Mark Alexander Mckay v Constable R T Ball and Constable K N Staniforth Sca [1992] ACTSC 76; (1992) 109 FLR 314 (14 August 1992)

SUPREME COURT OF THE ACT

MARK ALEXANDER McKAY v. CONSTABLE R T BALL and CONSTABLE K N STANIFORTH
S.C.A. No. 86 of 1992
Criminal Law and Procedure - Practice and Procedure
[1992] ACTSC 76; (1992) 109 FLR 314

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Higgins J.(1)

CATCHWORDS

Criminal Law and Procedure - sentencing - appeal from Magistrate - appeal upheld - regime of rehabilitation and community service imposed - imposition of custodial sentence quashed.

Criminal Law and Procedure - appeal against sentence - principles to be applied.

Practice and Procedure - general approach to sentencing - procedural unfairness - reliance placed on past reports not tendered in respect of these charges - no opportunity afforded to explain - findings as to credit based on erroneous findings of fact - findings of fact contradicting undisputed evidence.

Crimes Act 1900, s.527A

Drugs of Dependence Act 1989

Supervision of Offenders (Community Service Orders) Act 1985

R v Tilley (1991) 53 A Crim R 1

R v House and Thorne (FCA; ACT G74; 11/4/90; Gallop, Jenkinson and von Doussa JJ.

R v Griffin (1969) 90 WN Pt 1 (NSW) 548

Talbot v R (FCA; ACT G47; 6/1/92; Jenkinson, O'Loughlin and Higgins JJ.; unreported)

Knight v Birch [1992] ACTSC 21; (1992) 106 ACTR 27

Carreras v R (SCWA; SC9/92; CCA, Malcolm C.J., Pidgeon and Murray JJ.; 19/5/92; unreported

HEARING

CANBERRA
14:8:1992

Counsel for the Appellant: Mr J Brewster

Instructing solicitors: Messrs Wood Fussell

Counsel for the Respondents: Mr D Sahukhan

Instructing solicitors: Director of Public

Prosecutions

ORDER

1. On matter CC 920495 a sentence of two years imprisonment be imposed. The appellant is be released forthwith upon his giving security in the sum of $2,000.00 with one surety in the like sum or two sureties of $1,000.00 each by recognisance that:-

(i) He will be of good behaviour for a period of three years from
this date;
(ii) He will, during that period, be subject to the supervision
upon probation of the Director of Adult Corrective Services or the
nominee from time to time of the Director and will obey all reasonable
directions of such person or persons;
(iii) He will comply with the terms of a treatment order pursuant
to the Drugs of Dependance Act 1989 in the following terms -
(a) The appellant will submit himself to treatment at and as
required by the Alcohol and Drug Service - Hospital Unit at Woden
Valley Hospital, Garran once each fortnight or as often, whether more
or less frequently, as may reasonably be required by the person in
charge of that treatment centre.
(b) The order shall be of two years duration and during that
time period the appellant, the person in charge of the treatment
centre or the Department of Health may apply for the duration of the
order to be varied.
(c) It is a condition of this order that the appellant attend
before an assessment panel appointed pursuant to the Drugs of
Dependance Act one month after the date of this order and thereafter
every three months for review.
(d) It is a further condition of this order that the treatment
referred to in (a) hereof may include such directions as to residence
or submitting to residential rehabilitation programs as the person in
charge of the treatment centre considers appropriate.

2. On Matter No. CC 920496, the appellant is to perform 208 hours of unpaid

work within 12 months.

(a) The appellant is to report to an authorised officer, being a
person so appointed under the Supervision of Offenders (Community
Service Orders) Act 1985, within 72 hours.
(b) The appellant is to be released from custody in relation to
this matter forthwith.

DECISION

HIGGINS J. On 28 April 1992, before Magistrate Ward, the appellant pleaded guilty to a number of offences. Magistrate Ward entered convictions on all matters but imposed penalties otherwise on only the three charges the subject of this appeal. His Worship expressly took into account in fixing those penalties, both individually and cumulatively, the entire course of conduct represented by the matters admitted by the appellant. The remaining matters, in respect of which no sentence was imposed, are not the subject of appeals.

2. The appellant was on each of the three matters referred to, sentenced to two years imprisonment. Those sentences were made cumulative. A non-parole period of four years was fixed. The three matters were:-

Stealing a prescription pad (value $10.00);
Stealing $50.00 from the Tradesman's Union Club, Dickson ("the
Club");
Stealing a further $50.00 from the Club.

3. The prescription pad was used to forge six scripts for a drug known as physetone. It is a form of methadone.

4. The other matters included the stealing of further sums of $50.00, $48.00 and $45.00 from the Club. In each case stolen cheque forms were forged and used to obtain the money.

5. The appellant also negotiated a similar cheque purportedly for $1,740.00 with the ANZ Bank by depositing it in his own savings account. He withdrew $1,540.00. He later negotiated another such cheque. That cheque was for $2,924.00 and the appellant withdrew $1,800.00. Later he withdrew a further $1,200.00. A further cheque for $3,400.00 was deposited but, by the time the appellant came to draw on it, the valueless nature of the previous cheques had been discovered.

6. The offences referred to occurred between 29 November 1991 and 19 December 1991.

7. On his arrest, the appellant was found in possession of a motor vehicle he reasonably believed to have been stolen by a third person. He admitted having used some parts from it for his own vehicle. He was originally charged with stealing the car but his plea of guilty to that charge was rejected and a charge of possessing the vehicle knowing it to be stolen, a summary offence under s.527A of the Crimes Act 1900, was substituted.

8. His Worship was informed that the appellant was then 37 years of age. He had been a drug addict since about 1976. He had, in 1978, been convicted on drug related offences. He was released on a recognisance including a condition that he "continue drug treatment" and be of good behaviour.

9. Unfortunately, the appellant was not of good behaviour. On 28 May 1979 he was fined for stealing and for using heroin. On 10 April 1980 he was sentenced to 9 years imprisonment, non-parole period to expire 6 December 1983, on four counts of armed robbery and three of stealing motor vehicles. Whilst on parole he was, on 12 June 1984, fined for stealing and for possessing and using heroin. On 31 July 1984, for robbery, he was sentenced to three years imprisonment. The non-parole period was recalculated. It seems that the appellant was released in December 1984.

10. The appellant has also incurred a large number of traffic convictions. On 11 April 1986 he was given a suspended sentence of nine months for a second PCA charge. He breached the recognisance then given when he was convicted of further traffic matters on 24 September 1986, including driving whilst cancelled. He was sentenced to 12 months imprisonment, to be released on recognisance after two months.

11. On two counts of burglary he was, on 6 May 1988, released on a two year recognisance to be of good behaviour. Again he offended further. On 27 July 1988 he was sentenced to 40 days imprisonment on heroin related charges. On 16 March 1989, on a charge of "use false instrument", he was sentenced to two years imprisonment. On various other counts, involving 15 separate incidents of obtaining property by theft and forgery, he was sentenced to a total of four years imprisonment. A non-parole period of two years was fixed. After his release, he offended again. He was convicted of theft on 14 September 1990 and fined $50.00.

12. I have set out the appellant's record fairly extensively. It was a matter on which his Worship placed considerable weight. It clearly was not a matter entitling the appellant to any leniency.

13. His Worship was also told that the appellant had been on a methadone program but had become more addicted to methadone than he had been to heroin. He had tried on a number of occasions to beat his addictions but had failed. It was suggested that brain damage suffered in a motor vehicle accident early in his youth might have contributed to the appellant's difficulties. The appellant has an apparent speech impediment which is a result of that damage.

14. Prior to his appearance on 28 April 1992, the appellant was assessed as drug dependent by a Treatment Assessment Panel appointed under the Drugs of Dependence Act 1989. The Panel reported that the appellant was suitable for a Treatment Order under s.123 of that Act. The Panel recommended conditions for such an order if the Court was minded to make such an order.

15. Mr Headland, who then appeared for the appellant, suggested to his Worship that the appellant "... has never had the opportunity to undergo any rehabilitation as such as that that is offered to him now". That statement was made in reference to the Panel's recommendation.

16. The appellant gave oral evidence. He referred to his multiple drug use, he referred to the remorse he felt for his crimes. He attributed his criminal conduct to drug use. There was, in the course of that evidence, the following exchange,

His Worship - "Do you say that in the past you have not been given
the opportunity to undergo rehabilitation for your addiction? - -
- Yes, your Worship, with the exception ...
I was going to say, if I look back through these court files that
represent your prior convictions, I see reports that you have been
offered this type of rehabilitation before. I will be pretty
angry about that if I think you have been trying to pull the wool
over my eyes in that respect. - - - I don't believe so, sir.
I intend to go back through them and look at the reports. - - -
Well, if you could just let me know exactly what it is that you
are alluding to there."

The appellant added, by way of amplification,

"Sir, I've been on my - without the court's involvement I've been
to Lyndon House on a couple of occasions very briefly, but it was
at a time when they were actually doing the detoxing there. It
was actually - it wasn't working at all. There were people using
drugs on the premises so, I mean, it's extremely difficult in the
circumstances to detox yourself. But definitely I've never been
given any opportunity for long term rehabilitation ..."

It was clear that the appellant did concede that he had undergone some forms of rehabilitative therapy.

17. His Worship found some difficulty, as I did, in spelling out from the Panel report, what precisely was the long term rehabilitation program being offered. Ms Alison Boyle, a Drugs of Dependence Treatment Unit officer, did explain it to me when she gave evidence on the hearing of this appeal. That explanation was most helpful. I am sure his Worship would have found such information to have been useful also.

18. His Worship also had before him a Pre-sentence Report. That report was largely confirmatory of the appellant's history as he had given it. It has been tendered on the hearing of this appeal.

19. The matter before his Worship was then adjourned to 30 April 1992. By then, his Worship had looked at some files relating to the appellant. He made reference to a report from Lyndon House as "saying that he was acceptable and he was accepted and they wanted a bit more time to work on him". However, his Worship made no reference to any reason why the appellant was not subsequently received into Lyndon House. Mr Headland did refer to the appellant having tested positive for cannabis as a reason why he was initially rejected at Lyndon House but that event was not explored in detail.

20. His Worship then referred to the appellant having been offered rehabilitation before at Woden Valley. He then said,

"I have gone through the files very carefully and he has been
offered these rehabilitations similar to that that has being ((sic)
been?) given to him now."

Then followed his Worship's remarks preceding pronouncement of sentence.

21. In the course of those remarks, his Worship referred to the motor vehicle charge. He said,

"The value of the vehicle was not stated nor the cost of restoring
it to its pre-larceny state but for present purposes I place a value
of $5,000.00 on the vehicle and that is the value of the defendant's
depredations on this occasion, total somewhere in the vicinity of
$10,000.00."

22. His Worship, unfortunately, fell into error in making that finding. The charge referred to valued the vehicle at $3,000.00. That had not been disputed. It must follow that the damage done by the appellant's "depredations" was somewhat less than $3,000.00.

23. His Worship reviewed the appellant's criminal history and the cost to the community of that conduct over the years. On the hearing of the appeal, Mr Brewster, for the appellant, complained that in so doing, his Worship also fell into error. It would be an error, he submitted, to increase a proper sentence because of the extent of the past cost occasioned by the offender's past conduct. A proper sentence takes account of that damage when from time to time those sentences are imposed. Continued offending, of course, may render it more difficult to extend leniency to an offender. That is, of course, quite well accepted as a principle. However, I do not believe that his Worship intended to indicate that the sentence to be imposed was to be increased because of the cost to the community of the appellant's past offences and drug dependence. I think his Worship was merely pointing out, if somewhat graphically, the obvious fact that neither the appellant's past record nor his addictions entitled him to any leniency.

24. The most important matter, to his Worship, was whether the "arduous regime of rehabilitation" that was required or recommended by the Panel was "appropriate or sufficient in this case" and whether there was "any realistic prospect that such a rehabilitative order ... would be successful".

25. Quite rightly, if I may respectfully say so, his Worship answered the first question favourably to the appellant. A drug rehabilitation program may well be more unpleasant than a term of imprisonment. A sentence designed to rehabilitate the offender does not, by reason of that fact, fail to be properly retributive and thus serve as a personal and general deterrent. It can be added, perhaps, that a sentence which failed to include a consideration of the prospects of rehabilitation would simply ensure the continued repetition of criminal behaviour. In some cases, prison sentences may, through personal deterrence, be rehabilitative. This will almost never be so where drug addiction is the source of the criminal behaviour. The appellant's history eloquently endorses that proposition.

26. In some cases, the rehabilitative objective can be served only by a parole period, the offence in question being too serious to admit of a non-custodial option.

27. In my opinion, his Worship rightly regarded the second question he posed as critical in this case. However, his Worship did not answer that question favourably to the appellant. He found that the appellant had been untruthful in asserting that he had no previous opportunity to undergo rehabilitation such as was now offered to him.

28. In arriving at that conclusion, his Worship referred to several reports. One had been tendered in 1986. It referred to past efforts by the appellant to rehabilitate himself including counselling. Unfortunately, his Worship did not correlate that report with the sentence imposed on the appellant in 1986. The appellant had been sentenced on that occasion to imprisonment, to be released after two months, for a series of traffic offences. There was no condition imposed upon him that he undergo rehabilitative treatment. The main focus of the 1986 report as cited by his Worship seems, not surprisingly having regard to the nature of the charges, to have been on the appellant's alcohol abuse.

29. The second report had been tendered in July 1988. That report, apparently, referred to past counselling, methadone and residential rehabilitation programs participated in by the appellant. It said that he had been consistently making efforts, albeit unsuccessful, to conquer his addiction.

30. However, the recommendation in that report was not adopted by the Court then sentencing the appellant. On the occasion to which the report related, the appellant was sentenced to imprisonment. There was no treatment regime imposed.

31. There was also reference made by his Worship to a pre-sentence report of March 1989. It referred to rehabilitative efforts which had been made over the previous 15 years, according to his Worship's summary of it. However, on 16 March 1989, the occasion for which it seems the report was prepared, the appellant was again imprisoned. There was no rehabilitative order made except insofar as the fixing of a non-parole period might provide an opportunity for rehabilitation.

32. His Worship further concluded that a treatment order had no reasonable prospects of success.

33. There are, with respect, some difficulties with that conclusion. The first is procedural. Neither the prosecution nor the defence tendered the past reports his Worship referred to. They were not tendered by the court. They were not shown to the parties. Indeed, they were not tendered before me. It may be that the defence would have perceived some parts of the reports referred to, not cited by his Worship, as being helpful to the appellant. It may be that the appellant would have wished to explain the context of the remarks quoted. Neither he nor his counsel was given any opportunity to do so. It was procedurally unfair to adopt the course chosen. Of itself, that procedural unfairness would vitiate the result.

34. However, there is a further difficulty. The appellant's assertion was not that he had never before participated in rehabilitation programs. He had himself referred to methadone programs and attendance at Lyndon House. Clearly, he was asserting that he had not previously been required to undergo a court-ordered program. If that was not clear from the appellant himself, his counsel made it quite clear. There seems little doubt that, on 28 April, his Worship so understood it.

35. When the matter resumed on 30 April, however, his Worship concluded that the reports as cited were inconsistent with the appellant's assertion. I cannot understand that conclusion. With one exception, to which I will refer, there has never been any court-ordered rehabilitation program to which the appellant has been required to submit. It is, therefore, not possible to discern the foundation for his Worship's conclusion that the appellant's evidence was inconsistent with the reports cited and, hence, deliberately so.

36. The exception I refer to is that when sentenced on 6 April 1978, the appellant was ordered to "continue drug treatment" under the supervision of the probation and parole service.

37. However, that order was so long ago that it would neither demonstrate the inconsistency his Worship referred to nor that the current proposals for rehabilitation are doomed to failure if imposed by Court order as is recommended by the Drugs of Dependence Assessment Panel.

38. The substantive factual conclusion to which his Worship came is, therefore, tainted with sufficient error to vitiate the result.

39. I would add, also, that, serious though the appellant's crimes were, an aggregate of six years imprisonment with a non-parole period of four years seems excessive. There was no violence, no element of preying on the weak or disadvantaged. The amount involved was not such as to indicate a massive fraud on the public even though the sums involved were significant. The desperation driving the appellant, whilst not excusing him, is a mitigating factor. He has at all times pleaded guilty. He made full admissions. He was remorseful. He desires to be rehabilitated. The cheque books and the prescription pad were not stolen by the appellant but by another or others enabling the appellant then to commit the crimes he did. He did not lead others into crime.

40. The total sentence imposed was longer than that imposed on Anne Marie Tilley for bribing police over many years involving some $866,000.00 (see R v Tilley (1991) 53 A Crim R 1). It exceeded by a factor of 50% the sentence imposed recently for a particularly violent rape in company (see R v House and Thorne (FCA; ACT G74; 11/4/90; Gallop, Jenkinson and von Doussa JJ.; unreported). An habitual offender committing violent acts of robbery was awarded five years imprisonment with a non-parole period of 2 1/2 years in R v Griffin (1969) 90 WN Pt 1 (NSW) 548. I note, also, that in Talbot v R (FCA; ACT G47; 6/1/92; Jenkinson, O'Loughlin and Higgins JJ.; unreported), two counts of armed robbery and attempted armed robbery to obtain drugs were dealt with at first instance by Gallop J. imposing a total sentence of three years, non-parole period 18 months. On appeal, due to exceptional mitigating factors not thought to be mitigating by the sentencing judge, that sentence was set aside as excessive and a non-custodial sentence was imposed.

41. More recently, a sentence of two years suspended on recognisance and a community service order was not considered by Miles C.J. to have been unduly lenient for 53 counts of theft and theft related offences involving over $50,000.00 being taken from the offender's employer (see Knight v Birch [1992] ACTSC 21; (1992) 106 ACTR 27). Recent cases suggest that offences of the kind committed by the appellant even when accompanied by a grave breach of trust over an extensive period (although by a first offender) and the loss of far greater sums (over $30,000.00) (see Carreras v R (SCWA; SC9/92; CCA, Malcolm C.J., Pidgeon and Murray JJ.; 19/5/92; unreported)) would warrant three years (with parole).

42. It seems to me, therefore, that even without the errors to which I have referred, the totality of the penalty imposed on the appellant was manifestly excessive.

43. There is another matter. The appellant pleaded guilty to the charge of stealing the prescription pad. However, the facts as proved, and the prosecution does not dispute them, reveal that the appellant used six forms from a pad stolen by someone else. It should be noted that those facts were not drawn to his Worship's attention.

44. It follows, of course, that the plea of guilty to that charge must be rejected. Accordingly, on 4 August 1992, I upheld the appeal in relation to that matter. A verdict of acquittal is entered instead of the penalty imposed by the learned Magistrate.

45. The appellant did raise an objection to the course taken by the learned Magistrate of entering convictions on all matters but imposing no sentence on all but three. I indicated during argument that I saw no merit in that submission. I note that such a procedure was endorsed by Gallop J. in R v House and Thorne (supra).

46. His Honour said,

(14-15) "... I do not agree that there is any principle of law
upon conviction after trial on indictment (or after summary
conviction) the Court is bound either to pass sentence in respect of
each count on which there has been a conviction or, inter alia, to
defer passing sentence. What is important for a sentencing court is
first, to observe the totality principle, the effect of which is to
require that the sentence or aggregate sentences be just and
appropriate. The principle has been stated many times in various
forms (see Principles of Sentencing, D.A. Thomas, 2nd Edition, p 56).
Especially is it not inappropriate for a sentencing judge to pass a
single sentence to cover the criminality involved in a number of
offences to which the accused has pleaded guilty rather than pass
numerous sentences. If only one sentence is passed to punish for a
number of offences, it is desirable to specify the particular offence,
usually the most serious one, in respect of which the single sentence
has been passed and state that it is inexpedient to pass sentence in
respect of the other offences."

47. I respectfully agree. The only criticism that could be made of the form of sentence imposed was that the most serious offences were not chosen to have the sentences of imprisonment attached to them. I would add that, even though Miles C.J. in Knight v Birch (supra) expressed disapproval of the imposition of nominal sentences on some offences, themselves serious, he, nevertheless, noted (36) "It is the overall effect of the total sentence which is of prime importance".

48. It follows that in re-sentencing the appellant on the two charges of stealing $50.00, I have regard to the other matters upon which convictions have been recorded although no further penalty was imposed. It is the totality of the penalties imposed which is significant, not the apparent triviality of the particular charges to which the sentence or sentences is or are attached.

49. There were no particular aggravating factors in the present case. Of course, the appellant has no past good character to commend leniency. However, it is clear that he desires to confront and overcome his drug addiction. His offences have all related to his addictions. In essence, although he cannot be excused for this nor advance a claim to leniency as such, there comes a time when, in the interests of the community, it is worthwhile to try something different. Prison sentences have not, in the past, served to rehabilitate or deter the appellant.

50. In the result, therefore, I find myself in agreement with the approach his Worship adopted. That is, if it appears likely that a rehabilitation regime will succeed, it should be attempted. The result of that approach would, I believe, have been different but for the misunderstanding created by the past reports his Worship referred to and the manner in which they came to his attention. Certainly, his Worship did not have the further assistance I have had on the hearing of this appeal.

51. On 4 August 1992, I upheld the appeals on the two remaining matters before me. I have recorded convictions upon them and adjourned the matter till today for re-sentencing.

52. I take account of the other matters on which his Worship recorded convictions. I also take account of the fact that although the appellant is not shown to have stolen the prescription pad and cheque books utilised in the offences mentioned, he did use them well aware that they had been stolen.

53. On Matter No. CC 920495 I impose a sentence of two years imprisonment. I direct that the appellant be released forthwith upon his giving security in the sum of $2,000.00 with one surety in the like sum or two sureties of $1,000.00 each, in each case, by recognisance, that:-

(i) he will be of good behaviour for a period of three years from
this date;
(ii) he will, during that period, be subject to the supervision
upon probation of the Director of Adult Corrective Services or the
nominee from time to time of the Director and will obey all reasonable
directions of such person or persons;
(iii) he will comply with the terms of the treatment order
pursuant to the Drugs of Dependance Act 1989 which I now pronounce and
to which the appellant has consented, following the explanation of the
effect of the order in the terms appended hereto (Schedule A) -
(a) The appellant will submit himself to treatment at and as
required by the Alcohol and Drug Service - Hospital Unit at Woden
Valley Hospital, Garran once each fortnight or as often, whether more
or less frequently as may reasonably be required by the person in
charge of that treatment centre.
(b) The order shall be of two years duration and during that
time period the appellant, the person in charge of the treatment
centre or the Department of Health may apply for the duration of the
order to be varied.
(c) It is a condition of the order that the appellant attend
before an assessment panel appointed pursuant to the Drugs of
Dependance Act one month after the date of this order and thereafter
every three months for review.
(d) It is a further condition of this order that the treatment
referred to in (a) hereof may include such directions as to residence
or submitting to residential rehabilitation programs as the person in
charge of the treatment centre considers appropriate.

54. On Matter No. CC 920496, instead of sentencing the appellant to imprisonment, I will direct that the appellant perform 208 hours of unpaid work within 12 months.

55. I will require the appellant to report to an authorised officer, being a person so appointed under the Supervision of Offenders (Community Service Orders) Act 1985 within 72 hours.

56. I will direct that the appellant be released from custody in relation to this matter forthwith.

57. I now explain to the appellant the effect of the proposed order and the consequences of non-compliance in the terms of the notice appended hereto (Schedule B).

58. I now pronounce that order.