YG v Abela
[2015] VSC 783
•2 November 2015
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION PRACTICE COURT | Not Restricted |
S CI 2015 5524
IN THE MATTER of an appeal on a question of law pursuant to
s 430P of the Children, Youth and Families Act 2005
| YG (a pseudonym)[1] | Appellant |
| v | |
| MARK ABELA & ORS (see attached Schedule of Parties) | Respondents |
[1]To ensure there is no possibility of identification of the appellant this judgment has been anonymised by the adoption of a pseudonym in place of the name of the appellant.
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JUDGE: | DIGBY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 November 2015 | |
DATE OF JUDGMENT: | 2 November 2015 | |
CASE MAY BE CITED AS: | YG v Abela & Ors | |
MEDIUM NEUTRAL CITATION: | [2015] VSC 783 | First Revision: 25 February 2016 |
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ADMINISTRATIVE LAW – Judicial review – Breach of probation orders – Breach of youth supervision order – Sentenced for multiple offences to be served concurrently – Whether sentencing Magistrate erred in declaring separate periods of time of pre-sentence detention (PSD) – Whether sentencing Magistrate erred in failing to declare a total period of time as PSD – Timing of declaration of PSD – Children, Youth and Families Act2005, ss 413 and 430P – Sentencing Act 1991, ss 18, 35.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr A Imrie | Gorman & Hannan |
| For the Respondents | Mr B Sonnett | Solicitor for Public Prosecutions |
HIS HONOUR:
This is an appeal brought by amended Notice of Appeal dated 30 October 2015 pursuant to s 430P of the Children, Youth and Families Act2005.
The appeal sets out, in a schedule form, the relevant orders which were made by the learned Magistrate on 29 September 2015:
Charge/Proceeding Sentence/Order Informant Abela:
· Theft (x3)
· Handle/receive/retain stolen goods
· Possess drug of dependence
· Possess controlled weapon
· Going equipped to steal/cheat
· Deal property suspected proceeds of crime
· Unlicensed driving
Convicted and ordered to be detained in a Youth Justice Centre for a period of 4 months.
Time held in custody of 14 days reckoned as already served.
Breach of Probation Order, initially imposed on 11 May 2015.
Informants Legg, Dobson, Smith:· Theft (x2)
· Theft of motor vehicle (x2)
· Going equipped to steal/cheat
· Deal property suspected proceeds of crime
· Commit indictable offence whilst on bail (x8)
· Fail to answer bail
· Shopsteal (x4)
· Obtain property by deception (x6)
· Handle/receive/retain stolen goods
· Contravene condition of bail (x2)
· Unlicensed driving
· Use unregistered motor vehicle
Breach proven. Probation revoked.
Convicted and ordered to be detained in a Youth Justice Centre for a period of 4 months.
Time held in custody of 11 days reckoned as already served.
Breach of Youth Supervision Order initially imposed on 26 August 2015.
Informants Ivanov, White, Pappas, Brady, Harkin, Keen:· Unlicensed driving (x3)
· Fraudulently use registration label
· Use unregistered vehicle
· Theft of motor vehicle
· Fail to answer bail
· Without authority/excuse enter private place
· Deal property suspected proceeds of crime
· Theft (x3)
· Reckless Conduct Endanger Serious Injury (x3)
· Fail to stop after an accident
· Drive in a manner dangerous (x4)
· Drive at a speed dangerous
· Obtain property by deception (x28)
· Attempt to commit indictable offence
· Retain stolen goods (x2)
· Dishonestly receive stolen goods
· Commit indictable offence while on bail
· Possess controlled weapon
· Handle/receive/dispose stolen goods (x2)
· Shopsteal
Breach proven. Youth Supervision Order revoked.
On the charges brought by Informant Ivanov, convicted and discharged.
On the remaining charges, convicted and ordered to be detained in a Youth Justice Centre for a period of 4 months.
Time held in custody of 23 days reckoned as already served.
Breach of Probation Order initially imposed on 2 October 2014.
Informant Rowe:· Assault in company
· Theft
· Intentionally damage property
· Commit indictable offence whilst on bail
· Intentionally damage property
· Unlawful assault
Breach proven. Probation revoked.
On the charge of theft and commit indictable offence while on bail, convicted and ordered to be detained in a Youth Justice Centre for a period of 1 month.
On the remaining charges, convicted and discharged.
Effective Total Term Imposed 4 months
The amended Notice of Appeal also sets out the details of those parts of the orders made which are appealed against. The appellant appeals against only that part of the above orders by which the appellant contends periods of pre-sentence detention (PSD) were not appropriately declared and applied by the learned sentencing Magistrate.
The appellant does not appeal orders relating to breaches of probation orders or youth supervision orders. Nor is an appeal pressed in relation to the orders relating to concurrency of sentence nor in relation to orders dealing with the nature or length of the sentence imposed on the appellant.
The appeal focuses on the way in which, on 29 September 2015, the sentencing Magistrate dealt with the declared periods of time in detention reckoned to have already been served.
In this appeal that central issue relates to the correct application of s 35 of the Sentencing Act1991 (‘Sentencing Act’).
The amended Notice of Appeal of 30 October 2015 sets out the appellant's Grounds of Appeal. Those grounds are as follows:
The appellant appeals upon the following questions of law:
1.When imposing a total effective sentence of detention in a youth justice centre comprised of wholly concurrent sentences for offences in respect of which the appellant had previously been held in custody for separate periods for separate offences, and having decided not to order otherwise than those periods be reckoned as a period of detention already served:
a)was the learned sentencing Magistrate permitted to declare separate and concurrent periods of time reckoned as already served under the separate concurrent sentences imposed?
b)was the learned sentencing Magistrate required to declare a total period of time reckoned as already served under the total effective sentence?
2.If the answer to 1(a) is yes and 1(b) is no, when making separate declarations pursuant to s 35(4) of the Sentencing Act 1991 referable to separate and wholly concurrent sentences forming part of a total effective sentence, must the total period of time declared be reckoned as already served under the total effective sentence?
The appellant appeals on the following grounds:
3.As to question 1(a), the learned sentencing Magistrate erred in declaring separate periods of time pursuant to s 35(4) of the Sentencing Act 1991.
4.As to question 1(b), the learned sentencing Magistrate erred in failing to declare a total period of time pursuant to s 35(4) of the Sentencing Act 1991.
The appellant’s primary ground of appeal is that the learned sentencing Magistrate erred in declaring separate periods of time served and failed to declare a total period of time served pursuant to s 35(4) of the Sentencing Act.
By reference to the schedule of charges, proceedings, sentences and orders in the appellant's amended Notice of Appeal, it can be readily seen that the sentencing Magistrate referred to, or declared separately, various periods reckoned to be already served by the appellant. Those periods varied in time from 14 days, 11 days and 23 days.
Ultimately, her Honour imposed a total term of imprisonment of four months.
The learned Magistrate did not declare a total period of PSD in respect of time already served in connection with the relevant sentences and total effective sentence.
The appeal raises a central point concerning the correct approach to separate periods of earlier custody when a total effective sentence is imposed which comprises wholly concurrent sentences in respect of offences for which the appellant has previously been held in custody.
The appellant’s contentions and materials
In this appeal, the appellant relies upon three affidavits of Debbie Leanne Peters, sworn 22 October 2015, 26 October 2015 and 30 October 2015.
Ms Peters' affidavit of 22 October 2015 ascribes in some detail, and in terms which are not contradicted by the respondents, the sentences which the sentencing Magistrate, sitting in the Children's Court on 29 September 2015, imposed.
It is convenient to set out Ms Peters' affidavit at paragraphs [3]-[6]:
3.On 29 September 2015, Magistrate … sitting at the Children’s Court sentenced the appellant for:
(a)offences committed between 26 May 2015 and 15 September 2015 for which the informant was Senior Constable Mark Abela (the new offending);
(b)a breach of a youth supervision order imposed on 26 August 2015;
(c)a breach of a probation order imposed on 11 May 2015 (and confirmed on 26 August 2015);
(d)a breach of a probation order imposed on 2 October 2014 (and confirmed on 26 August 2015).
4.I briefed counsel to appear for the appellant on 29 September 2015 and was not present at the hearing. I am informed that representatives of Youth Justice told the court that the appellant had served three periods in detention referable to the offences before the court, namely:
(a)a period of 11 days between 30 May 2015 and 10 June 2015 (the 11 days) referable to the probation order that was imposed on 11 May 2015;
(b)a period of 23 days between 4 August 2015 and 26 August 2015 (the 23 days) referable to the youth supervision order that was imposed on 26 August 2015;
(c)a period of 14 days between 16 September 2015 and the date of sentence (29 September 2015) (the 14 days) referable to the new offending.
5.Her Honour found each of the three breaches proven, revoked the two probation orders and the youth supervision order and resentenced the appellant for the offences for which those orders were originally imposed, and imposed sentence for the new offending.
6. The sentences imposed were:
(a)On the new offending, 4 months with 14 days pre-sentence detention declared.
(b)On the youth supervision order offences, 4 months with 23 days of pre-sentence detention declared.
(c)On the probation order offences (originally imposed 11 May 2015), 4 months with 11 days of pre-sentence detention declared.
(d)On the probation order offences (originally imposed 2 October 2014), 1 month.
In paragraph [7] of her affidavit, Ms Peters also says as follows:
Her Honour ordered the sentences be wholly concurrent, imposing a total effective sentence of four months. Her Honour made no declaration regarding the total period of pre‑sentence detention regarding the total effective sentence. Her Honour also made an order disqualifying the appellant from obtaining a licence to drive a motor vehicle for six months.
Ms Peters, at paragraph [10] of her affidavit, then refers to a further hearing before the sentencing Magistrate on 15 October 2015 (referred to herein as the clarification hearing) and describes what transpired at that hearing, as follows:
(a)Representatives of youth justice told the court in general terms that they believed the previous information provided to the court regarding pre-sentence detention was correct and that the youth parole board had calculated, consistent with their ordinary practice, an earliest release date for the appellant based on the shortest period of pre-sentence detention (or the longest concurrent sentence).
…
(c)Counsel for the appellant made submissions inter alia to the effect that:
(1)the 14 days and the 23 days appeared to both be referable to offences that originally formed part of the youth supervision order;
(2)the sentences being wholly concurrent, s 18 of the Sentencing Act required that the appellant was entitled to the total period of 48 days declared as time already served deducted from her total effective sentence;
(3)in response to her Honour’s suggestion that some of the time may have already been taken into account by the sentencing Magistrate when imposing the youth supervision order (on 26 August 2015), that there was no record of that in the records of the court and, in any event, her Honour was re-sentencing for those sentences and was obliged to declare the pre-sentence detention in accordance with s 18 of the Sentencing Act (as her Honour had done).
At paragraph [10(b)] of her affidavit of 22 October 2015, Ms Peters referred to a summary of what she understood was said by the Magistrate on 15 October 2015. However, in part, that section of her affidavit has been corrected by paragraph [4] of her affidavit of 30 October 2015 which states:
The recordings of the hearing on 15 October 2015 reveal that paragraph 10 of my first affidavit is inaccurate to the extent that:
(a)as to paragraph 10(b), her Honour did not state that she intended the pre-sentence detention to operate as the youth parole board had informed the court. Her Honour stated:
(1)that ‘I really was only wanting to take into account the PSD that she served while awaiting to appear before me’;
(2)that she ‘would have thought myself it would have been the 23 days’;
neither of which was consistent with the manner in which the sentence has been calculated by the youth parole board;
(b)as to paragraph 10(c)(1) counsel submitted that the 11 days (and not the 14 days) and the 23 days appeared to be referable to offences that originally formed part of the youth supervision order.
Ms Peters' affidavit of 26 October 2015 also in exhibit “DP-1” details the criminal history of the appellant.
In paragraph [5] of Ms Peters’ Affidavit of 30 October 2015 she deposes that she has been informed by the Youth Parole Board that the appellant's sentence expiry date will be 17 January 2015, when calculated by reference to a four‑month sentence from the date of sentence, with 11 days of PSD deducted. Ms Peters also states that the appellant's earliest release date would be 7 December 2015, calculated on the basis of an expiry date for her sentence of 17 January 2015, with one month and ten days deducted. This deduction represents the maximum period (days) of remissions for a four‑month sentence.
On the argument which is advanced by the appellant, the appellant would be entitled to an aggregated total of 48 days, during which she was earlier detained, as her period of PSD and to have that aggregated number of days taken into account as time served on the relevant charges. If correct this would result in the appellant being eligible, or probably eligible, for consideration for release as at 31 October 2015.
Today is 2 November 2015. For reasons which have been explained by Counsel for the appellant and Counsel for the respondents, the parties took the view that this appeal should be prosecuted today, 2 November 2015. This was notwithstanding that on the appellant's case she may have been eligible for consideration for release from prison as early as Saturday 31 October 2015. Were it not for the parties’ combined desire to put off the hearing of this matter until today, I note that I would have heard, and attempted to determine, this appeal last Friday, 30 October 2015. In making these observations I am however in no way critical of either Counsel, or the advisers to either party on this appeal in relation to these timing exigencies.
The appellant submits that the core position is that the appellant is entitled to have a period of 48 days deducted from her total effective sentence of four months' detention in the Youth Justice Centre which was imposed by the learned Magistrate on 29 September 2015, rather than the period of sentence to which I have referred which discounts only 11 days from the appellant’s sentence.
The appellant submits that there are three ways in which one could interpret the orders of 29 September 2015. Firstly, that the learned sentencing Magistrate erred in declaring separate periods of PSD in relation to different components of the total effective sentence imposed and ought to have declared only one total period of PSD. Secondly, that the sentencing Magistrate did not err in declaring separate periods of PSD but erred in failing to declare an applicable total period of PSD and, thirdly, that the learned sentencing Magistrate did not err in her declarations of PSD but the interpretation of her declarations requires that the appellant get the aggregate benefit of the total amount of PSD that was declared in respect of the several sentences which were imposed.
The relevant legislation
The legislative framework within which this appeal should be considered is as follows.
Section 413 of the Children, Youth and Families Act2005 provides for matters consequential to a sentence of a period of detention in a Youth Justice Centre being imposed on a child.
Section 413 Youth justice centre orders
(1)Subject to this section, the provisions of Subdivision (4) of Division 2 of Part 3 of the Sentencing Act 1991 (except sections 32 and 33) apply to an order made by the Criminal Division detaining a child in a youth justice centre as if a reference to the Magistrates' Court were a reference to the Children's Court.
(2)If a child is ordered to be detained in a youth justice centre under section 412, the period of detention in respect of an offence must not exceed the maximum term of imprisonment for the offence if committed by an adult and in any event must not exceed 2 years.
(3)If a child is convicted on the same day, or in the same proceeding, of more than one offence—
(a)any period of detention in a youth justice centre shall be concurrent with any period of detention in respect of any other of the offences, unless the Court, at the time of sentencing, states that the sentences are cumulative and gives reasons for its decision; and
(b)the aggregate term of detention in a youth justice centre which may be required in respect of all of the offences must not exceed 3 years.
(4)Every term of detention in a youth justice centre imposed on a child by a court must, unless otherwise directed by the court at the time of pronouncing the sentence, be, as from the date of its commencement, served concurrently with any uncompleted sentence or sentences of detention in a youth justice centre imposed on that child, whether before or at the time the relevant sentence was imposed.
(5)The Court may make recommendations in writing as to the management or treatment of, or any other matter concerning, a child sentenced to detention in a youth justice centre.
In essence that section provides that the sentencing provisions of the Sentencing Act also apply to the detention of a child in a Youth Justice Centre as if a reference to the Magistrates' Court were a reference to the Children's Court, thereby making applicable any relevant provisions of the Sentencing Act.
The Sentencing Act provides in s 35 that if a young offender is sentenced to a term of detention in relation to an offence, any period during which he or she is held in custody in relation to proceedings for that offence, or proceedings arising therefrom, including any period pending the determination of a related appeal, must be reckoned as a period of detention already served in relation to the sentence ultimately fixed, unless the sentencing court, or the court making the order, otherwise orders.
In that regard the Sentencing Act specifically provides in sections 35(1), (2), (3) and (4):
Section 35 Time held in custody before trial etc. to be deducted from sentence
(1)If a young offender is sentenced to a term of detention in respect of an offence, any period during which he or she was held in custody in relation to—
(a)proceedings for the offence; or
(b)proceedings arising from those proceedings including any period pending the determination of an appeal—
must be reckoned as a period of detention already served under the sentence unless the sentencing court or the court making the order otherwise orders.
(2)Subsection (1) does not apply—
(a)to a period of custody of less than one day; or
(b)to a sentence of detention of less than one day; or
(c)to a period of custody previously declared under this section or section 18 as reckoned to be a period of detention or imprisonment already served under another sentence of detention or imprisonment or Court Secure Treatment Order imposed on the offender.
(3)If a young offender was held in custody in circumstances to which subsection (1) applies, then—
(a)the informant or person who arrested the young offender must, if present before the court, inform it, whether from his or her own knowledge or from inquiries made by him or her, of the length of the period of custody; or
(b)if that person is not present before the court, it may take and receive other evidence (whether oral or written and whether on oath or otherwise) of the length of the period of custody.
(4)If a young offender was held in custody in circumstances to which subsection (1) applies, then the court must declare the period to be reckoned as already served under the sentence and cause to be noted in the records of the court the fact that the declaration was made and its details.
Sections 35(5), (6), (7) and (8) of the Sentencing Act also provide that:
(5)The person with custody of the record referred to in subsection (4) must indorse on the warrant or other authority for the detention of the young offender particulars of the matters referred to in that subsection.
(6)If a young offender charged with a series of offences committed on different occasions has been in custody continuously since arrest, the period of custody for the purposes of subsection (1) must be reckoned from the time of his or her arrest even if he or she is not convicted of the offence with respect to which he or she was first arrested or of other offences in the series.
(7)If on an application under this subsection the sentencing court is satisfied that the period declared under subsection (4) was not correct it may declare the correct period and amend the sentence accordingly.
(8)An application under subsection (7) may be made by—
(a) the young offender; or
(b)the Director of Public Prosecutions, if the sentencing court was the Supreme Court or the County Court; or
(c)the informant or police prosecutor, if the sentencing court was the Magistrates' Court.
Section 430P of the Children, Youth and Families Act2005 is also important. That section provides for an appeal such as this to be heard by this Court.[2]
[2]A party to a proceeding (other than a committal proceeding) in the Criminal Division of the Children's Court may appeal to the Supreme Court on a question of law, from a final order of the Children's Court in that proceeding.
Appellant’s contentions
The appellant relies upon the Court of Appeal of this Court in R v Renzella[3] as authority for the proposition that PSD is necessarily cumulative. The appellant submits that the reason for this is obvious. This is because fundamental considerations of fairness and justice require the offender be credited for time spent in custody to ensure that he or she only serves the time required to do justice to the case and no more.
[3][1997] 2 VR 88 (‘Renzella’).
Sections 18 and 35 of the Sentencing Act, in the appellant's submission, codify the above mentioned conclusion in Renzella, and the appellant submits require a court to reckon and declare the PSD in most circumstances.
In support of the proper application of s 18(1) of the Sentencing Act, the appellant cites the following passage of a judgment of Justice Barry Beach in Wright v Marten (referring to s 18(1) of the Sentencing Act):
In my opinion, the whole purpose of the section in question is to ensure that a person who is arrested and charged with an offence, and who is then held in custody pending the hearing and disposition of that charge, gets the benefit of that time in custody if subsequently sentenced to a term of imprisonment in respect of that charge.[4]
[4]Wright v Marten (Unreported, Supreme Court of Victoria, Barry Beach J, 25 November 1993), 5-6.
The Sentencing Act does however provide limited exceptions to the PSD scheme to which I have referred. Such exceptions are to be found in sections 18(2) and 35(2) of the Sentencing Act. Those sections are not applicable in this matter.
Section 35(1) of the Sentencing Act also provides the power “to otherwise order“ and thereby depart from the usual operation of the Act to which I have referred.
The appellant submits that it is generally inappropriate to exercise the power “to otherwise order” in s 35(1) if to do so would frustrate the purpose of the legislation unless there is an exceptional and compelling circumstance which justifies doing so.[5]
[5]See The Queen v McGrath (Unreported, Court of Criminal Appeal, 1 October 1993), at 2 per Crockett J; R v Fordham (Unreported, Court of Criminal Appeal, 1 March 1998); and R v Foster [2000] VSCA 187 at [38]-[39].
The respondents to this appeal do not seek to contradict the appellant’s above arguments concerning the proper construction of s 35(1) of the Sentencing Act.
The appellant relies on DPP v TY (No 2),[6] and submits that a declaration of PSD is not to be considered part of a sentence imposed, nor is the calculation of PSD something which has any bearing on the determination of the appropriate sentence. Further, the appellant submits that an error made in declaring PSD does not, in itself, vitiate a sentencing discretion.[7]
[6](2009) 24 VR 705, [51], [53].
[7]Ibid, [50].
The appellant submits there are four significant features of the sentence imposed by the sentencing Magistrate.
Firstly, the orders the sentencing Magistrate made dealt exclusively with sentences imposed for offences and were not in the nature of breaches of earlier community‑based sentences which had been imposed. A breach of a probation order, or a youth supervision order, did not create a criminal offence and therefore did not lead to a sentence being imposed for breach. Rather, if the court decided to revoke the previous order upon a breach being established, it could re‑sentence the offender for the original offence. That is, the appellant submits, what occurred in this case with all but the most recent offence which was dealt with by the sentencing Magistrate.
Secondly, the appellant submits that the sentencing effected by the subject sentencing was wholly concurrent, which was unsurprising because such sentences are presumed to be concurrent unless the court otherwise orders. Furthermore, when sentences are not made concurrent, the court should give reasons for its decision to accumulate sentences; no such reasons were given here.
Thirdly, the appellant submits that the four sentences imposed in this instance were handed down on the same occasion and form part of the total effective sentence.
Finally, the appellant submits that the learned sentencing Magistrate, as part of the total effective sentence imposed, should be taken to have declared a period of PSD totalling 48 days pursuant to s 35(4) of the Sentencing Act. The periods declared were the periods of time spent in custody in relation to the offences for which the appellant was being sentenced. The separate periods of PSD identified by the sentencing Magistrate were referable to different offences forming part of the total effective sentence.
The appellant submits that the three periods of PSD which had occurred fell clearly within the terms of s 35(1) of the Sentencing Act and none were exempt under s 35(2), or otherwise. Further, the appellant submits that no exceptional or compelling circumstances existed such as to justify the Magistrate invoking the non-application discretion in s 35(1).
The appellant submits however, that the sentencing Magistrate failed to follow the abovementioned approach established by the Court of Appeal. The sentencing Magistrate arrived at a total effective sentence of four months duration. This sentence itself was appropriate and is not challenged on appeal. However, insofar as her Honour declared the applicable PSD separately prior to announcing the total effective sentence, the appellant submits that the learned Magistrate fell into error. In the appellant’s submission the power in s 35(4) of the Sentencing Act had been exercised too early.
The appellant submits that in DPP v TY (No 2), the Court of Appeal has clarified that s 35(4) of the Sentencing Act refers to the total effective sentence, where that concept is relevant.
The appellant also submits that in DPP v TY (No 2) the Court emphasised the importance of the sequential nature of considerations and determinations undertaken by a sentencing judicial officer, namely the determination of sentence, the pronouncement of sentence and subsequently, the determination of the relevant PSD. The appellant again relies on DPP v TY (No 2) in which the Court of Appeal stated:
Nor does the calculation of PSD have any bearing on the determination of the appropriate sentence. The appropriate sentence is arrived at by the application of conventional sentencing principles to the circumstances of the case. It is only after the sentence has been determined — and pronounced — that the question of PSD arises.[8]
[8]Ibid, [53].
The appellant submits that the sentencing Magistrate should have refrained from making separate declarations prior to pronouncing the total effective sentence. The appellant submits that what is required of a judicial officer in the situation under consideration is to make a total declaration of the PSD referable to the total effective sentence, after the total effective sentence was determined. Failing to do so, the appellant submits, was a failure to comply with s 35(4) of the Sentencing Act and an omission to address what the appellant characterises as the vital administrative purpose of making a declaration under that section.
Respondents’ contentions
The respondents’ submissions accept the accuracy of the summary of the proceedings below in the amended Notice of Appeal dated 30 October 2015.
The respondents also accept that this appeal is properly brought pursuant to s 430P of the Children, Youth and Families Act2005, and is a competent appeal in that regard.
The respondents submit that by virtue of the sentencing orders being made so as to operate concurrently, the net effect of that order was that the appellant was to serve a maximum of four months detention in a youth training centre, with the pre‑sentence declarations made by the sentencing Magistrate to result in a maximum deduction of only 11 days from the total effective sentence imposed.
The respondents note that it is a matter of usual practice in the Magistrates' Court to combine multiple sentence matters into a single matter, commonly referred to as a consolidation, thus enabling the Magistrate to impose a single total effective sentence and make an appropriate PSD declaration. The respondents submit that this practice also operates in superior criminal courts.
The respondents note that on occasions superior criminal courts deal with two separate indictments, but in that situation, a single PSD period is declared.
The respondents submit that the three separate periods of the appellant's detention set out in paragraph [4] of Ms Peters' affidavit of 22 October 2015, render it clear that there was no overlap between those three separate periods and that the appellant served a total of 48 days in custody prior to sentence imposed on 29 September 2015.
The respondents also submit in connection with the clarification hearing, that:
(a) the Magistrate did not intend the separate periods of PSD to be served cumulatively;
(b) the Magistrate stated that she “took into account” the periods of PSD referable to other matters when imposing each different sentence;
(c) the Magistrate only intended to have the PSD referable to the new set of offences [Informant Abela] to have any “real effect” – as the period spent in remand on the breach of probation and breach of supervision order proceedings had already been “taken into account” by the original sentencing Magistrate and again by her Honour in the re-sentencing exercise.
In substance, however, the respondents concede that there are difficulties reconciling aspects of what the sentencing Magistrate outlined at the clarification hearing with the approach taken on 29 September 2015. The respondents also conceded in argument that the sentencing Magistrate evinced an approach to dealing with PSD, and indeed the entire relationship of PSD and the imposition of sentence in a way which was divergent from the requirements of s 35 of the Sentencing Act. This the respondents concede was because in this instance the sentencing Magistrate stated that her intention in fixing the sentences for the two sets of breach proceeding offences was to take into account that the appellant had already spent time in custody referrable to the relevant proceedings. This, the respondents concede, was an erroneous approach in that the way in which time already spent in custody should have been dealt with was by making an appropriate pre-sentence declaration at the conclusion of the process of fixing sentence.[9]
[9]Ibid at 718, [53].
Ultimately, the respondents agree that s 35 of the Sentencing Act applied to the relevant sentencing exercise by virtue of s 413(1) of the Children, Youth and Families Act2005, which requires a mandatory credit for PSD. The respondents also submit that this power relates to any period during which the offender is held in custody in relation to the proceedings.
The respondents also concede that the Magistrate did not “otherwise order” but submit that the sentencing Magistrate's intention was that the periods referable to the breach proceedings were not to have any real or cumulative effect. The respondents submit that this was made plain enough by the sentencing Magistrate at the clarification hearing.
The respondents ultimately, however, submit that in so doing, the Magistrate erred in that the appellant was not credited with an appropriate amount of time in respect of her sentences. The respondents also concede that the general approach to PSD adopted by the Magistrate was erroneous. The correct approach, in the respondents’ submission, would have been to fix appropriate individual sentences for the offences, make orders for accumulation, if deemed appropriate, and then declare the requisite PSD as a single value unless deemed inappropriate.
The respondents further submit that the approach adopted by the Magistrate, namely to treat the PSD periods as operating concurrently, was inconsistent with the proper approach as elucidated by this Court of Appeal in R v Stares[10] and DPP v TY (No 2).
[10](2002) 4 VR 314.
In the end result, the respondents submit that the sentence and orders of the sentencing Magistrate should be quashed and remitted to the Magistrates' Court for rehearing.
The respondents also make submissions about how, if I was not persuaded to remit to the Magistrates' Court for rehearing, this court should deal with refixing both the sentence and the pre‑sentence declaration to be made under s 35(4) of the Sentencing Act. The respondents submit that they are content for me to make orders in relation to the appropriate sentences and PSD periods, although as I have mentioned, they do so under cover of, in effect, of their written submission at [ 29 ] that:
whatever confusion there may be in the construction of the sentencing orders by the Magistrate, it is plain that the Magistrate did not intend that the appellant receive a benefit of 48 days deducted from a total effective sentence of 4 months YJC detention. In short, the orders can be easily regularised by the Magistrate to achieve her avowed intention by imposing a total effective sentence of 5 months (rather than 4 months) and declaring pre-sentence detention of 48 days declared as already served (effectively not taking into account the earlier periods of pre-sentence detention accrued). This addition of 1 month to the total effective sentence would effectively cancel out the accrued pre-sentence detention of 11 + 23 days owing in respect of the two sets of breach proceedings [and indeed still confers an additional benefit of less 4 or so days (34 days minus 1 month) to serve from the perspective of the appellant].
Decision
I am satisfied that this appeal is properly brought in respect of identifiable questions of law as articulated in the appellant’s amended Notice of Appeal.
I am also satisfied that in this appeal error has been clearly established in relation to the way in which the sentencing Magistrate undertook the process of dealing with the declaration of the appellant’s PSD as part of her Honour’s sentencing of the appellant on 29 September 2015.
I consider that the sentencing Magistrate failed to apply the stipulated PSD process required by ss 35(1) and 35(4) of the Sentencing Act in that her Honour failed to declare the total PSD which was applicable and her Honour failed to make that separate aggregate pre-sentence declaration, and do so after determining and pronouncing the appellant’s total effective sentence.
Here in my view the three relevant periods of PSD which had occurred fell clearly within the terms of s 35(1) of the Sentencing Act and none were exempt under s 35(2), or otherwise.
In The Queen v McGrath[11] it was observed that the court should exercise the discretion not to declare periods of detention already served only in exceptional circumstances. In R v Kheir,[12] it was observed that in the event that such a discretion not to allow the full period of PSD is exercised it should be clearly stated and noted.
[11](Unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 1 October 1992).
[12][2012] VSCA 13, [21].
At all events the language of the subsection in question and its usual operation makes it clear that it is generally inappropriate to exercise the power “to otherwise order” in s 35(1) if to do so would frustrate the purpose of the legislation, unless there is an exceptional and compelling circumstance or reason which justifies doing so.[13] This appropriateness of this approach is bolstered by the nature and effect of the provision under consideration which operates in a way which bears on the grave issue of an appropriate period of incarceration.
[13]See The Queen v McGrath (Unreported, Court of Criminal Appeal, Crockett, Southwell and Hampel JJ, 1 October 1992), at 2 per Crockett J; R v Fordham (Unreported, Court of Criminal Appeal, 1 March 1998); and R v Foster [2000] VSCA 187 at [38]-[39].
Further, I note that it was not argued before me that any exceptional or compelling circumstances existed such as to justify the sentencing Magistrate invoking the non-application discretion in s 35(1) of the Sentencing Act.
Accordingly, the clear and mandatory language of s 35(1) and (4) requires in summary that in this case concerning a young offender sentenced to a term of detention in respect of an offence, any period of prior detention in custody, as defined by s 35(1), must be reckoned as a period of detention already served (unless the sentencing court otherwise orders), and the court must declare the period to be reckoned as already served and note that declaration and its details in the court’s records.
In Renzella, it was accepted by the Court of Appeal that periods of PSD are necessarily cumulative, and that this is so including because as a matter of fundamental fairness and justice an offender should be credited with time spent in custody so as to ensure no more than the time in custody required by justice to the case is served.[14]
[14][1997] 2 VR 88, 98.
In DPP v TY (No 2),[15] the Court of Appeal of this Court clarified certain relevant matters, including:
[15](2009) 24 VR 705, [51], [53].
(a) that a declaration of PSD is not to be considered part of a sentence imposed, nor is the calculation of PSD something which has any bearing on the determination of the appropriate sentence;[16]
[16]Ibid, [50]-[51].
(b) that an error in declaring a PSD does not, in itself, vitiate a sentencing discretion;[17]
[17]Ibid.
(c) that “the sentence” s 35(4) of the Sentencing Act refers to is the total effective sentence, where that concept is relevant;[18]
[18]Ibid, [52]-[53].
(d) the importance of the sequential nature of considerations and determinations undertaken by a sentencing judicial officer, namely the determination of sentence, the pronouncement of sentence and subsequently, the determination of the relevant PSD;
(e) the Court of Appeal also stated:
Nor does the calculation of PSD have any bearing on the determination of the appropriate sentence. The appropriate sentence is arrived at by the application of conventional sentencing principles to the circumstances of the case. It is only after the sentence has been determined — and pronounced — that the question of PSD arises.[19]
[19]Ibid, [53].
In the instant case I consider that the sentencing Magistrate should have refrained from making separate declarations in relation to periods of PSD prior to pronouncing the total effective sentence. The sentencing Magistrate should instead have declared the PSD referable to the total effective sentence, and done so after the total effective sentence had been determined and pronounced. By failing to so proceed I am of the view the sentencing Magistrate failed to comply with s 35(4) of the Sentencing Act.
I am also if the view that in proceeding as she did the sentencing Magistrate brought about a situation where there was no declaration of the total applicable period of PSD referable to the total effective sentence available, as it should have been, to serve its important administrative function, which includes ensuring that the sentenced person spends no more time in custody for the relevant offence than is required by the sentence imposed.
I consider that the learned sentencing Magistrate fell into error, in proceeding in the manner in which she did on 29 September 2015, and by subsuming or otherwise failing to take into account, as required by the provisions of s 35 of the Sentencing Act, the identified periods of detention already served by the appellant.
In my view, the effect of treating periods of PSD concurrently, was to disregard periods of time spent in custody and doing so resulted in unfairness as well as non- compliance with s 35(1) and (4) of the Sentencing Act.
The sentencing Magistrate here was required, as a separate exercise after determining the total effective sentence determined by the application of conventional sentencing principles to the circumstances of the case, to identify and declare the total PSD period which was referable to the total effective sentence. The sentencing Magistrate was also required to note the PSD declaration and its details in the court’s records.
The approach adopted by the Magistrate, namely to treat the PSD periods as operating concurrently, is I consider also inconsistent with the approach adopted by the Court of Appeal in R v Stares.[20] In this decision, the Court observed that it was “essential in the interests of justice for a fair sentencing regime” that separate periods of PSD are aggregated (relating to separate periods of custody) when a court is imposing a second sentence (with a PSD period allowable) upon an offender who is already undergoing sentence with a PSD period already declared.[21]
[20](2002) 4 VR 314.
[21]Ibid, [25].
Accordingly, in proceeding as she did, the learned sentencing Magistrate fell into error in that her Honour:
(i) erred in declaring separate periods of time in respect of the appellant’s PSD pursuant to s 35(4) of the Sentencing Act; and
(ii) erred in failing after determining the total effective sentence to declare the total period of PSD to be reckoned as already served and note that declaration and its details in the records of the court pursuant to s 35(4) of the Sentencing Act.
I am also satisfied that in the way evinced by the Magistrate's own explanations and responses at the clarification hearing on 15 October 2015, her Honour applied the wrong approach to the identification of the PSD period and also erroneously approached the interrelationship of the sentences imposed and the appropriate PSD periods, given the requirements of s 35 of the Sentencing Act.
Should the matter be remitted to the sentencing Magistrate or decided now in this Court
The clarification hearing on 15 October 2015 requires additional separate attention.
The appellant submits that the sentencing Magistrate was, by 15 October 2015, functus officio in relation to the proceedings that were the subject of orders made on 29 September 2015. The appellant submits that there was, after the pronouncement and entering of the orders on 29 September 2015, only scope for the sentencing Magistrate to make the sort of limited corrections which are permitted under the court’s rules in which she was presiding.
The respondents have conceded in their argument that after 29 September 2015 the sentencing Magistrate was not empowered to make any significant changes to the orders already pronounced. The respondents, however, argue that the sentencing Magistrate's views and intentions expressed at the clarification hearing should be accepted as making it clear that the Magistrate had intended not to discount the sentences imposed on the appellant by an aggregate of 48 days.
The respondents also conceded that the sentencing Magistrate's statements at the clarification hearing, were, in a number of respects, internally inconsistent. The respondents submit that it appears that the sentencing Magistrate at times reflected an intent to arrive at sentences and PSD periods applying the sort of common law approach discussed in Renzella, namely in cases where s 18(1) of the Sentencing Act was inapplicable a court is not only empowered but obliged to take PSD into account.
Accordingly, in substance, the respondents, in my view, concede the thrust of the appellant's submissions about the sentencing Magistrate’s lack of ongoing jurisdiction and in relation to the clarification hearing, namely that the sentencing Magistrate displayed confusion about the applicable periods of PSD and demonstrated an erroneous approach to how the PSD should be taken into account.
The respondents’ position in respect of remittal is that whatever confusion and inconsistency there may be in relation to the clarification hearing, they submit it is clear enough her Honour did not intend that the appellant receive the benefit of 48 days being deducted from the effective sentence of four months in detention at a youth detention centre. The respondents argue that the matter should be remitted to the sentencing Magistrate so that the present sentence considerations can be regularised.[22] The respondents also submit that they would not resist me dealing with the matters in issue today. They concede that course would be one appropriate way in which to dispose of this appeal. However, the respondents add that in doing so, I should make the orders referred to in paragraph [29] of their submissions extracted above.
[22]The respondents submissions about the utility of remitting to the sentencing Magistrate were inconsistent with the respondent’s apparent concession that the sentencing Magistrate was functus officio after 29 September 2015.
The appellant submits that this matter is inappropriate for remission to the Magistrates' Court. The appellant submits that because of the manifestly erroneous approach by the sentencing Magistrate to date, it would be unsafe to remit, even together with court declarations as to the way in which the appellant's periods of PSD are to be taken into account.
The appellant's Counsel submits that the appellant is presently in a state of uncertainty and upset which has been exacerbated by the debate and confusion associated with the correct period of PSD which should be applicable in her situation. Counsel for the appellant also notes that the appellant's upset, uncertainty and stress has been further heightened by the fact that her only family live interstate and not available to support her while in custody in Victoria.
The appellant submits that where the appellant remains in custody the court should not take the risk that there might be further delay in the finalisation of the appellant's position, especially having regard to the possibility that the appellant, if her arguments prevail, would be entitled to 48 days of PSD and thereby potentially able to be released from custody, or considered for release from custody, immediately.
The appellant therefore submits that the delay, whatever it may be, in the appellant having her matter remitted to the Magistrates' Court, argued and then the subject of further decision, will cause her prejudice and that the prejudice arising from any such delay is unacceptable.
The appellant also points out that other courts have taken the view that it is more efficient and appropriate for the judge dealing with matters on appeal, to finalise all necessary matters by order then and there, rather than remitting those issues. This is a cardinal case for doing so for the following reasons.
I am strongly of the view that in this instance it is more appropriate that I deal with the finalisation of the issues arising on the appellant's appeal, and do so immediately because to remit this matter would probably give rise to delay, perhaps significant delay.
Given the appellant is in custody, and might, if successful, be eligible for immediate release, this appeal should be determined as soon as possible.
I also consider that a further reason not to remit this matter exists because of the established confusion and erroneous approach of the sentencing Magistrate which, in my view, renders it inappropriate to remit it to the sentencing Magistrate. In these circumstances it is appropriate that I deal with the matter immediately.
In my view, both because the Magistrate's sentencing function and PSD related functions under s 35 of the Sentencing Act were concluded on 29 September 2015 and because the sentencing Magistrate's intent, as reflected at the clarification hearing, was erroneous and did not proceed upon correct principles and bases, I should not remit to the sentencing Magistrate. Further, I consider that it would not be appropriate or sufficiently safe for me to rely upon, or be guided by, the sentencing Magistrate's explanations and intentions as reflected in her discussion with Counsel at the clarification hearing.
For the above reasons, I shall determine the correct application of the Sentencing Act in the relevant circumstances and in respect of the periods of PSD to be deducted from the appellant's total effective sentence.
I shall declare the aggregate total period to be reckoned as already served in respect of the relevant sentence pursuant to s 35 of the Sentencing Act. In my view, the declared periods of PSD that have been referred to by the sentencing Magistrate as set out in the appellant’s amended Notice of Appeal, and submissions, should be aggregated to a total of 48 days and this aggregate period should be the period of PSD referable to the total effective sentence determined by the learned sentencing Magistrate.
I shall order, subject to any further refinement or amendment which either Counsel suggest to me as appropriate, orders in the form that were sought by the appellant in her amended Notice of Appeal, subject to some minor alteration reflected below.
I order that:
(a) The declarations regarding the appellant’s pre-sentence detention made by the sentencing Magistrate on 29 September 2015 (in Children’s Court Proceedings No. F13225052, 201513129 and 201507717) be set aside.
(b) A total period of 48 days of time held in custody be reckoned as already served under the total effective sentence of 4 months detention in a youth justice centre imposed on the appellant by the sentencing Magistrate on 29 September 2015.
(c) The court directs that the Office of Public Prosecutions serve a copy of these orders as soon as practicable on the Secretary to the Department of Health and Human Services, the Youth Parole Board and the Principal Registrar of the Children’s Court.
SCHEDULE OF PARTIES
| S CI 2015 5524 |
BETWEEN
| YG | Appellant |
| - and - | |
| MARK ABELA | First Respondent |
| EMMA LEGG | Second Respondent |
| MICK SMITH | Third Respondent |
| ELISE DOBSON | Fourth Respondent |
| MATTHEW IVANOV | Fifth Respondent |
| CLAYTON WHITE | Sixth Respondent |
| CHRISTOS PAPPAS | Seventh Respondent |
| PATRICK BRADY | Eighth Respondent |
| MICHAEL HARKIN | Ninth Respondent |
| MATTHEW ROWE | Tenth Respondent |
| PAUL KEEN | Eleventh Respondent |
0
4
0