Subasic v Williams
[2018] ACTSC 207
•3 August 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Subasic v Williams | ||
| Citation: | [2018] ACTSC 207 | ||
| Hearing Date: | 17 July 2018 | ||
| Decision Date: | 3 August 2018 | ||
| Before: | McWilliam AsJ | ||
| Decision: | See [52] | ||
| Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – appeal against sentence – whether sentence manifestly excessive – whether consideration of hardship on dependents. | ||
| Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) ss 7, 33 Drugs of Dependence Act 1989 (AC) s 164 Magistrates Court Act 1930 (ACT) s 214 | ||
| Cases Cited: | Barbaro v The Queen: Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 Zdravokovic v The Queen [2016] ACTCA 53 | ||
| Parties: | Jeremy Subasic (Appellant) Rhys Williams (Respondent) | ||
| Representation: | Counsel Mr J Silk (Appellant) Mr J De Bruin (Respondent) | ||
| Solicitors Jeffrey Silk, Barrister & Solicitor (Appellant) ACT Director of Public Prosecutions (Respondent) | |||
| File Number: | SCA 11 of 2018 | ||
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Special Magistrate Cush Date of Decision: 21 February 2018 Case Title: R v Subasic Citation: CC17/4290; CC17/4291; CC16/7750; CC17/7551; CC17/7875; CC17/7877; CC17/7876 |
The appellant appeals against the severity of a sentence imposed by the Magistrates Court on 21 February 2018. The sentence related to three incidents, resulting in seven separate charges:
(a)4 April 2017 – driving whilst licence suspended (repeat offender) (count 1) and failure to the Road Transport Authority of a change of address (count 2).
(b)6 April 2017 – driving whilst licence suspended (repeat offender) (count 3) and exceeding the speed limit by greater than 15 km/h (count 4).
(c)9 April 2017 – driving with a prescribed drug in oral fluid (repeat offender) (count 5), possession of a drug of dependence for the purpose of sale or supply (count 6) and driving whilst unlicensed (count 7).
In the court below, Special Magistrate Cush (magistrate) imposed fines to the value of $3,000 in respect of counts 1, 2, 4 and 7 (with no time to pay). The magistrate also disqualified the appellant from holding or obtaining a driver’s licence for a period of two years in respect of counts 1, 3 and 5, to run concurrently.
Relevant to the appeal, the magistrate also imposed the following sentences of full-time imprisonment:
(a)Count 3 – imprisonment for one month, 21 February 2018 to 20 March 2018 (maximum penalty: 12 months’ imprisonment);
(b)Count 5 – imprisonment for one month, 21 March 2018 to 20 April 2018 (maximum penalty: three months’ imprisonment); and
(c)Count 6 – imprisonment for nine months, 21 March 2018 to 20 December 2018 (maximum penalty: five years’ imprisonment), to be suspended from 20 May 2018.
As can be seen from the above, the sentences were to be served consecutively for counts 3 and 5, and then concurrently for counts 5 and 6, resulting in a total of 10 months’ imprisonment, with the appellant required to serve two months of the sentence imposed for count 6 before the remainder of the sentence was suspended, subject to the appellant entering into a bond to remain of good behaviour for 12 months.
The appellant commenced appeal proceedings on 20 March 2018. On 4 May 2018, the appellant applied for, and was granted, bail subject to conditions. At the time of the grant of bail, 16 days remained to be served by way of imprisonment on the sentence.
The appeal
The grounds of appeal, as set out in the amended notice of appeal filed on 4 June 2018, are limited to the sentence imposed in respect of count 6 only. The appellant’s grounds may be seen as raising three complaints on appeal (although the submissions dealt with the complaints together):
(a)Error in ordering an immediate term of imprisonment, by failing to have regard to the probable effect on the appellant’s family and dependant (Ground 1).
(b)Error in ordering an immediate term of imprisonment, by failing to have regard to the probable effect on the appellant’s rehabilitation (Ground 2).
(c)The failure to immediately suspend the term of imprisonment resulted in a sentence that was manifestly excessive (Ground 3).
Principles applicable on appeal
In Cooper v Corvisy (No 2) [2010] ACTSC 166; 5 ACTLR 151 (Cooper), Refshauge J discussed at [8]-[12] the applicable principles on an appeal against sentence. In essence, sentences imposed in the Magistrates Court are not to be set aside simply because the appellate court, on hearing the appeal, might have imposed a different sentence. There is a strong resistance against appellate ‘tinkering’ with sentences: Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [62].
Error in the exercise of the discretion on sentence must be established. That might be through a specific error, such as the failure to consider a relevant consideration or misapplication of principle (see House v The King (1936) 55 CLR 499 at 505). Alternatively, the error, though not identifiable, might be inferred from the sentence being manifestly excessive/inadequate, unreasonable, or plainly unjust or wrong: Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58; Dinsdale at [6] per Gleeson CJ and Hayne J.
If error is established, and the appellate court considers that a different sentence is appropriate in all the circumstances, the appeal may be upheld and a different sentence imposed: Keen v Tither [2010] ACTSC 130 at [44] per Penfold J, cited in Cooper at [10].
Manifestly excessive
The principles applying in relation to the appeal ground that a sentence is manifestly excessive are well settled and were set out in Dalton v The Queen [2015] ACTCA 48 at [18]. It is unnecessary to repeat them here. In essence, manifest excess is not established just because the appeal court would have imposed a more lenient sentence: see Zdravokovic v The Queen [2016] ACTCA 53 and the cases there-cited. Each case depends upon its facts. The task of the appellate court is to consider whether a sentence is unreasonable or plainly unjust. Such consideration starts from the position that there is no one single correct sentence and due allowance for differences of judicial opinion must be made, but nevertheless the sentence imposed must accord with principle, reason and justice.
The applications to adduce fresh/further evidence
At the hearing of the appeal, there was an application to adduce what is properly characterised as further evidence relating to the medical condition of the appellant’s sister. It was a medical statement signed by Dr Stephen Tang of Florey Medical Centre as to the appellant’s sister suffering exacerbation of ulcerative colitis, requiring care from a supervising adult, with Dr Tang naming the appellant and the appellant’s mother as care providers. The statement was credible and would have been relevant and admissible in the court below. Although the date of the medical statement was 26 April 2018, and thus after the hearing before the Magistrates Court, the evidence contained in that statement related to facts and circumstances that existed at the time of the hearing in the court below, were known by the appellant and really amounted to a medical opinion to support or further the claims made by the appellant’s mother, in a letter that had been tendered in the Court below (the relevant parts of which are set out below).
The appellant also sought leave to file fresh evidence before the Court, being an affidavit of the appellant affirmed 18 July 2018 relating to the appellant’s current family circumstances in terms of caring for his sister, and the fact that his mother was overseas until 1 August 2018.
The combined effect of the additional evidence was directly relevant to the grounds of appeal, which raise hardship to family members occasioned by the appellant’s immediate incarceration. Although there was no express explanation for not adducing the medical evidence in the court below, the significance of that factor was no doubt not appreciated by the appellant, and appears only to have crystallised as important in light of the magistrate’s reasons, the sentence imposed and the subsequent necessity for his mother to travel overseas. Similar comments were made by Higgins J in Bond v MacFarlane (1990) 102 FLR 38 at [14] in the context of granting an application to adduce fresh evidence.
Having regard to the principles summarised in Grooms v Toohey [2012] ACTSC 28; 7 ACTLR 1 (Grooms) per Refshauge J at [37], and consistent with the approach taken by Burns J to fresh evidence of hardship occasioned to family members in McEwan v Rohan (No 2) [2013] ACTSC 54 at [14], the applications were granted as being expedient in the interests of justice, pursuant to s 214(3) of the Magistrates Court Act 1930 (ACT) in relation to the fresh evidence, and s 214(4) of the same statute in relation to the further evidence.
Evidence in the court below
The evidence material to this appeal was a letter from the appellant’s mother, which included the following:
…[The appellant’s sister] became terribly unwell, being hospitalised for 5 days and diagnosed with ulcerative colitis, an incurable inflammatory bowel disease, triggered by stress.
…
[The appellant] has since become a regular carer for his sister…who is unable to work or study due to her condition. This has been a great help to me as I needed to stay at work to financially support the family and [his sister’s] treatment and ongoing medications are expensive.
…
[The appellant’s] father…has sourced [him] some painting work so that he can save for a bond towards their own place as my house is already over-crowded and they will need extra space with a new baby. [The appellant] has therefore been working and has the flexibility to take time off if he needs to stay home to care for his sister or girlfriend. He is also very fortunate that the boss picks him up each morning and gives him a lift home at the end of the day too.
There was also a court duty report dated 14 December 2017 before the court below. It contained the following statement:
Mr Subasic advised his sister has a medical condition which requires constant care. He informed he is the primary caregiver for his sister as his mother is employed full time and works extensive hours.
The court duty report set out recommended sentencing options should the court be considering an alternative to a full time custodial sentence. The report contained the following statement:
Community Service Work Condition
As per section 90 of the Crimes (Sentencing) Act 2005, the offender has been assessed as not suitable for a Community Service work condition, specifically due to family responsibilities. [The appellant] claimed he is the primary caregiver for his sister who requires constant care. He informed he had evidence of this which he would provide to the court.
The legal representative for the appellant made the following submission:
If I turn back to his sister…[The appellant’s mother] refers to…her condition which is diagnosed with ulcerative colitis. That’s only a relatively recent diagnosis. I think it had been undiagnosed since late or the symptoms were there in late 2016 but it had been diagnosed from about October or September last year. [The appellant’s sister] is currently at home. She’s unable to work. She applied for a disability pension but she’s been disallowed that. You’ve got to be ill for two years before you qualify. [The appellant] applied to Centrelink to be her carer. Again, he didn’t get past the first hurdle of [his sister] being ill for two years.
He just started [work] recently two to three days per week, when his sister is well enough to feel that she doesn’t need someone at home with her, but otherwise he’s been off work since about March-April last year when this all really started to steam roll with the drug use.
The closing submissions made by the legal representative for the appellant were that if the magistrate was of the mind that nothing other than a term of imprisonment was appropriate, that it could still be suspended, so as to give the appellant a chance to continue his rehabilitation, and to support not only his mother, but his sister and his partner as well.
Reasons on sentencing
Although the submissions of the parties referred to the reasons of the magistrate as sentencing ‘remarks’, it is preferable to describe them as reasons, lest the important function of reasons in the sentencing process be diminished: see R v Hendricks [2011] NSWCCA 203 at [9].
The magistrate’s reasons drew from the statement of facts, which recorded that on 9 April 2017, police attended the Barton Highway in Kaleen in the Territory, in response to a single motor vehicle accident. On arrival, there was a Ford Falcon sunken into the grass median strip with the rear tyre smouldering. The appellant was the driver of the motor vehicle. He told police he must have fallen asleep. He appeared tired, confused, unfocused and glassy eyed. He had made attempts to conceal something beneath his seat, which caused the police to conduct a search of the motor vehicle. They located a black coloured zip up case under the driver’s seat. It contained scales, bags, appropriate paraphernalia and a white crystalline substance (which it transpired was 0.436 grams of methamphetamine), all suitable for the sale and supply of drugs, and it was evident from transmissions which were on the appellant’s phone that he engaged in that activity.
The magistrate referred, among other things, to drug use being a pernicious activity within society and to those who supply drugs as being the essential link to a decidedly destructive behaviour. The magistrate considered that deterrence and punishment were obviously significant factors in such a case.
The magistrate stated:
There are also some issues that arise from the defendant’s personal circumstances which mean that rehabilitation is also an issue in determining the appropriate penalty.
The magistrate referred to the fact that the appellant had advised he had considered participation in a rehabilitation program to address his use of illicit substances, however, it seemed that the appellant had not formally undertaken that, although his mother had indicated that she had been doing some things for him at home.
The magistrate considered the appellant to be a medium risk of general offending and took into account, to the appellant’s credit, the appellant’s claim to have since abstained from using illicit substances.
The magistrate did not expressly refer to the court duty report in the sentencing reasons.
The magistrate did find that the appellant was not suitable for a community service order, which was consistent with the recommendation in the court duty report, however the reason given by the magistrate was his intention to go and reside in Tamworth in New South Wales, noting that would not have completely prevented the magistrate from making such sentence if it was thought to be appropriate. There was no reference to the appellant’s claim to have been the primary caregiver for his sister.
The magistrate then stated as follows:
I also accept that rehabilitation is an issue which arises in this matter. I take into account what has been said by his mother in the letter to me. It seems to me that when considering an appropriate penalty, and those options that are available to me, it seems that there is no alternative other than a sentence of imprisonment. It is a question of how that sentence, however, is crafted. I do not intend to make it a long sentence but I will indicate what I am going to do when I write it down. …
The magistrate proceeded to sentence the appellant.
Ground 1 – failure to take into account the probable effect on the appellant’s family
Under s 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) (the Act), the court below was obliged to take into account:
the probable effect that any sentence or order under consideration would have on any of the offender's family or dependants
The appellant’s complaint is that the magistrate did not take into account that the consequence of a term of imprisonment would be that the appellant would not be able to continue to provide regular care to his sister.
It may readily be seen why the appellant raises such a concern. There is no express mention of the appellant’s claim to be supporting his sister by the magistrate in the sentencing reasons.
In Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 (Ka-Hung Ip) at [61] per Higgins CJ, Gray and Madgwick JJ, the Court emphasised that the contemplated taking into account of factors specified in the relevant legislation must clearly be real and must occur in every case in which one or more of those factors exist.
In the present case, there is reference to a community service order not being appropriate, and to the appellant’s mother’s letter having been taken into account. However, such references are in the context of different considerations, such as the appellant’s intention to move to Tamworth (a matter about which I could not find any evidence and I suspect that there was a misunderstanding as to the appellant’s partner having previously been in Tamworth) and the rehabilitation prospects of the appellant.
On the other hand, the submissions and evidence revealed that the appellant and his mother in fact shared responsibility in the care for his sister.
Separately and more importantly, the appellant was now working two to three days a week, with flexibility to take time off when his sister felt unwell. That suggests the true position was in fact that the appellant’s assertion that his sister required “constant care” was somewhat of an exaggeration.
In the result, given that fresh and further evidence has been admitted on the point, it is no longer a case of the appellant being required to establish specific error in the magistrate’s reasoning process, applying Grooms, where Refshauge J stated at [52]:
It seems to me that the position is as follows. The appellate court must decide whether, under s 214(3) or (4) of the Magistrates Court Act, the further evidence is to be admitted. If it is, the court must then consider whether a different sentence should, in light of this further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened. On those proceedings, still further evidence may then be admitted, though often it is not. Some or all of that additional evidence may not have been admissible under s 214(3) or (4), but should have, of course, to be admissible in sentencing proceedings. If, having considered all this evidence and, of course, the evidence before the Magistrate, the appellate court considers in the exercise of its independent discretion that no other sentence than that of the Magistrates Court should be imposed, the appeal should be dismissed. If that is not the case, then the appellate court should either remit the proceedings back to the magistrates Court to be dealt with according to law or should sentence the appellant.
The question is whether, in light of the further evidence, a different sentence should have been imposed. In R v NO (No 2) [2018] ACTSC 37 at [63], Penfold J referred to previous judicial considerations of s 33(1)(o) and similar provisions in other jurisdictions. Relevant to the present appeal, these included R v Tilley (1991) 53 A Crim R 1 at 3 per Thomas J, Craft v Diebert [2004] ACTCA 15 at [9] per Crispin P and Connolly J, Ka-Hung Ip at [61] per Higgins CJ, Gray and Madgwick JJ and her Honour’s earlier decisions of Valencic v Jordan [2017] ACTSC 120 at [61] and R v Latona and McCabe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012).
Drawing from those authorities, the following propositions have application to the present case:
(a)Section 33(1)(o) of the Act obliges a sentencing court to take account of material before it concerning the effect of a sentence on an offender’s family or dependants.
(b)Courts may take account of matters of hardship in a number of different ways, but are not overwhelmed by them.
(c)Taking that factor into account does not mean that a sentencingcourt must provide a sentencing discount, or otherwise reduce a sentence, because there is evidence before it that a particular sentence will impose hardship on an offender’s dependents.
(d)It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. However, hardship and stress upon the family of an offender may be an inevitable consequence if the offender is to be adequately punished.
(e)An offender cannot use the hardship he or she creates for others as a shield from a prison sentence, and courts must not shirk their duty by giving undue weight to personal factors. In many cases, it may not be possible to give a family’s suffering much or any weight.
(f)The need to adequately punish the offender and to deter other like-minded people from committing similar offences may leave little, if any, scope for leniency based on the adverse effect of the sentence upon others.
Having regard to the current evidence, even if it be accepted that there is a possibility the appellant’s sister may suffer hardship by her brother not being able to assist her when she is ill, I am not satisfied that additional factor warrants any different sentence.
The medical statement of Dr Tang states that the appellant’s sister suffers from “recurrent episodes” of exacerbation of her condition, and that “she would require care from a supervising adult.” Dr Tang then names both the appellant and his mother as carers – supporting the evidence that was before the magistrate as to the responsibility being shared. I have had regard to the fact that the appellant’s mother is presently overseas, but she will have returned by the time the appeal is determined.
Further, the brief statement from Dr Tang does not go so far as to say that the medical condition is debilitating to the point where the appellant’s sister requires constant care; rather, that there are episodes where the appellant’s sister requires care and support. The medical evidence is consistent with the appellant working two to three days a week and the mother’s full-time employment.
The appellant argued that the sentence ought to have been immediately suspended, however, an immediate suspension would not pay sufficient regard to general and specific deterrence. General and specific deterrence are each relevant to drug sale or supply offences: R v Blundell [2017] ACTSC 128 at [49]; R v Watson [2017] ACTSC 265 at [4].
This is a case where any hardship visited upon the appellant’s family (whether that be his mother, partner or sister) is an inevitable consequence of adequate punishment requiring imprisonment. A suspension of the sentence under challenge after two months had been served was appropriate in all the circumstances.
Ground 2 – failure to take into account the probable effect on the appellant’s rehabilitation
The findings in relation to Ground 1 are sufficient to dispose of the complaint I have described as Ground 2. For completeness, the reasons for sentence do not disclose that there was any error apparent in the magistrate’s reasoning with regard to the effect of the sentence on the appellant’s rehabilitation. I accept the submissions of the respondent that the magistrate expressly considered the appellant’s rehabilitation in crafting the sentence, as can be seen from the statements set out at [23]-[25] and [28] above.
The sentence contained a period of imprisonment, serving deterrent and punishment purposes. The sentence then provided for a period of suspension upon condition of entering into a bond to be of good behaviour, which would also give the appellant the opportunity, which he had so far not taken up, of participating in a formal rehabilitation program.
Accordingly, even if I had found error, and for the additional reasons set out in Ground 1, I would not have disturbed the sentence as I consider it was appropriate.
Ground 3 – manifest unreasonableness
The reasons in Grounds 1 and 2 also dispose of the separate complaint that the failure to suspend the sentence immediately was manifestly unreasonable. I consider the sentence was appropriate for the reasons already given.
It is accepted that the offender was of a young age, it was the first offence of a drug related nature, the amount of the illicit substance found in his possession was small and he had family responsibilities.
However, given that the appellant was required to serve one month in prison for each of the traffic offences and there was no challenge to either of those sentences, what the appellant is effectively challenging is the extra month in prison, for an offence that carries a maximum penalty of five years’ imprisonment, a fine of $75,000 or both: s 164(2)(c) of the Drugs of Dependence Act 1989 (ACT).
I accept the respondent’s submissions that on the facts of this case the magistrate carefully crafted the sentence to achieve the variety of purposes set out in s 7 of the Act. The challenge to the magistrate’s sentence and the two-month period of time that was required to be served (in addition to the one-month period of imprisonment for the first traffic offence served consecutively) would amount to ‘tinkering’ with the sentence, as opposed to remedying any error.
Conclusion and orders
For the above reasons, the appellant has not shown any reason to disturb the findings and sentence of the court below. The order of the Court is:
1. The appeal is dismissed.
| I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Judgment of Her Honour Associate Justice McWilliam. Associate: Date: 3 August 2018 |
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