Weston v Arley
[2012] ACTSC 138
•20 August 2012
STEVEN ADAM WESTON v NICHOLAS MEHMET ARLEY
[2012] ACTSC 138 (20 August 2012)
APPEAL AND NEW TRIAL – In general and right of appeal – Appeal from Magistrates Court – Appeal against sentence – Appeal upheld in part.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Whether sentence manifestly excessive – Not manifestly excessive.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Specific error – Failure to consider whether discount should be given for plea of guilty – Re-sentencing.
CRIMINAL LAW – Jurisdiction, practice and procedure – Judgment and punishment – Sentencing – Specific error – Failure to consider whether to set non-parole period –
Re-sentencing.
CRIMINAL LAW – Jurisdiction, practice and procedure – Non-publication order – Where offender on sex offenders register – Open justice principle – Matter not within recognised category requiring departure from ordinary course – No evidence of special prejudice.
Crimes (Child Sex Offenders) Act 2005 (ACT), ss 6(1)(a), 11, 24, 33, 37, 45, 46, 49, 54, 59, 60(a), 118
Crimes (Sentencing) Act 2005 (ACT), ss 12, 13, 17, 33, 35, 65
Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111
Magistrates Court Act 1930 (ACT), s 216, pt 3.10, div 3.10.2
Crimes (Child Sex Offenders) Regulation 2005 (ACT), s 16A(1)(a)
Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 10, 11, 12, 14, 14A, 15(1)(a)
Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 7 April 2005, 1503–4 (Jon Stanhope, Attorney General)
AB v The Queen (1999) 198 CLR 111
Arthur v Batterham [2011] ACTSC 158
Attorney-General v Leveller Magazine Ltd [1979] AC 440
Baxter v The Queen (2007) 173 A Crim R 284
Carpenter v Purcell [2008] ACTSC 34
Carusi v Police [2002] SASC 240
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cranssen v The King (1936) 55 CLR 509
Dinsdale v The Queen (2000) 202 CLR 321
Haruma v McCarthy (2008) NTLR 133
Henwood v Balchin [2011] NTSC 84
Hogan v Hinch (2011) 243 CLR 506
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
Markarian v The Queen (2005) 228 CLR 357
Millhouse v Police [2008] SASC 353
Moore v The Queen [1999] FCA 448
Nevermann (1989) 43 A Crim R 347
Okwechime v Sindel (2009) 235 FLR 299
PolicevPapadopoulos [2008] SASC 325
R v Becker (2005) 91 SASR 498
R v Campbell [2010] ACTCA 20
R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227
R v Coukoulis (2003) 7 VR 45
R v Lomax [1998] 1 VR 551
R v Nantahkhum [2012] ACTSC 55
R v Tait (1979) 46 FLR 386
R v Thomson (2000) 49 NSWLR 383
Rysz v Police [2011] SASC 167
S v Australian Crime Commission (2005) 144 FCR 431
Thomson v The Queen [2012] ACTCA 35
Walker v Rinehart (No 6) [2012] NSWSC 160
Wessling v Police (2004) 88 SASR 57
No. SCA 117 of 2011
Judge: Refshauge ACJ
Supreme Court of the ACT
Date: 20 August 2012
IN THE SUPREME COURT OF THE )
) No. SCA 117 of 2011
AUSTRALIAN CAPITAL TERRITORY )
STEVEN ADAM WESTON
Appellant
v
NICHOLAS MEHMET ARLEY
Respondent
ORDER
Judge: Refshauge ACJ
Date: 20 August 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld in part.
The order made by the Magistrates Court on 9 March 2010 cancelling a Good Behaviour Order made on 23 September 2009 and the sentence then imposed both be set aside.
The sentence of 12 months imprisonment commencing on 10 November 2011 be confirmed.
The sentence be suspended on 10 September 2012 for a period of 12 months.
Steven Adam Weston be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 12 months from 10 September 2012 with a probation condition that he be on probation for a period of 12 months from 10 September 2012, subject to the supervision of the Director-General or her delegate and that he obey all reasonable directions of the Director-General or her delegate.
On 23 March 2006, Steven Adam Weston, the appellant, was convicted in the Local Court of Sutherland, New South Wales, of an offence of inciting a person under 16 years to commit an act of indecency. He was released on entering into a bond to be of good behaviour for 12 months with a probation condition and other conditions.
This offence is a registrable offence under the Child Protection (Offenders Registration) Act 2000 (NSW) and rendered Mr Weston a registrable person under that Act. This meant that he had obligations under that Act, including reporting relevant personal information (s 9) and reporting changes to relevant personal information (s 11). An annual report is also to be made by him (s 10). As the offence of which he was convicted was a class 2 offence, the obligations last for eight years from the date of sentence (ss 14, 14A). Under s 15(1)(a), the period is extended by any period during which Mr Weston is in “government custody”, which I understand to include imprisonment.
The reporting requirements are to be made to a police station or another place approved by the Commissioner of Police (s 12).
As a result, when Mr Weston moved to the ACT in 2008, he was required under s 33 of the Crimes (Child Sex Offenders) Act 2005 (ACT) (the Child Sex Offenders Act) to contact a prescribed person within seven days of this entry.
Mr Weston reported to the ACT Policing Child Sex Offender Register Team on 23 April 2008. Presumably he thought he was required to do so under s 33 of the Child Sex Offenders Act but I could find no regulation prescribing a person, including that team, to which he was required to report. If I am correct, this needs to be addressed.
Nevertheless, once in the ACT, Mr Weston became subject to the Child Sex Offenders Act because, under s 11, he was a corresponding offender and that required him to make a report to the Chief Police Officer (s 24) which the report to that team would satisfy.
Thereafter, the Child Sex Offenders Act required him to report annually (s 37) and to report certain changes to his personal details, including any change of address (s 54).
Mr Weston at some stage provided an address in Latham. On 23 July 2011, police attended at that address. The owner of the premises informed them that Mr Weston had moved out of the premises in early July. His landlord had arranged alternate accommodation in Melba. Police then went to that address where the owner informed them that Mr Weston had moved in to the premises in early July but had left on 17 July 2011.
Police seemed to have no difficulty in locating Mr Weston. After they spoke to him, he told them that he had moved into premises in Kambah, but was apparently unable to say when he moved in and with whom he was living. Police contacted the owner of those premises who said Mr Weston had moved in on 21 July 2011.
Mr Weston was formally interviewed on 25 July 2011 and admitted to changing his address on two occasions and not notifying police on either occasion.
He was charged with failing to notify the change of address between 7 and 23 July 2011, an offence under s 54 of the Child Sex Offenders Act, rendering him liable to a maximum penalty of 200 penalty units (at the time a fine of $22 000) or two years imprisonment or both.
He appeared in the Magistrates Court on 26 July 2011 and, after a number of adjournments, entered a plea of guilty on 21 September 2011. He was sentenced on 10 November 2011 to imprisonment for 12 months.
THE APPEAL
On 7 December 2011, Mr Weston appealed against the sentence on the ground that the sentence was manifestly excessive.
At the hearing of the appeal, he sought leave to amend the grounds of appeal. I gave him leave to amend the grounds of appeal to the following grounds, on which the appeal proceeded:
1.That His Honour did not allow any reduction of sentence for the plea of guilty.
2.That His Honour failed to provide reasons for declining to set a non-parole period when he was required to do so under s 65 Crimes (Sentencing) Act 2005 (ACT).
3.That in declining to set a non-parole period or partially suspend the sentence, His Honour failed to properly consider alternative sentencing options.
4.That the sentence imposed by His Honour was manifestly excessive in all of the circumstances.
ADDITIONAL SENTENCE CHALLENGED
At the hearing of the appeal, it became apparent that an earlier relevant sentencing discretion may have miscarried.
On 23 September 2009, Mr Weston was convicted of having, on 15 April 2009, failed to report travel details as he was obliged to do under various provisions of the Child Sex Offenders Act (see ss 45, 46, 49). He was sentenced to three months imprisonment but that was suspended and the Court made a Good Behaviour Order for 18 months from that date.
On 9 March 2010, he was again convicted of failing to report a change of his details, namely, the address to which he had moved on 1 September 2009. On this occasion he was sentenced to five months imprisonment. The then learned Chief Magistrate also purported to cancel the Good Behaviour Order, and imposed the three months imprisonment, to be cumulative upon the five months imprisonment, but suspended it with a further Good Behaviour Order for 18 months.
The offence, however, was committed on 8 September 2009, thus, before the earlier Good Behaviour Order had been made. It could not, therefore, have breached that order.
I permitted Mr Weston to appeal against that order as follows:
Following a grant of leave by His Honour Justice Refshauge on 8 May 2012 the appellant also appeals out of time against the finding by Chief Magistrate Burns on Case No CC2010/1331 that he breached a suspended sentence order issued on CC2009/4551 and against the consequent resentencing which took place on 9 March 2010
on the following ground:
That a finding by Chief Magistrate Burns on 9 March 2010 that the Appellant had breached the suspended sentence order imposed on 23 September 2009 by the commission of an offence on 8 September 2009 in relation to charge CC2009/4551 could not have been found.
It is clear, and was not contested by Ms K Weston-Scheuber, who appeared for the respondent, that the order cancelling the Good Behaviour Order and the sentence must be set aside. I shall so order.
JURISDICTION
This Court has power under pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court. Division 3.10.2 of that Act regulates appeals in criminal matters such as this appeal.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.
The sentences imposed in the Magistrates 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 in the Magistrates 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 reimpose 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 filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
SUBJECTIVE CIRCUMSTANCES
Mr Weston was born about 52 years ago in Victoria. His parents divorced when he was eight and he has had little contact with his father since then.
He had behavioural problems as a youngster, which included engaging in petty criminal activity. He also spent time living with his grandmother.
Mr Weston had good relations with his siblings when he was young but has not had contact with them in recent years. He appears not to have current contact with his mother.
He attended school in Victoria and told the author of the Pre-Sentence Report, read by the learned Sentencing Magistrate, that he enjoyed school. He sustained a head injury in a car accident, however, when he was six months old. This resulted in ongoing learning difficulties and memory problems. It also affected his reading, writing and numeracy.
He attended a special school for a period, until he left and entered the work force at
16 years of age. His employment was in unskilled and semi-skilled jobs, such as making carpet grips and nails, and, over time, as a sole cutter, nursing assistant, safe maker, storeman, cleaner and trolley collector. Mr J Robertson, who appeared for Mr Weston in the Magistrates Court, told the Court that at the time of the offence he was working as a trolley collector seven days a week from 7 am to 9 pm. Before sentencing he was trying to get other jobs. He has completed a number of job-seeking and work-related courses.
There was a difference in the evidence about an incident with a previous employer who terminated Mr Weston’s employment. It is not necessary to resolve the conflict and it does not appear that this was held against Mr Weston on sentencing, nor should it have been.
Mr Weston has sought to enrol in the ACT Adult Sex Offender Program but was assessed to be unsuitable because of his borderline/below average IQ.
He has not engaged well with ACT Corrective Services and is secretive about information. He has also made previous threats to officers of that agency.
Although there was no direct evidence about it, his criminal record shows that he has lived, as well as in Victoria, in New South Wales, Western Australia and this Territory. He was described in the Pre-Sentence Report as having lived an “itinerant lifestyle for much of his adult life. He has no familial support and appears to have little social support.”
The Report suggested that his attitude to the offence was of concern, especially in view of his record of failing to comply with his obligations. The exact role of his memory difficulties in that respect is unclear.
Mr Weston has a criminal history dating back to 1984. He has been convicted of 16 offences (and one non-conviction finding of guilt in relation to nine counts) in 10 court appearances. They are mostly driving or dishonesty offences but since his conviction for the offence of inciting a person under 16 to commit an act of indecency referred to above (at [1]), they have all been related to his reporting obligations.
In 2008, he was fined $200 for failing to comply with his reporting obligations. In September 2009, he was fined for two counts of failing to report changes of personal details and also sentenced to a suspended prison term for a failure to report travel details. On 9 March 2010, he was sentenced to five months imprisonment for failing to report a change of details.
Thus, the current offence, the subject of the appeal, is the sixth offence of failing to comply with his reporting obligations under the Child Sex Offenders Act or corresponding legislation.
THE CURRENT OFFENCE
His explanation for failing to report his departure from the Latham premises was that he was, at the time, working seven days a week, 14 hours a day as a trolley collector and that he had no credit on his mobile phone.
Mr Weston said that he was evicted from his Latham home because his room was messy. His landlord arranged another house in which he could to stay where he moved in early July 2011. Shortly after, that house was sold and he had to move out again on 17 July 2011. In fact, he actually lived in his car, parked outside a house in Kambah for about a month.
During the hearing, the learned Sentencing Magistrate made what can only be described as a curious and incorrect comment about the charge laid. The effect of what his Honour said seemed to be that since Mr Weston had left the Melba premises on 17 July 2011 and then had established a new address at Kambah, the obligation to report was as to his new Kambah address which he had to do within seven days thus allowing him until 24 July 2011 to do so. The charge alleged he had not reported, as required, between 7 and 23 July 2011. This, his Honour said, meant that the offence could not be made out.
The offence, however, was that Mr Weston’s personal details had changed and he had not reported that change within the required seven days after the change happens. One of the “personal details” under s 59 of the Child Sex Offenders Act is:
the address of each of the premises where the offender generally lives or, if the offender does not generally live at any particular premises, the name of each of the localities where the offender can generally be found.
Thus, when Mr Weston left the Latham address, it was no longer the address of the premises where he generally lived. There was, accordingly, a change in the recorded personal details. His departure (whether or not he was living elsewhere) was a change which had to be reported.
That he may not be required to report a new address, though he must report the departure from the former address, is clear from s 60(a) which defines the place at which a registrable offender generally lives as being premises at which he or she lives for at least seven days (whether or not consecutively) in a period of 12 months. It may be that someone such as Mr Weston might find it difficult to access suitable long-term accommodation and might move about for a period, perhaps living for three to four days in a variety of places. He would not be required to report those places, but would still, of course, have to notify the fact that he had left any premises where he had stayed for more than seven days and which was notified on the register.
His Honour suggested that the only notification required was the new address to which Mr Weston had moved. That is clearly not correct. His Honour referred to the purpose of the Child Sex Offenders Act. Section 6(1)(a) does refer to a purpose as “to keep police informed of [the] whereabouts” of registrable offenders, but such cannot override the express and clear terms of the offence provisions of the Act. See S v Australian Crime Commission (2005) 144 FCR 431 at 439; [22]. His Honour was incorrect in his construction of the Act.
His Honour then seems to have accepted the plea but on a misunderstanding of the facts, apparently assuming that the Latham premises were the premises to which, not from which, Mr Weston had moved.
THE SENTENCE
Submissions were then made on sentence by both parties. I do not need to detail them, other than to say that Mr Robertson submitted that although a term of imprisonment was appropriate, it should be partially served by periodic detention and then suspended, while the prosecutor submitted that the need for deterrence and punishment were primary and that there was no room for leniency.
The learned Sentencing Magistrate then proceeded to sentence. He referred to the charge and summarised the facts. He referred to the prior convictions for the same offence or similar offences. He referred, too, to the assertions in the Pre-Sentence Report that Mr Weston lacked insight into his offending behaviour and that his contact with Corrective Services had been unsatisfactory.
His Honour considered that personal deterrence was the principal “facet” of sentencing. He considered that no other sentence than a sentence of imprisonment was appropriate.
His Honour then imposed the sentence of 12 months imprisonment.
THE GROUNDS OF APPEAL
As noted above (at [14]), there were a number of specific amended grounds of appeal as well as the challenge that the sentence was manifestly excessive. I shall deal with each in turn.
Plea of guilty
Mr Weston entered a plea of guilty on 21 September 2011. Though not at the earliest opportunity (it was after four adjournments, not including an appearance to vary his bail), it nevertheless was a matter which the learned Sentencing Magistrate was required to consider under s 33(1)(j) and s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).
As Penfold J said in Carpenter v Purcell [2008] ACTSC 34 at [18], the Court is required at least to advert to the plea of guilty when considering the imposition of a term of imprisonment.
His Honour did not do so; indeed, his Honour did not even refer to the fact that Mr Weston had pleaded guilty. As Spigelman CJ said in R v Thomson (2000) 49 NSWLR 383 at 395; [52]:
The absence of any reference to actual consideration of the guilty plea in the course of sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight. This conclusion is significantly influenced by the express statutory obligations. The position may not be the same with respect to other matters which are required to be taken into account, either at common law or by reason of a general scheme listing relevant considerations, such as that found in s 16A of the Crimes Act 1914 (Cth).
The respondent accepts that this is an error. It may not necessarily require reconsideration of an otherwise proper sentence, though it may require the application of any proper discount to the imposed sentence for the plea of guilty: see Thomson v The Queen [2012] ACTCA 35.
The learned Sentencing Magistrate erred in failing to take into account the plea of guilty.
Non-parole period
Section 65 of the Sentencing Act requires a court which sentences an offender to a term of imprisonment for one year or longer to set a non-parole period, during which the offender is not eligible to be released on parole, unless it considers that it would be inappropriate to set such a period, “having regard to the nature of the offence ... and the offender’s antecedents.”
In this case the learned Sentencing Magistrate did not set a non-parole period, and nowhere in the sentencing remarks or even during submissions did his Honour refer to this matter.
It is clear that in a Magistrates Court there are limits on the extent of the reason for sentence that can be given, as noted by Kelly J, with whom Doyle CJ and Anderson J agreed, in Police v Papadopoulos [2008] SASC 325 at [17]–[19].
As the full court of the South Australian Supreme Court said in R v Becker (2005) 91 SASR 498 at 503; [20]:
A sentencing judge is not required to deal with every matter which may be relevant to the final determination ... It is sufficient if the remarks enable an appellate court to identify and understand the reasoning of the judge so that it may properly perform its appellate duties.
So far as the issue of the non-parole period is concerned, however, there was no such reasoning or, indeed, reference to that matter. The reasoning must address not merely the formula of s 65 but the real basis for the discretionary decision which the sentencer has made: Okwechime v Sindel (2009) 235 FLR 299 at 307; [34]–[36].
The respondent properly conceded that, as I find, his Honour had erred in failing to address the issue of the non-parole period required to be set or, for stated reasons, not set.
In appropriate cases, the same must apply to the option of suspending part or all of the sentence of imprisonment. Following Carusiv Police [2002] SASC 240 and Wessling v Police (2004) 88 SASR 57, Kourakis J (as his Honour then was) held in Millhouse v Police [2008] SASC 353 at [17]–[25] that the failure of a sentencer to consider the option of partially suspending a sentence of imprisonment in appropriate cases can constitute an error, though this depended in part on different legislation.
His Honour noted (at [20]) that where no mention of the option is made by counsel, the failure to consider the option, shown by a lack of reference to it by the sentencer, may be an error, though only where the option was one that was reasonably open. See also Rysz v Police [2011] SASC 167 at [36]–[40].
Given the similar consequences of setting a non-parole period and partially suspending a sentence, this is a matter that should be considered in appropriate cases. There is no reason why it should not have been considered here, even if the learned Sentencing Magistrate decided, for explained reasons, to reject the option.
Consideration of alternative sentencing options
In the sentencing remarks, the learned Sentencing Magistrate, after setting out the offences and summarising the personal circumstances of Mr Weston, said:
I’m of the view that no other penalty apart from a term of actual imprisonment is appropriate.
He did explain this view as follows:
The defendant has shown no inclination or intention of complying with the law. He’s been imprisoned and that hasn’t persuaded him to alter his ways. He will not comply with his statutory safeguards for the protection of the community and his rehabilitation. His intransigent attitude and flagrant contempt for court orders leaves no alternative but the imposition of an actual term of imprisonment.
Mr A Hopkins, who appeared for Mr Weston on appeal, raised, under this heading, two matters – the failure to consider when to set a non-parole period and whether a partially suspended sentence should be imposed. I have dealt with the former above.
The question of whether the learned Sentencing Magistrate fell into error in failing to refer to consideration of a suspended sentence is a little more problematic.
It is clear that the failure to refer to a sentencing option available is not, of itself, an indication that the option has not been considered: Henwood v Balchin [2011] NTSC 84 at [131]; Moore v The Queen [1999] FCA 448 at [58].
This clearly applies to options that would be quite inappropriate, such as, in this case, an order under s 17 of the Sentencing Act or a fine. Further, it is not necessary to refer to and dismiss every reasonably available sentencing alternative. It is, however, necessary to look at the whole of the proceedings and the inferences that can be drawn from them and the sentencing remarks to see whether the obligations on the sentencer have been met: Haruma v McCarthy (2008) 22 NTLR 133 at 139; [23]. That includes the submissions made and the nature of the offending as I have noted above (at [64]).
Malcolm CJ said in Nevermann (1989) 43 A Crim R 347 at 350:
It is not necessary for a full or detailed statement of reasons to be given in every case. This would not be practicable in a busy court such as the District Court and it would be even less so in a court of petty sessions. The imposition of such a requirement in every case would cause delay in the administration of justice. The reasons may be stated shortly, without being developed in any detail. It does not follow either from the decision of James (1985) 14 A Crim R 364 or from s 19A of the Criminal Code that because imprisonment is the sentence of last resort, it is necessary in each case to name all the possible alternatives and the reasons for rejecting them: see, for example, Napper v Samuels (1972) 4 SASR 63 at 68 per Bray CJ and Ciccone (1974) 7 SASR 110. It is enough if the sentencing judge indicates in general terms that he has considered the alternatives and states shortly his reason for his adoption of the sentence or other disposition he considers appropriate.
As noted above, his Honour set out specific reasons for his decision that a term of actual imprisonment was appropriate. There had been an express request for the sentence to be served in part by periodic detention and then suspended. In the light of that, his Honour’s reasons seem to me to satisfy the obligation his Honour had in this respect.
In some circumstances, a failure to mention a matter can be taken as showing that the matter was not addressed, as in matters such as, a plea of guilty or not setting a non-parole period. In relation to sentencing options, the position is somewhat different, though the overriding obligation, namely, to show how the result has been reached and to allow an appellate court to understand and evaluate that, remains to be fulfilled.
In this case, I am not satisfied that there was an error in his Honour’s remarks in not expressly referring to the options of suspending the sentence or directing part of it to be served by periodic detention and I am satisfied that his Honour was aware of the option and rejected it.
Manifest excess
This ground does not require the court to identify a specific error. Indeed, it is the inability to do so that permits the ground to be argued: Cranssen v The King (1936) 55 CLR 509 at 520, 521.
Nevertheless, as said by Dixon, Evatt and McTiernan JJ in that case (at 519), “[i]t is not enough that the members of the court would themselves have imposed a less or different sentence, or they think the sentence over-severe.”
That there must be a conclusion that the sentence is manifestly excessive is clear from what Gleeson CJ and Hayne J said in Dinsdale v The Queen (2000) 202 CLR 321 at 325–6; [6]:
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
In R v Campbell [2010] ACTCA 20 at [32]–[34], the Court of Appeal said:
In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219
[46]–[47]):46.The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
47.Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can – and should – draw the relevant conclusion.
See also R v Thorn [2010] ACTCA 10 (at [33]).
As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
The question in this case is whether, applying these principles, it can be considered that the sentence is manifestly excessive.
Because there are no decisions available from this Court on the offence, it is difficult to determine any standards of sentencing applicable to the offence. No decisions of other jurisdictions were referred to by either party.
That, of course, does not end the matter. Other considerations can be brought to account.
In the first instance, the seriousness of the offence is to be considered. That can, in part, be determined having regard to the maximum penalty that the legislature has assigned to it: Markarian v The Queen (2005) 228 CLR 357 at 372; [30]–[31]. Here, the offence was a serious one, for which a term of imprisonment was available, but at the lower range of seriousness given the maximum penalty referred to above (at [11]).
The circumstances of the offence are important. The offence is an important part of the mechanism needed to ensure the integrity of the scheme established in the legislation, which is designed to reduce the likelihood of offenders, such as Mr Weston, re-offending by requiring them to keep police informed of their whereabouts. As the then Attorney-General, Mr Jon Stanhope, said in the presentation speech for the Bill which became the Act (Australian Capital Territory, Parliamentary Debates, Legislative Assembly, 7 April 2005, 1503–4):
The intelligence information gathered through the registration process is to be used to assist government agencies to better manage offenders in the community and, in doing so, reduce the likelihood that offenders will re-offend.
...
We, as legislators, have a responsibility to protect the children in our territory to the best of our ability. We need to maintain a vigilant eye on those who have already sexually offended against children. Those who have sexually offended against children must be monitored for as long as it is considered reasonably necessary to ensure that they do not reoffend, a situation that unfortunately very often arises with such offenders.
Given the importance of the information gathered through the requirement to report changes in personal details, the offence is a significant one and not one of lesser regulatory importance.
It may be accepted, as submitted by Mr Hopkins, that the standard of the offence is a negligence standard and that there is not, for example, more severe offence to be found in the Child Sex Offenders Act for what would then be the more serious failure to report where the failure was deliberate or, for example, it was part of a process designed to deceive the police or evade their surveillance.
Thus, in this case, Mr Weston was evicted from the residence which he apparently had, in compliance with the Child Sex Offenders Act, notified to the relevant police authorities. He had, again through no fault of his own, had his occupation at the next residence terminated. He clearly had some difficulty in obtaining further residential accommodation, apparently living out of his car parked on the nature strip of someone’s house, that person apparently permitting that. Thus, while it was blatant disobedience to his reporting obligations, his change of address was not initiated by him and, subject to the fact that the condition of his room was, of course, his responsibility, not really caused by him. Furthermore, the police appeared to have no difficulty in actually locating him, speaking to him on the same day that they attended his former residence.
The explanations for his failure to report are problematic. He was working long hours and during most of the working day, though police stations are, for the most part, open 24 hours a day. He also appears to have had a car and must have had a period of time off for lunch or other breaks. He said that he had no credit on his mobile phone. If, however, he was working so hard, he must have had some funds from his employment within the three week period between his initial move in early July to when police spoke to him on 23 July 2011.
Again, it seems to me that, whatever suspicions I might hold, I cannot find that Mr Weston deliberately failed to report as opposed to being disorganised, neglectful and failing to attend promptly to his obligations.
Mr Hopkins pointed out that Mr Weston has failed to think consequentially.
He had a bad experience, allegedly an assault, when last in custody. He expressly stated that he did not wish to return to custody, yet knowing of his obligations and knowing that failure had, at least on the last occasion, led to his incarceration, he did not report. Further, he did not try to evade police.
It is not possible on the evidence before me to say whether this failure to think through the consequences of his non-action is related to the effects of a car accident in which he was involved when he was a baby. The accident, it is said, had caused learning and memory problems. This could potentially affect his ability to attend to his reporting obligations. I had no direct evidence of this.
It also needs to be noted that he has been aggressive and generally uncooperative with ACT Corrective Services supervision and has made statements which suggest that he does not place a priority on his reporting obligations.
It has to be further said that Mr Weston is a serial repeat offender. This is the sixth offence under the reporting regime. Imprisonment has not yet deterred him. The courts, however, have little choice but to impose more severe sentences in an attempt, by using those means available, limited though they are, to punish him for his offending and attempt to deter him from reoffending.
Taking all those matters into account, I am not satisfied that the term of imprisonment is manifestly excessive. It is at the upper end of the range, but not so long as to justify, on this account alone, appellate intervention.
CONSIDERATION
Having concluded that there were specific errors in the learned Sentencing Magistrate’s sentence, however, it is necessary to consider re-sentencing. As Kirby J said in AB v The Queen (1999) 198 CLR 111 at 152; [107]:
The Court of Criminal Appeal will therefore be obliged to exercise its own sentencing discretion in the place of that which miscarried at first instance. The appellant will be entitled, his sentence having been re-opened, to make such submissions to the Court of Criminal Appeal as are appropriate ...
See, to the same effect, what fell from Hayne J at 160; [130], though his Honour was in dissent as to the outcome of that appeal.
It further appears from what Hayne J then said that, despite finding specific error, the appeal should be dismissed if “in the separate and independent exercise of its discretion, the appellate court concludes that no different sentence should be imposed”. Statutory provisions have been construed to lead to that conclusion in cases such as Baxter v The Queen (2007) 173 A Crim R 284 at 287; [19], 299; [85]. That principle may not apply where there are errors in individual sentences in a sentence for multiple offences where the overall sentence is not to be disturbed: R v Lomax [1998] 1 VR 551 at 565; R v Coukoulis (2003) 7 VR 45 at 61; [47]. Nevertheless, it has been suggested that it does apply in this Territory: Carpenter v Purcell at [11](b).
Despite my view that the sentence was not manifestly excessive, there were two specific errors that have enlivened my sentencing discretion. In my view, they do justify a change in the structure of the sentence. In my view, the plea of guilty justifies an acceptance that a non-parole period was appropriate to be set. Despite some hesitation, it betokens acceptance of responsibility and, less certainly but possibly, insight. Had he not pleaded guilty, I would have required him to serve the full 12 months in custody.
A period of supervision is called for to try and reduce re-offending. That could have been achieved by a non-parole period followed, of course, by a period of parole which would include supervision.
I accept that Mr Weston has not by any means engaged well with ACT Corrective Services in the past, but that does not mean he should not be required to be under supervision further. Breach of supervision obligations can be dealt with by the Court and may require a further period of custody.
At this stage of his sentence, however, it is unlikely that the Sentence Administration Board would have the time to grant parole in the time left for the balance of Mr Weston’s sentence.
The alternative is to suspend the sentence. That requires the making of a Good Behaviour Order under s 13 of the Sentencing Act: Sentencing Act s 12(3).
It has been said such an order can provide assistance to the authorities in protecting the community from offending behaviour: Arthur v Batterham [2011] ACTSC 158 at [5]. This is also a consequence of a Parole Order, largely for the same reasons.
It has to be noted, however, that an advantage of a Good Behaviour Order over a Parole Order is that the former can be made for a longer period than the balance of the sentence of imprisonment that is suspended: s 12(3) of the Sentencing Act. The consequences of breach are, perhaps, not so certain, arguably reducing its potency, but the continued supervision is a relevant factor in considering the options.
In my view, the 12 months imprisonment should not be disturbed but Mr Weston should be released after spending 10 months in prison with a 12 month period of supervision thereafter. I shall make orders to give effect to my view.
One final issue needs to be decided. The learned Sentencing Magistrate raised the issue of whether the proceedings should be heard in closed court. Ultimately, he ordered that Mr Weston’s name not be published or anything that might in any way indicate that he is on “the sex register” [sic] or a registrable offender.
As I understand it, his Honour drew the need for such an order from the fact that restrictions are placed on access to the register under s 118 of the Child Sex Offenders Act, which provides:
(1) The chief police officer must ensure—
(a) that the child sex offenders register, or a part of the register, is only accessed by people who are authorised by the chief police officer or under a regulation; and
(b) that personal information in the child sex offenders register is only disclosed by a person with access to the register, or the relevant part of the register -
(i) for law enforcement functions or activities and then only to an entity prescribed by regulation; or
(ii) as otherwise required or authorised by a regulation or under an Act or other law.
(2) The chief police officer must develop guidelines about access to, and disclosure of, personal information in the child sex offenders register to ensure that access to the personal information in the register is restricted to the greatest extent that is possible without interfering with the purpose of this Act.
(3) For this section, the child sex offenders register includes information from a register maintained under a corresponding law that is accessible by the chief police officer, whether or not the information is physically part of the register.
(4) This section has effect despite any other Act or law to the contrary.
Section 16A(1)(a) of the Crimes (Child Sex Offenders) Regulation 2005 (ACT) prescribed a court for the purpose of s 118(1)(b)(ii).
A court, of course, is a body with specific characteristics, one of which is that the courts in this jurisdiction, indeed, in most if not all of the common law world, conduct their business openly, that is in full public view, unlike in some other legal systems. As Donaldson MR said in R v Chief Registrar of Friendly Societies; Ex parte New Cross Building Society [1984] QB 227 at 235:
It is fundamental to British justice as we know it, and as our forebears have known it, that the Queen’s courts are open to all. And when I say that they are open to all, I do not limit this to those who have business in the courts. The judges administer justice in the Queen’s name on behalf of the whole community. No one is more entitled that a member of the general public to see for himself that justice is done.
To the same effect is the following from the speech of Lord Diplock in Attorney-General v Leveller Magazine Ltd [1979] AC 440 at 449–50:
As a general rule the English system of administering justice does require that it be done in public: Scott v Scott [1913] A.C. 417. If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice has two aspects: as respects proceedings in the court itself it requires that they should be held in open court to which the press and public are admitted and that, in criminal cases at any rate, all evidence communicated to the court is communicated publicly. As respects the publication to a wider public of fair and accurate reports of proceedings that have taken place in court the principle requires that nothing should be done to discourage this.
This has recently been affirmed in the High Court of Australia where French CJ said in Hogan v Hinch (2011) 243 CLR 506 at 530; [20]:
An essential characteristic of courts is that they sit in public. That principle is a means to an end, and not an end in itself. Its rationale is the benefit that flows from subjecting court proceedings to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts. Under the Constitution courts capable of exercising the judicial power of the Commonwealth must at all times be and appear to be independent and impartial tribunals. The open-court principle serves to maintain that standard (footnotes omitted).
A useful analysis of the authorities is most helpfully collected in J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 14–43.
All three of the judges I have cited above did note, however, as is accepted in other cases, that the principle is subject to legitimate exceptions. As I noted in R v Nantahkhum [2012] ACTSC 55 at [2]:
The principle of open justice, however, has never been absolute. Even in the leading case articulating the principle, Scott v Scott [1913] AC 417, exceptions were identified and accepted, though the exceptions are few and strictly confined.
Indeed, in Australia, it earlier seems that such exceptions might need to be statutorily prescribed unless within a “strictly defined exception”. The Full Court of the Federal Court of Australia in R v Tait (1979) 46 FLR 386 at 401–2, Brennan, Deane and Gallop JJ said:
In order that a court may accede to an application that it sit in camera, it must appear either that there is a statutory provision which enables it to do so, or that the case falls within one of the ‘strictly defined exceptions’ (as Lord Blanesburgh described them in McPherson v McPherson [[1936] AC 177 at 200]), to the rule that the proceedings of courts of justice should be conducted ‘publicly and in open view’ (Scott v Scott [[1913] AC 417 at 441]). Apart from statute, a court has no discretion as to whether it sits in public or in private. That rule is as clearly established as it is essential to the preservation of confidence in the judicial system. In Dickason v Dickason [(1913) 17 CLR 50 at 51], Barton A.C.J., speaking with the concurrence of the other justices of the High Court, said:
The matter appears to be concluded by the judgments of the Lords in Scott v Scott, the effect of which is that there is no inherent power in a Court of justice to exclude the public, inasmuch as one of the normal attributes of a court is publicity, that is, the admission of the public to attend the proceedings. Power to exclude may be conferred expressly by law, but there is no law which empowers us to proceed otherwise than with the ordinary publicity of a Court of justice.
That may be a little too confined, for there is, no doubt, an inherent jurisdiction in appropriate cases to hear proceedings in camera. As French CJ said in Hogan v Hinch at 531; [21]:
It has long been accepted at common law that the application of the open justice principle may be limited in the exercise of a superior court’s inherent jurisdiction or an inferior court’s implied powers. This may be done where it is necessary to secure the proper administration of justice. ... The categories of case are not closed, although they will not lightly be extended (footnotes omitted).
In this case, there is no statutory power referred to that requires the Court to depart from the principle of open justice. The obligation of the chief police officer is not the obligation of the Court. Nor does the matter fit within one of the recognised exceptions.
As Ball J pointed out in Walker v Rinehart (No 6) [2012] NSWSC 160 at [52], some evidence of special prejudice would ordinarily be required to justify a non-publication order unless the risk is obvious, such as in the cases referred to by French CJ in Hogan v Hinch (at 531–2; [21]).
There is, of course, the general power to forbid publication of names or evidence in s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT), but no party suggested any basis on which the order should be made in these circumstances in reliance on that provision.
I accept that this means details on the register may become public as, indeed, will the fact that Mr Weston is a registrable offender. That is a natural consequence of his prosecution.
I have no doubt that the local media, in which this Court has regularly shown its confidence, without disappointment, will not respond to these proceedings in an inappropriate or sensationalist way.
I decline to make an order that these proceedings be heard in camera or that Mr Weston’s name be suppressed.
I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date: 21 August 2012
Counsel for the appellant: Mr A Hopkins
Solicitor for the appellant: Legal Aid ACT
Counsel for the respondent: Ms K Weston-Scheuber
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 8 May 2012
Date of judgment: 20 August 2012
75
26
4