Weldon v Polosak
[2020] ACTSC 234
•3 September 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Weldon v Polosak |
Citation: | [2020] ACTSC 234 |
Hearing Date: | 27 August 2020 |
DecisionDate: | 3 September 2020 |
Before: | McWilliam AsJ |
Decision: | See [72] |
Catchwords: | CRIMINAL LAW – APPEAL – Judgment and Punishment – sentence – where sentence previously suspended after a period of imprisonment – where subsequent breach of good behaviour order and further crimes committed – where error established in imposing totality of sentence rather than remainder of sentence – where fresh evidence admitted relevant to rehabilitation – re‑exercise of sentencing discretion |
Legislation Cited: | Court Procedure Rules 2006 (ACT) s 6906 Crimes (Sentence Administration) Act 2005 (ACT) s 110 Road Transport (Vehicle Registration) Act 1999 (ACT) s 20(c) |
Cases Cited: | Barron v Laverty [2019] ACTSC 198; 346 FLR 442 Betts v The Queen [2016] HCA 25; 258 CLR 420 Zdravkovic v The Queen [2016] ACTCA 53 |
Parties: | Rosemary Weldon (Appellant) Robert Polosak (Respondent) |
Representation: | Counsel J Cooper (Appellant) K Marson (Respondent) |
| Solicitors Aboriginal Legal Service NSW/ACT (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number: | SCA 24 of 2020 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Chief Magistrate Walker Date of Decision: 25 May 2020 Case Title: Maher v Weldon Court File Numbers: CC2019/5346; CC2020/1709; CC2020/1711; CC2020/1713; CC2020/1714; and CC2020/1715 |
McWilliam AsJ:
On 27 August 2020, I heard an appeal from the orders of Chief Magistrate Walker made on 25 May 2020, sentencing the appellant in relation to six offences as follows:
Charge Offence Date Offence Maximum Penalty of Imprisonment Sentence CC2019/5346 10 May 2019 Burglary with intent to steal, in contravention of s 311 Criminal Code 2002 (ACT) (Code) 14 years 10 months
CC2020/1709 22 October 2019 Take motor vehicle without consent in contravention of s 318(1) of the Code 5 years 9 months (wholly consecutive) CC2020/1711 22 October 2019 Drive while disqualified, in contravention of s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (RT Act) 6 months 1 month (wholly concurrent with CC2020/1709) CC2020/1713 31 January 2020 Ride/drive motor vehicle without consent, in contravention of s 318(2) of the Code 5 years 6 months (wholly consecutive) CC2020/1714 31 January 2020 Drive while disqualified (repeat offence) in contravention of s 32(1)(a) of the RT Act 1 year 1 month
(wholly concurrent with CC2020/1713)
CC2020/1715 31 January 2020 Possess plate / doc / device calculated to deceive, in contravention of s 20(c) of the Road Transport (Vehicle Registration) Act 1999 (ACT) 6 months 1 month
(wholly concurrent with CC2020/1713)
In total, the appellant was sentenced to a period of two years and one month of imprisonment, backdated to 26 December 2019, and with a non-parole period of fourteen months.
In relation to the first offence (CC2019/5346) orders had previously been made on 7 August 2019 by Special Magistrate Hunter, sentencing the offender to 10 months’ imprisonment, which was to be suspended after the appellant had served 151 days, upon entering into a good behaviour order for a period of 18 months. The further offences were committed following the appellant’s release from prison on 7 August 2019.
Hearing of the appeal on 27 August 2020
The Notice of Appeal filed on 19 June 2020 raised a single ground, namely that the whole of the sentence imposed was manifestly excessive.
However, following receipt of the respondent’s submissions the day before the hearing, which properly drew attention to a different error in respect of the sentence, leave was granted to amend the Notice of Appeal orally during the hearing, with a direction for a formal document reflecting the amended ground to be filed the following day.
The substance of the amendment was to add a further ground, being an error by the sentencing court in the imposition of 10 months’ imprisonment for the breach of a suspended sentence on CC2019/5346.
The transcript revealed that what the sentencing court, through the Chief Magistrate, had intended to do in relation to that offence was to impose the balance of the suspended sentence pursuant s 110 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), which applies where a good behaviour order pursuant to a suspended sentence is made and the offender breaches the order. Under s 110(2), the court must cancel the good behaviour order and either impose the suspended sentence imposed for the offence, or re-sentence the offender for the offence.
The order that was in fact made imposed the entirety of the original sentence of 10 months. This also had consequences for the commencement dates of the other sentences. What should have occurred (consistent with the transcript of the Chief Magistrate’s reasoning to the effect that the Magistrate intended to impose the remainder of the suspended sentence, rather than to resentence the offender) was an imposition of only a further 154 days’ imprisonment, backdated to 31 January 2020, when the appellant was arrested for the offences referred to in CC2020/1713, CC2020/1714 and CC2020/1715.
The error was conceded by the respondent. It was something that perhaps could have been dealt with through the slip rule (r 6906 of the Court Procedure Rules 2006 (ACT)) by drawing the matter to the attention of the sentencing court. However, as the proceedings were already before this Court for the hearing of the appeal at the time the error was identified, the error was dealt with as part of these proceedings.
The appropriate course was to allow the appeal and to re-exercise the sentencing discretion. Pursuant to s 218 of the Magistrates Court Act 1930 (ACT), the Supreme Court is empowered to give the order that in all the circumstances it considers ‘appropriate’.
The application for an adjournment
This task was complicated by a further issue that was identified by the respondent in relation to orders previously made for the CC2019/5346 offence, which would have required an adjournment to fully investigate. When the original sentence was imposed by Special Magistrate Hunter on 7 August 2019, the sentence was backdated to commence on 10 March 2019, which was a date that was not only before the appellant was taken into custody, but before she had committed the original offence.
This had consequences for the suspended sentence, in that while the appellant had ‘served’ 151 days of her sentence by reference to the date stated on the original order made by Special Magistrate Hunter, in fact she had only been in custody for 89 days.
The respondent in this appeal submitted that there may have simply been a typographical error, and that the orders of Special Magistrate Hunter were meant to commence on 10 May 2019, but there was no transcript before this Court to permit a proper consideration of that issue and the respondent required an adjournment in order to put that evidence before the Court.
The respondent otherwise submitted the Court ought to find that no different sentence was appropriate and that the transcript of what occurred before Special Magistrate Hunter, when the initial sentence was made for offence CC2019/5346, was also relevant to that point.
The respondent’s submission was that the Court should re-sentence the appellant in respect of offence CC2019/5346 by applying s 110(2)(a) of the Sentence Administration Act, with the remaining days of the suspended part of the sentence being imposed but backdated to take account of the time the appellant has already spent in custody. Otherwise, the sentence should reflect the orders of the sentencing court, with only the date of those offences altering, given that the sentences for the subsequent offences were wholly consecutive with 2019/5346.
The appellant was very anxious that the appeal proceed to be heard without delay for a number of reasons.
First, with error having been established, there was no reason to delay a hearing as to the re-exercise of the discretion and the appellant’s counsel somewhat unrealistically argued that his client ought be released that afternoon. Upon clarification, it transpired that what he was really seeking was for his client to be given the opportunity to apply for parole as soon as possible. The mental health of the appellant was said to be both unstable and deteriorating with the uncertainty of the appeal proceedings
Second, and to my mind of greater force, was the submission that the earlier order of Special Magistrate Hunter might have itself been the product of error, typographical or otherwise, but it had not been corrected and stood as the record on which the Court must rely. It was not for the respondent to make a collateral attack on that earlier order through later appeal proceedings.
Third, there was still an argument that the sentence as a whole was manifestly excessive over and above the backdating error with respect to the initial sentence, so that the appellant was not simply seeking that the sentences for the other offences remain.
I refused the application for an adjournment for the primary reason that I did not consider it to be necessary, for the following reasons.
The first is that the Court is exercising the discretion afresh and independently, even if it reaches the same result as that of the sentencing court: Gillard v The Queen [2016] ACTCA 50 (Gillard) at [43], referring to Kentwell v The Queen [2014] HCA 37; 252 CLR 601 (Kentwell) at [35] and [42].
The two passages cited from Kentwell discuss the approach an appellate court takes on re-sentencing, and explain a distinction between whether the error identified is a specific error, or the finding is one of manifest excess or inadequacy, as follows (citations omitted, emphasis added):
[35] …The significance to the function of the appellate court of the distinction between specific error, of any of the kinds identified in House v The King,and the conclusion of manifest excess or inadequacy is explained by Hayne J in AB v The Queen. In the case of specific error, the appellate court's power to intervene is enlivened and it becomes its duty to re-sentence, unless in the separate and independent exercise of its discretion it concludes that no different sentence should be passed. By contrast, absent specific error, the appellate court may only intervene if it concludes that the sentence falls outside the permissible range of sentences for the offender and the offence.
[42] …When a judge acts upon wrong principle, allows extraneous or irrelevant matters to guide or affect the determination, mistakes the facts or does not take into account some material consideration, the Court of Criminal Appeal does not assess whether and to what degree the error influenced the outcome. The discretion in such a case has miscarried and it is the duty of the Court of Criminal Appeal to exercise the discretion afresh taking into account the purposes of sentencing and the factors that the Sentencing Act, and any other Act or rule of law, require or permit. As sentencing is a discretionary judgment that does not yield a single correct result, it follows that a range of sentences in a given case may be said to be "warranted in law". …
The reference to the words ‘warranted in law’ is a reference to the NSW legislation there-under consideration. In the Territory, the language used is that the Court is to give the judgment or make the order that in all the circumstances it considers ‘appropriate’, but the principle applies in the same way, as seen from Gillard at [43], from McLeod v The Queen [2018] ACTCA 59 at [17], and more recently in Barron v Laverty [2019] ACTSC 198 at [9]-[10], [51], and Lewis v Storey [2019] ACTSC 74 at [26].
The reasoning below follows the approach in circumstances where specific error has been established, in the emphasised passages of the extract from Kentwell above. Thus, the appellate court exercises an independent discretion, and re-sentences the offender if, after considering the matters referred to in Kentwell, the conclusion is formed that a different sentence is appropriate. By virtue of the error identified, the parties had in fact already agreed that a different sentence was appropriate. What the respondent was really contending was that after taking account of the error with respect to CC2019/5346, a similar sentence should otherwise follow, including the structure of the sentence.
The second matter was that the appellant had, with no objection being made by the respondent, led both fresh and further evidence on the appeal. The evidence was directed to the appellant’s health, and more particularly a significant and ongoing brain injury as a result of domestic violence in previous years, as well as the prospects of rehabilitation arising from the appellant participating in, and deriving benefit from, activities important to her culture since being in custody.
As to the admission of the evidence, the respondent helpfully drew the Court’s attention to Betts v The Queen [2016] HCA 25; 258 CLR 420, where the High Court stated at [2]:
As a general rule, the appellate court's assessment of whether some other sentence is warranted in law is made on the material before the sentencing court and any relevant evidence of the offender's progress towards rehabilitation in the period since the sentence hearing. For the purposes of that assessment, an offender is not permitted to run a new and different case. This general rule does not deny that an appellate court has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice. In this appeal, the general rule applied because the new evidence sought to be adduced by the appellant was inconsistent with the case that he ran in the sentencing court and its rejection in the circumstances did not cause justice to miscarry.
Again, the admission of the further evidence meant that the factual considerations when the matter was before Special Magistrate Hunter (and before the Chief Magistrate) had changed, at least insofar as what had occurred since the appellant was in custody most recently.
Because of those matters (in addition to the submissions made by the appellant), the appropriate course was simply to proceed to re-exercise the discretion of the Court afresh, and without an earlier transcript.
The hearing on matters relevant to the appropriate sentence thus proceeded and orders re-sentencing the appellant were made. There was some further discussion with the parties following the hearing as to the need to amend the wording of the orders so that they properly disposed of the appeal and that the sentence for CC2019/5346 imposed a period of 10 months’ imprisonment but took account of periods when the appellant had been in custody. The final orders are set out below and the reasons that follow support the making of those orders.
Re-sentencing the appellant
Section 33 of the Crimes (Sentencing) Act2005 (ACT) (the Sentencing Act) sets out the relevant factors a Court should take into account. I have had regard to those considerations, to the extent that they are applicable and the evidence relevant to those factors is known to the Court, discussed further below. The maximum available penalty for each offence is set out at paragraph 1 of these reasons and it is unnecessary to refer to those penalties again here.
Two of the considerations focused upon by the parties during the hearing included the appellant’s history of profound social disadvantage and her current mental impairment. The sentencing objectives and how they applied to this particular offender were also the subject of significant submission. The reasons that follow reflect the detail of the submissions put in those respects, although that does not mean that those matters have been accorded more weight than the other matters addressed, such as family dependants and rehabilitation prospects.
The objective seriousness of the conduct
There is a Statement of Facts for each of the three occasions giving rise to the six offences.
On 10 May 2019, following a neighbour’s observation and contacting police, police attended a house in Kambah and found a point of forced entry, being a small window near the front door that had been smashed. The front door was slightly ajar. Upon entering the house, the police discovered the appellant hiding behind a bed. The appellant was wearing white latex gloves and had on her possession a screwdriver. She gave various lies to the police to explain why she was there and why she was wearing the gloves. There was minor damage arising from the break-in, but nothing taken. I consider the conduct to be in the mid-range of objective seriousness.
Then on 22 October 2019, while the appellant was on conditional liberty by virtue of a good behaviour order as part of the suspended sentence referred to earlier in these reasons, the appellant entered the Anytime Fitness Centre in Macquarie at approximately 3.30pm in the afternoon, via a ‘guest’ entrance, which meant that she did not have to swipe a security card to gain entry inside. She wandered around, apparently aimlessly, and then as she walked out took a set of keys from a property shelf that was at the front entrance and not secured. The keys belonged to a woman who had entered the gym shortly before 3pm. Once outside, the appellant located the woman’s car, unlocked it, got into the driver’s seat and drove away. The conduct was captured on CCTV footage.
The Chief Magistrate considered that this was a brazen example of the offence of taking a motor vehicle without consent and I respectfully agree. It falls within the mid-range of objective seriousness. The offence of driving whilst disqualified was a fairly common form, without extenuating circumstances and again I consider it to be within the mid‑range of objective seriousness.
On 17 January 2020, a Nissan motor vehicle was stolen from a doctor’s surgery in Queanbeyan. The appellant’s involvement with that car was limited to the occasion of 31 January 2020, when the police stopped the vehicle because the numberplate on the back of the car did not match the numberplate on the front. The appellant was driving the car on that day, although she gave a different name to police.
It is not clear how the appellant came to be driving the car or for how long she had driven the car, but the appellant accepted that she had the appropriate mental intent in relation to driving the stolen vehicle. The conduct falls within the lower end of objective seriousness. Again, the offence of driving while disqualified might be described as standard, although in light of the earlier conduct, this constitutes a repeat offence with a higher maximum penalty.
Subjective circumstances
From the pre-sentence report dated 21 May 2020, the appellant is a 35-year-old Aboriginal woman. She was originally from the Wagga Wagga area but moved to the ACT with her family when she was quite young. The appellant witnessed her parents’ ongoing substance abuse and her environment was marred by domestic violence. She witnessed the violence regularly, and spent some time in the care of her maternal grandmother. Her parents divorced when she was 13. She started living on the streets at the age of 15. Her education was interrupted and ceased in Year 9. She has a very limited employment history, with no work at all since 2003.
The appellant’s own use of substances began by the time she was 13, starting with alcohol, progressing to the use of cannabis and then to the use of heroin. More recently, the appellant has been a heavy user of methamphetamine.
This is a case where the principles articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40]-[44] apply. The ‘Bugmy principles’ were recently considered by Loukas-Karlsson J in R v KN [2020] ACTSC 218 at [97]-[98] (references omitted):
97. In Bugmy, the High Court found that the circumstance that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his or her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way: at [40]. Further, the High Court held that the effects of profound deprivation do not diminish over time and should be given “full weight” in determining the sentence in every case: Bugmy [42]-[43]. A background of that kind may leave a mark on a person throughout life and compromise the person’s capacity to mature and learn from experience. It remains relevant even where there has been a long history of offending: at [43]. Attributing “full weight” in every case is not to suggest that it has the same (mitigatory) relevance for all the purposes of punishment: Bugmy at [43]. Social deprivation may impact on those purposes in different ways. The court in Bugmy explained at [44]-[45]:
An offender’s childhood exposure to extreme violence and alcohol abuse may explain the offender’s recourse to violence when frustrated such that the offender’s moral culpability for the inability to control that impulse may be substantially reduced. However, the inability to control the violent response to frustration may increase the importance of protecting the community from the offender.
98. In summary, a history of disadvantage and deprivation may be a mitigating factor on sentence: see Bugmy [41]-[44]. What is clear from Bugmy, and subsequent case law, is that:
(a) the effects of disadvantage and deprivation do not diminish with the passage of time: Bugmy at [44];
(b) the Bugmy principles do not diminish in relevance where an offender has an existing criminal record: Bugmy at [44] and R v Irwin [2019] NSWCCA 133at [3] (Irwin); and
(c) the application of the Bugmy principles is not discretionary: Irwin at [3].
I respectfully adopt her Honour’s encapsulation and discussion of the principle. In the present case, the disadvantage is acute, its effect has been significant and lasting and I consider the principles apply to the appellant’s circumstances with full weight.
A further factor giving rise to mitigating circumstances is the fact that the appellant has an acquired brain injury, which she received when a former partner committed acts of extreme violence upon her, resulting in the appellant spending nine weeks in hospital in a coma. The medical records indicate that she required ongoing speech pathology, physiotherapy and occupational therapy, in addition to seeing a dietician.
There are two ways in which this consideration may be taken into account. The first was as part of the ongoing social disadvantage arising from trauma, discussed above, and the second is as to the existing mental condition of the appellant at the time of the offences (s 33(1)(m) of the Sentencing Act).
This gave rise to a discussion during the hearing about the applicability or otherwise of the Verdins principles. Accepting that the experienced practitioners before the Court were well across what that shorthand reference meant, I have set them out for the benefit of those who are not, and in particular, for the appellant’s understanding and that of her friends and family attempting to understand the Court’s reasoning on sentence. In R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 at [32], the Victorian Court of Appeal stated that impaired mental functioning, whether temporary or permanent, has been said to be relevant to sentencing in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
In the later decision of DPP v O’Neill [2015] VSCA 325; 47 VR 395 at [74]-[77], the Victorian Court of Appeal referred to those principles, and stated (references omitted):
[74] …in order for the first, second, third and fourth principles enunciated in Verdins to have application to the sentencing task, there must be a connection between the impairment to mental functioning and the appellant’s moral culpability or the need for general and specific deterrence. If the mental impairment existed at the time of the offending, it must have some ‘realistic connection’ with the offending; or have ‘caused or contributed’ to the offending; or be ‘causally linked’ to the offending. For example, Vincent and Weinberg JJA and Mandie AJA said in DPP v Weidlich, in a passage subsequently quoted with approval in DPP v Eli and R v Safati:
Generally, the measure of culpability of an offender under the criminal law rests upon the extent to which the individual can be seen to be personally responsible for both the prohibited acts and their consequences. Little thought is required to appreciate that the greater the level of insight and understanding possessed by him or her concerning the act and its potential harm, the higher becomes the level of culpability for then deliberately engaging in the conduct involved. The Court in Tsiaras and Verdins recognised that sometimes as a consequence of the contribution made to the commission of an offence by a mental disorder from which a perpetrator was suffering at the time, it would be unjust to attribute to the offender a full measure of personal responsibility. The presence of the disorder could bear upon the sentencing judge’s assessment of the individual’s motivation and level of culpability, prospects of rehabilitation, the need for specific deterrence and the appropriateness of giving full effect to the principle of general deterrence. However it follows, when addressing the question of the significance of the disorder for these purposes, that the nature and extent of its possible effect upon the offender’s behaviour must be carefully explored.
[75] Third, to show the necessary connection to the offending and to so enliven limbs one to four of Verdins, the offender must establish that the mental impairment affected the offender’s ability to appreciate the wrongfulness of the conduct, or obscured the offender’s intent to commit the offence, or impaired the offender’s ability to make calm and rational choices or to think clearly at the time of the offence.
[76] Fourth, the fifth and sixth limbs of Verdins may operate where the existing impairment will make prison more onerous, or where prison may exacerbate the mental condition, if the expert evidence establishes the significance of the impairment to the imposition of a prison sentence.
[77] Fifth, cogent evidence, normally in the form of an expert opinion, is necessary to establish the existence of the mental impairment, either at the time of the offence, or at sentence, or both, and the nature, extent and effect of the mental impairment experienced by the offender at the relevant time.
[78] Sixth, the assessment by the sentencing judge must be undertaken with rigour, as was made clear in Verdins itself and has since been repeatedly emphasised by this Court on appeal.
In R v Engert (1995) 84 A Crim R 67 at 71, Gleeson CJ observed that the existence of a causal relationship between an offender’s mental condition and the offence does not automatically operate to reduce the sentence and that the absence of such a connection does not automatically mean that the sentence will not be reduced.
The respondent in the present case placed emphasis on the lack of cogent evidence before the Court. The legal representative for the appellant has frankly accepted that there was no expert opinion to establish the existence of a mental impairment and the extent and effect of that mental impairment experienced by the appellant at the relevant time. He submits that it is unrealistic for the appellant, who is entirely without the financial resources to obtain such evidence, to place the opinion before the Court, but what she has been able to do is put before the Court the clinical notes of Liverpool Hospital, which were sent to Winnunga Nimmityjah Aboriginal Health and Community Service, and the evidence contained in the pre‑sentence report. That report was itself prepared with the benefit of correspondence from ACT Health, confirming the appellant’s acquired brain injury and ongoing depression.
The appellant had previously been prescribed anti-depression/anxiety medication. Her health records indicated symptoms of psychosis, including acting upon delusions, auditory and olfactory hallucinations. She has a history of suicide attempts. The appellant’s own view was that her use of methamphetamine has contributed to her current mental illness and she would like to engage in further mental health treatment upon her release from custody.
I am not prepared to accept that the appellant’s personal responsibility was significantly reduced by her mental impairment impacting upon the commission of the offences. The legal representative very much emphasised the brain injury and trauma from a social disadvantage perspective. However, there is sufficient objective medical information before the Court to persuade me that the brain injury and subsequent mental health issues must have played a contributing role to the appellant’s depression and mental instability, and I do infer that her troubled mind has contributed in some way to the commission of the offences.
To her credit, the appellant takes full responsibility for the offences, both through her pleas of guilty and in her personal letter written to the presiding Magistrate. In her correspondence she does not seek to diminish or blame any of her conduct on her unfortunate history and brain injury. Rather, she seeks to demonstrate to the Court what she has learned since being in custody, including how her views and perspectives have changed, how she has sought to educate herself for gainful employment, how she has been supported and developed a support network for when she leaves prison, and how prison, for her, has been a significant deterrent. She describes the biggest lesson she has learned as being that prison is a place where she does not ever want to be again.
The appellant has five children, three of whom live with her mother and two of whom live with a close friend, who has written a heartfelt letter of support. The friend was keen for the appellant to be released as soon as possible due to the significant strain of looking after someone else’s children, exacerbated by the fact that at the time she wrote the letter, the children were being educated at home and spending more time inside due to the coronavirus disease pandemic.
The appellant’s criminal history, both in the ACT and in NSW, is extensive. She has been assessed as a person of very high risk of further offending. This is not the first time the appellant has been before the courts for driving related offences and dishonesty offences, of the kind under consideration here.
Sentencing Objectives
A sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: see Thorn v Laidlaw [2005] ACTCA 49 at [30].
Given the extensive criminal history, the fact that the driving related offences were repeat offences, the significant factor that five of the offences were committed while the appellant was on conditional liberty and the level of seriousness of the offences, no submission was made that anything other than sentences of imprisonment would fulfil the objective of ensuring that the appellant was adequately punished. It is a last resort, but in this case it is appropriate, and the term of imprisonment for each offence must be sufficient to denounce the conduct of the appellant.
The appellant’s legal representative submitted that deterrence was not a significant factor in this case. The appellant’s extreme disadvantage, coupled with her acquired brain injury, mean that she is not an appropriate person through which to pursue general deterrence. The legal representative also submitted that there was limited specific deterrence to be achieved from a lengthy prison sentence, in light of the mental impairment.
I have formed a different view about the utility of a custodial sentence as a deterrent, after reading the appellant’s letter to the sentencing court. Prison has obviously had a significant personal deterrent effect on the appellant. However, fresh evidence has led me to conclude that the objective of specific deterrence has already been achieved through the time already served in respect of these offences.
In terms of rehabilitation, the significant criminal history and view of the author of the pre‑sentence report that the appellant was a high risk of re-offending are to be balanced against what has happened since the appellant has been in prison. The fresh evidence admitted included statements from a senior case coordinator for the Toora Domestic Violence and Homelessness Service and a statement from one of the Aboriginal elders who runs a yarning circle with Aboriginal inmates in custody.
The first statement was to confirm for the court that the appellant has been accepted into the Coming Home Program as an outreach client. That program provides support for inmates in their transition back into the community, with a view to preventing recidivism. The letter confirms that the appellant is seeking support to address her drug use and to allow her to reunite with her children.
As to the second letter, the Elder who has written to the Court about the appellant has been working with her, first as part of the Ngunnawal Bush Healing Farm Program and more recently through the appellant’s attendance at the yarning circles. The Elder feels that the cultural healing program has been powerful for the appellant, that she has come a long way, and that she is in a different position today than when she started.
Structure of the Sentence
The approach to be taken when there are multiple offences is to fix an appropriate sentence for each offence and then to consider questions of accumulation or concurrence, as well as totality: Zdravkovic v The Queen [2016] ACTCA 53 at [64].
In the present case, taking into account the considerations above, I have independently reached the same conclusion as the sentencing court as to the appropriate term of imprisonment for each of the offences. However, taking into account the agreed error of the sentencing court and in light of the fresh and further evidence led on the appeal, the Court is better informed about some of the subjective features pertaining to this appellant and I consider it appropriate to structure the sentence differently.
Totality and its impact on concurrence or cumulation
The application of the totality principle has been variously described in the authorities many times. A recent, useful description is to be found in The Queen v Potts [2020] ACTCA 12 at [127]:
Her Honour’s approach reflected the “totality principle”. That principle requires that when a sentencing judge is considering imposing a series of consecutive sentences, the judge must review the aggregate sentence and consider whether it is just and appropriate; and, where necessary, achieve an appropriate result by making the sentences wholly or partially concurrent, or reducing the length of the individual sentences: see Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63. In Nguyen v The Queen [2016] HCA 17; 256 CLR 656… Gageler, Nettle and Gordon JJ observed at [64] that the object of sentencing is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of the criminality comprised in the totality of the offences. To similar effect, Bell and Keane JJ observed at [37] that a sentencing judge is required to impose an appropriate sentence for each offence and to structure the sentence such that the overall sentence is just and appropriate to the totality of the appellant’s offending behaviour.
As the task here is to sentence for multiple offences, I have started from the premise that there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively: see Cahyadi v The Queen [2007] NSWCCA 1; 168 A Crim R 41 per Howie J at [27].
I have nevertheless followed what I would describe as a course frequently employed by a sentencing court, that where the offences arise out of a single episode of criminality and share common features, concurrent sentences should be imposed: O’Brien v The Queen[2015] ACTCA 47 at [26]; see also R v Weldon [2002] NSWCCA 475; 136 A Crim R 55 per Ipp JA at [48], cited in R v XX [2009] NSWCCA 115;195 A Crim R 38 (R v XX) at [52].
That means that the terms of imprisonment for CC2020/1709 and CC2020/1711 will be concurrent, and the terms of imprisonment for CC2020/1713, CC2020/1714 and CC2020/1715 will be concurrent.
I have then applied the principle that a court should avoid imposing artificially inadequate sentences in order to accommodate the rules relating to cumulation: DPP v Grabovac [1998] 1 VR 664, where Ormiston JA, giving the leading judgment at 680 went on to say:
…where practicable when applying accepted rules of sentencing as to totality, proportionality and the like and in order to fashion an appropriate total effective head term in relation to a series of offences, it is preferable to achieve a satisfactory result by passing appropriate individual sentences and to make those sentences wholly or partially concurrent, rather than by order or orders for the cumulation of unnecessarily reduced individual sentences.
Further, the Court must take care to avoid the suggestion that some kind of discount has been applied for multiple offending: R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [18], citing R v Knight [2005] NSWCCA 253; 155 A Crim R 252 at [112]. The task is to determine whether the sentence for one offence can comprehend and reflect the criminality of the other, which requires the identification and evaluation of relevant factors pertaining to the offences: R v XX at [52].
In the present case, these have already been set out above. The appellant’s continuing disobedience of court orders calls for a significant total sentence. I have, however, come to the view that the criminality of the burglary can partially comprehend and reflect the criminality of the stealing of a car, taking into account particularly the nature of the two offences and the social disadvantage suffered by the appellant. I have said partially, rather than totally, as it is important to recognise the impact of each of the two offences on two different victims. A sentence which is structured so as to achieve a partial concurrency between CC2019/5346 and 2020/1709 will also ensure that the totality of the sentence is not crushing, but rather is just and appropriate to the appellant’s offending behaviour in light of the circumstances set out above and emphasising the need to meet, but not exceed, the sentencing objectives.
Non-parole period
I consider the appropriate sentence is to impose a total head sentence of one year, seven months and 27 days, backdated to 4 September 2019 to take account of time already served. While it might have been simpler to impose a sentence of one year, eight months, there is a leap year this year and there were some specific dates discussed with the parties before the orders below were finally made, revolving around the backdating issue and the suspended sentence discussed earlier in these reasons.
The non-parole period will be 11 months and 28 days, commencing on 4 September 2019 and ending on 31 August 2020. Again, it might have been more convenient to specify a non-parole period of 1 year, but given the leap year and to avoid any feeling of unjustness about an extra day of imprisonment being imposed, I considered the preferable course was to set the period by reference to the end of August this year.
That non-parole period is 59.8% of the total head sentence. I considered that effectively a year spent as a minimum term reflects the objective gravity of the offences, but I have taken into account that this appellant and the community will benefit most by having the appellant under supervision and with support for a significant period of time, being almost eight months. She will need that time to get her life in order and to establish support networks to fulfil her expressed wish to become a positive role model for her children, and it is far preferable that this be done with the involvement and the supervision of the justice system, which the existence of parole provides.
Orders
I make the following orders:
(1)Orders 3 to 10 of the orders made on 27 August 2020 are vacated.
(2)The appeal is allowed.
(3)The sentence imposed by Chief Magistrate Walker on 25 May 2020 is set aside and the appellant is resentenced as follows:
(a)In respect of the charge of burglary (CC2019/5346), the offender is sentenced to ten months’ imprisonment commencing on 4 September 2019 and ending on 3 July 2020.
(b)On the charge of take motor vehicle without consent (CC2020/1709), the offender is sentenced to nine months’ imprisonment commencing on 1 March 2020 and ending on 30 November 2020
(c)On the charge of drive while disqualified (CC2020/1711), the offender is sentenced to one month’s imprisonment commencing on 1 March 2020 and ending on 31 March 2020.
(d)On the charge of drive motor vehicle without consent (CC2020/1713), the offender is sentenced to five months and one day, commencing on 30 November 2020 and ending on 30 April 2021.
(e)On the charge of drive while disqualified (CC2020/1714), the offender is sentenced to one month’s imprisonment, commencing on 30 November 2020 and ending on 29 December 2020.
(f)On the charge of possess false registration plates (CC2020/1715), the offender is sentenced to one month’s imprisonment, commencing on 30 November 2020 and ending on 29 December 2020.
(g)The total head sentence is one year, seven months and 27 days.
(h)The non-parole period is 11 months and 28 days, commencing on 4 September 2019 and ending on 31 August 2020.
| I certify that the preceding seventy-two [72] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 3 September 2020 |
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