Street v Tasmania Police
[2016] TASSC 52
•4 October 2016
[2016] TASSC 52
COURT: SUPREME COURT OF TASMANIA
CITATION: Street v Tasmania Police [2016] TASSC 52
PARTIES: STREET, Nicholas Peter
v
TASMANIA POLICE
DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
FILE NO: LCA 2743/2015
DELIVERED ON: 4 October 2016
DELIVERED AT: Hobart
HEARING DATE: 23 August 2016
JUDGMENT OF: Brett J
CATCHWORDS:
Magistrates – Appeal and review – Tasmania – Motion to review – Other matters.
Aust Dig Magistrates [1349]
Criminal Law – Sentence – Sentencing orders – Non-parole period or minimum term – Tasmania.
Crimes Act 1914 (Cth), ss 19(1), 19AC, 19AJ.
Sentencing Act 1997 (Tas), ss 17, 27.
Carr v Department of Police and Emergency Management [2009] TASSC 74; Williamson v Lane [2013] TASSC 53, followed.
Cannell v Hughes [2014] TASSC 41, applied.
AB v The Queen (1999) 198 CLR 111; Neal v The Queen (1982) 149 CLR 305, 42 ALR 609; Walsh v Tattersall (1996) 188 CLR 77, 139 ALR 27, 88 A Crim R 496; Ousley v The Queen (1997) 192 CLR 69; Tanner v Brown [2011] TASSC 59, cited.
Aust Dig Criminal Law [3379]
REPRESENTATION:
Counsel:
Applicant: K Baumeler
State S Thompson
Commonwealth: I Arendt
Solicitors:
State Director of Public Prosecutions
Commonwealth: Director of Public Prosecutions (Cth)
Judgment Number: [2016] TASSC 52
Number of paragraphs: 44
Serial No 52/2016
File No LCA 2743/2015
NICHOLAS PETER STREET v TASMANIA POLICE
and DIRECTOR OF PUBLIC PROSECUTIONS (CTH)
REASONS FOR JUDGMENT BRETT J
4 October 2016
On 8 December 2015, the applicant was sentenced by Magistrate Mollard for the following offences:
(a)Complaints 1087/2014 and 7524/2014 – two counts of unlicensed driving committed 1 February 2014 and 30 July 2014, respectively (the unlicensed driving offences).
(b)Complaints 1610/2014, 3069/2014, 7450/2014, 8305/2014 and 2110/2015 – five counts of breach of bail, each constituted by a failure to appear in court, and each committed on a separate occasion between 24 February 2014 and 2 March 2015 (the bail offences).
(c)Complaint 91205/2014 – one count of driving whilst a prescribed illicit drug was present in blood contrary to the Road Safety (Alcohol and Drugs) Act 1970. This offence was committed on 30 July 2014 (the RSADA matter).
(d)Complaints 6181/2014 and 6946/2014 – these complaints alleged a number of minor offences contrary to the Misuse of Drugs Act 2001. The offences in question were committed between 29 July 2014 and 19 August 2014. They include two counts of using methylamphetamine, two counts of using cannabis, two counts of possession of methylamphetamine, one count of possession of cannabis, one count of supplying methylamphetamine to another, one count of supplying cannabis to another, and one count of selling methylamphetamine to another (the drugs offences).
(e)Complaint 91566/2013 – one count of common assault committed on 30 June 2013.
(f)Complaint 91508/2014 – two counts of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code 1995 (Cth). The first count relates to a period between 6 October 2010 and 28 April 2011, and the second count to the period between 27 September 2012 and 19 April 2013 (the Commonwealth offences).
(g)His Honour was also dealing with an application for the breach of a suspended sentence of 34 weeks' imprisonment, which had been imposed on the applicant on 7 October 2013. The sentence had been imposed for a variety of offences which included three counts of driving whilst disqualified and two drink driving offences. The sentence had been suspended for a period of 24 months. It was alleged that the sentence had been breached by the commission of some of the above offences, in particular the unlicensed driving offences, the bail offences, and the drugs offences.
The applicant pleaded guilty to all of the above offences except the assault. His Honour had found the applicant guilty of the assault after a summary hearing. The applicant did not show cause in respect of the application for the breach of suspended sentence.
At the conclusion of the sentencing hearing, his Honour made a number of detailed comments in respect of the question of sentence, and then imposed sentence and dealt with the breach application in these terms:
"I take the pleas of guilty into account and I take account of totality, and the extent to which I take it into account is probably apparent from the structure of some of these sentences. I will start with the unlicensed driving, complaint 1087 and 7524 – if I can read my own writing – one month imprisonment would be imposed but the defendant has served that twenty two days in custody, I take that period into account and I simply disqualify the defendant from holding or obtaining a driver's licence, entitlement cancelled, for a period of six months from his release from custody, convictions are recorded.
For the bails, I deal with them all together; two months imprisonment, generally speaking I would have difficulty justifying a concurrent sentence, but I refer back to my remarks about totality and if, for no other reason, my order is that that two months be served at the same time as other sentences I'm about to impose.
Road Safety Alcohol and Drugs Act complaint 91205, one month imprisonment and disqualified from holding or obtaining a driver's licence for a period of eighteen months cumulative on the disqualification already imposed. I will come back to the issue of when that sentence starts to run.
Drugs, 6181 and 6946; six months imprisonment cumulative to the above.
The assault 91566, two months imprisonment, but wholly suspended on condition that the defendant is of good behaviour for two years after his release.
The Commonwealth matters 91508, I make reparation order in the sum of ten thousand four hundred and eighteen dollars seventy one and I impose upon the defendant a sentence of eight months imprisonment cumulative.
The breach of suspended sentence; this is ordered to take effect and the defendant must serve that thirty four weeks imprisonment. At the risk of repeating myself I fail to see an argument in favour of concurrency and certainly not of injustice.
The first of the sentences imposed today are backdated to commence on the 20th November. I calculate Victims of Crimes totalling two hundred and forty dollars, all the costs are ordered to be remitted to the Crown. I specify a non-parole period of twelve months also to run from the 20th of November."
The applicant has now moved this Court to review the sentencing orders and the decision to activate the suspended sentence. The notice set out numerous grounds of review, but many of these were abandoned at the hearing. What remained are as follows:
"3That the learned magistrate erred in law in failing to give sufficient weight to the principles of totality.
6The learned Magistrate erred in fact and/or in law in imposing a sentence of suspended imprisonment in relation to complaint 91566/2013.
7That the sentence(s) imposed upon the Applicant were manifestly excessive in all of the circumstances.
8That the learned Magistrate erred in law by failing to give sufficient reasons in relation to the sentencing orders he made.
9That the learned Magistrate erred in law in failing to set out how his sentencing orders were to operate, and in particular the cumulative or concurrent effect of each."
It became clear soon after the commencement of the hearing of the motion, that the first matter which required determination was the effect and meaning of the learned magistrate's sentencing orders. In this regard, the following comments can be made concerning his Honour's expression of those orders:
(a)As to the unlicensed driving offences, although the magistrate commented that he would have imposed one month's imprisonment, it seems clear that he took into account the fact that the applicant had already served some time in custody prior to sentence, and for that reason, by way of sentence, proceeded only to record convictions and impose a driving disqualification. It seems to me that that is the only way of reading his Honour's comments, and counsel did not submit otherwise.
(b)In respect of the sentence of two months' imprisonment imposed for the bail offences, his Honour's comment that this sentence should be "served at the same time as other sentences I am about to impose", indicates a clear intention that this sentence be served concurrently with the other sentences of actual imprisonment.
(c)It is clear enough that the sentence of six months' imprisonment imposed for the drugs offences was to be served cumulatively with the one month sentence for the RSADA matter. However, the magistrate expressed the sentence in respect of the Commonwealth offences as "eight months' imprisonment cumulative". It was not made clear which sentence this period was to be cumulative upon, nor has he made any other order concerning the commencement of the Commonwealth sentence. The record of proceedings sheet records the sentence as "eight months' imprisonment cumulative with 91205/14". Complaint 91205/2014 is the RSADA matter. If it was in fact his Honour's intention to make the Commonwealth sentence cumulative to the RSADA matter, then it would seem that it would run concurrently with the six-month sentence imposed for the drugs offences. The sentence for the drugs offences was also expressed by his Honour in court to be cumulative to the RSADA matter. This intention is also confirmed by the record of proceedings sheet.
However the warrant of commitment signed by the learned magistrate on the day of sentence suggests that the record of proceedings sheets are incorrect, and he in fact intended that the Commonwealth sentence was to be cumulative upon the sentence for the drugs offences which, in turn, was to be cumulative upon the sentence for the RSADA matter. The warrant, which relates to those offences and the bail offences, is for an aggregate term of 15 months' imprisonment. On the same day, his Honour signed a second warrant which purports to relate to the activated suspended term of 34 weeks' imprisonment. That warrant shows that period of 34 weeks' imprisonment as being cumulative with the aggregate term contained in the first-mentioned warrant. The two warrants are consistent with the following interpretation of his Honour's orders:
(a)Commencing on 20 November 2015, one month's imprisonment for the RSADA matter and two months' imprisonment for the bail offences concurrent.
(b)Six months' imprisonment for the drugs offences cumulative with the sentence for the RSADA matter.
(c)Eight months' imprisonment for the Commonwealth offences cumulative with the sentence for the drugs matters.
(d)34 weeks' imprisonment for the activated suspended sentence cumulative with the sentence for the Commonwealth offences.
The aggregate period of actual incarceration so calculated is 23 months and 2 weeks. This calculation is consistent with the order pronounced by the magistrate in relation to the non-parole period. He specified a non-parole period of 12 months, to run from the commencement of the first of the sentences, 20 November 2015. The non-parole period would therefore be approximately half of the intended aggregate period of actual custody.
When the structure of the magistrate's sentencing orders is analysed in this way, it is apparent that there are a number of fundamental errors. The existence of these errors, and the fact that they vitiate all sentences of actual imprisonment imposed by the magistrate, was accepted by all counsel at the hearing of the notice to review. As a result of the identification of these errors, I permitted an amendment of the notice to review to include grounds based on the errors in question. These errors are:
(a)Although the warrant of commitment aggregated the sentences imposed in respect of both State and Commonwealth matters, it is clear from the sentence pronounced in court that the magistrate in fact imposed a series of cumulative sentences, each relating to either a single offence or a group of offences. This course was authorised by s 11 of the Sentencing Act 1997. However, it is also clear that he purported to impose a single non-parole period relating not only to the aggregate of the individual State sentences, but also the combination of those sentences and the Commonwealth sentence. I will, in due course, discuss the difficulties of this course in the context of the Commonwealth offences. However, in respect of the State sentences, the magistrate had no power to impose a single non-parole period in respect of several separate sentences. In this regard, I respectfully adopt and endorse the following comments of Blow J (as he then was) in Carr v Department of Police and Emergency Management [2009] TASSC 74 at [8]:
"However there have been two further grounds added today which I think do have merit. One of the new grounds added today was that the learned magistrate erred in imposing a non-parole period of 12 months in respect of two separate sentences. The power to make an order permitting parole is conferred by the Sentencing Act, s17. Under s17(2)(e), a court that imposes a sentence of imprisonment may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. That provision empowers a judge or magistrate to specify a non-parole period in respect of a sentence. But it does not empower a judge or magistrate to impose a non-parole period in respect of the aggregate of two separate sentences. That is plainly what the learned magistrate purported to do, or attempted to do, or meant to do, on 12 May. He did not have the power to do that. That ground of appeal is made out."
That statement of principle was adopted and applied by Estcourt J in Williamson v Lane [2013] TASSC 53. It is also consistent with the provisions of s 71 of the Corrections Act 1997, which provides specifically for the relationship between the non-parole periods applicable to individual sentences in cases where a person is subject to two or more designated sentences.
(b)His Honour purported to apply the single non-parole period, not just to the sentences he imposed on 8 December 2015, but also to the activated suspended sentence. It is clear from the provisions of s 27(6A) of the Sentencing Act that s 17 of that Act will apply to an activated suspended sentence as if it were a sentence imposed on the offender "as if the court had just found the offender guilty of the offence in respect of which the suspended sentence was imposed". The principle stated in Carr v Department of Police and Emergency Management is therefore applicable to this term of imprisonment, as it is to the balance of the State sentences.
(c)The single non-parole period ordered by the magistrate was also intended to apply to the aggregate of all the actual sentences imposed, including the Commonwealth sentence. His Honour had no power to order a non-parole period in respect of a Commonwealth sentence under the provisions of the Sentencing Act. (See Judiciary Act 1903 (Cth), s 68(1).) The magistrate's power in respect of the Commonwealth offences derived from and was regulated by the relevant provisions of the Crimes Act 1914 (Cth). Section 19AJ of that Act provides:
"Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment
This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment."
It follows that to the extent that his Honour was entitled to order a non-parole period in respect of the Commonwealth sentence, he was not entitled to order one such period in respect of the aggregate period covered by the Commonwealth sentences and the State sentences.
(d)With respect to the magistrate's power to order a non-parole period in respect of the Commonwealth sentences, s 19AC(1) of the Crimes Act provides that a court that imposes on a person a federal sentence that does not exceed three years, "must make a recognizance release order in respect of that sentence … and must not fix a non-parole period". His Honour's orders were clearly in breach of this provision because he failed to fix a recognizance release order at all, and purported to include the federal sentence in the global non-parole period. Section 19AC(4) provides that the court may decline, in particular circumstances, to make a recognizance release order, if it is satisfied that such an order is not appropriate, but s 19AC(5) provides that where a court makes such a decision, it must state its reasons for so doing, and cause the reasons to be entered in the record of the court. It is apparent from a review of the magistrate's comments on passing sentence that he gave no consideration to a recognizance release order, and was not purporting to exercise the discretion contained in s 19AC(4).
(e)There is a further difficulty with respect to the Commonwealth sentence. Section 19(1) of the Crimes Act provides that where a federal sentence is imposed on a person who is subject to another sentence, including a State sentence, the court must, when imposing the federal sentence, "by order direct when the federal sentence commences, but so that:
(a)no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(b)if a non-parole period applies in respect of any State or Territory sentences the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period."
Because the magistrate had already imposed State sentences to take effect from 20 November 2015, he was required to order that the federal sentence commence at the expiration of aggregate non-parole period calculated in accordance with the Corrections Act. Such an order would have the effect that the Commonwealth sentence would then operate in a similar way to that intended by the Corrections Act in respect of State sentences. It is obvious, however, that that legislation does not apply to the Commonwealth sentence, and hence the need to observe the provisions of the Crimes Act with respect to the commencement of the Commonwealth sentence.
I am satisfied that these errors, either individually or a combination, have the effect that the sentencing discretion in respect of all of the actual sentences of imprisonment imposed by the magistrate, has miscarried. The sentences so affected include the activated suspended sentence. It is true that Crimes Act, s 19AH provides a process whereby, on application, a court which has failed to make, or properly make, a recognizance release order can, in effect, correct that mistake upon application by the persons nominated in the section. However, the section is not exhaustive, and an error in compliance with the Act can still constitute a basis for review (see Adams v The State of Western Australia [2014] WASCA 191). The specific issues concerning the Commonwealth sentence – the failure to make a recognizance release order and the failure to properly specify the commencement of the sentence – affect the Commonwealth sentence only. However, the fixing of a single non-parole period to cover the State sentences and the Commonwealth sentence, in my view, constitutes a fundamental error that vitiates the exercise of the sentencing discretion in relation to all such sentences. Clearly, the intention of the magistrate in imposing sentence was to achieve a combination of orders, the effect of which would be largely defined by the proper fixing of the commencement date of each order and the amelioration of the severity of the sentences by imposition of a non-parole period. In doing so, he was required to take into account, as he expressly purported to do, the overall effect of the aggregate custodial sentence ("the totality principle", see Griffiths v The Queen (1989) 167 CLR 372. As to the Commonwealth sentence, see Crimes Act, s 16B.) The learned magistrate's failure to correctly exercise his power in respect of the fixing of a non-parole period, and in relation to the Commonwealth sentence, the recognizance release order, and to correctly specify the commencement of the Commonwealth sentence, impacts on the overall effect of the combined sentences. Accordingly, in my view, the errors identified are errors which affect the exercise of the sentencing discretion generally. The reasoning set out above and its consequence was conceded by all counsel during the hearing of the review. The effect of the miscarriage of the sentencing discretion is that the sentences should be set aside and a sentence or sentences reimposed pursuant to a sentencing discretion exercised afresh (see AB v The Queen (1999) 198 CLR 111, per Hayne J at 130). It is not necessary therefore, to determine the remaining grounds of appeal in respect of the impugned sentences.
It was common ground that the appropriate course was that I should re-sentence the applicant with respect to charges which relate to the sentences to be set aside. However, the identified errors do not affect the suspended sentence imposed in respect of the common assault. This sentence was the subject of a separate ground of appeal. It is appropriate that that ground be determined before proceeding to resentence the applicant.
The common assault
The ground of appeal which relates to this sentence is that the imposition of a suspended sentence in respect of this charge was manifestly excessive in all of the circumstances.
The test to be applied in determining a review on such a ground is well established. The Court must not substitute its own opinion, but may only interfere with the sentence if error in the exercise of the sentencing discretion can be inferred because the sentence is obviously excessive, or "unreasonable or plainly unjust", so that the only conclusion which can be drawn is that the sentencing discretion must have miscarried in some undefined way (see Barrett v Wilson [2015] TASSC 3, and the cases referred to by Pearce J at [9]).
The complaint of assault alleged that on 30 June 2013, the applicant had unlawfully assaulted a woman by punching her to the bridge of the nose with a clenched fist. The matter proceeded to a defended hearing and, on 20 November 2015, the magistrate found the complaint proved. The circumstances of the assault, as found by the magistrate, are set out in his Honour's reasons for that decision. He rejected a claim made by the applicant in his police interview that he was acting in self-defence or defence of another, or that he was using reasonable force to remove the woman from his home because she was a trespasser or disorderly person. The assault took place during the course of an argument which involved a number of people in the applicant's home. Several of the participants in the argument were physically fighting each other at the time of the assault. His Honour found that the applicant had "punched [the complainant] on the bridge of the nose and was not acting in defence of himself or anyone else when he did that". The learned magistrate accepted that the female victim of the assault was trying to separate others who were fighting, when she was punched. The magistrate also found that the punch "was not designed, either to prevent her entering or to remove her. I have already stated it was not defensive and stated the reasons."
In his sentencing comments, the learned magistrate said:
"The assault can be regarded as having happened on the spur of the moment in difficult and emotional circumstances and although a sentence of imprisonment seems appropriate it does seem to be a circumstance, taking everything into account, where that sentence ought to be suspended."
The applicant's record of prior convictions reveals many prior convictions for a variety of offences. However, this was his first conviction for assault. The only other matter in his record relating to violence was a conviction in 2010 for the offence of behaving in a violent manner.
The applicant's counsel submits that a sentence of imprisonment, suspended or otherwise, is manifestly excessive when regard is had to the applicant's lack of prior convictions for assault, and the fact that the assault was constituted by one blow, was not premeditated, and was delivered in "difficult and emotional circumstances". The respondent's counsel submits that the sentence was an appropriate exercise of the discretion, particularly when regard is had to the following factors:
(a)The assault was constituted by a punch to the head.
(b)The victim sustained some injury.
(c)The assault was perpetrated as an act of retaliation.
(d)The assault occurred in the presence of others and, accordingly, may have been humiliating.
(e)Although the applicant had no prior convictions for assault, he had a lengthy criminal history which demonstrates, in general terms, a contempt for the law and a willingness and propensity to act outside the law.
(f)The applicant was not entitled to the benefit of a plea of guilty.
A suspended sentence of two months' imprisonment was a strong response to the offending. However, the sentence was not so "unreasonable or plainly wrong" as to demonstrate error. A forceful punch to the face of another person is a serious assault. Such an act carries significant potential for harm and, in this case, some injury did result from it. The fact that such a blow is delivered on the spur of the moment, and in emotional circumstances, is hardly uncommon and, in my view, provides little mitigation. The applicant could not be described as a young offender, nor as a first offender, although it is true that he did not have any significant prior convictions for matters of violence. However, his record demonstrated an attitude to the law consistent with the submission made by the respondent's counsel. To the extent that these factors warranted leniency, that leniency was achieved by the relatively modest head sentence, and the full suspension of that sentence.
It follows that I am not satisfied that the sentence was manifestly excessive, nor that error has been demonstrated. Accordingly, the ground of review relating to this charge fails.
Resentencing
I will now proceed to resentence the applicant with respect to the charges for which the sentence will be set aside as a result of the errors identified earlier. In determining sentence, I will have regard to the matters which were put to the learned magistrate, and I have had the benefit of a recent pre-sentence report. The only limit on the exercise of my sentencing discretion is that I should not sentence the applicant to a longer period than the impugned sentences, either in respect of individual charges or on an overall basis (see Neal v The Queen (1982) 149 CLR 305, 42 ALR 609).
It is convenient and appropriate to deal with sentencing for these charges in the groupings adopted by the learned magistrate. The groupings reflect similar types of conduct, distinguishable in some respects from other conduct.
It is arguable that the penalty imposed for the unlicensed driving charges is not subject to the errors identified above. His Honour did not purport to impose a sentence of imprisonment in respect of these matters. Even if the sentence relevant to those charges was affected by error, I would not intend, in any event, to impose a more severe sentencing option than that adopted by the learned magistrate. Accordingly, his order whereby the applicant was convicted of these charges and disqualified from driving for a period of six months from the date of release from prison, will not be set aside.
Similarly, I see no difficulty with the head sentences imposed by the learned magistrate in respect of the bail offences or the RSADA matter. These were serious offences. In relation to the driving offence, although the applicant had not committed the offence of driving with drug in body before, he had been convicted of offences relating to drink driving on five prior occasions, as well as a number of other offences contrary to the Road Safety (Alcohol and Drugs) Act. There was little which mitigated his conduct. The learned magistrate's sentence for this charge was, in my view, extremely lenient. Similar comments are apposite in respect of the sentence for the bail offences.
However, I would have found that the sentence of six months actual imprisonment for the drug offences was manifestly excessive. His Honour's sentencing comments suggested he regarded the drug offending as "very serious". He also referred to the harm "created by sales, even to known users" and observed that the defendant had "not learned from past prosecution and offended again after detection". It is accepted by the applicant, and apparent from his record in any event, that he does have a long-standing and significant problem with illicit drugs. However, the charges against him related primarily to his own use and possession of drugs. In respect of the charge of selling, and the charges of supplying, the prosecution case was largely based on the applicant's admissions to police after he had been found by police in possession of drugs. He admitted to police that his practice was to purchase half a gram of "Ice" per week, divide same into single points, keep some for his own use and sell or supply the balance to others. These admissions, if accepted as true, could, of course, support a charge of trafficking. However, the applicant was not charged with trafficking, he was charged with one minor offence of selling methylamphetamine to another person, and two minor offences of supplying illicit drugs to another person. It was necessary that each of these charges be referable to a particular act of sale or supply. The prosecution was not entitled to roll up several acts, each of which would constitute a separate offence, or a course of conduct, within one charge (see ss 29 and 30 of the Justices Act 1959, Walsh v Tattersall (1996) 188 CLR 77, 139 ALR 27, 88 A Crim R 496). However, the facts presented by the prosecutor do not seem to identify the specific acts of sale and supply relied upon in relation to each charge. Of course, it was permissible for the learned magistrate to have regard to the context in which each charged act had occurred. In relation to the selling of drugs, in particular, it might be important to understand that context, particularly if a submission is made that leniency ought be given because the charge related to an isolated act. However, the magistrate was not permitted to sentence the applicant for offences to which he had not pleaded guilty, and in particular, was not entitled to sentence him on the basis that he was, in effect, trafficking in illicit drugs.
The magistrate also seemed to be of the view that the offending to which the applicant had pleaded guilty, was offending that he had committed in the past. It is certainly the case that he had many prior convictions for the possession and use of illicit drugs. However, this was the first occasion on which he had been convicted of selling or supply drugs to others. To the extent that these offences took his conduct beyond that relevant to his own use of drugs, they were relatively modest acts inherent in sharing drugs amongst a small defined social group. Whilst it is appropriate to take into account his history of illegal drug use and possession, and his prior convictions generally, the charges to which he pleaded guilty did not warrant the imposition of an immediate term of imprisonment. In my view, a short suspended period of imprisonment was an adequate penalty for the offending relating to drugs.
The final question relating to the State sentences concerns the activation of the suspended sentence of 34 weeks' imprisonment. The suspended sentence in question was imposed on 7 October 2013 in respect of the following offences:
(a)Driving a motor vehicle while exceeding prescribed alcohol limit, reading of 0.095, committed on 21 January 2007.
(b)Driving whilst disqualified, committed on 9 April 2009.
(c)Driving while not holding an Australian driver licence, foreign driver licence, or international driving permit, with alcohol in body, reading of 0.078, committed on 14 May 2009.
(d)Driving whilst disqualified on 14 May 2009.
(e)Driving whilst disqualified on 9 September 2009.
This was not the first sentence that had been imposed on the applicant in respect of those specific offences. The applicant had originally received suspended sentences of imprisonment with respect to these charges in 2010. On 16 February 2012, he was resentenced in respect of these matters, having regard to his conviction on new offences. He was sentenced on that occasion by way of a drug treatment order with a custodial component of 36 weeks. This seems to have been a global period based on the individual suspended sentences that had been imposed in 2010. On 3 October 2012, the applicant was ordered to serve 14 days of the custodial component of the drug treatment order. This was undoubtedly the activation of sanction days imposed for various breaches of that order. The imposition of the 34 weeks' suspended sentence on 7 October 2013, I infer, coincides with the cancellation of the drug treatment order.
By s 27Q of the Sentencing Act, a court may cancel the treatment and supervision part of a drug treatment order if satisfied of certain matters. Upon cancellation, the court has the option of activating some or all of the custodial part of the order, or dealing with the offender in any way in which the court could have done so had the offender just been convicted of the offence. In the applicant's case, the imposition of the suspended sentence might be seen as the adoption by the court of the more lenient of the two options available to it. I note that the court, as part of the order, also required the applicant to perform community service and made a probation order.
It was conceded by the applicant, both before the magistrate and before me, that each of the offences relied upon in respect of the breach constituted "new offences" for the purposes of s 27(4) of the Sentencing Act. Accordingly, having regard to the provisions of s 27(4B), the magistrate was obliged to activate the term of imprisonment held in suspense, unless he was of the opinion that such an order would be unjust. The principles applicable to a determination under this section have been discussed in a number of recent cases. In Cannell v Hughes [2014] TASSC 41, Pearce J said at [14]:
"The operation of s27 was considered by Wood J in Tanner v Brown (above). I would respectfully adopt her Honour's analysis. There is no need to repeat all of it, although I will refer to some parts of it. Her Honour's decision was followed by Crawford CJ in Jones v Clarke [2012] TASSC 21, and has been considered in other cases including by Porter J in Chatwin v Godfrey [2013] TASSC 70. Introduction of s27 on 1 January 2011 was intended to result in a hardening of the approach to suspended sentences. It has long been the case that, generally speaking, if an offender wastes an opportunity offered by the court by re-offending, then a suspended sentence should be activated. Ordinarily, suspended sentences are meant to be a last chance. Any unjustified departure from that principle undermines the integrity of the system of suspended sentences and the extent to which they may deter future offenders. As Wood J pointed out in Tanner v Brown at [91], s27 now enshrines that policy in a legislative form and creates a presumption that the suspended sentence will be activated unless the court is of the opinion that it is unjust. The clear starting point is that the sentence should be activated. The court is not considering the original sentence afresh but determining whether activation of the sentence is unjust. In the words used by Wood J in Tanner v Brown (above) at [103], 'the exercise of the sentencing function is not at large, and is limited to an evaluation of whether it would be unjust to activate the sentence'. In considering an application under s27 there may be sentencing considerations which properly incline a sentencing court against activation of a suspended sentence, but which fall short of justifying a conclusion that it would be unjust to do so. The meaning of 'unjust' is not prescribed by the Sentencing Act. Its ordinary meaning, according to the Macquarie Dictionary online, is 'not in accordance with justice or fairness'. It is for the sentencing court to consider and weigh the circumstances of each case."
The applicant's counsel argued that a relevant consideration in respect of the formation of the opinion as to whether it would be unjust to activate the sentence, was that the original sentence of 34 weeks could be seen as unfair. Her argument was that the 34-week period was the full custodial component of the drug treatment order, reduced only by the 14-day period which had been activated as sanction days. She submitted that no consideration had been allowed for the applicant's participation in the order.
There are a number of difficulties with counsel's argument. Firstly, the suggestion that there was no favourable consideration of the applicant's participation in the program, ignores the obvious fact that the court was entitled to activate the entire custodial period, but instead chose the more lenient option of giving the applicant the opportunity to avoid imprisonment by wholly suspending the sentence. This can be seen as an exercise of considerable leniency, having regard to the fact that the applicant had been sentenced to the drug treatment order originally because of the breach of the original suspended sentence by the commission of the new offences. The circumstances in which the order was cancelled were canvassed to some extent by the applicant's counsel before the magistrate during the sentencing hearing. It was put that the applicant had had some success on the program, but also that the program had not been successfully completed because the applicant was "having difficulty committing himself to the program to the extent that they [the CMD officers] required, given that he was trying to maintain employment at the same time". The submission that the applicant had had some success in the program was confirmed by comments made in the pre-sentence report presented to the learned magistrate at the time of sentencing. I note that among the bases provided for the cancellation of a drug treatment order pursuant to s 27Q, are the following:
"(b) the offender will be unable to comply with a condition of the order because his or her circumstances have materially changed since it was made; or
(c)the offender is no longer willing to comply with one or more conditions of the order …".
Section 27L provides an alternative basis for cancellation of an order, in circumstances where the person subject to the order has successfully graduated from the program contemplated by the order. In such a case, there is no provision for the activation of the custodial component of the order or the imposition of any other sentence. The order is simply cancelled and the sentence is effectively complete. That is not what occurred in the case of the applicant. He did not successfully complete the program contemplated by the order and, accordingly, the order was cancelled prematurely under s 27Q. In such a case, the court was obliged to either activate some or all of the custodial part of the sentence or impose another sentence. As has already been observed, the more lenient alternative was chosen. This choice was an appropriate response to the positive aspects of the applicant's participation in the program under the order to that time.
In any event, the question arises as to the extent to which it is relevant or appropriate to, in effect, make a collateral challenge to the exercise of discretion which led to the fixing of the original sentence, when considering whether it is unjust to activate that sentence for a breach of the conditions of suspension. Such an attack on an exercise of judicial power may well be impermissible (Ousley v The Queen (1997) 192 CLR 69). In any event, the structure and apparent purpose of the legislation would suggest that the fairness or appropriateness of the original sentence is not a relevant consideration, although clearly the relationship between the offending for which that sentence was imposed, and the sentence itself, is important when consideration is given to the extent to which the purposes of the suspension of the sentence have been fulfilled (see Tanner v Brown [2011] TASSC 59). However, this issue was not fully argued and, in any event, it is neither necessary nor appropriate for it to be determined in this case. For the reasons stated above, I am satisfied that, in this case, the original sentence balanced the various factors that arose at the time of cancellation of the drug treatment order.
I agree with the magistrate's opinion that it was not unjust to activate the suspended sentence. Some of the factors upon which my opinion about this is based are as follows:
(a)The applicant breached the conditions of suspension by committing numerous offences over a prolonged period, soon after the imposition of that sentence. The offences were committed on a regular basis between 1 February 2014 and 2 March 2015. They were offences which involved conduct for which the applicant had been punished in the past. They were serious offences and cannot be described as minor or trivial matters.
(b)It is of some significance that one of the new offences was an offence of the same type as those for which the suspended sentence had been imposed. The offence of driving a motor vehicle with prescribed illicit drug present in blood, committed on 30 July 2014, involved the applicant driving a motor vehicle with the substance in his body in circumstances prohibited by the Road Safety (Alcohol and Drugs) Act. As noted above, although he had not committed this particular offence on a prior occasion, the suspended sentence was originally imposed for other offences, which included driving a motor vehicle with alcohol in his body contrary to that legislation. The new offence demonstrated a propensity to offend in a similar way, and is highly relevant to the question of whether it is unjust to activate the suspended sentence.
The effect of the relevant provisions of the Sentencing Act is that unless the court is of the opinion that it would be unjust to activate the sentence, then there is no discretion, the sentence must be activated. In my view the activation of the sentence was, and still is, the correct decision.
The Commonwealth offences
As noted above, the two counts of obtaining a financial advantage contrary to the Criminal Code (Cth) related to two separate periods, 6 October 2010 to 28 April 2011, and 27 September 2012 to 19 April 2013. During each of those periods, the applicant was in receipt of Newstart allowance. He had been in receipt of this allowance since 1995. During each relevant period, the applicant was employed on a casual basis, although he was, in practical terms, working on a consistent, almost full-time basis. For part of the first period, he was in receipt of workers compensation payments. He was required to report his income on a fortnightly basis. During the majority of each period, he failed to report any income at all, and on the few occasions that he did report income, his report was grossly inaccurate. In total, he was overpaid Commonwealth benefits in the sum of $10,418.71, as a result of the commission of the offences.
Although the relevant periods were, in comparison with other similar offences which regularly come before the courts, relatively short, and the amount obtained relatively modest, the offending involved blatant dishonesty on a repeated basis. Because of the vulnerability of the welfare system to such conduct, there is a need for an emphasis in sentencing on general deterrence. However, in this case, there also was a need for an emphasis on personal deterrence. Between 26 April 1996 and 15 October 2009, 14 debts for overpayment had been raised with respect to the applicant. The applicant is not to be sentenced in respect of these matters, of course, but they do indicate that he had received prior notice that his conduct had resulted in overpayment and that such conduct was impermissible.
Further, he had been sentenced for similar offending in the past. On 30 December 2007, he was convicted of 18 counts of obtaining a financial advantage, contrary to the Criminal Code (Cth). These offences were committed between 26 May 2006 and 19 April 2007. He was sentenced to seven months' imprisonment, but released immediately pursuant to a recognizance release order, which required him to be of good behaviour for a period of two years. His record indicates that he breached the terms of his release by committing offences of the same nature over a period between 2007 and 2009. The record suggests that such offending commenced within days, if not months, of his release in respect of the prior offences. On 18 July 2011, he was sentenced to a further term of actual imprisonment for the new offending and was required, as well, to serve the original sentence.
The conduct in respect of count 1 was committed prior to that sentence being imposed. However, the prosecution facts reveal that the conduct relating to count 1 was raised with the applicant shortly after his release from prison. It is of concern that the offending relating to count 2 commenced within what must have been a relatively short period after his release from prison, and in the knowledge that the authorities were investigating the conduct relevant to count 1.
A significant sentence of imprisonment was required to reflect the need for general and personal deterrence. If I had been sentencing at first instance, it is likely that I would have imposed a sentence significantly more severe than that imposed by the learned magistrate. However, for the reasons already stated, I will not impose a penalty greater than that imposed by his Honour. However, I do not intend to impose a lesser penalty, nor would I have been prepared to uphold a ground of review asserting that the sentence was manifestly excessive.
Accordingly, in respect of the Commonwealth sentence, the only action which will be taken is:
(a)to specify the commencement of the sentence in accordance with the legislation; and
(b)to make a recognizance release order.
In determining the appropriate recognizance release order, I will take into account the factors referred to in ss 16A and 16B of the Crimes Act, including the matters specifically discussed above.
Other sentencing considerations
In determining the final sentencing orders, it is appropriate to have regard to the impact of the total sentence in order to ensure that it is proportionate to the overall criminality and not unduly crushing. It is also appropriate to take into account the applicant's personal circumstances, including those disclosed by the recent pre-sentence report. It would seem from that report that the applicant has come to a realisation that he needs to deal with his underlying problem with illicit drugs, and has taken real steps towards doing so. I note that this action was taken subsequent to the commission of the relevant offences, and the applicant claims to have not used illicit substances for some time. He is frustrated by the ongoing court process. Since his release on bail, his compliance with the probation order is described as "satisfactory." Having regard to these matters, it is appropriate to provide for release on recognizance after serving a modest period of the sentence imposed for the Commonwealth matters. It is likely that my orders will result in the applicant having to serve some further time in prison, but he will then be released subject to the conditions imposed pursuant to the Crimes Act. The existing probation order made by the learned magistrate is currently in force and expires on 19 May 2017. The applicant has been assessed as requiring a high level of intervention from the probation service and is considered suitable for further orders. It is appropriate that the conditions of his release in respect of the Commonwealth offences include that he be under the supervision of a probation officer for the relevant period.
Disposition
I am informed that the applicant has served precisely six months of the sentence imposed by the magistrate. He was released on bail after serving that period, pending the determination of this appeal.
The practical outcome of the reasoning set out above is as follows:
(a)In relation to the State offences, the applicant will be required to serve a period of one month's imprisonment for the RSADA matter, immediately followed by the activated suspended sentence, which is a period of 34 weeks. All other State sentences will be served either concurrently or will be suspended. It is appropriate to backdate the commencement of this period to take into account the six months already served by the applicant. In respect of each sentence, there will be a non-parole period of one half of the relevant sentence in order to not exceed the actual punishment imposed by the magistrate. Having regard to the provisions of the Corrections Act, s 71, the applicant would have become eligible for release on parole after serving 19 weeks of the sentence. Clearly this time has already passed.
(b)In accordance with s 19(1) of the Crimes Act, the Commonwealth sentence should commence immediately after the end of the non-parole period referable to the activated suspended sentence. I intend to make an order that he be released on conditions after serving four months of that sentence. The practical effect of this is that the applicant will need to be taken back into custody in order to serve the balance of the operative part of the Commonwealth sentence. The effect of the Crimes Act seems to me to be that the Commonwealth sentence then operates concurrently with the balance of the State sentences. If at the time of his release in respect of the Commonwealth sentence, he has not completed the State sentences, then he would be eligible for parole in respect of the State sentences, and any parole granted would operate concurrently with the operation of the recognizance release order.
(c)The magistrate also made a probation order that was to operate for a period of 12 months from the applicant's release from prison. I will not disturb this order.
Accordingly the orders I make are as follows:
(a)The motion to review in respect of the sentences imposed on complaints 91205/2014, 6181/2014, 6946/2014, 91508/2014, and the application for breach of suspended sentence, filed 19 November 2015, is upheld and the sentences and orders made in respect of those complaints, are set aside.
(b)In respect of complaint 91205/2014, the applicant is sentenced to four weeks' imprisonment, which will be backdated to commence on 4 April 2016, and he is disqualified from driving for a period of 18 months, which will be cumulative to the disqualification imposed in respect of complaints 1087/2014 and 7524/2014. Pursuant to s 17(2) of the Sentencing Act, the applicant will not be eligible for release on parole in respect of the sentence of four weeks until he has served one half of that sentence.
(c)The period of 34 weeks' imprisonment imposed on 7 October 2013 and held in suspense is activated. This period will be served cumulatively with the sentence imposed in respect of complaint 91205/2014. Pursuant to s 17(2) of the Sentencing Act, I order that the applicant not be eligible for parole until he has served one half of the said sentence.
(d)In respect of complaint 91508/2014, the applicant is sentenced to a period of eight months' imprisonment. This sentence will commence at the expiration of the non-parole period specified in respect of the activated suspended sentence. Having regard to the provisions of s 71 of the Corrections Act, I note that the said non-parole period expires at the expiration of 19 weeks from 4 April 2016.
(e)In respect of the sentence of imprisonment imposed in relation to complaint 91508/2014, I make a further order that at the expiration of four months of that sentence, the applicant be released from custody upon entering into a recognizance in the sum of $5,000, on condition that he be of good behaviour for a period of two years from the date of his release from prison, and on the further condition that he be subject to the supervision of a probation officer during that period, that he obey all reasonable directions of the probation officer, and that he not travel interstate or overseas during that period without the written permission of the probation officer.
(f)In accordance with the Crimes Act, s 16F, I explain to the applicant that if he fails to comply with the condition of his release, he may be summonsed to appear before the Court and if a breach has been established, he may be called upon to forfeit the amount of the recognizance, or the order may be revoked and he may be required to serve the balance of the sentence. Alternatively, in the event of a breach of the conditions of release, the applicant may be required to perform community service, or the recognizance period may be extended. However, it is also possible that no order will be made upon a breach of the recognizance being established. It is further necessary to explain to the applicant that the recognizance may, at any time during its currency, be discharged or varied, pursuant to the provisions of the Crimes Act, s 20AA.
(g)In respect of complaints 6181/2014 and 6946/2014, the applicant is sentenced to two months' imprisonment, which will be wholly suspended for a period of 18 months from today on condition that he not commit an offence punishable by imprisonment during that period.
(h)The motion to review is otherwise dismissed.
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