sentence. Generally, the dominant sentencing purpose that informs the length of a nonparole period is the offender's prospects of rehabilitation. It is unusual to impose a nonparole period that is 80 per cent of the head sentence for an offender with moderate prospects of rehabilitation. The error lies not so much in the fixing of the 80 per cent nonparole period but in the failure to explain why that unusual course has been followed.
10. The next difficulty with the sentence is that the appellant was placed on a GBO for a period of 12 months, to start after his release from gaol.
11. The first problem with the GBO is that there is no fixed commencement date; it is unclear if or when the appellant will be released on parole.
12. An equally fundamental problem is that discussed in Peter v Wade [2017] ACTSC 122; 80 MVR 268 (Peter v Wade), where I considered a similar scenario. In that case, the Magistrate had imposed a sentence of imprisonment, fixed a nonparole period and then imposed a GBO to commence on the expiry of the nonparole period. From [16], I discussed the possible "constitutional uncertainty" of the imposition of such a sentence, noting the embarrassing conflicts that could arise because of the coexisting responsibilities of the executive and the judiciary. The Sentence Administration Board would be responsible for supervising parole at the same time that the courts would be responsible for overall supervision of the GBO.
13. In that case, I ultimately found it unnecessary to determine whether the imposition of a GBO that ran concurrently with a sentence of imprisonment gave rise to a constitutional uncertainty. At [25] I said:
Trial judges are required to state their reasons adequately to enable a proper understanding of their decision and, depending on the circumstances, the failure to do so may constitute an error of law. Particularly in a summary jurisdiction, a judicial officer does not need to give detailed reasons, but some explanation for the imposition of an inherently problematic sentence is required. The decision to make a good behaviour order that is concurrent with a sentence of imprisonment means that, in the event of breach, there may be a conflict between decisions made by the executive and the judiciary. The failure to explain such a sentencing decision is an error of law.
(Citations omitted.)
14. For the same reason, there has been an error of law in this case. The Magistrate erred in imposing the GBO to run concurrently with the sentence of imprisonment without adequately explaining the decision.
15. There is a further problem with the imposition of a GBO in this case, which did not exist in Peter v Wade. In this case the GBO does not include any requirement for supervision or any other requirement beyond the core conditions. This calls into question the intended purpose of such an order. The intended purpose of the GBO was not articulated in the Magistrate's reasons.
Orders
16. I make the following orders:
(a)The sentences of imprisonment of 15 months from 26 April 2017 to 25 July 2018 are confirmed.
(b)The order fixing the nonparole period is set aside.
(c)In lieu, I impose a nonparole period to run from 26 April 2017 to 12 December 2017, at which time the appellant will be eligible for release to parole.
(d)I set aside the 12 month GBO.
17. I have fixed the nonparole period to expire on 12 December 2017. That will mean that, taking into account the period served between July and September 2016, the appellant will have served approximately 10 and a half months' of an 18 month head sentence by the time he is eligible for parole, i.e. about 60 per cent of the effective head sentence. It will also mean that, over the period of seven and a half months from mid-December 2017 to late July 2018, he has the opportunity to receive supervision and support on parole, which may assist him to rehabilitate. That period is appropriate given the significant issues arising from his difficult childhood with which the appellant must contend. I am moderately optimistic that he will attempt to address his problems and achieve stability within the community.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: 16 November 2017 |
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