TM v Karapanos
[2011] ACTSC 74
•12 May 2011
HUMAN RIGHTS ACT
TM v BASIL KARAPANOS AND NATHAN BAKES
[2011] ACTSC 74 (12 May 2011)
APPEAL AND NEW TRIAL – appeal – appeal from Children’s Court – principle upon which appeal to be decided.
CRIMINAL LAW – sentencing – sentencing of juveniles – principle of individualised justice – how it is to be considered.
CRIMINAL LAW – sentencing – sentencing of Aboriginal offenders – principles in R v Fernando (1992) 76 A Crim R 58 – development of those principles in Director of Public Prosecutions (Vic) v Terrick (2008) 24 VR 457.
CRIMINAL LAW – sentencing – sentencing of persons with mental disabilities – principles to be applied.
Evidence Act 1995 (Cth), s 4(2)
Magistrates Court Act 1930 (ACT), Div 3.10.2, ss 209, 216
Court Procedures Rules 2000 (ACT), Div 2.12.1, rr 4000, 5137, 5138, 5193
Crimes (Sentencing) Act 2005 (ACT), ss 37, 63, 71, 72, 133H, 133C, 133D, 133G
Crimes (Sentence Administration) Act 2005 (ACT)
Crimes Act 1900 (ACT), s 26
Human Rights Act 2004 (ACT), s 20(3)
Criminal Code 2002 (ACT), s 361(1)
Report of the Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC: Sydney, 2006), Report No 103
Thomas, DA Principles of Sentencing (Heinemann: London, 1970)
Fox R and Frieberg A, Sentencing State and Federal Law in Victoria (Oxford University Press: Melbourne, 1999) 2nd ed
Lovegrove, A, in Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Australian Institute of Criminology: Canberra, 2004), Research and Public Policy Series No 59
Cooper v Corvisy (No 2) [2010] ACTSC 166
Perovic v CW (Magistrates Court, Somes M, CH 05/1046, 1 June 2006, unreported)
R v Davis (NSWCCA, 4 February 1994, unreported)
R v Bell [2003] NSWCCA 305
R v Fernando (1992) 76 A Crim R 58
R v Eisenach [2011] ACTCA 2
Saga v Reid and Anor [2010] ACTSC 59
Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 2
R v PM [2009] ACTSC 24
J by his litigation Guardian Vardanega v Australian Capital Territory (2009) 172 ACTR 1
R v Verdins (2007) 16 VR 269
R v Mills [1998] 4 VR 235
Thorn v Laidlaw [2005] ACTCA 49
R v AEM Snr; KEM; MM [2002] NSWCCA 58
R v Smith [1964] Crim L. R. 70
Postiglione v The Queen (1997) 189 CLR 295
Waters v The Queen [2007] NSWCCA 219
Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457
R v Yougie (1987) 33 A Crim R 301
R v King (2008) 179 A Crim R 600
ON APPEAL FROM THE CHILDRENS COURT
No. SCA 11 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 May 2011
IN THE SUPREME COURT OF THE )
) No. SCA 11 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE CHILDRENS COURT
TM
Appellant
v
BASIL KARAPANOS AND NATHAN BAKES
Respondents
ORDER
Judge: Refshauge J
Date: 12 May 2011
Place: Canberra
THE COURT ORDERS THAT:
The sentence imposed by the Children’s Court on 16 December 2010 is set aside.
In lieu of it, TM is sentenced to imprisonment for six weeks to commence on 25 March 2011 and end on 11 May 2011, noting that if she had not pleaded guilty, she would have been sentenced to ten weeks imprisonment.
The sentences imposed by the Children’s Court on 17 January 2011 are set aside.
In lieu of the sentence for the offence of obstructing a Territory official, TM is sentenced to a good behaviour order for three months and she is required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentencing Administration) Act 2005 (ACT) from 12 May 2011 to 11 August 2011 and a probation condition is included that for those three months she be on probation subject to the supervision of the Chief Executive or a person delegated by him to supervise her and to obey all reasonable directions of the person supervising her.
In lieu of the sentence for assault, TM is sentenced to six weeks imprisonment to commence on 5 April 2011 and end on 16 May 2011, noting that had she not pleaded guilty, she would have been sentenced to three months imprisonment.
In this appeal from the Children’s Court, constituted by the Magistrates Court, the appellant, TM, challenges the sentences imposed on her for three offences committed while she was in custody.
TM, now sixteen years old, is an Aboriginal girl who has significant intellectual disabilities and has had a distressingly dysfunctional upbringing, leading her to suffer from psychological disabilities.
The appeal
In respect of the matters under appeal, TM was sentenced first on 16 December 2010 for a common assault committed on 12 August 2010 and then sentenced on 17 January 2011 for an assault and a charge of resisting a public official in the exercise of her functions both committed on 27 January 2010.
Appeals from sentencing decisions of the Children’s Court are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act). Under s 209 of that Act, appeals must be instituted within twenty eight days of the date on which the sentence was imposed.
An application was made on 18 February 2011 for leave to appeal out of time under
s 209(1) of the Magistrates Court Act. The appeal against the sentence, which was imposed in December, was well out of time but the appeal against the sentence, which was imposed in January, was only a few days out of time.
On 25 February 2011, the Master granted leave to appeal and directed that the appeal be heard on 12 April 2011.
The Appeal Book was duly completed and filed and the appellant also filed a copy of the legislation and authorities on which she proposed to rely.
Unfortunately, despite rr 5137 and 5138 of the Court Procedures Rules 2000 (ACT) (the Rules), neither a chronology nor any outline of submissions was filed on behalf of the appellant or the respondent. This hampered the effective hearing of the appeal and such failures are to be strongly discouraged. The chronology assists the court to understand the background to the appeal, especially when, as here, there is a complicated interrelationship of a number of sentences imposed at different times. The summary of argument assists the court to prepare for the appeal, enhancing the likelihood of an early decision, even at the conclusion of the appeal. It also aids the parties to crystallise the arguments they wish to put and ensure that they are coherent, complete and compelling.
In this case, such a chronology and summary would have avoided a waste of time at the commencement of this appeal which was necessary to give me an understanding of the context and circumstances of the appeal.
Jurisdiction
As I noted above (at [4]), appeals against sentencing decisions of the Children’s Court are regulated by Div 3.10.2 of the Magistrates Court Act.
I have described in Cooper v Corvisy (No 2) [2010] ACTSC 166, the principles surrounding such appeals. I apply them in this case.
The sentences imposed in the Children’s Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion of the Children’s Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate and that I am not merely tinkering. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the institution of an appeal stays the execution of the sentence on which the appeal has been taken and, accordingly, this needs to be addressed when the appeal is decided.
The facts
On 16 April 2010, TM was sentenced in the Children’s Court for a series of offences, namely two charges for aggravated robbery (in company), aggravated burglary, ride/drive a motor vehicle without consent and theft, all committed on 28 October 2009, and a common assault committed on 20 December 2009.
TM was sentenced to a series of terms of imprisonment which, for a young person, is served by full-time detention at a detention place: s 133H of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Some of the sentences were fully cumulative on each other and the total sentence directed to commence on 28 October 2009 when, apparently, TM was first taken into custody in respect of these offences, and to end on 27 January 2012, but she was to be released on 27 February 2011 when the balance of the sentence was suspended and she was required to sign an undertaking to comply with the young offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of eighteen months and to comply with a condition to accept supervision of the Chief Executive and obey reasonable directions.
TM was further convicted on 2 July 2010 of a common assault committed on 15 February 2010, that is while she was in custody but, curiously, later than the second set of offences the subject of this appeal. For this assault, TM was sentenced to two months imprisonment. The records show “consecutive to the sentence imposed on [the charge of aggravated robbery] to be served as full time detention. The sentence is to start from 28 February 2011. The sentence is to end on 27 April 2011”.
As a matter of fact, the sentence starts not consecutively to the earlier sentence, but only at the time when the sentence of imprisonment for the earlier sentence is suspended and, thereafter, is concurrent with the suspended portion of the sentence, but spent in further full-time custody. The effect of this is to reduce the period of the Good Behaviour Order supervision in the community from the earlier sentence by two months.
The offences, for which the sentences under appeal were imposed, all occurred whilst TM was in custody serving the sentence imposed on 16 April 2010.
The first sentence
The first sentence imposed was not for the offences committed first in time, but it is convenient to deal chronologically with that sentence.
On 12 August 2010, TM was in the common room of the Bimberi Youth Justice Centre playing a game with her twin sister. On the other side of the room, the victim was playing a game with other detainees. TM and her sister became abusive towards the victim because of a remark made earlier that day by the victim about the theft of another detainee’s diary, suggesting that TM had been involved in the theft.
A staff member entered the common room and told the girls to settle down and then left. TM and her sister continued to taunt the victim and, when the victim ignored her, picked up the dice from her board game and threw it at the victim. TM then stood up, swearing and yelling at the victim, and went over and with her right hand in a closed fist punched the victim in her right temple and the victim felt immediate pain.
The staff member came back into the common room and arranged for a lock-down but TM refused to return to her room and she was restrained by other staff members and physically escorted to her room.
She was charged with assault under s 26 of the Crimes Act 1900 (ACT) (the Crimes Act), an offence attracting a maximum penalty of two years imprisonment, and ultimately appeared for sentence on 16 December 2010. A plea in mitigation was made on her behalf.
A psychiatric report was available, though prepared in January 2008. The learned Magistrate held that “... given its age and given that it’s not subject to any of the usual declarations regarding an expert witness ... It’s not admissible”. It is not clear to me that this is correct. Section 4(2) of the Evidence Act 1995 (Cth) provides that the Act does not apply to sentencing proceedings unless the court makes a direction to that effect. No such direction was made. Further, while Div 2.12.1 (Expert Evidence Generally) of the Rules applies to criminal proceedings (see r 4000 of the Rules), nothing in that Division would render the report inadmissible. The rejection of the report cannot be sustained.
In any event, a detailed pre-sentence report had been prepared and was tendered. The appellant’s solicitor gave the Court a detailed background to TM and her circumstances and, in particular, noted that there was a particular context to the offence, where an allegation of theft of the diary had been made against TM but that the diary turned up in the victim’s cell a week later; also, it was said, an unwelcome advance had been made to TM by the victim which TM had rebuffed.
The learned Magistrate assessed the assault as at the lower to “midland [sic]” range. Her Honour noted that TM was “getting quite a bit of assistance out of being in Bimberi”. She took into account that the sentence “sends a message to you that you can’t behave like this”. She noted that s 72 of the Sentencing Act permitted that the sentence she was to impose be served concurrently or partly concurrently and partly consecutively with the sentence she was then serving.
The section provides:
(1)This section applies if the primary sentence is imposed on the offender for any of the following offences:
(a)an offence committed while the offender was in lawful custody;
(b)an offence committed while the offender was unlawfully absent from a correctional centre or other place during the term of the offender’s sentence of imprisonment;
(c)an offence involving an escape from lawful custody.
Example of unlawful absence for par (b)
the offender fails to return to a correctional centre as required after community service work or approved leave
NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132)
(2)In the absence of a direction under subsection (3), the primary sentence must be served consecutively with the existing sentence of imprisonment.
(3)The court may direct that the primary sentence be served concurrently (or partly concurrently and partly consecutively) with the existing sentence.
(4)Unless the court considers that special circumstances apply, the court must not give a direction under subsection (3) if the primary sentence is an offence that involves causing harm, or threatening to cause harm, to a corrections officer.
The prosecutor had made the following submission on this point:
I can also point your Honour towards section 72 of the Crimes (Sentencing) Act which indicates, subsection (1)(a) [sic] reads that if an offence is committed whilst in lawful custody, then in the absence of a direction under subsection (3), the starting point for the new sentence is to be served consecutively with the existing sentence of imprisonment.
Your Honour is able to make an order under subsection (3) of section 72 ordering for it to be served concurrently, if your Honour so wishes. Given that the young person appears to be doing well within the correctional facility, in terms of engaging, it may be an option for your Honour to have half of the sentence concurrent and half consecutive.
It appears that the reference to subsection (1)(a) should have been to subsection (2).
Her Honour then said:
I’m required, as I’ve been reminded by Ms Musgrove, when something happens when you’re already being held in custody in some way, such as you are in Bimberi, that the first starting point is that any sentence I impose should be added on to the time you’re already serving.
But I have some flexibility in that regard as to whether or not I should consider there be an overlap so you don’t have a whole new sentence on top and I’ve taken into account as well and I’ve taken into account that you’ve already spent some time in there because of this offence.
I am not sure that her Honour correctly articulated the effect of that section. I will deal with that further below.
Her Honour did not refer to the plea of guilty. Her Honour referred to the need for denunciation of the offence. Her Honour then said:
... the reason I’ve decided to impose a sentence of imprisonment is because it seems to be the best option for you in the circumstances and the only one that’s likely to assist in these things that we’re wanting to address, so [sic] your rehabilitation.
Her Honour then imposed a sentence of nine weeks imprisonment, but to commence from 24 March 2011 (presumably because of s 63 of the Sentencing Act) as her Honour was told that “whilst (the appellant) is actually a sentenced prisoner, she was remanded in custody for the purposes of this offence from 12 November until [16 December] ... I reckon that to be four weeks and six days”. As TM’s current sentence was due to expire on 27 April 2011, the four weeks and six days pre-sentence custody resulted in the start date of 24 March 2011.
The second sentence
The second sentence imposed was for two offences committed on 27 January 2010. The charges for these offences were only laid, however, on 29 November 2010. No explanation was given for the significant delay in prosecuting these offences. There may have been an argument that such unexplained delay breached the appellant’s rights under s 20(3) of the Human Rights Act 2004 (ACT) (the Human Rights Act). See Perovic v CW (Magistrates Court, Somes M, CH 05/1046, 1 June 2006, unreported).
No explanation seems to have been given to the learned Magistrate. None was given to me.
It was, however, a mixture of a nasty assault and a quite minor obstruction charge, the latter of which, in ordinary circumstances and without the concomitant assault, seems unlikely to have been charged as a criminal offence and more likely to have been dealt with as a disciplinary offence.
The circumstances were that a staff member at Bimberi Youth Justice Centre was supervising female detainees, including TM. The detainees were being returned to their respective cabins and this appears to have required the staff member to undertake a frisk search. TM started moving her hips from side to side which apparently made it difficult for the staff member to frisk search her. TM then moved to the centre of her cabin and was called back. She returned. As the staff member moved to search her, TM is recorded in the Statement of Facts as saying “If you don’t [sic] the search I will punch you in the face”. I can only assume that this is a silly error and the word “don’t” should be “do”.
The staff member then completed the search and moved back when TM turned round and spat in the face of the staff member. The fluid spat out hit the staff member’s forehead and eyes and she said she felt a lot of fluid on her face. She had immediately closed her eyes. She felt scared of catching an infectious disease, though one would expect that the medical arrangements in Bimberi Youth Justice Centre would show whether the appellant had any of the expected infectious diseases. In any event, the more serious such diseases are not transmissible through spittle. The staff member was assisted by another to wash her face. She provided a statement on 29 January 2010 to police; this merely emphasised the oddity of the delay in this prosecution.
On 29 November 2010, informations were laid charging TM with assault under s 26 of the Crimes Act and knowingly obstructing a Territory public official, an offence under s 361(1) of the Criminal Code 2002 (ACT), for which the maximum penalty is two hundred penalty units (a fine of $2,200) or imprisonment for two years.
These charges came before the Children’s Court on 16 December 2010 along with the other charge. The appellant’s counsel sought an adjournment because he had not seen the details and a copy of the charges and statement of facts was only supplied to him at the hearing. This compounds the delay question, given that the charges had been laid eighteen days before and shortly after the earlier charge had been mentioned in court, when a pre-sentence report had been ordered. No explanation was offered as to why this material was not supplied to the appellant’s lawyers earlier.
This meant that, again, the proceedings were delayed through no fault of TM. The further hearing was adjourned to 17 January 2011, ten days less than a year after the offences were committed.
At this hearing, the psychiatric report was tendered after the learned Magistrate this time actually asked to see it.
An officer, apparently from Bimberi Youth Justice Centre but otherwise unidentified on the transcript, gave some information about the appellant’s recent behaviour. It was said that her “behaviour has improved dramatically over the past couple of months” though there were some incidents since her last court appearance. Apart from an incident of giving her medication to other detainees, the further incidents seem to be of a relatively minor nature. Her other misdemeanours were swearing and refusing staff requests, but “she ... regresses at these times and in those cases will lose privileges”. She had been engaging in holiday programs and attending the gym.
The prosecution characterised the assault as a disgusting act of a kind to warrant a sentence of imprisonment. Reliance was also placed on the appellant’s criminal history. The court was also referred to R v Davis (NSWCCA, 4 February 1994, unreported), referring to the following passage of Wood J (as his Honour then was):
The maintenance of discipline within corrective institutions is a matter of a very great important. The potential for substantial damage to public property and the serious physical harm, both to prison officers and other inmates, as a result of breaches of gaol discipline is considerable, particularly in the circumstances of unrest or dissatisfaction over matters of policy.
It is a consequence of that fact that sentences for offenders involving attacks on prison officers in the execution of their duty must involve as a significant component, both personal and general deterrence. Say, in special circumstances, such sentences in my view should be accumulated upon any sentence already being served otherwise a sentence loses any steam of personal deterrence.
I pause to note that the decision seems to refer to adults in prisons and, to that extent, while articulating a matter of general principle, must be moderated by the statutory and common law principles relating to young offenders, especially those with mental disabilities.
The appellant’s counsel submitted that there were special circumstances here which meant that, although s 72(4) of the Sentencing Act appeared to require a consecutive sentence, it should not be imposed. He relied on the fact of the appellant’s defiant behaviour twelve months ago but that she had clearly improved her behaviour substantially since then.
He also pointed out that had appropriate arrangements for the prosecution of the offences been made, her Honour would have been dealing with the matter at least a month before with the other charge. He also relied on the appellant’s background and the matters set out in the psychiatric report.
Her Honour then proceeded to sentence. In doing so, her Honour referred to the plea of guilty and to the maximum penalties.
Her Honour assessed the resist charge as “in a low to mid range”, which seems high to me; it is difficult to think of something much less obstructive to a search than an apparently fairly brief shaking of the hips, a moving away and then a compliant return which permitted the frisk search to be conducted.
Her Honour properly described the assault by spitting as “a particularly horrible thing to do”. Her Honour made the, perhaps curious, statement, without any evidence of which I am aware, that “... it’s known that the more people who are kept in custody have these illnesses than the people out in the street ...” I am not at all sure to which illnesses her Honour was referring, for they would have to be those which could be transmitted by saliva or phlegm. That would, for example, exclude the more serious and dramatic illnesses that are blood borne. As noted, too, one would expect that the health records of the Centre would have recorded the infectious diseases of the appellant.
Her Honour referred to R v Bell [2003] NSWCCA 305. Her Honour incorrectly described that as “a case where a police officer had been spat upon”; he had not. The offender there had punched and kicked a police officer and then actually threatened to spit on him and (in a threat unlikely to be able to be carried out) infect him thereby with hepatitis with which he said he was himself infected and gave the officer “a life of misery”. He did not spit on the officer. Nor is it at all likely that he could have infected the officer in the way threatened.
Her Honour noted, however, that Sheller JA (with whom Sully and Howie JJ agreed) did refer to the mental anguish that the threat was likely to cause. That was clearly similar to what the officer here felt.
Her Honour acknowledged that TM has “had a difficult life to date” and that it was possible she suffered from foetal alcohol syndrome. She also noted that she seemed to have been subject to sexual assault violence, substance abuse, instability and detachment from her parents. Her Honour noted that this had created a lot of anger in her and she took into account in sentencing her difficulty in dealing with her anger. Her Honour did note, however, that TM had been able to behave herself at times and improvement had been noted. Her Honour also noted the need to take into account the totality principle.
Her Honour did note, however, TM’s prior record, including ten previous convictions for common assault and four previous convictions for resisting or hindering public officials, police officers or others.
Her Honour took into account the early plea of guilty and “provided for a discount in the sentence”.
Her Honour decided that the only appropriate sentence was imprisonment. Her Honour referred to specific deterrence, though described it as “... a lesser factor on this occasion because of the age of the charges ...” Her Honour also took into account general deterrence. Her Honour noted that s 72 of the Sentencing Act, where, as here, the victim was a corrections officer, required cumulation of the sentence with her current sentence unless there were special circumstances.
Her Honour then imposed for the charge of assault a sentence of three months imprisonment and stated, no doubt in compliance, at least in part, with s 37 of the Sentencing Act that, but for “a discount for other factors”, the sentence would have been four months.
For the charge of resisting an official, her Honour imposed a sentence of two months imprisonment but to be concurrent with the sentence on the charge of assault. The sentences were also made concurrent on the sentence imposed for the offence dealt with on 16 December 2010 (the second offence and the first sentence). This meant that the end date for the sentence was extended from 2 June 2011 to 23 June 2011. Her Honour did not identify any discount in respect of this sentence for the plea of guilty or other matters.
The personal circumstances of the appellant
TM is a young Aboriginal girl born in Queensland. She has a distressing history which makes her behaviour and criminal record unsurprising.
TM is a twin daughter of her mother and, apart from her twin has, it appears, nine siblings, the youngest, it appears, born in 2008. She also has three half sisters by her father and his former partner. TM is now 16 years old.
Soon after she and her twin sister were born, her parents separated due to domestic violence. She remained with her mother until she was two and a half years old when she went to live with her maternal grandmother and she was separated from her sister. She returned to her mother’s care when she was five but also spent time with her grandmother. In 2003, the family moved to Queanbeyan and then Canberra, but TM experienced unstable accommodation arrangements, including a foster care placement. She also resided with her father in Queensland for a month and her father’s ex-partner for two months.
TM was subject to Care Orders in 2006 and 2007. She has, since then, had multiple placements. She was sent to live with her mother for a period but absconded after three days and her whereabouts were uncertain for some three months, though it was thought she was in company with a nineteen year old male who was known to Youth Justice and ACT Adult Corrective Services.
TM has maintained some contact with her Barnardo’s Carer who now resides in Coffs Harbour.
TM attended school in Queensland and Canberra. She did not attend regularly and experienced difficulty with schoolwork. She ceased attending school in Year 7. She is reported to have the equivalent reading age of a six year old.
She had also been tested and shown to have an overall IQ of 50, placing her in the extremely low range of the 0.1 percentile. She has attended various programs but most were terminated for non-attendance. She has been provided with a tutor and did engage well while in custody but failed to continue participation when back in the community. Her participation while in custody has more recently been much better, described by her teacher as “fantastic”.
TM experimented with marijuana when she was about eleven years old and was introduced to alcohol on her twelfth birthday. Her use has since then escalated and now includes methamphetamines and heroin. She has not engaged in a drug and alcohol program and refuses to do so in custody.
Unsurprisingly, TM has a number of psychological, emotional and social challenges. She was assessed with her twin sister by Professor Louise Newman, Chair of Perinatal and Infant Psychiatry of the University of Newcastle, for the Care and Protection Unit of the Office for Children, Youth and Family Support. It is to be assumed that this report and the results and recommendations in it were known to those responsible for her custody in Bimberi Youth Justice Centre and will have informed the individualised treatment which will be offered to her in that institution.
After rehearsing TM’s family background and social history, Professor Newman wrote:
In summary it appears that both girls have significant difficulties in behavioural and emotional control, exacerbated by drug and alcohol use. Both have been traumatised by early and prolonged disruptions in attachment relationships and experiences of neglect and inadequate care. Both have become oppositional, angry and impulsively aggressive. They are highly vulnerable to exploitation and sexual abuse. Both seek contact with their mother but experience multiple failures in this relationship contributing to ongoing anger. Their attachment behaviour with respect to the mother is disorganized and consistent with the pattern of Aggressive Attachment Disorder...
Professor Newman also reported that it was impossible to exclude a diagnosis of foetal alcohol syndrome. She also reported that medication had a limited role in her treatment and management.
Professor Kenneth Nunn also assessed her and recommended:
1.A gentle, patient and long term approach to resolving the past rather than trying to confront the issues head on.
2.A strengths based approach to emphasising her self care, her appearance, her interest in clothes and the enhancement of her parenting skills through a parenting course in due time.
3.Educational programs that major on her strengths in art while still encouraging her with her weaknesses in Maths and Reading. Encouraging her to read to young children through simple books especially culturally appropriate books.
4.A future oriented approach that continually aims to help her structure her immediate, short term and long term future so that she is not simply operating in the present or reacting to the past as she has previously done.
5.Lastly it will be important to put in place plans B and C which will need to be worked out on the basis that she will have setbacks and be prone to disrupting all the things that have been put in place by taking off for small periods of time to various relatives. It is critical that the management plan include these rather than simply collapsing in response to her impulsivity. Any plan that is going to work will require consistent involvement of indigenous workers and the recognition that the whole plan cannot rely on her inherent stability.
She was also diagnosed in November 2008 as suffering from major depression and was prescribed medication. She reported that she did not continue with her medication when in the community. She has, however, while in custody, been engaging in some therapy with a psychologist.
TM has a depressingly long criminal record for one of her age. She has now eleven convictions for common assault (including the current convictions), been found guilty of robbery, and convictions for aggravated burglary, aggravated robbery and possession of a knife and convictions for four theft and similar offences. She has convictions for street offences, including resisting, harming and hindering Commonwealth public officials (presumably police officers) as well as four failing to appear in accordance with a bail undertaking and contravening probation orders.
She has been sentenced to periods of custody, first in April 2009 when she was sentenced to an effective period of six months imprisonment to commence in February 2009.
Relevant to this appeal, she appeared before the Children’s Court on 16 April 2010. The offences for which she then appeared were committed on 28 October 2009 and it appears she was then arrested and remained in custody from that date. She was sentenced for a series of offences, a number of those sentences being cumulative on each other, to a total of twenty-seven months imprisonment to date from 28 October 2009, but that the sentence was to be suspended on 27 February 2011 and she was to be subject to a Good Behaviour Order from 28 February 2011.
On 2 July 2010 she was convicted of an assault committed on 15 February 2010 thus, like the offences the subject of this appeal, being committed while she was in custody. The sentence of two months imprisonment was added to the earlier sentence, reducing the period of the Good Behaviour Order by two months, so that it began on 27 April 2010.
The sentences imposed by the learned Sentencing Magistrate the subject of this appeal then effectively deferred the commencement of the suspension of TM’s sentence to 25 May 2011 (for the first sentence) and to 23 June 2011 for the second sentences. At that time, she will have been in custody continuously for a total period of five days less than twenty months.
The appeal grounds
The grounds of appeal were:
(a) that the sentences were manifestly excessive;
(b) that in applying s 72 of the Sentencing Act, the learned Sentencing Magistrate did not give sufficient weight to individualised justice;
(c) that the principle for taking into account the Aboriginality of the appellant expressed in R v Fernando (1992) 76 A Crim R 58 (Fernando) should have been taken into account; and
(d) the learned Sentencing Magistrate erred in failing to take account or proper account of the appellant’s early guilty plea.
These grounds were not expressed in the alternative but clearly (a) stands alone and (b), (c) and (d) are, if anything, specific errors amounting to an alternative basis for appellate intervention: R v Eisenach [2011] ACTCA 2 (at [41] to [44]). It seems to me, however, that where a ground of appeal is expressed in terms such as “sufficient weight” or “proper account” it is likely that it is intended to express not so much specific error as a particular of where the sentence was manifestly inadequate or excessive.
The notice of appeal also gave notice of an intention to adduce further evidence. No application nor affidavit was filed as required by r 5193 of the Rules. See Saga v Reid and Anor [2010] ACTSC 59 (at [46]). In the event, no such evidence was sought to be adduced.
The contentions
The issues raised on the appeal by the appellant’s counsel were not included in a written summary (as noted above at [8]) and so the argument was not structured in a comprehensive way that made for easy comprehension.
A number of challenges were made to the sentence and it was submitted that the learned Sentencing Magistrate had failed to comply with a number of statutory and common law obligations.
The appellant’s counsel, Mr B Pierce, submitted that the sentences constructively failed to have adequate regard to s 133C(2) of the Sentencing Act, which requires the court to “have particular regard to the common law principle of individualised justice”. This, he submitted, meant that the sentencing should focus on the young offender not on general or specific deterrence.
Mr Pierce also submitted that TM was not a suitable vehicle for general deterrence because of her intellectual disability. He referred to Director of Public Prosecutions (Cth) v De La Rosa (2010) 243 FLR 28. That was a complex case, involving a number of issues and principles. I assume that what was meant were the principles about the role of an offender’s mental health in sentencing. The principles that I understand were being identified were those summarised by McClellan CJ at CL, after referring to a number of decisions of courts on the issue, including intermediate courts of appeal from a number of Australian jurisdictions.
His Honour’s summary, omitting citations, was as follows (at [177]):
·Where the state of a person’s mental health contributes to the commission of the offence in a material way, the offender’s moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence.
·It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed.
·It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced ...
·It may reduce or eliminate the significant of specific deterrence ...
·Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public ...
The appellant’s counsel further referred to s 133D of the Sentencing Act which provides:
(1)In deciding how a young offender should be sentenced (if at all) for an offence, a court must consider the following matters:
(a)the young offender’s culpability for the offence having regard to his or her maturity;
(b)the young offender’s state of development;
(c)the past and present family circumstances of the young offender.
(2)This section applies in addition to section 33 (Sentencing – relevant considerations).
In particular, he referred to TM’s age, the real possibility of her suffering from foetal alcohol syndrome, her early introduction to drugs and alcohol and her family circumstances. He referred to her developmental delay and low IQ, as well as the educational challenges she had to meet. He also referred to her depression. He referred to the family situation, noting that the family were “known to Child Protection”.
He also referred to the principles in relation to the sentencing of young offenders that I had articulated in R v PM [2009] ACTSC 24 (at [64]), where I said:
The effect of these provisions, then, is that for a young offender, a court does not set a non-parole period but instead, if it wishes to permit parts of the sentence to be served on condition [sic] release, it may suspend part of the sentence and impose a good behaviour order. In my view, there is a danger in the alternative approach, in that when a sentence of full-time custody without any suspension but truncated to be followed by a good behaviour condition as a combination sentence is possible, it would run the real risk, unlike a head sentence with a non-parole period when sentencing adults, that the term of imprisonment would be seen as manifestly inadequate. Hence the need for a sentence of the proper length to be imposed but then to be partially suspended. A good behaviour order is then required to be made for all suspended sentences for at least the length of the suspended portion of the sentence: s 12(3) of the Sentencing Act.
TM’s counsel also referred to s 133G(3), which requires the court to consider, when sentencing a young offender to imprisonment, a combination sentence consisting of imprisonment and a good behaviour order with a supervision condition.
As to specific errors, the appellant’s counsel referred to the following, in addition to matters referred to earlier:
· a failure to refer to imprisonment as a sentence of last resort in relation to the first sentence;
· a failure in respect of the first sentence to take into account the plea of guilty;
· a failure to consider a combination sentence;
· a failure to consider totality.
Counsel for the respondent, Mr J Lawton, submitted that the offences were serious. They affected directly the good order of a correctional facility and the discipline within it required the support of the courts through the imposition of appropriate sentences.
He accepted that the obstruction charge was quite minor and probably more appropriate for internal juvenile justice disciplinary measures but pointed out that, in any event, the sentence was wholly concurrent and a variation of that sentence on appeal would not affect the outcome for TM.
He also submitted that, having regard to the length of the sentences imposed, any variation would amount to tinkering and that, therefore, appellate intervention was not appropriate.
Consideration
The sentencing exercise confronting the learned Sentencing Magistrate in each case was a difficult one for a range of reasons.
In the first place, it seems that in the circumstances it may have been better for the whole of the sentencing to have been conducted together. For example, her Honour had before her the detailed and helpful report of Professor Newman when dealing with the second sentence but not the first and this had useful material in it to help with the determination of the appropriate sentence.
Secondly, the excessive and unexplained delay in preferring the charges the subject of the second sentence meant that her Honour was faced with a nasty assault but which was to be sentenced an unreasonably long time after it had occurred.
Thirdly, her Honour was dealing with a young girl from a deprived and dysfunctional upbringing and significant disabilities who had committed yet more offences of a type and in a setting that the court had to recognise as calling for a sentence that clearly marked the behaviour as inappropriate but recognised all other relevant factors.
Nevertheless, there are some general points that need to be made. Because the offences were committed in a custodial setting, s 72 of the Sentencing Act was a central provision that needed consideration. It is, at least so far as subs (4) is concerned, probably an expression of the common law. See R v Davis.
It is necessary to include the section in the Act, however, for at common law, consecutive sentences were not permitted, at least for felonies: J by his litigation Guardian Vardanega v Australian Capital Territory (2009) 172 ACTR 1 (at 14; [66] to [68]). Thus, a provision had statutorily to be made.
It seems to me, however, that s 72(2) and (3) is not a legislative preference for cumulative sentences, but are simply empowering provisions, necessary because of the common law. A default provision (subsection (2)) is obviously necessary because some provision must be made where no direction is otherwise made. It is to be noted that the default position is different from that expressed in s 71 of the Sentencing Act but just as s 71 has not been construed as giving any legislative direction to make multiple sentences primarily concurrent, I do not consider that s 72(2) and (3) give any legislative direction to make sentences for offences committed while in custody primarily to be consecutive. The approach to sentencing in these circumstances may be differently influenced but the discretion is still wide. This is, to some extent, reinforced by s 72(4) which does require a sentence for an offence involving harm or threatened harm to a corrections officer to be served consecutively with the sentence being served unless special circumstances apply.
Thus, in my view, it was incorrect of her Honour so far as the first sentence was concerned to decide that the “starting point” is that any sentence “... should be added on to the time you’re already serving.” Her Honour had a wider discretion than that.
It is also clear that TM faces some significant challenges that the criminal justice system in general and the corrections system in particular need to keep clearly in view. Her dysfunctional and deprived background has led her to a mental state described by Professor Newman as “oppositional, angry and impulsively aggressive.” This inevitably means that unless she is managed in an appropriate way, and Professor Nunn made a number of suggestions, she is likely, not through malice, but because of her mental condition, to get herself into ongoing trouble.
In these circumstances, and particularly with her intellectual disability, applying principles such as those set out in Director of Public Prosecutions (Cth) v De La Rosa and R v Verdins (2007) 16 VR 269, means that general deterrence, while not absent or irrelevant, is likely to play a lesser role in sentencing and specific deterrence will need to be carefully incorporated into any sentence, for heavy sentencing on such a young person with such challenges is just as likely to exacerbate the behaviour as draw the line of marking out the community’s disapproval.
That TM is a young person who has a serious criminal record does not render irrelevant the principles of sentencing for young offenders as expressed, for example, in R v Mills [1998] 4 VR 235 when Batt JA (with whom Phillips CJ and Charles JA agreed) said (at 241):
In the case of a youthful offender rehabilitation is usually far more important than general deterrence. This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender).
That is clearly reinforced by s 133C(1) of the Sentencing Act which is largely to the same effect. See also Thorn v Laidlaw [2005] ACTCA 49 (at [26]).
This, perhaps, expresses the meaning of s 133C(2) of the Sentencing Act when it refers to individualised justice. The Explanatory Statement refers to a passage in the Report of the Australian Law Reform Commission, Same Crime, Same Time: Sentencing of Federal Offenders (ALRC: Sydney, 2006), Report No 103, where (at [5.21]) it stated:
The principle of individualised justice requires the court to impose a sentence that is just and appropriate in all the circumstances of the particular case. Courts have consistently recognised the importance of this sentencing principle. For example, in Kable v Director of Public Prosecutions, Mahoney ACJ stated that ‘if justice is not individual, it is nothing’. (Kable v Director of Public Prosecution (1995) 36 NSWLR 374, 394). Individualised justice can be attained only if a judicial officer possesses a broad sentencing discretion that enables him or her to consider and balance multiple facts and circumstances when sentencing an offender. This broad discretion is required because sentencing is ultimately ‘a synthesis of competing features which attempts to translate the complexity of the human condition and human behaviour to the mathematics of units of punishment usually expressed in time or money’ (Weininger v The Queen (2003) 212 CLR 629.
This, of course, applies to every sentence, whether for an adult or a juvenile. What may, however, be more directly meant so far as minors are concerned, is what was said by the New South Wales Court of Criminal Appeal in R v AEM Snr; KEM; MM [2002] NSWCCA 58 (at [97]):
It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported, New South Wales Court of Criminal Appeal, 2 October 1997); R v Mazzilli [2001] NSWCA 117.
“Individualization” was referred to in the seminal sentencing text by Thomas, DA Principles of Sentencing (Heinemann: London, 1970). In the second edition (published in 1979), Mr Thomas wrote:
Cases in which the primary decision is likely to be in favour of an individualized measure can be identified by the characteristics of the offender. While individualized measures are used in a wide range of cases where the claims of the tariff are not strong and there is reason to suppose that an individualized measure will provide the treatment, guidance or supervision needed to enable the offender to make the necessary adjustments to social demands, four types of offenders are normally considered particularly suitable for individualized measures. These are young offenders (predominantly those under 21), offenders in need of psychiatric treatment, recidivists who appear to have reached a critical point in their life and persistent recidivists who are in danger of becoming completely institutionalized as a result of repeated sentences of imprisonment. Offenders in these categories will normally be dealt with by individualized measures unless their offences are so grave that the case for a tariff sentence is overwhelming or their previous reactions to such measures indicate that such an approach would be fruitless.
Mr Thomas then referred to the first (and most relevant to these reasons for judgment) of those categories, the young offender. He referred (at 18) to the well-known passage from the UK Court of Appeal decision in R v Smith [1964] Crim L. R. 70:
In the case of a young offender there can hardly ever be any conflict between the public interest and that of the offender. The public have no greater interest than that he should become a good citizen. The difficult task of the Court is to determine what treatment gives the best chance of realizing that objective.
In this case, individualised justice is contrasted with a “tariff” approach, though in extremely serious crimes the demands of the tariff may prevail.
The rationale for this approach may be discerned in the comments of Judge Newman of the South Australian Children’s Court, quoted in Fox R and Frieberg A, Sentencing State and Federal Law in Victoria (Oxford University Press: Melbourne, 1999) 2nd ed (at 827; [11.201]):
... Juveniles are less mature – less able to form moral judgments, less capable of controlling impulses, less aware of the consequences of acts, in short they are less responsible and therefore less blameworthy, than adults. Their diminished responsibility means that they ‘deserve’ a lesser punishment than an adult who commits the same crime... Lesser punishment means not only more sparing use of detention but also means significantly shorter terms of detention, bonds and periods of license disqualification, because time has a wholly different dimension for children than it does for adults ...
Allied to this is the notion of a “crushing” sentence, usually thought of in the context of very long sentences but which, in the articulation in the authorities, may apply to sentences more broadly, as suggested in Postiglione v The Queen (1997) 189 CLR 295 by the reference to record and prospects (per Dawson and Gaudron JJ at 304) or by the reference to holding out hope and giving encouragement to reform (per Kirby J at 341). For young offenders, especially, what might otherwise appear to be sentences within range may be regarded as offending against such expectations. As Lovegrove, A in Sentencing the Multiple Offender: Judicial Practice and Legal Principle (Australian Institute of Criminology: Canberra, 2004), Research and Public Policy Series No 59, puts it (at 143):
In regard to the application of the totality principle, the weight of case law says there is a balance to be struck between what quantum of sentence is proportionate to the totality of the criminality of the offending and what would not crush the offender. In the light of this, the court has to determine a sentence proportionate to the case, and then what proportion of this quantum the offender could be expected rehabilitatively to cope with and mercifully to bear. If these two levels of sentence are disparate, finally, the court must strike a balance.
It is this approach which needs to be taken in this case.
The appellant’s counsel did further refer to the principles expressed in R v Fernando, but did not make detailed submissions on them. Those principles, though perhaps arising out of the difficult circumstances of sentencing Aboriginal offenders in remote communities, are not so limited: Waters v The Queen [2007] NSWCCA 219 (at [39]).
In 2009, the Court of Appeal of the Supreme Court of Victoria undertook a comprehensive consideration of those principles and the subsequent elucidation of them. The Court, in Director of Public Prosecutions (Vic) v Terrick (2009) 24 VR 457, set out the principles it had divined from its consideration (at 468-9; [46]):
1.The individual circumstances of an offender are always relevant to sentencing.
2.Circumstances of disadvantage, deprivation or (sexual) violence may be explanatory, if not causative, of the offending or (if relevant) of the offender’s alcohol or drug addiction.
3.The (relative) weight to be given to circumstances of disadvantage or deprivation is a matter for the sentencing judge, and will depend on:
(a)the nature and extent of the disadvantage;
(b)the nexus (if any) with the offending; and
(c)the (relative) importance in the particular case of sentencing considerations such as rehabilitation, deterrence (specific and general), community protection and social rehabilitation.
4.The same sentencing principles apply irrespective of the offender’s race. Thus, Aboriginal offenders are not to be sentenced more leniently than non-Aboriginal persons on account of their race.
5.In sentencing persons of Aboriginal descent, the court must avoid any hint of racism, paternalism or collective guilt. At the same time, the sentencing court is bound to take into account ‘facts which exist only by reason of the offender’s membership of an ethnic or other group’.
6.When applying sentencing principles, which are common to all Victorians, a different outcome may result for an Aboriginal offender if it is shown that ‘mitigating factors in the background of the offender, or [in the] circumstances of the offence, occurred or had an impact peculiarly so because of the Aboriginality of the offender’.
7.Such considerations require a careful examination of the history of the offender. The relevance of Aboriginality to an offender’s disadvantaged background must be established by appropriate evidence.
8.Where the offender has prior convictions, such that considerations of specific and general deterrence and community protection become increasingly important sentencing factors, the significance of personal circumstances will correspondingly decrease.
(Footnotes omitted)
These represent a comprehensive approach which will be helpful to sentencers who must deal with Aboriginal offenders whose deprived background lead them often and too often into the criminal justice system.
The Court then proceeded to examine in detail the propositions it had articulated. I do not need to repeat all that was there said, though, with respect, it is of substantial value. The Court did, however, comment on the prevalence of disadvantage and said (at 469; [50]):
The prevalence of disadvantage within indigenous communities does not diminish its significance for the individual offender. On the contrary, membership of a community where disadvantage is widespread might compound the difficulties suffered by a particular individual. The social and economic disadvantages often found in indigenous communities are powerful considerations. The fact that disadvantage amongst members of an indigenous community is widespread must not be allowed to reduce the impact of disadvantage as a sentencing factor in a particular case.
This requires the sentencer to assess the extent to which the circumstances of the upbringing of the offender, here TM, including social, environmental and cultural factors, assumed a significance in the application of sentencing principles, including identifying influences which have contributed to the commission of the offence and circumstances relevant to the nature of the sentence to be imposed.
The Court also referred with approval to what Derrington J said in R v Yougie (1987) 33 A Crim R 301 (at 304) as follows:
Of highest importance is the deterrent effect for the protection of potential victims and the turning of the court’s face against violence as a general proposition is justifiable. At the same time it would be wrong to fail to acknowledge the social difficulties faced by Aboriginals in this context where poor self image and other demoralising factors have placed heavy stresses on them leading to alcohol abuse and consequential violence. Its endemic presence in these communities, despite heavy prison sentences, is proof of the serious problem and, to some extent, the limited nature of deterrence in this social context.
These are important matters to bear in mind and to take into account.
I turn, then, to whether the sentences were manifestly excessive or infected by specific error.
The first sentence(a)
There seems to me to be four important matters here to moderate against the fact that, as an assault on another detainee in a correctional institution with a closed fist punch to the head, this was a relatively serious offence. These matters make the assault, as the learned Sentencing Magistrate appropriately assessed, an assault of lower to mid-level seriousness. As such, it was objectively deserving of imprisonment.
There was, however, an early plea of guilty, which in this case entitled TM to a discount. In addition, there was no “starting point” of full cumulation of the sentence on the imprisonment TM was then serving, though it was necessary for the court to consider whether some or all of it should be accumulated.
The four matters were: the circumstances of the offence explained how it occurred; its commission was clearly affected causally by TM’s psychological condition; the principle of totality was an important consideration; and the present circumstances need to be considered.
As to the first, the explanation offered by the appellant’s counsel was that TM had earlier been accused by the victim of stealing her diary, an accusation that appears to have turned out to be unfair and unwarranted as the diary was later found in the victim’s room. While that does not in any sense justify TM assaulting the victim, it places the circumstances in a particular context when juveniles are involved. That was not mentioned in the sentencing remarks though it may have reasonably been part of her Honour’s assessment of the assault as a lower to mid-level example of the offence.
Secondly, the psychological disabilities that TM’s upbringing has inculcated or caused, particularly her profile as “oppositional, angry and impulsively aggressive”, are clearly a contribution to her behaviour. Whether this should be reflected in the sentence because of the principles articulated in Director of Public Prosecutions (Cth) v De La Rosa or those articulated in Director of Public Prosecutions (Vic) v Terrick, perhaps does not make much difference; the fact is they require to be reflected in the sentence. Her Honour acknowledged her deprivation but only as “you’ve not had the advantages that some people have had ...” This does not seem to me to engage in the direct and significant contribution that her disadvantage has made to her offending.
The third matter is the principle of totality, where the addition of a period of custody to an already quite lengthy sentence needs careful consideration. The effect of the further period of custody meant that the post-custodial supervision, through the suspended part of the earlier sentence, was reduced. In a sense, this made the whole of the sentence concurrent with the earlier sentence, but converted part of the suspended sentence into full-time custody. This was, of course, all her Honour could do, for she could not alter the earlier sentence to maintain the originally ordered period of supervision.
This had two consequences: it extended the period of custody which, for a juvenile, was already a lengthy period; and it reduced the period of supervision which, of course, is in itself, an important part of the rehabilitation of TM.
Finally, there appears to have been no recognition given in the sentence to the fact that TM had shown considerable improvement in her behaviour over recent times. While a serious and criminal lapse required punishment, it was also necessary to recognise that it was a lapse in a situation where there had been considerable improvement in her behaviour. Thus, a comparison with the sentence imposed for the earlier assault while in custody (see [16] above) shows that it is a slightly longer sentence. This suggests that the recent good behaviour has not been taken into account.
Her Honour did make one point that is challenging. She said:
It’s been suggested by Mr Boland that keeping you in Bimberi longer isn’t really going to help matters because there’s no rehabilitation component to that but that there are few other options that are available to the court.
It’s not like I can send you somewhere outside to a wonderful rehabilitation program that’s going to assist you. I’ve read what’s been said in the pre-sentence report and it seems to me you are getting quite a bit of assistance out of being in Bimberi.
Now you may not particularly like it in a number of ways, you may not like being stuck in there with a bunch of girls, some of whom you don’t like and some of whom you do like.
You may not like the fact that you’ve got to do the schooling that’s required of you but it seems to be helping you and you seem to have the ability to do quite well in that environment and so thinking about rehabilitation, it seems to me you will actually benefit from the time that you’ve spent there.
This raises the question of whether a longer period of imprisonment (albeit served by detention in a detention centre) can be justified by virtue of the rehabilitative options available in the detention centre. This has been the position in the UK to a certain extent. Mr Thomas, in the second edition of his book, said (at 18-19):
Often, as in this case, the individualized measure will involve a longer period of custody and supervision than would follow if the offender were sentenced on a tariff basis to a term of imprisonment.
That, however, cannot be the position in the ACT, for the presumption against incarceration (expressed in s 133G(2) of the Sentencing Act) and the principle of frugality (also expressed in that provision) would not permit such an approach.
I have considered, under s 133G of the Sentencing Act making a combination sentence but in the circumstances and in light of the Good Behaviour Order to which TM will be subject on her release and of the sentence I propose actually to substitute, I do not consider such a sentence to be appropriate in this particular case.
Taking all these matters into account, it seems to me that the first sentence is manifestly excessive. I propose to reduce it by one third and make only about two weeks of it as additional full-time custody.
While I am mindful of the submission of the respondent that such a reduction of, effectively two weeks, is tinkering, I reject that. Whether an interference is tinkering must start from the absolute period of custody. Thus a reduction of a year on a thirty year sentence may be tinkering, here I am reducing the period in custody by about one third. I do not consider that tinkering. See R v King (2008) 179 A Crim R 600, where the Court considered a reduction of a third (two months out of six) could not properly be regarded as tinkering.
The second sentence(b)
There are two offences in the second sentence, the assault charge and the hindering charge. In both cases, however, the delay in prosecuting it seems to me to render any significant penalty a breach of the Human Rights Act and not to be countenanced.
Of the factors I mentioned above in relation to the first sentence, the psychological disabilities of TM and the principle of totality are also relevant here and I do not need to repeat what I there said.
In my view, the sentence for the hinder charge was not one where imprisonment was appropriate. A Good Behaviour Order was appropriate and a custodial sentence was manifestly excessive.
In respect of the assault, it was a nasty one and ordinarily would attract a sentence of imprisonment, though not necessarily to be served by full-time custody. As Holmes JA said in R v King (at 603), “[i]mprisonment is not inevitable for an offence of assault by spitting on a police officer ...”
In this case, I accept that Corrections Officers are entitled to expect the courts to uphold the maintenance of discipline in correctional institutions.
I have considered also, under s 133G of the Sentencing Act, making a combination sentence but for the same reasons in respect of the first sentence (see [131] above), I do not consider such a sentence appropriate in the present case.
Given all the circumstances, a very short period of additional custody of one week is sufficient to mark the seriousness of the offence in the context of the delayed prosecution, the clear relevance of TM’s psychological disabilities and their contribution to the offence, and the totality of her incarceration. I find that these amount to special circumstances for the purposes of s 72(4) of the Sentencing Act.
Conclusion
Accordingly, I will set aside the sentences and impose sentences in accordance with these reasons. While it does not seem to me to sit logically or properly with s 72 of the Sentencing Act, I will make the periods of additional full-time custody concurrent with the period of the suspended sentence imposed on 16 April 2010 as that appears to be the only sensible way to approach the issue. To require TM to return to custody at the end of the period of the suspended sentence would not only be cruel, it would be totally inappropriate.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 12 May 2011
Counsel for the Appellant: Mr B Pierce
Solicitor for the Appellant: Aboriginal Legal Service (NSW ACT) Ltd
Counsel for the Respondents: Mr J Lawton
Solicitor for the Respondents: ACT Director of Public Prosecutions
Date of hearing: 12 April 2011
Date of judgment: 12 May 2011
42
13
1