|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of the ACT Decisions |
COURT
IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORYCATCHWORDS
Criminal Law - Crown appeal against sentence - appeal by way of order to review - interference with discretion of Magistrate - general principles to be applied.Criminal Law - sentence - larceny and false accounting by servant - whether suspended sentence appropriate - plea of guilty and good character as factors in mitigation - whether nominal sentences appropriate - no substantial miscarriage of justice.
Magistrates - orders - necessity to disclose factual basis of and reasons for decision where potentially substantial prison sentence - power of Magistrate to fix non-parole period where suspended sentence imposed.
Meaning of words "term of imprisonment" in sub-s.7(1) Parole Act 1976.
Myers v. Claudianos (1990) 95 ACTR 1
R v. Tait and Bartley (1979) 24 ALR 473
R v. Holder and Johnston (1983) 3 NSWLR 245
R v. Prindable (1979) 23 ALR 665 at 669
The Queen v. Kelly (unreported, Federal Court of Australia, 20 December 1989
Marshall v. McFarland (1989) 96 FLR 431
R v. Brusch (1986) 11 FCR 582
HEARING
CANBERRAORDER
1. The appeal against sentence in respect of charge case No. 0214 of 1991 be allowed and in lieu thereof the respondent be sentenced to a term of imprisonment of two years to be released forthwith upon entering into a recognizance in the sum of $5,000, without surety, to be of good behaviour for a period of two years from 29 August 1991. To that extent the appeal in matter No. 0214 of 1991 be allowed and the order nisi of 18 September 1991 be made absolute.2. In all other respects the order nisi be discharged.
3. In accordance with sub-s.219F(5) of the Magistrates Court Act 1930, the appellant pay the respondent's costs.
DECISION
This is an appeal by way of order to review sentences imposed upon the respondent in the Australian Capital Territory Magistrates Court on 29 August 1991. The appeal is brought on behalf of the informant in the proceedings in the Magistrates Court and is in effect an appeal against the leniency of the sentences imposed. I was told that this is the first appeal brought under the provisions of paragraph 219B(1)(g) of the Magistrates Court Act 1930 (the Magistrates Court Act). The case is therefore a matter of some importance. I set out the statutory provisions in detail. The relevant parts of s.219B are as follows:219B.(1) Each of the following is a2. The reference to "this Division" is to Division 3 of the Magistrates Court Act. Further provision is made in Division 3 for the conduct and procedure of appeals by way of order to review. Section 219C where relevant provides as follows:
decision of the Magistrates Court from which an
appeal by way of order to review may be made in
accordance with this Division:
.....
(g) a sentence or penalty imposed by the Magistrates Court
for an offence dealt with by
that Court under section 90A, Part VII or VIIA or section
255 of this Act or section 477 of the Crimes Act.
(2) For the purposes of paragraph (1)(g) a reference to a
sentence or penalty shall be
read as including a reference to a decision or order made under
subsection 556A(1) or (3), 556B(1), 556C(4) or (7) or
556D(1) or (3) of the Crimes Act,
whether or not the person is convicted of the offence."
"Grant of order nisi to review3. The powers of the Supreme Court on the return of the order nisi to show cause are provided for in s.219F. The parts of that section relevant to this case are as follows:
219C.(1) Where -
.....
(aa) within 21 days of the making of a decision of a
kind referred to in paragraph 219B(1)(e), (f) or (g)
an application is made by the informant in the
proceedings before the Magistrates Court;
.....
the Supreme Court may grant an order nisi
calling on the other party to the proceedings to
show cause, on a date specified in the order
nisi, why the decision of the Magistrates Court
should not be reviewed on any one or more of the
following grounds, namely -
(c) that there was a prima facie case of error or mistake
on the part of the Magistrates Court;
(d) that the Magistrates Court did not have jurisdiction
or authority to make the decision;
(e) that the decision of the Magistrates Court should
not in law have been made;
(f) .....
(g) that a sentence or penalty of a kind referred to in
paragraph 219B(1)(g) was manifestly inadequate or
otherwise in error."
"Powers of Supreme Court4. In the present case the respondent was charged with twenty-six charges of theft under s.99 of the Crimes Act 1900 (the Crimes Act), one charge of attempted theft, and twenty-six charges of false accounting under paragraph 108(1)(a) of the Crimes Act. The offences of larceny and attempted larceny are punishable by a maximum sentence of ten years imprisonment and those of false accounting by seven years imprisonment, and although indictable are amenable to summary jurisdiction with the consent of the defendant under s.477 of the Crimes Act.
219F(1) On the return of an order nisi to
review a decision of the Magistrates Court, the
Supreme Court, on consideration of the evidence
before the Magistrates Court, and any further
evidence called by leave of the Supreme Court -
(a) may, if satisfied that the decision of the
Magistrates Court should be confirmed,
discharge the order nisi; or
(b) may set aside or quash, in whole or in part,
or otherwise vary or amend, the decision of the
Magistrates Court.
(1A) Where, pursuant to paragraph (1)(b),
the Supreme Court sets aside, quashes or
otherwise varies or amends a decision of the
Magistrates Court, the Supreme Court may -
(ba) in the case of a decision specified in
paragraph 219B(1)(g) -
(i) impose such sentence or penalty as the
Supreme Court thinks fit; or
(ii) by order, exercise any power which the
Magistrates Court might have exercised; or
.....
(2A) For the purposes of paragraphs
(1)(b) and (1A)(ba), the Supreme Court shall not-
(a) vary a sentence or penalty such that the
sentence or penalty as varied could have
been imposed by the Magistrates Court; or
(b) impose a sentence or penalty which could
not have been imposed by the Magistrates Court.
(3) The Supreme Court may,
notwithstanding the ground or any of the grounds
on which the order nisi to review a decision of
the Magistrates Court was granted has been
established, discharge the order nisi if the
Supreme Court is of the opinion that no
substantial miscarriage of justice has occurred.
(4) On the discharge of an order nisi to
review a decision of the Magistrates Court, that
decision may be enforced, executed or given
effect to as if the order nisi had not been granted.
(4A) Where, in respect of a sentence or penalty
referred to in paragraph 219B(1)(g), the Supreme Court -
(a) varies a sentence or penalty under
paragraph (1)(b); or
(b) imposes a sentence or penalty or
makes an order under paragraph (1A)(b);
the sentence or penalty as varied or
imposed or the order made shall have effect as if
it were a decision of the Magistrates Court and
may be enforced by the Magistrates Court
accordingly.
(5) On an appeal under this Division from
an order, decision, sentence or penalty referred
to in paragraph 219B(1)(a), (e), (f) or (g), the
Supreme Court shall order that the costs of and
incidental to the appeal shall be paid by the
appellant.
(6) Sub-section (5) applies whether the
Supreme Court orders that the order nisi be
discharged or exercises any of the other powers
conferred on it by this section."
5. It appears that the respondent had had the charges read to him in the Magistrates Court at some time prior to 15 July 1991. On that date he appeared in the Magistrates Court represented by counsel. The respondent's counsel stated to the Magistrate that his client intended to plead guilty to all charges and that the appellant consented to the Magistrate exercising jurisdiction to determine the matter. A typed statement of facts was tendered by consent through a police officer and the officer gave some short oral evidence. The Magistrate held that there was a prima facie case established on each of the charges. The respondent's counsel repeated that the appellant consented to the Magistrate exercising jurisdiction to deal with each case. The appellant himself then gave evidence at the conclusion of which the Magistrate adjourned the cases to enable a pre-sentence report to be obtained. The respondent was remanded on bail to 29 August 1991. On that date the Magistrate indicated that he had decided that the matters might be dealt with appropriately in the Magistrates Court, received the pre-sentence report, heard submissions from both counsel and proceeded to sentence the respondent.
6. The course of events above described appears to be in accordance with the procedures prescribed by s.477 of the Crimes Act and s.90A of the Magistrates Court Act. However, by virtue of sub-s.447(10) of the Crimes Act, the Magistrate's decision to dispose of the cases summarily meant that the Magistrate's sentencing powers were restricted and that he was not authorised to impose a sentence of imprisonment exceeding two years nor to impose a fine exceeding $5,000.
7. In the event, the Magistrate sentenced the respondent on charge No. 0214 of 1991 (a charge of stealing cash to the value of $666.89) to two years imprisonment to be suspended forthwith upon the respondent entering into a recognizance, without surety, to be of good behaviour for a period of two years. The Magistrate fixed a non-parole period of twelve months in respect of that period of imprisonment. Further, on charge No. 0215 of 1991 (a charge of stealing cash to the value of $1721.67) the Magistrate ordered the respondent to undergo 208 hours of community service within the next twelve months and to report to the Supervisor, Community Services Unit, within six days. In relation to all remaining matters, the appellant was sentenced to the rising of the Court.
8. The suspended prison sentence was clearly an order made under paragraph 556B(1)(b) of the Crimes Act 1900. Hence it falls within the categories of decisions that are made subject to the process of appeal by way of review under paragraph 219B(1)(g) and sub-s.219(2) of the Magistrates Court Act.
9. An order nisi to review the Magistrates decision in relation to all matters was made by Gallop J. in this Court on 18 September 1991 and the appeal now falls to be determined in accordance with appropriate legal principle.
10. For reasons to which I referred in Myers v. Claudianos (1990) 95 ACTR 1, the common law rule against double jeopardy requires an appeal court or court of review to be particularly careful about increasing a sentence or penalty lawfully imposed by a tribunal or another court acting within jurisdiction. Nevertheless, when a statute authorises an appeal from such sentence or penalty, whether by the defendant or prosecuting party, the court must give effect to the statute. The central provision in Division 3 of Part XI of the Magistrates Court Act providing for appeals by way of order to review is paragraph 219C(1)(g) which empowers the Supreme Court to review a sentence on the ground that the sentence was "manifestly inadequate or otherwise in error". Nevertheless, it appears that taken as a whole the provisions to which I have referred are intended to set up an appeal system similar to others common throughout Australia whereby the prosecuting party may appeal against the leniency of a sentence or penalty imposed by a court at first instance where error is shown or where the inadequacy is manifest.
11. In R v. Tait and Bartley (1979) 24 ALR 473, a Full Court of the Federal
Court of Australia answered a question similar to that
which arises in the
present case. The Federal Court of Australia Act 1976 conferred on that Court
jurisdiction to hear Crown appeals against sentences imposed by the Supreme
Courts of the Australian Territories
but it did not provide any statutory
basis for the general principles to be applied in determining such appeals.
In particular there
was no statutory provision to distinguish between the
principles to be applied in a Crown appeal and those to be applied on an
appeal
by an offender. The Court, in a passage which has become well known
and accepted throughout Australia in State jurisdictions as
well as in Federal
and Territory jurisdictions as authority for the principles to be applied in a
Crown appeal against sentence,
said at 476:
"An appellate court does not interfere12. Having regard to the provisions of Division 3 of Part XI of the Magistrates Court Act to which I have already referred, I have no doubt that the principles enunciated in R v. Tait and Bartley are the principles to be applied in appeals brought under that Division by way of order to review a sentence or penalty imposed by a magistrate on the ground of inadequacy or other error.
with the sentence imposed merely because it is of
the view that that sentence is insufficient or
excessive. It interferes only if it be shown
that the sentencing judge was in error in acting
on a wrong principle or in misunderstanding or in
wrongly assessing some salient feature of the
evidence. The error may appear in what the
sentencing judge said in the proceedings, or the
sentence itself may be so excessive or inadequate
as to manifest such error (see generally, Skinner
v. R [1913] HCA 32; (1913) 16 CLR 336 at 339-40; R v. Withers
(1925) 25 SR (NSW) 382 at 394; Whittaker v.
R [1928] HCA 28; (1928) 41 CLR 230 at 249; Griffiths v. R
[1977] HCA 44; (1977) 15 ALR 1 at 15-17).
Although an error affecting the sentence
must appear before the appellate court will
intervene in an appeal either by the Crown or by
a defendant, a Crown appeal raises considerations
which are not present in an appeal by a defendant
seeking a reduction in his sentence. Crown
appeals have been described as cutting across
"time-honoured concepts of criminal
administration" (per Barwick C.J., Peel v. R
[1971] HCA 59; (1971) 125 CLR 447 at 452; (1972) ALR 231
at 233). A Crown appeal puts in jeopardy "the
vested interest that a man has to the freedom
which is his, subject to the sentence of the
primary tribunal" (per Isaacs J. Whittaker v. R
supra at 248). The freedom beyond the sentence
imposed is, for the second time, in jeopardy on a
Crown appeal against sentence. It was first in
jeopardy before the sentencing court.
It would be unjust to a defendant to
expose him to double jeopardy because of an error
affecting his sentence, if the Crown's
presentation of the case either contributed to
the error or led the defendant to refrain from
dealing with some aspect of the case which might
have rebutted the suggested error. The Crown has
been said not to be concerned with sentence (see,
eg. Lawrence J. in Paprika Ltd. v. Board of Trade
(1944) 1 All ER 372 at 374, but when a
statutory right of appeal is conferred upon the
Crown, that proposition must be more precisely
defined. It remains true that the Crown is
required to make its submissions as to sentence
fairly and in an even-handed manner, and that the
Crown does not, as an adversary, press the
sentencing court for a heavy sentence. The Crown
has a duty to the court to assist it in the task
of passing sentence by an adequate presentation
of the facts, by an appropriate reference to any
special principles of sentencing which might
reasonably be thought to be relevant to the case
in hand, and by a fair testing of the defendant's
case so far as it appears to require it. If the
proposition that the Crown is not concerned with
sentence was ever construed as absolving the
Crown from this duty, it cannot be so construed
when a Crown right of appeal against sentence is
conferred. The Crown is under a duty to assist
the court to avoid appealable error. The
performance of that duty to the court
ensures that the defendant knows the nature and
extent of the case against him, and thus has a
fair opportunity of meeting it. A failure by the
Crown to discharge that duty may not only
contribute to appealable error affecting the
sentence, but may tend to deprive the defendant
of a fair opportunity of meeting a case which
might ultimately be made on appeal. It would be
unjust to a defendant, whose freedom is in
jeopardy for the second time, to consider on
appeal a case made against him on a new basis - a
basis which he might have successfully challenged
had the case against him been fully presented
before the sentencing court. As McClemens C.J.
at CL said in R v. Jacombe, delivering the
judgment of the New South Wales Court of Criminal
Appeal (19 December 1974, unreported): ".... we
would not seem to encourage any system which
meant that cases were brought here under s.5D of
the Criminal Appeal Act on bases which were not
argued before the judge below."
13. The grounds upon which the appellant relies are set out in the order nisi
and are as follows:
"(a) the Magistrate in light of the respondent's lack14. In seeking to find identifiable error or manifest inadequacy in the sentences, it is necessary to look at the material before the Magistrate and at what he said at the time of handing down those sentences.
of contrition gave undue weight in sentencing to the
respondent's plea of guilty as a factor in mitigation of
penalty;
(b) the Magistrate in sentencing gave undue weight
to the subjective circumstances of the offender and
failed to reflect in the sentence the true criminality
of the respondents conduct; and
(c) the sentence imposed by the Magistrate was manifestly
inadequate in that having regard to the respondent's
conduct and to his motive for acting the sentence imposed
contained no sufficient element of personal or general
deterrence."
15. The respondent was a 51 year old man, married with a family. He had worked for many years in the cleaning trade and produced references from several sources attesting to his prior good character. Between early 1988 and mid-1990 the respondent had been employed by a firm of industrial cleaners. He was authorised to hire staff. He was entitled to certain commissions from his employer based upon wages and other costs. He made false records relating to two fictitious employees and collected the cash pay that was provided by his employer for the fictitious employees.
16. The facts as set out in the documents furnished to the Magistrate on behalf of the appellant indicated that the respondent had received by way of wages for the fictitious employees a total of $37,445.64 and an amount of some $17,000 as a result of his false accounting.
17. These figures were not disputed by the respondent, but in his evidence to the Magistrate the respondent said that the cash which he received, being the wages for the fictitious employees, was used "mainly for the benefit of the company", and only partly for his own purposes. He claimed that "a large percentage" of that money was used to pay casual employees at weekends, and that this was done in order to avoid the employer having to pay award rates and the like and to avoid the persons hired at the weekend having to pay tax on the payments they received. When cross-examined, the respondent at first refused to disclose the names of any of the persons engaged for weekend hire, saying that they did not wish to be involved and feared taxation. Under further cross-examination the respondent disclosed one name, Carlos Lopez, of unknown whereabouts. His evidence on these matters, particularly his insistence that it was the employer and not he who substantially benefited from the thefts, does not make convincing reading.
18. The Magistrate, immediately before sentencing the respondent, gave brief
reasons for what he was about to do. He said:
".... I am reasonably clear in my own mind19. There is, in my view, clearly nothing in what the Magistrate said to indicate identifiable error on his part. Reference to the previous unblemished character of the respondent, and to his pleas of guilty which obviated a lengthy committal and perhaps a trial, does not of itself mean that the Magistrate gave undue weight to those matters. As mitigating factors, they were of the utmost importance and it would have been surprising if the Magistrate had not laid some emphasis on them. Moreover, what the Magistrate said indicates that he did not mistake the plea of guilty for proof of actual contrition. If he had, he would have been in error because, far from the respondent being sorry for what he had done, the respondent appeared resentful because other people were doing the same thing, avoiding paying award rates by secret cash payments and the like. The Magistrate sought to balance these particular two matters in mitigation - the plea and the prior good character - against the multiplicity of charges, their seriousness, the "not inconsiderable amount of money", the betrayal of a position of trust, the length of time over which the offences were committed, and, inevitably, arrived at a provisional decision that the respondent's conduct deserved a gaol sentence. He then sought to check that provisional decision by assessing the competing factors once more. After weighing up the matters just referred to against the "credit side of the ledger", he decided that an appropriate punishment overall was to impose a gaol sentence to be wholly suspended but to which would be added an additional punishment by way of a community services order.
about what should be done on this case. I have
taken into account the fact that your client is
51 years of age, a man of good character. The
references which have been supplied all speak
very highly of him as a person of good character
and a good citizen in the community, that must be
taken into account. He has an unblemished
record, no previous adverse encounters with the
law, that must be taken into account and finally
he has pleaded guilty and as you pointed out, he
has saved the community some expense on a -
perhaps a lengthy committal and may be even a
lengthier trial so, those matters are on the
credit side of the ledger.
On the debit side of the ledger, however,
there is the multiplicity of the charges. They
are all serious charges and they involve a not
inconsiderable amount of money. They were
committed by a person who was in a position of
trust which Mr Archer has referred to. They
represent a systematic course of fraudulent
conduct over a period of time with the sole
object being to line his own pockets. So, those
factors certainly are to his discredit and I
think a gaol term in the circumstances is
appropriate because of the nature of the offences
and the factors to which I have just referred.
On the other hand, I think that
because of the matters which are on the credit
side of the ledger, I would be justified in
suspending such a gaol term and imposing an order
that he carry out community service work for
which he has been recommended by the community
service unit."
20. In my view, there is no error here, of fact or law or of sentencing principle or method. The appellant was unable to point to any identifiable error. Accordingly, the appellant must rely on what is the real ground of the appeal, namely that the sentence is so manifestly inadequate that it indicates some error somewhere in the sentencing process which is unidentified. It does not assist the appellant to argue that because the sentence appears inadequate then the Magistrate must have made the errors of miscalculation and unbalanced assessment which provide the first two of the grounds of appeal.
21. The difficulty at the appellate stage is that the Magistrate did not disclose the factual basis upon which he proceeded. There was a clear conflict between the statement of facts upon which the prosecution relied and the evidence given by the respondent about a very important matter, that is how the respondent had disposed of the bulk of the moneys which he had stolen from his employer. The Magistrate saw the respondent give evidence and was in a position to resolve that conflict, a position in which this Court is not. As was said in R v. Tait and Bartley at 483, the facts relevant to sentence should not be decided on unsupported assertions from the bar table if the assertion is not accepted by the other party, at least where the onus of proof lies on the party making the assertion. This is the more so when the assertion is denied by evidence on oath. The respondent said in his evidence that he had paid a considerable part of the sums stolen to persons engaged to work for his employer. Sceptical as one might be about that evidence, the Magistrate did not say that he rejected it, and he had the advantage of seeing the witness. It is well established that a tribunal at first instance which makes decisions of fact about which matters of credit of witnesses are relevant enjoys an advantage over the appellate court and that an appellate court will not interfere with findings of fact based on credit.
22. Sitting as an appellate court, it is not appropriate for me to make a positive finding of fact which involves a rejection of the respondent as a witness of truth, where the sworn evidence of the respondent was contradicted only by the statement of facts presented by counsel for the prosecution and where the Magistrate did not himself reject the evidence of the respondent. Unsatisfactory as the situation is, I think that at this stage, I must proceed upon the basis that the respondent's sworn account as to the disposal of the stolen moneys was true.
23. Magistrates have an unenviable task and in the ACT an enormous workload. They cannot be expected to make precise and comprehensive findings nor to give detailed reasons in all cases, but as the powers and status of magistrates have increased in recent times, so have their responsibilities. In cases where there is a conflict in the evidentiary material and where a substantial prison sentence is to be imposed - or avoided - a magistrate should state the facts found.
24. As Mr Brewster for the respondent submitted, the view is now well established in Australia that a plea of guilty whether or not accompanied by actual contrition will usually attract a discount on the length of a prison sentence. However, unless provided for by statute, the discount is not automatic nor is the amount of discount fixed. A plea of guilty is not a means of escaping a proper sentence, and even the maximum sentence may be imposed in an appropriate case notwithstanding a plea of guilty: R v. Holder and Johnston (1983) 3 NSWLR 245. It was not submitted on behalf of the appellant that two years imprisonment was not an adequate sentence for the total criminality of the respondent's conduct: it was the immediate suspension of that sentence of which complaint was made. The principle of a discount for a plea of guilty says nothing about when a sentence of imprisonment should be suspended.
25. The review by an appellate court of a sentencing court's discretion to suspend sentence involves the same principles as a review of the judicial discretion to inflict and impose the head sentence itself. If the sentence as a whole is seen to be so disproportionate to the sentence which the circumstances require as to indicate an error of principle, the appellate court should intervene, and will intervene if a decision to suspend the sentence was to produce a sentence so lenient that it did not accord with the general moral sense of the community and so lenient that it was unlikely to be a sufficient deterrent to others: R v. Prindable (1979) 23 ALR 665 at 669 (Full Court of the Federal Court of Australia). Those principles were affirmed recently in R v. Preston, a decision of the Full Court of the Federal Court sitting on appeal from this Court (unreported, 24 January 1992).
26. I have no doubt that there would be many in the community who would be of the firm view that the respondent's conduct deserved an immediate prison sentence. That of course is only a matter of intuition. As to general deterrence, however, it is not correct that a prison sentence is robbed completely of its general deterrent effect if the sentence is suspended. Furthermore, there must be taken into account the fact that the respondent has been at liberty in pursuance of the Magistrate's decision since 29 August 1991, and to order him to commence an immediate custodial sentence at this stage would be to add substantially to the severe effect of the prison sentence itself. Lastly, I have to take into account the evidence received on appeal that the respondent has, as one would have expected, served the hours of unpaid work he was ordered to serve under the community services order.
27. If the Magistrate in the present case had imposed an immediately effective sentence of two years imprisonment, it could not be said that it was an excessive punishment. On balance, and bearing in mind the principles applicable to appeals against leniency, I do not think that the suspension of the sentence of two years imprisonment on the first charge of stealing rendered that sentence so manifestly inadequate that it justifies the interference of this Court to require that sentence to be immediately effective. I take into account that two years imprisonment was the maximum which the Magistrate was authorised to impose, and that the sentence was part of an aggregate sentencing structure in which the respondent was also ordered to perform the maximum number of hours by way of community service.
28. That said, I think that it must follow that the Court should not interfere in relation to the community service order on the second charge of stealing nor in relation to the nominal punishment of sentencing the respondent to the rising of the Court on all other charges. A community services order is itself a sentence, often a very appropriate form of sentence, but obviously not nearly as punitive as imprisonment. It would not have been an adequate sentence for any of the offences in the present case if it were imposed in isolation and not as part of an aggregate in which a custodial sentence, although suspended, was one of the parts.
29. Nominal sentences such as sentencing to the rising of the Court are almost never appropriate for serious offences for the reasons given in The Queen v. Kelly (unreported, Federal Court of Australia, 20 December 1989) and not appropriate for the offences in the present case. However, because I would not interfere in relation to the suspended sentences or the community services order, I do not propose to set aside the nominal sentences. It is the overall effect of the total sentence which is of prime importance. In regard to the overall effect, I have regard to sub-s.219F(3) of the Magistrates Court Act which provides that the Supreme Court may, notwithstanding that any ground on which the order nisi was granted has been established, discharge the order nisi if of the opinion that no substantial miscarriage of justice has occurred. I am of that opinion.
30. The Magistrate fixed a non-parole period of twelve months after rejecting a submission on behalf of the respondent that it was not appropriate to fix a non-parole period pursuant to sub-s.7(1) of the Parole Act 1976 where the term of imprisonment is suspended. I think that the Magistrate was in error in this regard, although it is not a ground of appeal. In my view the words "term of imprisonment" in sub-s.7(1) of the Parole Act means a term which is immediately effective. When a term of imprisonment is suspended by an order under paragraph 556B(1)(d) of the Crimes Act, the person is, in accordance with the terms of that paragraph, to be released upon giving security either forthwith or after she or he has served a specified part of the sentence imposed upon her or him. The release from custody is mandatory once the security has been given. To fix a period "during which the person is not to be eligible to be released on parole" in pursuance of sub-s.7(1) of the Parole Act 1976 is, in my view, incompatible with an order for release from custody upon giving security by entering into a recognizance pursuant to paragraph 556B(1)(b) of the Crimes Act. To that extent the Magistrate was in error and his decision will be set aside and the fixing of the non-parole period will be deleted from the sentence. I note that Kearney J. in the Supreme Court of the Northern Territory decided that under the relevant legislation there a magistrate who imposed a suspended sentence of imprisonment had no power to fix a non-parole period: Marshall v. McFarland (1989) 96 FLR 431. See also R v. Brusch (1986) 11 FCR 582.
31. In the light of the remarks I have already made about the need for a magistrate to state findings of fact and give reasons, at least where a defendant's liberty is involved, I would also draw attention to the fact that the Magistrate when ordering the respondent to perform community service does not appear to have complied with the provisions of s.556J of the Crimes Act 1900. Although this is not the sort of case in which either side would seek to overturn the community service order by reason of non-compliance with s.556J, some such case might arise in the future.
32. For these reasons, the appeal against sentence in respect of charge case No. 0214 of 1991 is allowed and in lieu thereof the respondent is sentenced to a term of imprisonment of two years to be released forthwith upon entering into a recognizance in the sum of $5,000, without surety, to be of good behaviour for a period of two years from 29 August 1991. To that extent the appeal in matter No. 0214 of 1991 is allowed and the order nisi of 18 September 1991 is made absolute. In all other respects the order nisi is discharged.
33. In accordance with sub-s.219F(5) of the Magistrates Court Act 1930, the appellant is to pay the respondent's costs.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/1992/21.html