WH v Hannan
[2014] ACTSC 356
•13 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | WH v Hannan & Anor |
Citation: | [2014] ACTSC 356 |
Hearing Dates: | 24 October 2014; 13 November 2014 |
DecisionDate: | 13 November 2014 |
Before: | Penfold J |
Decision: | 1. The appeal is upheld. 2. The appellant will be re-sentenced. |
Category: | Principal Judgment |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – Interference with Discretion of Court below – appellant sentenced in Magistrates Court for “drug-driving”, burglary and theft – total sentence of 12 months imprisonment, three months to be served in full-time custody –need to identify appeal grounds as raising errors as described in House v The King – Magistrate erred in approach to offender’s rehabilitation attempts – whether rehabilitation methods need to be punitive or effective – offender’s criminal history relatively minor except for significant number of burglaries and thefts committed on one day 19 years previously when offender aged 15 – offender had never served a prison term – sentence was manifestly excessive in requiring part of the sentence to be served in full-time custody. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), ss 35, 36, 36(1), 36(2), 36(3) Criminal Code 2002 (ACT), ss 308, 311, 312 Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 20(1) |
Cases Cited: | Bugmy v The Queen [2013] HCA 37 Dinsdale v The Queen (2000) 202 CLR 321 Veen v The Queen (No. 2) (1998) 164 CLR 465 |
Parties: | WH (Appellant) Timothy Hannan (First Respondent) Travis Mills (Second Respondent) |
Representation: | Counsel Mr S Whybrow (Appellant) Mr M Reardon (Respondents) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondents) | |
File Number: | SCA 43 of 2014 |
Publication Restriction: | Name and identifying details of offender |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Boss Date of Decision: 23 May 2014 Case Title: Timothy Hannan v WH Travis Ryan Mills v WH Court File Numbers: MC 167 587, 168 300 |
Introduction
On 23 May 2014, WH was sentenced in the Magistrates Court as follows:
(a)for one offence of driving with a prescribed drug in his system under s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – to two months imprisonment;
(b)for another count of driving with a prescribed drug in his system under the same provision – to two months imprisonment;
(c)for burglary under s 311 of the Criminal Code 2002 (ACT) – to 12 months imprisonment; and
(d)for an associated theft under s 308 of the Criminal Code – to six months imprisonment.
All the sentences ran concurrently; the first two were to be fully served, and the third and fourth were to be suspended after three months had been served, subject to a two-year good behaviour order.
WH has appealed against the sentences.
Background
The circumstances of the driving offences were described in the police statement of facts as follows:
On Saturday the 21st September 2013, Police were called to a reported traffic incident in Richardson within the Australian Capital Territory (ACT). Upon arrival, Police spoke with Ms Wilma NARDI, hereafter referred to as the Complainant, [who] told attending Police she was driving her car along Heagney Crescent, Chisholm, ACT, where she saw a small green vehicle driving in an erratic fashion directly behind her vehicle.
The Complainant told Police;
- The driver was a male of Caucasian ... appearance with dark coloured hair
- This male was wearing a ‘High Vis’ top.
- He was travelling very close to her vehicle
- He swerved from the left lane over the centre line onto the opposite side of the road
- He continuously altered the distance in which he was travelling behind her
- His head was rocking from side to side, back and forth.
A short time later, the Complainant turned left from Heagney Crescent, Chisholm onto Clift Crescent Richardson, ACT, where she travelled in an easterly direction for about 250 meters until ... she exited Clift Crescent onto May Gibbs Close, Richardson and entered the car park adjacent to the Richardson Shops/Supermarket. The Complainant then parked her vehicle, at this time, the same small green vehicle entered the car park, and parked in the sign posted disability car space beside her vehicle.
The Complainant told Police she then saw the male driver of this vehicle slump to his right and rest his head on the driver’s door car window and appear to go to sleep.
At this time the Complainant called for Police attendance.
About 9:15am Police attended the car park of the Richardson shops and had a conversation with the Complainant. As a result of this conversation the driver of the green vehicle was identified to Police.
Constable Travis MILLS, the Informant, spoke with the driver of the green vehicle who became known to Police as [WH], the Defendant now before the Court.
The Informant observed the following when speaking to the Defendant:
-Slurred and slowed speech
-Unsteady on his feet, swayed and moved slowly as he walked
-Poor coordination and an inability to stand without swaying and or assistance
-Dilated pupils, eyes were watery and bloodshot and an inability to keep eyes completely open
-Lack of fine motor skills
-Inability to maintain a logical conversation with Police.
The Defendant underwent a roadside screening test in accordance with the Informant’s directions using an approved alcohol screening device, namely an Alcolizer LE. The result of the screening test was negative to the presence of alcohol.
Due to the noted observations of the Defendant, the Informant suspected that the Defendant was experiencing the effects of an illicit drug, as per Section 16 of the Road Transport (Alcohol and Drugs) Act 1977.
About 9:35am, the Defendant was taken into custody and conveyed to the Canberra Hospital, Garran, ACT, and introduced to Dr Graeme THOMSON, Forensic Medical Officer (FMO).
About 11:00am, in presence of the Informant, the FMO completed a medical examination of the Defendant and extracted a sample of the Defendant’s blood for the purpose of analysis.
The Defendant’s blood sample was sealed in a labelled vial using a tamper-evident seal, number RTA024793 before the sample was stored securely in a one-way security box located within the Canberra Hospital and subsequently delivered to the ACT Government Analytical Laboratory (ACTGAL), an approved laboratory where it was to undergo analysis.
At the conclusion of this procedure, the Informant conveyed the Defendant to an address in Erindale.
The Informant attended to other duties and ended shift about 5:00pm.
On Sunday 22nd September 2013, the Informant commenced duty at 7:00am. Whilst performing a mobile vehicle patrol the Informant observed a green Nissan pulsar turn from Athens Street, Wanniassa onto Athllon Drive, Wanniassa, ACT.
The Informant observed this vehicle being driven in the following manner:
-Entering Athllon Drive from Watkins Street Wanniassa at excessive speed
-Vehicle crossing between the painted left lane marking and painted centre line marking
-Vehicle crossing the painted centre dividing line into the opposite oncoming lane
-The driver excessively moving within the driver’s seat of the vehicle.
The Informant activated the emergency lights of the Police vehicle and caused the green Nissan Pulsar to stop a short distance later. Upon approaching the vehicle the Informant recognised the driver as [WH], the Defendant.
The Defendant underwent a roadside screening test in accordance with the Informant’s directions, using an approval alcohol screening device, namely an Alcolizer LE. The result of the screening test was negative to the presence of alcohol.
The Informant observed the following when speaking to the Defendant;
-Slurred speech
-Dilated pupils, eyes were watery and bloodshot and an inability to keep eyes completely open
-Poor coordination and lack of fine motor skills
-Inability to maintain a logical conversation and had a delayed reaction to any questions asked.
The Informant observed the following when the Defendant was out of his vehicle;
-Unsteady on his feet, swayed and moved slowly as he walked
-Poor coordination
-His face and skin were pale.
Due to the noted observations of the Defendant, the Informant suspected that the Defendant was experiencing the effects of an illicit drug, as per Section 16 of the Road Transport (Alcohol and Drugs) Act 1977.
About 11:00am, the Defendant was taken into custody and conveyed to the Canberra Hospital, Garran, ACT, and introduced to Dr Catherine SANSUM, Forensic Medical Officer (FMO).
About 11:45hrs, in the presence of the Informant, the FMO completed a medical examination of the Defendant and extracted a sample of the Defendant’s blood for the purpose of analysis.
The Defendant’s blood sample was sealed in a labelled vial using a tamper-evident seal, number RTA024794 before the sample was stored securely in a one-way security box located within the Canberra Hospital and subsequently delivered to the ACT Government Analytical Laboratory (ACTGAL), an approved laboratory where it was to undergo analysis.
A short time later the Defendant was released from custody into the care of his stepfather who was waiting in the waiting area of the Emergency Department waiting area of the Canberra Hospital.
Analysis of the blood samples taken by the two doctors detected, cannabis, morphine and benzodiazepines.
The appellant was a “repeat offender” for the purposes of the Road Transport (Alcohol and Drugs) Act, because on 26 November 1998 he had been convicted and fined in New South Wales for an offence described as “Prescribed Concentration of Alcohol’, Mid Range’.
The circumstances of the burglary were described in a separate police statement of facts as follows:
About 5.35pm, Tuesday 24 September 2013, Police were called to [an address in] Gowrie in the Australian Capital Territory in relation to a report of a burglary that had occurred at that location. The complainant reported that the POI was still at the location. The POI was described as male, wearing shorts, a tank top and black cap.
A short time later Police were driving on Bugden Avenue, Gowrie ACT when they observed a male matching that description walking near the intersection of Stacy Street and Bugden Avenue. Police also observed two other males running towards this male and pointing at him.
Police spoke with the male matching the description who gave his name as [WH] ... hereafter referred to as the defendant. The defendant was asked for identification, which he stated he didn’t have.
Whilst speaking with the defendant Police also spoke with the two other males who were seen to be running up the road pointing at the defendant. The males identified themselves as Jordan Styche, the resident of [the address in] Gowrie, who stated that he had come home to find his house burgled and that after a quick check he believed his father’s Stihl chainsaw, some fishing rods and an Akubra hat was missing.
The other male identified himself as Callan Clarke who stated that he had seen the defendant coming out of the back fence of [the address in] Gowrie carrying an orange coloured chainsaw. Mr Clarke also stated that he saw some fishing rods and an Akubra hat in bushes near the back of [the address in] Gowrie. Both males stated that they searched the immediate area of [the address in] Gowrie and spotted the male seen coming through the back fence of [the address in] Gowrie inside a green Nissan Pulsar ... changing his clothing from dark coloured shorts and tank top to light coloured shorts and t-shirt. Mr Callan also confirmed to Police that the male they were speaking [to] was the male he had seen coming through the back fence of [the address in] Gowrie.
The evidence before her Honour of the appellant's subjective circumstances included the following material that had been reported to the Pre-Sentence Report author:
[WH] reported a positive childhood experience and stated he continued to enjoy a caring and supportive relationship with his mother, father and stepfather.
[[WH’s mother] has been diagnosed with a terminal illness and stated this is impacting his mental and emotional health.
[WH] is residing with his mother and step father. He is satisfied with his accommodation and had been residing at the address for the past 25 years.
[WH] ceased his schooling at the completion of Year 10. He is currently employed as a roofing plumber. He reported being employed fulltime with the same employer for 11 years.
[WH] has significant debts and stated that he is seeking legal and financial advice to address those issues.
It has been confirmed that [WH] self referred and successfully completed the Know the Risk Road Ready program on 24 March 2014. An Alcohol Screening Test conducted on 8 May 2014 assessed him as being low risk with regards to his current level of alcohol consumption.
[WH] commenced the use of benzodiazepines at the age of 28 years and used this regularly until approximately five months ago. He commenced using opioids at the age of 18 years and had become a regular user by the age of 23 years. [WH] administered this drug intravenously and spent approximately $300 per day maintaining his addiction until approximately five months ago.
[WH] commenced using cannabis at the age of 16 years and continued to smoke approximately 3 grams per week. Random Urinalysis testing on 2 May 2014 returned a positive result for cannabis.
[WH] reported he is receiving opioid treatment every three days, and ACT Health reported that he had contact with ADS Opioid Treatment Services, ADS Counselling Services and ADS Medical Services. His level of engagement with these Services could not be confirmed.
[WH] advised that he is not involved in any organised pro-social activities.
[WH] reported experiencing depression and anxiety due to his mother's terminal illness and his significant debts. He stated he is engaged with counselling services to address these issues; however his level of engagement could not be confirmed.
[WH] agreed with the Police Statement of Facts and appeared to accept responsibility for his actions. He claimed his behaviour had not been premeditated and that he is ashamed of himself. [WH] blamed his offending behaviour on his drug dependence.
[WH] is a 33 year old man with a history of drug dependence. While he claimed responsibility for his actions, the issues described above continue to impact on his behaviour and there is little confidence that this situation will change without his commitment to treatment.
The sentencing proceedings
In sentencing the appellant, her Honour said:
HER HONOUR: Please stand. In sentencing today I take into account the purposes and factors of sentencing as set out in the legislation and statement of facts as has been read into the record. In terms of the objective seriousness, there are two forms of offending here. Firstly, in relation to the driving, it is aggravated by the fact of the manner of driving that alerted the police attention to you and also by the fact that frankly it appears that your driving in the circumstances was exceedingly dangerous. You could very easily have killed somebody in the state that you were found in.
It seems to me that must necessarily be towards the most serious of this type of offence; that is, toward the very top of the range in relation to this type of offence. It might only have been more serious, conceivably, if you had indeed been engaged in an accident but then of course other charges would have flowed from that. In terms of the basic offence it was significantly aggravated by your manner of driving and indeed on the second occasion, by the fact that you had already been spoken to by police in relation to that conduct.
In terms of the burglary, it is aggravated by the fact that it was conducted on a domestic dwelling. I accept that it may well have been spur of the moment, however, it was still on a domestic dwelling. You were interrupted. There was damage caused in the course of that.
I adopt the passages of R v Campbell [2010] ACTSC 34 in relation to those comments and also the general principles applied by his Honour, Refshauge J, in that case. It can only be considered a very serious matter. Burglary is one of the more serious offences in the calendar of criminal offending and as his Honour, Refshauge J pointed out, it has always been considered throughout the history of the law to be one of the more serious offences.
In relation to the theft of the property, it is to your credit that you later gave information to police. I note that but it is still a serious matter to break into somebody's house, to violate their home and then to steal their possessions. It is objectively serious.
I take into account your pleas of guilty. They have utility for the administration of justice and they are indicative of remorse and I have given you a discount for those pleas. I take into account your age and your personal circumstances. I am materially assisted in understanding your personal circumstances by the presentence report that has been prepared in relation to this matter and sadly, you have followed a pattern so often amongst our youth where you seem to have had a loving and caring family but nonetheless have fallen into drug use and abuse that ultimately appears to have led you well and truly off the rails when you were a young person and apparently you were in the grip of it again and continue to struggle with it.
I also take into account your criminal history. That does not aggravate this offence but it does reduce the degree of leniency available to you. I note that there is a considerable period of time between your offending but you still have not been deterred from taking to that course of action in order, I infer, to support your habit in relation to the matters of dishonesty.
I specifically take into account your drug addiction and the mental health issues that commonly surround that and appear also to follow in your circumstances. I take into account the fact that you have entered into a rehabilitation and that you have made attempts to recover from drug addiction. I take into account your family circumstances and I also take into account the references and the other facts and matters set out in exhibit A tendered on your behalf. I take into account particularly the evidence of your stepfather.
I also note that there are good prospects for you in relation to your employment. You seem to be a valued employee and I have a level of confidence that your employer will continue to wish to employ you once you have dealt with these issues.
All of these matters are matters for which deterrence [is] highly relevant. In relation to all of the matters I impose penalties upon you to try to deter you from engaging in this type of conduct again and also to deter others. Both categories of matters are ones which involve protection of the community.
In relation to the driving with drugs in your system, if you allow yourself to be so badly affected, you are very fortunate you did not kill or seriously injure another person on the road.
In relation to the burglary and theft, everybody is entitled to feel safe in their homes. If we don't feel safe in our homes then that is the beginning of the end of social cohesion, quite frankly. It is one of the more serious issues in terms of protection of the community.
I impose penalties upon you today to publicly denounce your conduct and also to hold you accountable. Ultimately, you made the decision to take drugs and then to get into a motor vehicle. You made the decision, albeit on the spur of the moment, to enter somebody else's home, to do damage in that home and to take the things that belonged to them and presumably that they have an attachment to.
I note that the principles of rehabilitation are still highly relevant in relation to this matter. I also note that totality is a relevant consideration and I have taken that into account. I also take into account, and have done so in the sentencing process, the fact that these offences were committed over a short period of time.
In relation to as a repeat offender driving with a prescribed drug in your blood on 21 September 2013 I convict you of that offence. I sentence you to two months' imprisonment. That amount is reduced from three months' imprisonment which it would have been but for your plea of guilty. That period of imprisonment will commence today, 23 May, and will be completed on 22 June.
You will be disqualified from holding or obtaining a driver's licence for a period of 12 months, there being sufficient and appropriate reasons given your employment situation and also the accumulation that will be necessary in relation to the next charge to do so.
In relation to driving with a prescribed drug in your blood on 22 September 2013 I convict you of that offence. I sentence you to two months' imprisonment. Both of those offences being so serious, only imprisonment is warranted. That will be a sentence of two months' imprisonment from 23 May 2014, that is today, and will be completed on 22 June 2014. You are disqualified from holding or obtaining a driver's licence for a period of 12 months, there being sufficient and appropriate reasons in your circumstances to reduce that period. That means that you will be disqualified for a total period of two years.
In relation to the theft committed on 24 September of last year, I convict you of that offence. That offence is so serious in all the circumstances that only a term of imprisonment is warranted. I sentence you to six months' imprisonment. That is reduced from eight months' imprisonment which it would have been but for your guilty plea. You are to serve three months of that period of imprisonment by way of full time custody; that is, from today, 23 May until 22 August. The remaining will be suspended on a good behaviour order for a period of two years.
In relation to the burglary, I convict you of that offence. That offence is so serious that only a term of imprisonment is warranted. I sentence you to 12 months' imprisonment, that having been reduced from 14 months' imprisonment in light of your plea of guilty. Three months of that period of imprisonment will be served by way of full time custody; that is, from 23 May to 22 August. The remainder will be suspended upon a good behaviour order for a period of two years.
You will be required to sign an undertaking to comply with your statutory obligations for a period of two years. You will be subject, on probation, to the supervision of the Director-General of Corrective Services and you will obey all reasonable directions of the Director-General or an officer delegated to your supervision for a period of two years or such lesser period as the Director-General deems appropriate.
You are to attend such educational, vocational, psychological, psychiatric or other programs and counselling as you are directed to do, particularly in relation to ongoing drug rehabilitation, preferably in a residential rehabilitation and engagement with the Canberra Men's Centre is also recommended.
If you fail to comply with your good behaviour obligations or if you are found within the next two years; that is, two years from your release, to have committed a relevant offence, you may find that the remaining sentences are imposed or you may be resentenced in relation to these matters. Thank you, Mr McKenna.
MR MCKENNA: Thank you, your Honour.
MR LEE: Your Honour, there are two matters arising. The first is with respect to 1209 of 2014 which was the second in time drug driving offence. I take it, your Honour, that that starting point was three months' imprisonment.
HER HONOUR: It was starting at three months. It was reduced. I'm sorry, I should have said that. I said that in relation to the first one. I should also have said it in relation to the second one. You are correct. Thank you. You note that I have made all of those sentences concurrent to recognise various factors in relation to this fairly complex matter.
However, before making these remarks her Honour had expressed several opinions or assumptions about the appellant and his circumstances. While no doubt an appeal court needs to be careful about placing too much reliance on what is said by a sentencer in the course of evidence, submissions and argument during the sentencing hearing, it seems to me that where the sentencer expresses conclusions in the course of the preliminary part of proceedings and does not apparently resile from those conclusions, or express them differently, in the course of formal sentencing remarks, the appeal court is entitled to take account of those as representing part of the sentencer's reasoning processes.
Early in the sentencing hearing, her Honour expressed a view about [WH's] criminal history:
HER HONOUR: ... these charges are exceedingly serious. They are ones which ordinarily I would expect a sentence of imprisonment to flow from, particularly in circumstances where the criminal history is as serious. I will not say extensive but it is certainly serious and similar matters.
MR MCKENNA: Yes.
HER HONOUR: On the record, albeit as a child, but they are still there and can't be ignored. There seems to have been a big gap but that would seem to be consistent with what I understand from the presentence report in that there seems to have been periods of abstinence and then a relapse.
The appellant's stepfather, who is also the appellant's work supervisor, gave evidence in chief before her Honour about the prospect of the appellant holding onto his job if he was sentenced to a term of imprisonment, as follows:
What is [WH's] current situation with work? Does he still hold employment?---Yes, he still holds employment. He has actually got a young apprentice working under him now so he is showing him the right way of doing things at work and the right attitude to have at work.
If [WH] were not to serve a sentence by way of full time custody would you consider it likely he would hold that job?---If he went to gaol?
If he did not go to gaol?---He will definitely hold his job if he doesn't go to gaol.
What do you consider the importance of that job?---He holds his job in high regard because that gives him a purpose in life. He doesn't want to let me down because I got him the job and also his employer has remarked to me that [WH’s] workload has improved, he is looking sharp now and he is not looking - - -
When has this change occurred?---Early this year, since late last year to the beginning of this year.
How long has he worked for Hooker Roofing?---Since about 2002 I think.
No further questions, your Honour.
HER HONOUR: I take it then that his employer has held his job open for him in the past. Is that right?---He didn't have that job, your Worship, in the past.
I thought you said he had held it since 2002?---Yes, that's correct.
So he has been consistently in that employment since 2002?---That's correct, yes.
And he is a valued employee?---He is, yes.
So if he has to serve a period of imprisonment is it reasonable to expect that his employer would be interested in holding that position open?---I'm not sure but probably not.
Why do you say probably not? Have you spoken to the employer about that? ---No. I have only spoken to him about the charges with the driving. I couldn't be 100% sure. The way work is at the moment, work is sort of thinning out. There is not a great deal of work. He has laid off a few employees. He indicated to me that with [WH], if anything does go bad for him, that he will be the last to go because he is probably his most valued employee.
Thank you. Anything arising?
MR MCKENNA: Just to clarify, you have been working with [WH] for the last ten years?---That's correct, yes.
Did you mention he was given a warning for absenteeism?---Yes, he was given a warning for absenteeism.
What was the effect of the warning?---Not to show up late for work. He was coming to work late and he wasn't - - -
What was the warning that was given to him?---That any more days absent from work and his job would be terminated.
Thank you.
Counsel submitted before me that her Honour's question about whether [WH's] job had been kept open for him in the past suggested an incorrect assumption that [WH] had served a prison term at some point after 2002. In fact, [WH] had never previously served a prison term.
In submissions to the Magistrate, counsel for the appellant described the appellant's progress in rehabilitating himself in relation to his drug abuse in the period since the offences and responded to questions by her Honour about rehabilitation proposals, Mr McKenna said:
Your Honour, clearly drug use is a very important factor here for [WH] and tied to that, rehabilitation. We have already flagged the possibility of a deferred sentence order, your Honour, or a Griffith remand. Determining his rehabilitation is the whole purpose of the deferred sentence order to see whether these three months which you have heard have been quite positive.
He has not used heroin since the month after these offences which is a significant progress. He has attended for 61 dosages at ACT Health. That is quite a commitment. Seven counselling sessions he attended on time with a positive attitude. The evidence is that he is doing counselling now because he can actually get positive things out of it and not because someone is telling him to.
That is only the beginning though. We can't be naive, your Honour, to think that someone with previous relapses in the last ten years couldn't possibly do it again. Of course that is within the realms of possibility, but if your Honour gave [WH] another three to six months of demonstrating continued rehabilitation that has got to be relevant in the sentencing process. After all, it's the community that benefits if he breaks from this [addiction].
Whether your Honour thinks in house rehabilitation is the only option, and it may be, but on the other hand he is rehabilitating as we speak. He is making good progress and he still holds his job which he has had for ten years. So perhaps your Honour can consider adding a condition to his bail that he attends - - -
HER HONOUR: Having heard the evidence, particularly [WH], I am not convinced that a deferred sentence order is going to really be of very much more assistance. I had initially formed a view that perhaps a deferred sentence order with residential rehabilitation might be useful but it seems to me that there is no intention whatsoever to attend residential rehabilitation.
MR MCKENNA: That is not an option that has been flagged yet.
HER HONOUR: I gather from the evidence that has been put forth that no arrangement has been made for it and it doesn't seem to be in the offering so to speak.
MR MCKENNA: I suppose residential rehabilitation really should be an option if the normal course does not work and the reality is - - -
HER HONOUR: No, it's an alternative. It's not one that the defendant seems to be inclined towards.
MR MCKENNA: He has shown quite impressive responsibility.
HER HONOUR: He has, but the issue is not just about him.
MR MCKENNA: Yes, of course.
HER HONOUR: It is also balancing his needs against what he has done - - -
MR MCKENNA: Yes, absolutely.
HER HONOUR: - - - for which the community expects there to follow certain things. We talk about issues of deterrence but we also talk about issues of accountability and of punishment. Those things are also relevant. I hear what you are saying in relation to the defendant and his needs but he is not the sole focus of sentencing. He is the person who will be sentenced but that is not the only consideration and on the evidence I have heard I am satisfied that a deferred sentence order or a Griffith remand is not necessary.
The appeal
Amended grounds of appeal were filed in court on the date set for hearing as follows:
The grounds of appeal are that the Learned Magistrate erred in the following ways:
(i)Determining as the starting point for the traffic matters that the maximum sentence was appropriate where the offences did not otherwise fall within the ‘worst possible case’ or even in the more serious category of offences of this nature;
(ii)Imposing a sentence for the offences that is manifestly excessive;
(iii)In the alternative to (ii) imposing a sentence that is unreasonable or plainly unjust in the circumstances;
(iv)Sentenced the Appellant on the basis the burglary offence was an aggravated form of the offence;
(v)Approached the question of rehabilitation on the basis that only the most restrictive form of rehabilitation could be considered given the seriousness of the offences rather than the most appropriate form of rehabilitation for the appellant;
(vi)Her Honour placed too much weight on the Appellant’s criminal antecedents;
(vii)Failed to have any or any sufficient regard to the assistance provided by the appellant to authorities.
The appeal grounds
As pointed out by the respondent, even the amended grounds of appeal do not fit neatly within the categories of grounds of appeal against discretionary decisions described by the High Court in House v The King (1936) 55 CLR 499 and emphasised recently in several cases including most particularly Bugmy v The Queen [2013] HCA 37.
In House v The King, Dixon, Evatt and McTiernan JJ said :
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The best I can do in terms of identifying the appeal grounds as covered in House v The King is this.
The first House category – specific errors
Ground (iv), that her Honour sentenced the appellant on the basis that the burglary offence was an aggravated form of the offence, would be an error of fact and/or law arising from a belief that the facts of the burglary were such as to render it an aggravated burglary as described in s 312 of the Criminal Code, whether that belief was that a burglary committed in a domestic residence (as this was) was an aggravated burglary under s 312 or that there were other facts by reason of which the burglary was an aggravated burglary; the implied error of fact or law falls into the first category of House v The King errors.
Ground (vii) to the extent that it asserts a failure to have any regard to the assistance provided to authorities, may be a House v The King error of the first category, specifically a failure to have regard to a relevant consideration.
Grounds (i) and (v) might also on careful analysis describe errors falling into the first category of House v The King errors.
The second House category – inferred error
Grounds (ii) and (iii), in effect, that the sentences were manifestly excessive or otherwise unreasonable or plainly unjust, fall squarely into the second category..
Ground (vi), and ground (vii) to the extent that it asserts a failure to have sufficient regard to assistance provided to authorities, do not directly invoke House v The King errors but may point to matters to be considered in determining whether the sentences were manifestly excessive or otherwise wrong.
Consideration
I shall deal first with the appeal grounds that either explicitly or on analysis assert House v The King errors of the first category, that is, specific errors.
Ground (iv): Was the appellant sentenced on the basis that he had committed an aggravated burglary?
The sentencing Magistrate said:
In terms of the burglary, it is aggravated by the fact that it was conducted on a domestic dwelling. I accept that it may well have been spur of the moment, however, it was still on a domestic dwelling. You were interrupted. There was damage caused in the course of that.
It is true that in sentencing for an offence of aggravated burglary or aggravated robbery that it is important to distinguish, in assessing the offence, between the statutory aggravating factor which renders the offence an aggravated burglary or robbery and is accordingly an element of the offence, and any other aggravating factors of the particular offence.
Where the offence charged is not the aggravated form, there is not the same scope for confusion, and I do not accept that the use by her Honour of the word "aggravated" to describe the significance of the burglary being committed in a domestic residence (which is often recognised as a more serious form of the offence than burglary of commercial premises) provides any ground for concluding that her Honour was confused about the offence for which she was sentencing the appellant.
Ground (vii): Did her Honour fail to have regard to the assistance provided to authorities?
In the Magistrates Court, the prosecutor provided the following by way of “additional agreed facts”:
Your Honour, the additional facts are as follows. The complainant provided police with a list of items that were stolen during that burglary and that list is attached. The following items from that list were recovered soon after the burglary: black handled multigrips, which was part of the assorted tools - - -
HER HONOUR: I don't think we need those. They are on the record. It was a number of items and they were recovered?
MR LEE: There were a number of items recovered. The important part in the additional agreed facts is that after the pleas of guilty the defendant, through his solicitor, wrote to the Office of the Director of Public Prosecutions and provided further information including a map which allowed police or assisted police in locating not all but some of the remaining stolen items.
HER HONOUR: I see, so the majority of the stolen items were recovered; is that the bottom line?
MR LEE: The majority was but significantly the laptop was not and neither was any of the money but in saying that, it's accepted that a significant amount was recovered.
In sentencing her Honour alluded to this as follows:
In relation to the theft of the property, it is to your credit that you later gave information to the police. I note that but it is still a serious matter to break into somebody's house, to violate their home and then to steal their possessions. It is objectively serious.
Clearly her Honour was aware of the assistance provided to police that led to the recovery of some of the stolen property, and noted that it was to the appellant's credit.
It was argued that this was assistance referred to in s 36(1) of the Crimes (Sentencing) Act 2005 (ACT) such as to justify a reduced penalty being provided under s 36(2) of that Act, but that her Honour had failed to take account of that assistance and had thereby fallen into error.
I reject this argument. First, it is not absolutely clear that the appellant's actions fall within s 36(1) at all; they did not assist the authorities in preventing or detecting any offence and the respondent argued that recovering stolen property was not encompassed in “investigating” a relevant offence. I am inclined to the view that “investigating” might include recovering stolen property in the same way that it might well include, for instance, locating a body even after police are sure, based on other evidence, that a murder has taken place and that a particular person has committed it.
However, even assuming that there was some assistance to the authorities under s 36(1), the section gives the sentencing court a discretion to provide a sentencing discount. It does not require a sentencing discount to be given and in my view, does not require a court that does not give a specified sentencing discount to explain that failure by explicit reference to the 10 matters required under s 36(3) to be considered by a court in deciding whether to give a sentencing discount.
Section 36 can be relevantly distinguished from s 35 of the Crimes (Sentencing) Act which gives the court a discretion to give a sentencing discount for a plea of guilty but first requires the court to consider any plea of guilty in deciding how to sentence an offender.
Her Honour's reference to the assistance given by the appellant in recovering some of the stolen property, and her indicated view that this did not mitigate his offence to any significant degree, were adequate to exclude any claim that she had failed to have regard to the assistance.
Ground (i): Did her Honour err in finding that the “drug-driving” offences were almost the worst examples of the offence and that therefore the maximum penalty was appropriate?
The maximum penalty for the “drug-driving” offences was, for a repeat offender, a fine equal to 25 penalty units (equivalent at that stage, I understand, to $3,750) or three months imprisonment or both. The appellant was a repeat offender because of an offence committed 15 years earlier (at [6] above).
It is hard to argue with her Honour's assessment that the two “drug-driving” offences were serious examples of the offence, given that in both cases the appellant was observed driving very erratically (in the first case sufficiently erratically to prompt a member of the public to call police) and in each case police observations of the appellant himself suggested that he was barely functioning and could well have been a serious danger to the public if he had not been stopped.
Her Honour suggested that the offences would only have been more serious if there had been an accident, to which I would add that the appellant's culpability might have been higher if his previous drink-driving offence had been more recent instead of 15 years previously, or if his drug use had rendered him positively aggressive rather than just not properly in control of his vehicle.
However, in Veen v The Queen (No. 2) (1998) 164 CLR 465, the majority of the High Court said at 478:
That does not mean that a lesser penalty must be imposed if it be possible to envisage a worse case; ingenuity can always conjure up a case of greater heinousness. A sentence which imposes the maximum penalty offends this principle only if the case is recognizably outside the worst category.
Although it is not clear what range of activity might be covered by the “worst category” (which one must assume covers a broader spectrum than the “worst case”), I am not convinced that the appellant's offences were recognisably outside the worst category for the offences concerned.
I note also the argument mentioned by the respondent that since the true maximum penalty is three months imprisonment and a fine of $3,750, her Honour did not in fact start with the maximum penalty at all. I have previously expressed the view that the fact that a particular offender would clearly never be able to pay a substantial fine should not automatically render him liable to a longer term of imprisonment than a person who could easily meet even the maximum fine for an offence, although I realise this is not a view universally held in this court.
However, in this particular case, there is no basis in her Honour's sentencing remarks for finding that her Honour had considered imposing a fine as well and decided that the offence was only of mid-range seriousness and that, therefore, only one component of the total maximum penalty should be imposed. Accordingly, I do not reject the appellant's submission that her Honour intended to impose the maximum penalty for the drug-driving offences, discounted only for the pleas of guilty, but since I agree with her Honour that the offences were very serious instances of the offence, this does not help the appellant.
Ground (v): did her Honour err in her approach to rehabilitation options?
This ground raises the question whether her Honour fell into error by taking the view that, because of the seriousness of the offences, only the most restrictive form of rehabilitation could be considered, without regard to what was appropriate for the appellant.
The Magistrate's approach to the question of rehabilitation is not absolutely clear. The exchange quoted at [14] above suggests that her Honour considered that a deferred sentence would only be appropriate if the appellant proposed to undertake residential rehabilitation, but counsel's submission that the different approach adopted by the appellant seemed to be working well, and that he had "shown quite impressive responsibility" was met by her Honour not with further comments about whether that alternative approach to rehabilitation would be adequate but with comments about the need to address other sentencing purposes, particularly accountability and punishment. It is hard to avoid the inference that her Honour was willing to consider residential rehabilitation as, in effect, an alternative form of punishment rather than as one way of promoting a quite different sentencing purpose, namely rehabilitation.
I consider that assessing the appellant's rehabilitation attempts by reference to whether they were sufficiently punitive rather than whether they were likely to be effective in promoting rehabilitation amounts to having regard to an irrelevant consideration, a House v The King specific error.
Were the sentences manifestly excessive, unreasonable or unjust?
I turn now to grounds (ii), (iii), (vi) and part of (vii), which raise the question whether her Honour's sentencing disposition was manifestly excessive, unreasonable or unjust.
It is useful first to note the comments of Gleeson CJ and Hayne J in Dinsdale v The Queen (2000) 202 CLR 321 at [325] – [326]::
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.
The appellant does not say that the total sentence, being of one year’s imprisonment, was excessive. He says that in the circumstances, it was manifestly excessive to require him to serve three months of that sentence in full-time custody.
I agree that the total sentence of one year’s imprisonment was not excessive. Indeed, for a burglary in domestic premises that involved an encounter between the offender and a young occupier of the burgled premises and some damage to the premises, it was lenient. However, there is a real question whether any of that sentence needed, in the circumstances that then obtained, to be served in full-time custody.
The significant features in assessing her Honour's sentences in this context seem to me to be the appellant's criminal history, his history of drug dependence and his risk of re-offending.
The appellant’s criminal history
At the time of these offences, the appellant, who is now 34, had not offended at all since 2003 when at the age of 23 he was dealt with for three assaults by the imposition of fines and an 18-month good behaviour order. Before that there had been several minor offences in 1999 and 1998 dealt with by fines and good behaviour orders, but the appellant's only serious offending had taken place when he was 15, at which point he had been dealt with for a large number of charges of burglary and theft, all apparently committed on the same day.
Apart from that, in New South Wales he had committed a number of traffic offences and had also been fined a total of $500 in 1999 for possessing too many fish and fish of a prohibited size.
The appellant’s history of drug dependence
It is apparent from the Pre-Sentence Report details that the appellant has a long-standing drug dependence problem. However, it seems that until the brief period from 21 to 24 September 2013, he had managed his addiction without coming to the attention of the authorities, as well as having maintained the same employment over much of that period.
The appellant’s risk of re-offending
The Pre-Sentence Report contained the following assessment:
Based on the Level of Service Inventory – Revised (LSI-R), without intervention [WH] is at Low - Medium risk of re-offending. This risk is primarily due to [WH's] drug dependence and his attitude towards his drug use. He may benefit from cognitive behavioral intervention to target his specific criminogenic needs. Protective factors for [WH] are his stable employment, secure accommodation and supportive family. Should [WH] address his ongoing drug dependence and achieved stable mental health, this would reduce his risk of reoffending further.
There was no evidence before her Honour seeking to explain the appellant's behaviour during the four days concerned, but the mentions in the Pre-Sentence Report of his growing debts and his mother's terminal illness may perhaps be relevant.
There was also evidence before her Honour of the efforts the appellant was then making in relation to overcoming his drug addictions:
(a)a letter from ACT Health dated 16 May 2014 reporting [WH's] dosing with suboxone and his attendance at seven appointments, including four drug counselling sessions between February and May 2014, and Clinical Notes from ACT Health giving more details about [WH's] progress;
(b)a character reference from his stepfather, dated 16 May 2014 and explaining [WH's] long battle with addiction; and
(c)a certificate recording [WH's] completion of a “Know the Risk” Drug Awareness Course in March 2014.
Conclusions about appeal grounds
In summary, the appellant was a long-term drug addict who had been in regular employment for the last ten years, who was now making genuine efforts, and apparently progress, in dealing with his addiction himself, who had not offended for ten years before the instant offences, whose only offences similar to the burglary and theft had been committed 18 years previously on a single day when he was 15 years old and who had never been in full-time custody before.
As noted, the 12 months sentence for the burglary was relatively lenient, but the requirement to serve three months of it in full-time custody, a term not long enough for the appellant to undertake the AMC's equivalent to residential rehabilitation (the Solaris Therapeutic program), but no doubt long enough for him to come into contact with other drug abusers and more regular offenders, and possibly to have access to illicit drugs, was in my view manifestly excessive.
This was in my view a clear case for either a fully suspended sentence or a deferred sentence, under which the appellant would have been given a chance before being sent to prison to establish that his claimed determination to rehabilitate himself was genuine, and that he had the capacity to achieve that rehabilitation. It would not have been unreasonable in such a case for a longer sentence to have been imposed for the burglary, but on the basis that the risk of serving that sentence in full-time custody would be one of the incentives for the appellant to succeed in rehabilitating himself.
Conclusion
I have found that her Honour fell into specific error in her treatment of rehabilitation options and also that the sentence she imposed was manifestly excessive in requiring an immediate custodial term.
The appeal is accordingly upheld, and the appellant will be re-sentenced.
| I certify that the preceding sixty-one [61] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: |
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