Wayne Norton Pearce v Christopher James Tanner
[2010] ACTSC 122
WAYNE NORTON PEARCE v CHRISTOPHER JAMES TANNER
[2010] ACTSC 122 (15 September 2010)
APPEAL – appeal from ACT Magistrates Court – appeal against sentence imposed for breach of suspended sentence.
APPEAL – Magistrate cancelled good behaviour order and imposed sentence – appellant submitted that the Magistrate did not give proper effect to the actual operation of the previous sentence which had been imposed.
SENTENCING – Magistrate erred in imposing sentence.
Domestic Violence Protection Orders Act 2008 (ACT) ss 40, 90(2)
Criminal Code 2002 (ACT) s 363(1)
Crimes (Sentence) Administration Act 2005 (ACT) ss 43, 70, 79, 86, 110
Crimes (Sentencing) Act 2005 (ACT) ss 11(5), 12, 13, 27
Ledson v Taylor & Ors [2010] ACTSC 42
R v Taylor (No 2) [2008] ACTSC 97
R v Hamid (2006) 164 A Crim R 179
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 84 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 15 September 2010
IN THE SUPREME COURT OF THE )
) No. SCA 84 of 2009
AUSTRALIAN CAPITAL TERRITORY )
WAYNE NORTON PEARCE
Appellant
CHRISTOPHER JAMES TANNER
Respondent
ORDER
Judge: Refshauge J
Date: 15 September 2010
Place: Canberra
THE COURT ORDERS THAT:
The convictions for the charges of contravening a protection order on 14 June 2009 and resisting a police officer on 15 June 2009 be confirmed.
As these offences constitute a breach of the good behaviour order of 11 May 2009 imposed with respect to a suspended sentence, the cancellation of that order under s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT) is confirmed.
It be noted that Mr Pearce has had the periodic detention portion of the sentence imposed on 11 May 2009 cancelled and that the period of full time detention for that ends on 16 March 2010.
He is directed to serve the sentence that was suspended, namely four months and 10 days to commence on 17 March 2010 and to end on 27 July 2010.
He is sentenced to 15 months imprisonment for the breach of the protection order reduced to take account of the plea of guilty from the 18 months which would have been appropriate, three months of which is to be concurrent with the sentence that was suspended in order to take account of totality but also the 74 days of pre-sentence custody in respect of those proceedings so that the sentence commences on 13 February 2010.
The sentence for the charge of resisting a police officer is confirmed.
For the total sentence which will now end on 13 May 2011, a non-parole period is set to expire on 13 October 2010.
Sentencing is probably the most common substantive judicial act in the administration of criminal justice, but it has become much more complex overtime with judicially imposed obligations and principles that bind sentencers and increasingly detailed legislation that must be implemented by them.
It is not surprising, therefore, that errors are sometimes made by judicial officers when imposing sentences. This task is made even more complicated when the judicial officer is dealing with multiple offences, especially when committed over periods of time, and when the sentences must interact with earlier sentences and the administration of sentences by bodies such as the Sentence Administration Board (SAB).
This is the situation that confronted the learned Sentencing Magistrate when her Honour was called upon to sentence the appellant, Wayne Norton Pearce.
The charges
On 10 November 2009, her Honour had to sentence Mr Pearce for the following offences:
· breach of a protection order on 4 June 2009 contrary to s 90(2) of the Domestic Violence Protection Orders Act 2008 (ACT) (Domestic Violence Act), which carries a maximum penalty of 500 penalty units (at the time, a fine of $50,000) or five years imprisonment or both; and
· resisting a public official, being a police officer, in the exercise of his official functions on 15 June 2009, contrary to s 363(1) of the Criminal Code 2002 (ACT), attracting a maximum penalty of 50 penalty units (a fine of $5,000) or six months imprisonment or both.
Conviction for these offences amounted to a breach of a good behaviour order imposed by the Magistrates Court on 11 May 2009 for a charge of a breach of a Domestic Violence Order.
The facts
On 4 March 2009, the complainant, in respect of the first charge (whom I will refer to in these reasons as the complainant), was granted a Domestic Violence Order by the ACT Magistrates Court under s 40 of the Domestic Violence Act. The order was served on Mr Pearce on 5 May 2009. The order prohibited Mr Pearce from, inter alia, being on the complainant’s premises (unless invited by her and when he had not consumed alcohol within the preceding eight hours) or being within 100 metres of the complainant (unless otherwise permitted by the order).
On 14 June 2009, Mr Pearce attended uninvited at the complainant’s premises at about 5pm and let himself into the premises because the front door was unlocked. Mr Pearce appeared to be under the influence of alcohol.
The complainant was afraid to call the police because of the drunken state of Mr Pearce and was fearful for her safety if she did so or asked him forcefully to leave.
There was a discussion about the Domestic Violence Order and Mr Pearce did say he was not going to stay the night, but he did not leave for about the next five hours. Mr Pearce, during this time, was drinking beer. Curiously, the police Statement of Facts stated that this was also at 5pm on 14 June 2009 when the complainant hinted that Mr Pearce should leave. That is clearly a typographical error.
There was then a brief exchange of words and the complainant locked herself into her bedroom and called police. The call was interrupted when Mr Pearce asked the complainant for a cigarette, but she later managed to complete the call.
The complainant asked Mr Pearce again to go, and this time he did leave and the complainant locked the front door behind him.
Police later attended and after taking the complainant’s statement searched for Mr Pearce, finding him in Franklin Street, Griffith outside the TAB.
Police told Mr Pearce they were going to arrest him. Mr Pearce became aggressive and moved combatively towards the police, requiring them to use Oleoresin capsicum spray on him. He kicked out towards police and continued to resist, struggle and abuse the police.
The proceedings
Mr Pearce appeared in court on 15 June 2009. Bail was refused. He appeared again on 24 June 2009 when a plea of not guilty was entered to both charges. At the Case Management Hearing on 22 July 2009, he consented to summary jurisdiction and the matter was listed for hearing on 28 August 2009.
On 28 August 2009, he entered a plea of guilty to the charge of resisting a police officer, but maintained his not guilty plea to the other charge which was listed for hearing on 16 October 2009. The hearing could not proceed on that day because, it appears, the complainant failed to appear. He was however released on bail having spent 74 days in custody.
On 16 October 2009, he entered a plea of guilty to the breach of protection order charge and that was adjourned to 5 November 2009 for sentence. The matter was not reached on that day, so it was adjourned to 10 November 2009 when sentence was imposed on all matters.
The earlier charge on sentence
As noted above, Mr Pearce had been convicted on 11 May 2009 of breaching a protection order on 1 March 2009. On that charge, he was sentenced to 12 months imprisonment. The imprisonment was ordered to be served as follows:
(a) 50 days of full time custody to take account of pre-sentence custody effected by backdating the sentence to 23 March 2009.
(b) Six months to be served by periodic detention from 11 May 2009, the first period to commence on 15 May 2009.
(c) Thereafter, which I note would be on 10 November 2009, the sentence was to be suspended and he be subject to a good behaviour order for two years with specified conditions, including a probation condition.
It appears that on 27 October 2009, he appeared before the SAB because of his plea of guilty to the charge of resisting a police officer, constituting a breach of his periodic detention order: see s 70 of the Crimes (Sentence) Administration Act 2005 (ACT), (the Sentence Administration Act). The Board then cancelled Mr Pearce’s periodic detention and he was required to serve the remaining period until 10 November 2009, by full time detention: s 79 of the Sentence Administration Act. That date was not the correct date, however, as will appear later in these reasons.
This, of course, left the suspended sentence and the good behaviour order in place from 10 November 2009, and the good behaviour order, as will appear later, from 11 May 2009.
I pause to note that it is not entirely clear from the paperwork in the Appeal Book when the learned Sentencing Magistrate on this charge, intended the good behaviour order to commence.
The undertaking signed by Mr Pearce states that it commenced on 11 May 2009. That has some rationality because it does not make sense to impose it for a period of full time detention and it does not appear that it can be backdated. That appears to be the effect of s 13 of the Crimes (Sentencing) Act 2005 (ACT), (the Sentencing Act), though that relies on implication rather than expressed terms. This is reinforced by the core conditions of the order as set out in s 86 of the Sentence Administration Act, some of which could not be complied with retrospectively.
The question is, however, whether the good behaviour order was concurrent with a period of periodic detention.
The periodic detention core conditions under s 43 of the Sentence Administration Act are identical with the core conditions for a good behaviour order under s 86 of that Act, save that the Chief Executive must approve contact detail changes under the former, whereas, the latter simply requires these to be notified within two days of the offender becoming aware of the change of them.
In addition, however, the good behaviour order core conditions require the offender not to leave the Territory for more than 24 hours without approval if subject to a probation condition and to attend court if he or she signs a voluntary agreement to appear before the sentencing court if the offender is in breach of a condition of the order.
Of course, both periodic detention and a good behaviour order may be subject to additional conditions imposed under the Sentencing Act: s 11(5) for periodic detention and s 13(3) for the good behaviour order. Indeed, the note to s 11(5) refers to a similar provision in s 13(3)(g) and the examples given to that latter provision.
Nevertheless, some conditions can only be made for a good behaviour order: a community service condition, a rehabilitation program condition, probably a probation condition and compliance with a reparation order. Some of these, such as a community service condition would be inappropriate to impose at the same time as periodic detention.
None of these matters, then, make it inconsistent with periodic detention for a good behaviour order to be made during the currency of the periodic detention, though it would have to be somewhat constrained in the conditions that are imposed.
It is, however, not entirely clear why it should be done when the additional conditions could all have been recommended conditions to the periodic detention. In this case, a probation condition to the good behaviour order was in fact made. While the probation condition is not a specified condition for periodic detention, a condition to accept supervision would seem to come within the examples given for the general power to impose conditions.
Finally, s 12 of the Sentencing Act requires a court which makes a suspended sentence order to make a good behaviour order for the period during which the sentence of imprisonment is suspended or a longer period.
Here, the imprisonment was suspended for six months, less 50 days, being the balance of the term of imprisonment whereas, by the date of the suspension, the good behaviour order would have 18 months, less 50 days, to run. It would thus comply with the section.
Nevertheless, it does seem to me that the good behaviour order did commence on 11 May 2009 as stated, though why it was necessary to commence it then and not when the sentence was in fact suspended is not at all clear to me.
One consequence of the imposition of a good behaviour order during the currency of periodic detention, which is the method of serving a term of imprisonment to be followed as a combination sentence under s 27 of the Sentencing Act followed by a period of suspended sentence that would not otherwise be available had the good behaviour order dated from the commencement of the suspension, is that breaches of the good behaviour order can occur prior to the actual commencement of the suspension of the period of imprisonment, as happened here.
Thus, the same breach cancels Mr Pearce’s periodic detention, the balance of which has then to be served by full time detention, as well as being the occasion for action under s 110 of the Sentence Administration Act, for the good behaviour order was, despite its date of commencement, clearly imposed in compliance with the obligation that when a sentence is suspended a good behaviour order has to be made.
Whether this is fair is quite another matter and I would urge sentencers who consider combination sentences of this type to bear that in mind when determining when the good behaviour order should commence.
The later sentence subject of the appeal
The learned Sentencing Magistrate on 10 November 2009 convicted Mr Pearce on both offences on his pleas of guilty earlier entered and sentenced him to 18 months imprisonment on the breach of the protection order charge and one month imprisonment on the resist police officer charge.
Her Honour also dealt with the breach of the suspended sentence and cancelled the good behaviour order as she was required to do under s 110 of the Sentence Administration Act. She then imposed the sentence of 12 months. It was then backdated, to take into account what she understood to be periods of imprisonment that Mr Pearce had already served.
Her Honour pronounced the conviction for the sentence which constituted the breach of the suspended sentence order after sentencing Mr Pearce to the suspended sentence period of 12 months. That is not desirable, see Ledson v Taylor & Ors [2010] ACTSC 42 (at [53]). Nothing however may turn on that issue here.
Her Honour dealt with the interrelationship of the sentences in this way:
(1) the sentence on the cancellation of the good behaviour order was ordered to commence on 2 May 2009, as I say, to take into account what was said to be previous periods of imprisonment that appeared to her Honour to be relevant to the matter, and to be concurrent with the requirement for him to serve the balance of his periodic detention by fulltime detention as required by the SAB;
(2) the sentence on the breach of probation order was to be consecutive as to 15 months on the sentence on cancellation of the good behaviour order, that is three months were to be concurrent with that sentence; and
(3) the sentence of one month was backdated to 10 October 2009 being time already served.
The appellant’s submissions
It is unfortunate that, as Mr Pearce, through his counsel, Mr T Sharman, noted in his submissions, a number of items to which the learned Sentencing Magistrate referred have not been reproduced in the Appeal Book. I understand that the current lawyers for Mr Pearce have taken over the representation of Mr Pearce from his previous solicitor whose right to practice was not renewed. Presumably, that prevented them from handing those items to this court for one must assume that his previous solicitor had them and one would expect that copies were kept.
On the other hand, if they were before the learned Sentencing Magistrate they should still be on the court file, or files, and it was not explained to me why Mr Pearce’s present lawyers could not have obtained copies from those files.
In the circumstances, I shall simply have to proceed on the material that is before me and I do so.
The main complaint of Mr Pearce, conceded by the respondent prosecution, is that the learned Sentencing Magistrate did not give proper effect to the actual operation of the previous sentence which had been imposed.
That sentence of 12 months had three components which I have noted above (at [17]). By the date on which her Honour was sentencing Mr Pearce, he had actually served most of the first two components, namely all of the 50 days pre-sentence custody and a portion of the six months periodic detention (though the last period from 27 October to 10 November 2009 in fulltime detention and that was to be extended because of his non-completion of periods of periodic detention before that). Thus, there was only six months less 50 days of the 12 months sentence of imprisonment left to serve apart from the additional period of periodic detention.
Perhaps because of the fact that the good behaviour order commenced on 11 May 2009, her Honour may have been misled into thinking that the whole of the 12 months imprisonment had to be imposed. That, however, is not what s 110 of the Sentence Administration Act provides. It provides that the court cancelling the good behaviour order must either, “impose the suspended sentence imposed for the offence,” or re-sentence the offender.
The suspended sentence was, in fact, the sentence that represented the period from 11 November 2009 (had Mr Pearce served his periodic detention as required) to 21 March 2010. All the complicated mathematical calculations were then irrelevant to that issue. In imposing a 12 month sentence, the learned Sentencing Magistrate clearly erred. I note, however, that this was what the prosecution invited her Honour to do.
Unfortunately, the result is not as easy as that for it appears Mr Pearce had, as I have said, not completed his periodic detention as he should have. It appears, though, because of the absence from the Appeal Book or by tender on the Appeal of material handed up to her Honour, I cannot be absolutely certain, that Mr Pearce was required to serve four months, two weeks and four days of his periodic detention in full-time detention because of the breach of the core condition not to commit a further imprisonable offence.
By the date of sentencing, Mr Pearce had served 15 of those days. That left four months and three days to serve of the cancelled periodic detention.
Part of that period, however, was not served by periodic detention because Mr Pearce was in custody having had bail refused from 15 June to 28 August 2009. This period had to be taken into account in respect of the sentences imposed for the offences in respect of which bail was refused.
Mr Sharman further submitted that her Honour erred in not giving effect to Mr Pearce’s plea of guilty or of taking into account both “the nature of the order contravened” and non-attendance of the complainant when the matter was listed for hearing and the continuing nature of the relationship between Mr Pearce and the complainant.
I have read her Honour’s careful and detailed reasons. It is by no means clear that she omitted relevant factors.
Mr Sharman refers to, “the nature of the order contravened.” It was a Domestic Violence Order made under the Domestic Violence Act. Her Honour was well aware of that. Indeed she referred to R v Taylor (No 2) [2008] ACTSC 97 and to R v Hamid (2006) 164 A Crim R 179 both of which set out the relevant principles in relation to such orders.
If, contrary to what was said, Mr Sharman meant to say the nature of the contravention of the order, I reject that criticism too, for her Honour was well aware of that. Indeed, she and Mr Pearce’s counsel debated that at some length, the latter submitting:
Mr Stubbs: So the breach is that he was there with a bottle of beer in his hand and he was intoxicated and I’m not saying that’s any lesser breach but it’s not the fact that there was an order saying he was totally prohibited from being on the premises.
He then submitted:
I’m not trying to arguing the statement of facts. The statement of facts are agreed but I would point out that on the scale of offending I would submit - and I see I’m shaking your head before I even say it.
The failure of the complainant to appear at the first hearing does not seem to me to have warranted a reduction in sentence. In the first place, she had apparently not been served with a subpoena, though the learned Magistrate seemed satisfied that she appeared to be evading service. Secondly, Mr Pearce was then released on bail to meet the prejudice occasioned by the prosecution’s delay in bringing him to trial. Thirdly, he ultimately pleaded guilty on the next occasion. Any reduction, it seems, for the delay would be well offset by the reduction in the discount otherwise available for the plea of guilty by the lateness of the plea. There was no error in her Honour not taking this into account.
Finally, the ongoing relationship between Mr Pearce and the complainant was referred to in the proceedings. Mr Pearce’s counsel referred to it as a “wild relationship.” It was submitted that Mr Pearce tried to maintain the relationship but his alcohol issues intervened and the Domestic Violence Order then regulated it sufficiently.
It was put that when alcohol was not involved, it was a loving relationship. It is not clear how that affects the sentence for it still remained the breach of the order and not one encouraged or invited by the complainant when some leniency might be appropriate. I can see no error in her Honour’s approach to that matter.
It was submitted further that the learned Sentencing Magistrate made three months of the sentence for the breach of the protection order concurrent with the sentence imposed on cancelling the good behaviour order because of the plea of guilty. That does not seem to me to be a correct approach. The discount for the plea of guilty should be reflected in the sentence itself, either in the head sentence or in the non-parole period.
Making sentences concurrent or partly concurrent is a function of issues of total culpability or criminality and totality and not a discount on the sentence to be imposed.
In approaching the sentence this way, her Honour may have deprived Mr Pearce of a period of liberty to which he might have been otherwise entitled.
Given the error made in the sentence, I now need to set aside the sentences imposed by her Honour. Having regard to the plea of guilty, I consider also that the term of the sentence for the offence of contravening the protection order was wrong, but I do not consider that the term of the sentence for resisting the police officer was wrong.
Accordingly,
(1) I confirm the convictions for the charges of contravening a protection order on 14 June 2009 and resisting a police officer on 15 June 2009.
(2) These offences constitute a breach of the good behaviour order of 11 May 2009 imposed with respect to a suspended sentence. I confirm cancellation of that order under s 110 of the Sentencing Administration Act.
(3) I note that Mr Pearce has had the periodic detention portion of the sentence imposed on 11 May 2009 cancelled and that the period of full time detention for that ends on 16 March 2010.
(4) Accordingly, I impose the sentence that was suspended, namely four months and 10 days from that date. That is to commence on 17 March 2010 and to end on 27 July 2010.
(5) I sentence Mr Pearce to 15 months imprisonment for the breach of the protection order reduced to take account of the plea of guilty from the 18 months which would have been appropriate. I confirm that three months is to be concurrent with the sentence that was suspended in order to take account of totality but also that the 74 days of pre-sentence custody in respect of those proceedings must be taken into account. That means that the sentence commences on 13 February 2010.
(6) I do not consider it is appropriate to disturb the sentence for the charge of resisting a police officer or its commencement and I confirm both.
(7) As a result, the total sentence will now end on 13 May 2011.
(8) I set a non-parole period to expire on 13 October 2010.
I will make orders accordingly.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Ex Tempore Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 October 2010
Counsel for the appellant: Mr T Sharman
Solicitor for the appellant: Rachel Bird and Co
Counsel for the respondent: Mr J Lawton
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 1 September 2010
Date of judgment: 15 September 2010
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