Younger v The Queen
[2017] VSCA 199
•26 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCR 2016 0201 | |
| ADAM YOUNGER | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | REDLICH and McLEISH JJA and CROUCHER AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 May 2017 |
| DATE OF ORDERS: | 26 May 2017 |
| DATE OF REASONS FOR JUDGMENT: | 11 August 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 199 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1321 (Judge Pullen) |
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CRIMINAL LAW – Appeal – Sentence – Robbery – Three years’ imprisonment – Non-parole period two years – Whether manifestly excessive – Plea of guilty – Evidence of rehabilitation – Sentence 4.5 times longer than Crown called for on plea – Appeal allowed.
CRIMINAL LAW – Appeal – Sentence – Sentencing judge warning to appellant as to consequences of breach of community correction order (‘CCO’) – Whether appellant improperly influenced not to consent to CCO – Need for judicial explanation of CCO before offender asked to consent – Boulton v The Queen (2014) 46 VR 308 applied.
CRIMINAL LAW – Sentencing – Power to order CCO with term of imprisonment amended ‘irrespective of when the offence was committed or the finding of guilt was made’ – New statutory limit of one year’s imprisonment – Whether Court of Appeal more confined than judge at first instance – Whether Court resentences according to law at time of initial sentence – Radenkovic v The Queen (1990) 170 CLR 623 discussed – DPP v Grech [2016] VSCA 98 distinguished – Sentencing Act 1991 s 44(1); Criminal Procedure Act 2009 ss 280‑2; Sentencing (Community Correction Order) and Other Acts Amendment Act 2016.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Smallwood | Patrick W Dwyer |
| For the Respondent | Ms Sally Flynn | Mr J Cain, Solicitor for Public Prosecutions |
REDLICH JA
McLEISH JA
CROUCHER AJA:
The appellant pleaded guilty in the County Court to one charge of robbery and was sentenced as follows:
Charge Offence Maximum penalty Sentence 1 Robbery [s 75(1) of the Crimes Act 1958] 15 years’ imprisonment 3 years’ imprisonment Total effective sentence 3 years’ imprisonment Non-parole period 2 years Pre-sentence detention 244 days S 6AAA statement 5 years’ imprisonment with a non-parole period of 3 years Other orders Disposal order; forensic sample order
The appellant sought and was granted leave to appeal against that sentence by a single judge pursuant to s 315 of the Criminal Procedure Act 2009 (‘CPA’) on the following two grounds:
(i) The sentencing hearing miscarried as a result of the learned sentencing judge influencing the appellant to not consent to a community correction order.
(ii) The head sentence imposed (3 years’ imprisonment) and the non-parole period fixed (2 years’ imprisonment) are both manifestly excessive.
On 26 May 2017, we allowed the appeal and resentenced the appellant to a term of 12 months’ imprisonment combined with a community correction order (‘CCO’) of two years. We ordered that, in addition to the mandatory conditions attached to a CCO, the appellant complete 200 hours of unpaid community work, undergo assessment and treatment for drug and alcohol abuse and dependency, participate in programs that address factors related to his offending, be subject to supervision and judicial monitoring and abstain from consuming drugs.
The appeal also raised questions concerning the extent of the Court’s power in resentencing the appellant to a term of imprisonment combined with a CCO. Those questions were: first, whether the Court’s power to impose a combined sentence was more limited than that of the judge at first instance as a result of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 (‘the Amending Act’); and, second, whether the declaration of pre-sentence detention affected the length of the sentence of imprisonment that could be ordered in combination with a CCO.
At the time of resentencing the appellant we indicated that we would publish our reasons at a later date. These are those reasons.
Circumstances of the offending
The robbery occurred on 10 January 2015. The appellant had met Elisa Smyrnis two days prior. On the day of the offending, he assisted Ms Smyrnis to cash a cheque made out to her after winning $5000 on poker machines. After cashing the cheque, Ms Smyrnis placed some of the money in her handbag and some of it in her bra. The appellant then travelled with Ms Smyrnis and her friend, Bradley Birang, to a milk bar in Thornbury. The appellant and Ms Smyrnis got out of the car while Mr Birang stayed in the driver’s seat. After giving the appellant some money she owed him, Ms Smyrnis went into the milk bar and left her handbag in the car.
The appellant walked back to the car and punched Mr Birang in the face through the open driver’s side window. The appellant took Ms Smyrnis’s handbag and fled. The handbag was found the following day with a watch, perfume and $1100 in cash missing.
The appellant was arrested on 22 January 2015 and initially denied the robbery. After a contested committal hearing on 18 May 2015, and an arrest on 3 May 2016 for failing to appear on bail, he pleaded guilty to robbery on 16 May 2016.
The judge’s reasons
After summarising the circumstances of the offending, the sentencing judge went on to consider the appellant’s prior court appearances.[1] Her Honour took into account prior offending including charges of intentionally causing injury and unlawful assault heard by the Children’s Court in 2009 and charges for stealing in 2011 heard by the Perth Magistrates’ Court.[2] She also noted that the appellant had committed subsequent offences which had not yet been dealt with.[3]
[1]DPP v Younger [2016] VCC 1321 (7 September 2016, Judge Pullen) [37] (‘Reasons’).
[2]Ibid [38]–[39].
[3]Ibid [40].
The judge accepted that the appellant had entered a plea of guilty at an early stage,[4] which had spared the community the cost of a potentially lengthy trial, and which indicated genuine remorse.[5]
[4]Ibid [44].
[5]Ibid [45]–[46].
The judge referred to the personal circumstances of the appellant: that he was aged 25, from a ‘close and supportive family’, had worked off and on in the family business since leaving high school during Year 9, and had been raised in an environment free of domestic violence, mental illness or substance abuse.[6]
[6]Ibid [47], [49]–[50], [55].
Her Honour noted a report by the forensic psychologist Mr David Ball, dated 15 August 2016, which stated, inter alia, that the appellant was not on any medication while on remand, did not present with any symptoms of depression or anxiety, and gave the impression of ‘a person with a capacity for generally good judgment.’[7] The judge observed, however, that the appellant’s ‘positive traits rapidly evaporated when under the influence of substances.’[8]
[7]Ibid [51]-[53].
[8]Ibid.
Her Honour emphasised the fact that the appellant had described himself as addicted to methylamphetamine. She noted his belief that most of his prior offences were attributable to substance abuse.[9] She also noted Mr Ball’s assessment of him as having satisfied the symptoms for alcohol and stimulant use disorders, but not mental illness, personality or mood disorders, or other pervasive syndromes.[10]
[9]Ibid [61].
[10]Ibid [64].
The judge acknowledged that the appellant was supported by his parents and determined to get his life back in order by abstaining from drugs.[11] In response to the submission that the appellant’s age and supportive family made his prospects of rehabilitation ‘favourable’, her Honour stated that she was ‘not as confident’ and that in her opinion his rehabilitation prospects were ‘guarded’.[12]
[11]Ibid [66]–[67].
[12]Ibid [68].
The appellant’s counsel submitted that a term of imprisonment combined with a CCO would be appropriate in the circumstances.[13]
[13]Ibid [70].
The appellant was assessed as suitable for a CCO and ‘presented as willing and able to comply with such an order’.[14] In regard to his suitability for a CCO, the judge stated:
You had not previously been involved with Community Correctional Services. I was concerned, however, to read of a recent incident in custody where you said your nephew was supposed to bring drugs into the prison for yourself and other inmates, and when he did not you were assaulted by those prisoners. That does not give me confidence regarding your future abstinence from drug use and thus impacts upon your rehabilitation prospects should you be on such an order.
I discussed my concerns with both counsel … You were prepared to risk your nephew’s ‘liberty’ for your own needs, and all whilst in a controlled environment. You are yet to be tested in the community.
In my opinion, quite simply, you will be back, and if you do come back I will have to re-sentence you for this offence and you will return to prison.[15]
[14]Ibid [73].
[15]Ibid [74]–[76].
Her Honour agreed with the author of the CCO assessment report that there was a ‘high risk’ the appellant would re-offend.[16]
[16]Ibid [77].
After noting that the proposed conditions of the CCO had been explained to the appellant, and that he had consented to the order being made with those conditions, the judge said:
I want you to listen carefully. Subject to your consent to being on a Community Correction Order, this is what I propose, and this is only if you consent. So you do not have to. If you say no, I will come up with another sentence, do you follow? I will think of something else.
You will serve a total of 10 months’ imprisonment and then be subject to a Community Correction Order for 3 years following your release from custody.
However, before I formally announce that order, I should advise you of the following, and this is about that proposed order, so you can determine whether or not you really, really, really want to consent to it or not.
The judge then described the core conditions of the CCO. Her Honour also proposed a number of additional conditions including 200 hours of unpaid community work over 18 months, supervision for three years, assessment and treatment for drug abuse or dependency, participation in programs that address factors related to his offending, abstinence from drugs, judicial monitoring and reporting of any non-compliance directly to herself.[17] The last of these conditions, a discretionary condition available under s 48(1) of the Sentencing Act 1991 (‘the Act’), was specified in the following manner:
I direct that I be advised by your Corrections Officer of any non-compliance of these conditions … and I will then determine if the matter has to come back before me. I will just tell you a little bit of history about that. Sometimes Corrections only let you know after about the eighth unacceptable absence. Well, I do not understand that, because if I put someone on a CCO, they are so close to going in that eight, I just do not accept. So I ask that I am specifically told of the first unacceptable absence from anything. So if you are unacceptably absent to anything, I will see you again.[18]
[17]Ibid [84].
[18]Ibid.
The judge explained that any contravention or breach by way of further offending would result in a sentence for the new offending as well as a sentence for the breach of the order which she noted ‘could be gaol’.[19] She stated that the appellant could then be resentenced for the original offending and that, in that event, he would receive a term of imprisonment as there would be ‘nowhere else to go’.[20]
[19]Ibid [86].
[20]Ibid [87].
The judge then described the appellant’s potential CCO as follows:
So basically, that means you have to be extra careful for the next 3 years. That is a long time, and I do not think that you are going to make it, frankly, but your counsel wants it and despite my very strong reservations about your ability to keep it, I will give you a chance. But as soon as you breach it, you will be back before me. You will go back to gaol. So I want you to think really carefully about that, because you have got to be really careful. You might be better off to do your time and forget about it and not worry about three years and seeing me again, because then you come out and then you have got to go back, and you know, it is awful. So hold on a minute, you can chat to your counsel. I still have to tell you more things. You have got to be extra careful for the next three years.
I also advise you that if you fail to comply with any direction of the worker, basically, that is a Community Corrections officer, a substantial fine can be imposed … So they sort of get you in all sorts of ways.[21]
[21]Ibid [88].
The judge briefly adjourned the court so the appellant could confer with counsel. When court resumed, counsel informed the judge that the appellant no longer consented to a CCO, since he was now ‘concerned about one slip up over three years.’[22] Counsel submitted that, instead of a term of imprisonment combined with a CCO, a ‘straight sentence’ [i.e. term of imprisonment] with no parole period would be an appropriate sentence.[23]
[22]Ibid [122].
[23]Ibid [140]–[152].
The Crown then confirmed its earlier submission that either a term of imprisonment combined with a CCO or a term of imprisonment equivalent to time served would be an appropriate sentence.[24] The judge did not agree with these submissions and proceeded to sentence the appellant.[25]
[24]Ibid [154]. Pursuant to s 18(4) of the Sentencing Act 1991.
[25]Ibid [155].
Noting that that appellant no longer consented to a CCO, her Honour sentenced him to three years’ imprisonment with a non-parole period of two years, declaring 244 days of pre-sentence detention.[26]
[26]Ibid [157]–[158].
Ground 1 – Improper influence
The appellant sought to rely on Guariglia v The Queen[27] in submitting that the judge’s remarks about his potential CCO caused the sentencing hearing to miscarry. He submitted that this was so because the judge’s remarks influenced him not to consent to a CCO and he changed his instructions immediately thereafter. He pointed towards the judge’s repeatedly expressed view that he would breach the CCO and that, in that event, he would go back to gaol. He highlighted the judge’s assertion that any breach would result in imprisonment.
[27](2010) 208 A Crim R 49.
The appellant further submitted that her Honour’s remarks in this context did not reflect the correct approach, outlined in Boulton v The Queen,[28] by which future compliance is recognised to depend on the offender addressing the risk of non-compliance through the treatment ordered as part of a CCO. He submitted that the judge should have proceeded on the basis that drug treatment would have assisted him to maintain abstinence and reduce the risk of non-compliance. He pointed, in particular, to the opinion of Mr Ball that his ‘general well-being in the community would be greatly assisted by supervision, support and drug relapse prevention treatment’, which can be facilitated by a CCO. He therefore submitted that the judge’s remarks did not enable him to give meaningful and informed consideration whether to consent to a CCO.
[28](2014) 46 VR 308, 380, App 1 [49]–[50] (‘Boulton’).
The Crown submitted that a judge should outline the proposed terms of any potential CCO and the possible legal consequences of any breach of those terms. This, it was submitted, may result in the offender concluding that he or she should not consent to any such CCO. However, the Crown conceded that a judge may not address an offender in such a way as to ‘improperly influence’ the offender’s decision whether or not to consent.
The specific error asserted was that the judge ‘in effect told the appellant that any breach in the form of discovered drug taking or failure to attend at an appointment would necessarily result in imprisonment.’ The Crown accepted that the impugned remarks did not make clear that, where a breach was alleged, the judge would have to determine whether there was a breach and, if so, which discretionary penalty ought be imposed. It further accepted that it could be concluded that a young man battling drug addiction would wish to avoid imprisonment in the event of a missed appointment or dirty screen.
The Crown’s primary argument in its written case was that there was no evidence to show that it was the judge’s statement as to the consequences of any potential breach that caused the appellant to change his mind. It submitted that it was unclear that the appellant received an incorrect impression of the consequences of breach and hence refused consent on this basis. It contended that, if the appellant wished to show that his will was overborne, the onus rested upon him to establish that as a fact. Such evidence would normally involve affidavit material. The Crown therefore submitted that, although the appellant’s argument was consistent with the objective facts, the evidence relied on fell short of what was necessary to demonstrate improper influence.
The appellant subsequently filed an affidavit in which he deposed that he was told of the conditions that would be likely to form part of his CCO and that a failure to attend appointments or a dirty urine screen would constitute a breach. He deposed as follows:
[T]he impression that I had from what the Judge told me was that she did not believe that I would be able to do the CCO, and if I slipped up — even once — I would go straight back to court and I would go back to gaol for a long time. After hearing what the Judge said, I did not think that I would be able to complete a three-year CCO without slipping up. I was really worried that I would slip up and that that would result in me going back to gaol. I refused to consent to the CCO. My case was adjourned for a period of time, during which I spoke to Ms Caruso. I told Ms Caruso that I would not consent to a CCO. We did not speak about whether what the Judge had said in relation to how breach proceedings work was wrong.
It is convenient to summarise the argument on the second ground before turning to our reasons for allowing the appeal.
Ground 2 – Manifest excess
The appellant submitted that the sentence was manifestly excessive having regard to the submissions of the Crown on the plea. As we have said, the Crown there submitted that a term of imprisonment combined with a CCO or a term of imprisonment equivalent to time served would be a sufficient and appropriate sentence, a submission which the judge rejected. Instead, her Honour imposed a term of imprisonment 28 months longer than the period of time already served, which was declared to be 244 days. The appellant submitted that this sentence, which is approximately 4.5 times longer than the sentence the Crown had called for on the plea, was manifestly excessive.
The appellant submitted that both his head sentence and non-parole period were manifestly excessive. In support of this submission he pointed toward factors including: his early plea of guilty; family support; relative youth; lack of prior convictions leading to either a term of imprisonment or CCO; positive evaluations by the forensic psychologist Mr Ball; desire to be rehabilitated; and the principle of parsimony.
Under this ground the Crown conceded that it earlier submitted to the sentencing judge that a term of imprisonment combined with a CCO would be an appropriate sentencing disposition. However, as for its earlier submission that time served would have been an appropriate sentence, it submitted that this was erroneous. It emphasised that the CCO which was contemplated was punitive in nature. The Crown acknowledged, however, that the question remains whether the sentence of three years’ imprisonment was wholly outside the range of sentences reasonably open for this offence and this offender. It submitted that it is ‘difficult to keep out of mind the fact that the judge was prepared to order — had the appellant consented — a combined imprisonment/CCO disposition that would have seen the appellant released as of right after having served 10 months’ imprisonment only.’
The Crown’s written case listed six previous cases as evidence of current sentencing practice.[29] It also referred to Sentencing Advisory Council statistics which show that, between 2010–11 and 2014–15, the median term of imprisonment imposed for robbery was 18 months’ imprisonment. Based on these cases and statistics it submitted that the appellant’s sentence of three years’ imprisonment was ‘stern’ for this offence and this offender.
[29]Osman v The Queen [2015] VSCA 308; Rouge v The Queen [2013] VSCA 160; Dowe v The Queen [2012] VSCA 39; Farrugia v The Queen (2011) 32 VR 140; Cervantes v DPP [2010] VSCA 4; R v Phan [2009] VSCA 3.
Conclusion on grounds of appeal
We turn first to the issue of manifest excess. The difference between the term of imprisonment imposed and the combined order that the judge initially proposed is not in and of itself demonstrative of error. The fact that the judge considered one sentence, which may be considered more lenient, before imposing a more severe sentence does not support the conclusion that either of those sentences were outside the range of sentencing options reasonably open to her Honour.
We are of the view, however, that when regard is had to all relevant factors, including the nature of the offending, current sentencing practice, the maximum penalty and the personal circumstances of the offender, the sentence imposed by the sentencing judge was manifestly excessive.
Although it is therefore not necessary to consider ground 1, which asserts specific error, we will nonetheless do so out of deference to the submissions advanced and because of the overriding importance of the issues raised.
The judge’s communicated views as to the appellant’s ability to comply with proposed conditions of a CCO and that a breach would lead to imprisonment
When a sentencing judge considers imposing a CCO, it is desirable and proper for the scope and purpose of the CCO to be communicated to the offender. Further, a judge may need to communicate to the offender any reservations the judge has about the offender’s prospects of successfully complying with its terms, as well as the consequences of any breach. Such communications will ensure that the consent given by the offender is an informed and meaningful consent as is required by s 37(c) of the Act. As this Court observed in Boulton:
given the serious consequences of breach, it is both appropriate and necessary for the court to be satisfied that the offender’s consent is based on an adequate appreciation of the seriousness of the responsibility being undertaken.[30]
[30](2014) 46 VR 308, 354 [201].
The success of an offender on a CCO will depend heavily on the attitude of the offender and the success of the rehabilitative components of the CCO in assisting the offender not to reoffend.[31] In many if not most circumstances, a judge will not be able to state with certainty the likelihood that there will be a breach of proposed CCO conditions, nor the likely consequences of any such breach. Where a breach of conditions is established, it will be dealt with by the court exercising its discretion as to what consequences should follow from the seriousness of the breach, the progress of the offender and the circumstances of the initial offending.
[31]Ibid 380 [48]–[50].
In the present case, the judge sought to discourage the appellant from seeking a CCO because of the perceived risk that he would be likely to breach its conditions, from which dire consequences would follow. But even if it was clear from all of the circumstances that imprisonment was the most likely result of any breach, it was nevertheless inappropriate for her Honour to express herself in such absolute terms. It can never be said by way of prediction that imprisonment will inevitably follow the breach of a CCO condition. However, as the sentencing discretion must now be reopened, it is unnecessary for us to reach a concluded view as to whether the circumstances in which the communications were made, and their effect on the appellant, were such as to give rise to appealable error.
Issues arising on resentencing
The parties made a number of submissions that turn on the question of whether certain provisions in the Amending Act apply to this Court in its resentencing capacity. The relevant provisions of the Amending Act commenced on 20 March 2017, after the appellant had been sentenced at first instance (7 September 2016), but before he fell to be resentenced in this Court. The effect of the Amending Act was to alter the terms on which a judge can impose a combined term of imprisonment with a CCO under s 44 of the Act by reducing the maximum term of imprisonment to one year. Prior to the Amending Act, a judge could order a term of imprisonment of up to two years in combination with a CCO.
In substance the Crown submitted that this Court could not now resentence the appellant to a term of imprisonment combined with a CCO because it would be constrained by the new statutory limit of one year’s imprisonment. This follows, it was submitted, from the fact that the appellant’s pre-sentence detention exceeded one year. This submission raises two questions. First, given that this Court must resentence the appellant, is the term of imprisonment that can now be imposed in combination with a CCO more limited than it was at the time of the original sentence? Secondly, does the declaration of pre-sentence detention alter the length of the sentence of imprisonment that can be ordered in combination with a CCO? We will deal with these questions in turn.
Does the transitional provision of the Amending Act apply to the Court of Appeal in resentencing the appellant to a term of imprisonment combined with a CCO or does the Court apply the law as it stood at the time of the initial sentence?
Section 282 of the CPA provides that, where an appeal against sentence is allowed, the Court of Appeal must set aside the sentence imposed by the court at first instance and may ‘impose the sentence, whether more or less severe, that it considers appropriate.’
However, given that s 44 of the Act was amended after the imposition of the sentence the subject of this appeal, both the Crown and the appellant submit that this Court is bound by that change for the purposes of resentencing. At the time that the appellant was sentenced by the court below, s 44(1) of the Act read as follows:
When sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies),[32] a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is 2 years or less.
As we have said, the Amending Act reduced the length of the term of imprisonment that could be combined with a CCO from two years to one, such that s 44(1) of the Act now reads:
Subject to any specific provision relating to the offence, when sentencing an offender in respect of one, or more than one, offence (other than an offence to which clause 5 of Schedule 1 applies), a court may make a community correction order in addition to imposing a sentence of imprisonment only if the sum of all the terms of imprisonment to be served (after deduction of any period of custody that under section 18 is reckoned to be a period of imprisonment or detention already served) is one year or less.[33]
[32]Clause 5 of Schedule 1 relates to arson offences both at common law and statute.
[33]Emphasis added.
The transitional provision in relation to the amendments made to s 44 states that they ‘apply to the sentencing of an offender’, on or after 20 March 2017, ‘irrespective of when the offence was committed or the finding of guilt was made’.[34] The Amending Act therefore operates retrospectively to apply to offences committed before the changes were introduced. The provision evinces a clear intention that the amendment operates retrospectively so as to apply when an offender is first sentenced. However, although it is applicable at that time, does it also apply to the Court of Appeal when resentencing an offender who was first sentenced before the amendment took effect? The question raised in the present appeal is whether ‘the sentence’ to be imposed by this Court under s 282 of the CPA constitutes ‘sentencing’ for the purposes of the transitional provision of the Amending Act. If the answer is ‘yes’, then a sentence fixed by the Court of Appeal on or after 20 March 2017 would necessarily be restricted by the changes introduced by the Amending Act, even though the sentence being appealed from was not so restricted. That of itself would be an unusual outcome which may not have been intended.
[34]Sentencing Act 1991 s 160.
It is a basic tenet of the common law that the creation of, or increases to, penalties do not operate retrospectively. The High Court, in Polyukhovich v Commonwealth of Australia, stated the principle as follows:
The resistance of the law to retrospectivity in legislation is to be found in the rule that, save where the legislature makes its intention clear, a statute ought not be given a retrospective operation where to do so would be to attach new legal consequences to facts or events which occurred before its commencement.[35]
This principle was codified in s 114 of the Act, which states that increases in penalties only apply to offences committed after the commencement of those increases. This reflects the presumption against retrospectivity in the case of legislative amendments that increase a penalty or burden.[36] And, although the amendment in question does not increase any penalty, it can be characterised as confining the circumstances in which a lesser penalty may be imposed.
[35](1991) 172 CLR 501, 642 (‘Polyukhovich’).
[36]See also Interpretation of Legislation Act 1984 s 14(2).
Concern about the retrospective operation of the transitional provision was raised by the Scrutiny of Acts and Regulations Committee in its report on the compatibility of the Amending Act with the Charter of Human Rights and Responsibilities Act 2006.[37] The Attorney-General responded by stating that:
The changes do not affect the court’s ability to impose a non-custodial sentence and merely limit the ways in which CCOs can be used by the courts. As these changes do not affect the maximum penalty that an accused will face, it is appropriate that they apply to all those who are sentenced on or after the date of commencement.[38]
[37]Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Alert Digest No 14 (2016) 5–6.
[38]Parliament of Victoria, Scrutiny of Acts and Regulations Committee, Alert Digest No 15 (2016) 16.
It is necessary to examine the power conferred upon the Court of Appeal in its resentencing capacity as this may inform the construction to be given to the transitional provision of the Amending Act.
The manner in which an appeal against the exercise of a discretion should be determined is governed by the established principles set out in House v The King.[39] Error at first instance must be established and hence ‘it is not enough that 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.’[40] Where error is established, however, the appellate court ‘may exercise its own discretion in substitution’ for that of the judge at first instance.[41] Appeals against sentence, including those in which error is shown and the offender falls to be resentenced, have for a very long time been governed by these principles.
[39](1936) 55 CLR 499 (‘House’).
[40]Ibid 505.
[41]Ibid.
In Radenkovic v The Queen[42] the High Court considered a similar issue to that which concerns us here. In that case the prisoner, under his initial sentence, had received the full benefit of remissions under the Probate and Parole Act 1983 (NSW). However, after the Sentencing Act1989 (NSW) came into force, the Crown succeeded in appealing against the sentence on the ground that it was manifestly inadequate. The prisoner therefore fell to be resentenced by the Court of Criminal Appeal. The new legislation had abolished the operation of the system of remissions and administratively transformed them into minimum sentences. The Court of Criminal Appeal (Samuels JA, Wood and Badgery-Parker JJ) resentenced him in accordance with Schedule 2 of the new legislation to a sentence whose maximum term was approximately 6.8 times longer than the sentence imposed at first instance. The High Court reversed the decision of the Court of Criminal Appeal. Mason CJ and McHugh J, in their joint reasons, said:
In the context of an appeal against sentence, when a Court of Criminal Appeal is called upon to re-sentence because it had quashed the sentence initially imposed, considerations of justice and equity ordinarily require that the convicted person be re-sentenced according to the law as it stood at the time when he was initially sentenced, particularly when that law was more favourable to him than the law as it existed at the hearing of the appeal. The convicted person had an entitlement when he was sentenced by the sentencing judge to a sentence imposed in conformity with the requirements of the law as it then stood. He should not be denied that entitlement simply because the sentencing judge made a mistake, whether that mistake resulted in a sentence that was too harsh or too lenient. In our view it would require a very clear indication of statutory intention to displace that entitlement.[43]
[42](1990) 170 CLR 623 (‘Radenkovic’) .
[43]Ibid 632 (emphasis added). Cf Toohey and Gaudron JJ at 648.
Prior to the introduction of the CPA in 2009 the power of the Court of Appeal to impose a new sentence after a successful appeal against sentence was contained in s 568(4) of the Crimes Act 1958. That provided that, where the Court of Appeal found error and was of the view that the sentencing discretion should be reopened, it could quash the original sentence and impose another sentence ‘in substitution therefor as it thinks ought to have been passed’. The language of ‘substitution’ led Brooking JA to state in R v Jennings[44] that:
[A] substituted sentence passed on appeal under Part VI of the Crimes Act must be taken to have been passed on the date of the original sentence unless there can be found, as applicable in a given case, some express or implied statutory provision to the contrary.[45]
[44](1999) 1 VR 352 (‘Jennings’).
[45]Ibid 369 [66].
However, the language of ‘substitution’ is not to be found in s 282 of the CPA, which now contains the Court of Appeal’s resentencing power. That section provides that the Court may impose ‘the sentence, whether more or less severe, that it considers appropriate.’ Of course, as s 281 provides, it must first be satisfied that there is ‘an error in the sentence first imposed’ such that ‘a different sentence should be imposed’. The term ‘substitute’ can now only be found in s 280(3) of the CPA, which provides that, where the Court of Appeal finds error in a sentence, but refuses an application for leave to appeal on the ground that there is no reasonable prospect that the Court would reduce the total effective sentence despite there being an error in the sentence first imposed, the Court may ‘amend the sentence first imposed by substituting a less severe sentence’.
The Explanatory Memorandum to the CPA explains, however, that s 282 includes the power of ‘substituting a new appropriate sentence’.[46] This makes it clear that House error must still be established prior to the Court of Appeal reopening the sentencing discretion and exercising its resentencing power.
[46]Explanatory Memorandum, Criminal Procedure Bill 2008, 104.
The threshold question that arises is whether the CPA provisions were intended to alter the longstanding principle according to which an offender, who falls to be resentenced on appeal following the establishment of error at first instance, should be resentenced according to the law as it stood at the time when he or she was initially sentenced. As we have said, s 282 of the CPA directs the Court of Appeal to set aside the sentence imposed by the originating court and impose the sentence that it considers appropriate. That arguably supports the view that the Court, in resentencing, is required to reconsider ‘the sentence’ which the judge imposed by applying the law as it stood at that time.
The principle that the appellate court must ordinarily apply the law as it stood at the time of the initial sentence, though not decisive, would inform the question as to how both the CPA provisions and the transitional provision should be construed. That principle applies in the absence of clear and unmistakable language. The question is whether there is such language in the provisions, and especially the transitional provision of the Amending Act, as to require the Court of Appeal to depart from the law as it stood at the time of the initial sentencing.[47]
[47]Polyukhovich (1991) 172 CLR 501, 642; Coco v The Queen (1994) 179 CLR 427, 446.
As we received no submission from the parties as to how the CPA provisions should be construed, it is undesirable that we express a concluded view as to their construction. Moreover, as we concluded that a term of imprisonment of one year in combination with a CCO was the appropriate sentence, it is unnecessary that we express a concluded view on the submission advanced by both parties that the transitional provision of the Amending Act applied to limit the period of imprisonment in combination with a CCO when resentencing the appellant. It suffices to say that we have doubts, for the reasons given, whether that submission is correct.
Does the extent of the declaration of pre-sentence detention impose any limit upon a sentence of a combined term of imprisonment with a CCO?
During the oral hearing the Crown made a submission which, if correct, would have prevented the Court from resentencing the appellant to a term of imprisonment combined with a CCO. It was said that, as the appellant’s pre-sentence detention exceeded one year’s imprisonment, it was not open to this Court to combine a term of imprisonment with a CCO under s 44. That submission assumed that the transitional provision applied to our resentencing of the appellant.
Section 18 of the Act states that any period of time spent in custody in relation to proceedings, for an offence for which an offender receives a term of imprisonment, must be reckoned as a period of imprisonment already served under the sentence unless the court orders otherwise. This provision has not been amended.
According to the Crown’s submission, since the amount of pre-sentence detention that needs to be declared in this case exceeds the 12-month limit permitted by s 44, this Court’s previous decision in Director of Public Prosecutions v Grech[48] prevents it from now imposing a term of imprisonment combined with a CCO.
[48][2016] VSCA 98 (‘Grech’).
Grech concerned the circumstance where sentencing judges had exercised the discretion to order periods of detention as not reckoned under s 18 so as to be able to impose a term of imprisonment combined with a CCO and thereby avoid the need to impose a non-parole period.[49] This Court viewed that approach as an artifice and an improper exercise of the sentencing discretion with respect to the declaration of pre-sentence detention.[50] Part of the context for the case was that there had been an overlap between s 44 and s 11 of the Act.[51] At that time, as noted earlier in these reasons, a term of two years’ imprisonment could be combined with a CCO. However, s 11(1) mandated that all sentences of two years’ imprisonment or more must also carry a non-parole period, unless ‘the nature of the offence or the past history of the offender make the fixing of such a period inappropriate’.[52]
[49]For example, a judge might order 23 months’ imprisonment in addition to time served, instead of a term of imprisonment of more than two years from which time served would be deducted.
[50]Grech [2016] VSCA 98 [72] (Ferguson JA, Weinberg AP and Ashley JA agreeing).
[51]Section 11 provides for the fixing of a non-parole period by a sentencing court.
[52]See, eg, Deng-Mabior v The Queen [2015] VSCA 179 [37].
In Tannous v The Queen,[53] the practical difficulties of serving both a CCO and a non-parole period were found to be relevant to whether the history of the offender and nature of the offences made the setting of a non-parole period inappropriate.[54] The Court stated that:
[Section] 11(1) does provide two exceptions. While those exceptions have in the past been interpreted in a particular and limited way (where the issue was whether the prisoner should be kept in prison for the entirety of a very lengthy term) that does not mean that following the recent amendments to ss 11 and 44 they should continue to be so understood. Although s 11(1) was not amended, it must now be interpreted in light of the other amendments, including the amendment to s 44(3).[55]
[53][2017] VSCA 91.
[54]Ibid [68].
[55]Ibid [66]. This has been the case since the commencement of the Amending Act, which altered s 44(3) to the effect that parole and a CCO must be served concurrently. The Explanatory Memorandum explains that these amendments were intended to ensure that an offender cannot be released on parole before commencing the CCO component of his or her combined sentence. However, the amendments overlook the fact that the requirement to impose a non-parole period under s 11 operates prior to the deduction of pre-sentence detention, while the maximum term of imprisonment that may be combined with a CCO is calculated after the deduction of pre-sentence detention. The operation of the transitional provisions did not arise as a subject for consideration in Tannous.
Leaving to one side the exception permitted under s 11, when a judge imposed a term of imprisonment of two years or more in combination with a CCO under s 44, the presumption of a non-parole period under s 11 arose.[56] This Court repeatedly indicated that the legislature should reconsider this overlap.[57] The legislature responded by reducing the maximum term of imprisonment that could be combined with a CCO to one year (after time served in custody is deducted). It made clear that a sentencing judge could not exercise their discretion to impose a non-parole period under s 11(2) when imposing a CCO in combination with a term of imprisonment. The requirement to impose a non-parole period under s 11(1) was not amended.
[56]See Deng-Mabior v The Queen [2015] VSCA 179; Abdou v The Queen [2015] VSCA 359; Baldwin v The Queen [2015] VSCA 299; Debono v The Queen [2016] VSCA 16.
[57]Dordevic v The Queen [2016] VSCA 166 [33]; Deng-Mabior v The Queen [2015] VSCA 179 [6], [38]; Debono v The Queen [2016] VSCA 16 [13]; DPP v Grech [2016] VSCA 98 [75]; DPP v Basic [2016] VSCA 99 [35].
The reasoning in Grech does not support the submission that declarations under s 18 cannot exceed the length of a term of imprisonment capable of being imposed in combination with a CCO. Section 44 expressly states that the length of a term of imprisonment that may be imposed in combination with a CCO is measured after pre-sentence detention is deducted. It has been applied as such by this Court.[58]
[58]See, eg, Abdou v The Queen [2015] VSCA 359.
Boulton stands for the proposition that pre-sentence detention declared under s 18 of the Act does not count for the purposes of the length of imprisonment capable of being combined with a CCO.[59] Boulton approved the approach taken in Hancock v The Queen,[60] in which this Court resentenced an offender to a term of imprisonment of 249 days’ imprisonment (equivalent to time served) in combination with a CCO, even though s 44 at that time only permitted a maximum term of three months’ imprisonment to be combined with a CCO.[61] Thus an effective term of imprisonment longer than the maximum period allowed under s 44 could be imposed if the effect of any declared pre-sentence detention was that the term of imprisonment that remained to be served at the time of sentencing was less than the maximum period of imprisonment which s 44 permitted.[62]
[59](2014) 46 VR 308, 339 [136].
[60][2013] VSCA 199.
[61]Boulton (2014) 46 VR 308, 360 [237].
[62]Ibid 360–1 [236]–[238].
Any relevant pre-sentence detention served by the offender must ordinarily be declared. The prohibition identified in Grech applies only to prevent sentencing courts engaging in artifice to avoid the presumption of a non-parole period under s 11(1). That did not arise in this case.
A sentencing court may impose a term of imprisonment in combination with a CCO that reflects the gravity of the offending. That sentence may be imposed wherever the length of imprisonment to be served, after the deduction of pre-sentence detention, will be less than the maximum period prescribed in s 44(1) of the Act.
Does pre-sentence detention include a period where the offender is also required to concurrently serve a period of imprisonment?
During the oral hearing it was suggested that the sentence of six months’ imprisonment imposed upon the appellant in November 2016 for unrelated offending (and served concurrently with the sentence the subject of this appeal) could not be the subject of a declaration under s 18 of the Act as pre-sentence detention.[63] By the time of this appeal the six-month sentence had been served.
[63]The presumption of concurrency is provided for by s 16(1) of the Act.
As we have said, s 18 of the Act provides that any period of time during which an offender is held in custody ‘in relation to proceedings for the offence’, or ‘proceedings arising from those proceedings including any period pending the determination of an appeal’, must be reckoned as pre-sentence detention unless the court orders otherwise. Pre-sentence detention is therefore not confined to periods where the offender is in custody only because of the offence for which pre-sentence detention is being calculated.[64]
[64]See, eg, DPP v TY [No 2] (2009) 24 VR 705, 715 [39].
The entire period the appellant spent in custody — from his arrest for the robbery offence to his resentencing in this Court for the robbery offence — counted as pre-sentence detention notwithstanding the fact that some of it was served concurrently with another sentence. At the time that the appellant fell to be resentenced that period was 504 days.
In resentencing the appellant, we came to the conclusion that a term of imprisonment of 12 months combined with a CCO of two years with specific conditions was appropriate. As he had already served more than 12 months’ imprisonment, he was released on the CCO immediately.
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