Scott v Burgess [2001] ACTSC 96 (25 September 2001)

Last Updated: 29 January 2002

RAYMOND LESLIE SCOTT v CHRISTOPHER WILLIAM BURGESS [2001] ACTSC 96 (25 September 2001)

CATCHWORDS

APPEAL - Magistrates Court - whether Magistrate entitled to take into account charges before another court that the appellant had pleaded guilty to but had not been convicted of.

BREACH OF RECOGNISANCE - procedure to be followed when a breach is alleged - inappropriate to convict for breach of recognisance.

COMMUNITY SERVICE ORDER - requirement to revoke community service order - regard to be had to part performance.

Crimes Act 1900 (Cth), s 105, s 556C(4), s 556K

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 45 of 2001

Judge: Gray J

Supreme Court of the ACT

Date: 25 September 2001

IN THE SUPREME COURT OF THE )

) No. SCA 45 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: RAYMOND LESLIE SCOTT

Appellant

AND: CHRISTOPHER WILLIAM BURGESS

Respondent

ORDER

Judge: Gray J

Date: 25 September 2001

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The convictions and sentences of 12 months imprisonment imposed by the Magistrate in respect of the offences of dishonesty be set aside.

3. The convictions and the sentences of one months imprisonment and six months imprisonment respectively for the breaches of recognisance be set aside.

4. The conviction and sentence of six months imprisonment for breach of the community service order be set aside.

5. The appellant be convicted of the offence of obtaining a service by deception and sentenced to four months imprisonment.

6. The appellant be sentenced to six months imprisonment in respect of the breach of recognisance entered into on 12 December 1999 to be served cumulatively upon the sentence of obtaining a service by deception.

7. The community service order made on 20 December 1999 be revoked and the appellant be sentenced to two months imprisonment for the breach of that order to be served cumulatively upon the sentence for breach of recognisance.

8. The sentence of four months imprisonment in respect of the offence of obtaining a service by deception to commence on 4 May 2001.

9. A non-parole period of six months be fixed and to date from 4 May 2001 and to end on 3 November 2001.

1. This is an appeal from a decision of the Magistrates Court. On 7 May 2001 the appellant pleaded guilty to two charges of make false instrument/own use, two charges of use false instrument, one charge of attempted theft, one charge of breaching a community service order, one charge of failing to comply with the conditions of a recognisance in failing to pay compensation, one charge of failing to comply with the conditions of a recognisance in failing to accept supervision and one charge of failing to comply with the conditions of a recognisance in failing to be of good behaviour. The last three "charges" all related to the same recognisance.

2. In respect of the two offences of making a false instrument, the two offences of using a false instrument and the single offence of attempted theft, the appellant was convicted and sentenced to 12 months imprisonment on each. For the offence of breach of community service order he was convicted and sentenced to six months imprisonment cumulative upon the 12 month sentence for the first charge of make false instrument. For the breach of recognisance involving the failure to pay compensation, the Magistrate recorded a "conviction" and sentenced him to one month imprisonment, concurrent with all the other sentences. The appellant was further "convicted" and sentenced on the breach of recognisance being the failure to accept supervision to six months imprisonment cumulative upon the 12 months sentence for the first charge of make false instrument but concurrent with all the other sentences. He was convicted and sentenced to six months imprisonment to be served cumulatively upon the first charge of make false instrument but concurrently with the other sentences for the "final" breach of recognisance being that of failure to be of good behaviour. The Magistrate concluded by setting a non-parole period of nine months and said that the effect of the sentences was that the appellant had been sentenced to a total of 15 months imprisonment.

3. He was, of course, wrong in the latter reference. The effect of the sentences that he had imposed was 18 months imprisonment.

4. At the time he was dealt with by the Magistrates Court, the appellant had pending two offences of obtaining money by deception which had been allegedly committed in New South Wales. On 14 May 2001, the appellant appeared in the Queanbeyan Local Court and was sentenced on those charges. He was sentenced to three months imprisonment and ordered to pay compensation of $3,205.15. That sentence has now been served. It seems that he had entered pleas of guilty to those charges on 19 March 2001 but had not been convicted and sentenced in respect of them at the time the Magistrate was dealing with the charges the subject of this appeal.

5. The facts connected with his dishonesty convictions on 7 May 2001 are that on 25 June 2000, the appellant went to Kennards Self Storage in Fyshwick and entered into an agreement with that company to rent a storage unit. In order to pay for the rental, the appellant produced a Westpac credit card number and agreed that it should be debited each month to pay for the storage. The appellant also signed a credit transaction authority for the initial payment of $205.00. It was discovered shortly after that the appellant was not the holder of the credit card number that he provided to Kennards Self Storage.

6. The appellant lodged his notice of appeal on 5 July 2001 appealing against the sentence imposed by the Magistrate on the grounds that it was manifestly excessive. However, the appellant's written submissions raised for consideration grounds that were not contained in the notice of appeal. At the forefront of the written and oral submission was the proposition that the Magistrate made an error of law by taking into account the charges in the Queanbeyan Local Court that had not been proven at the time of his sentence on 7 May 2001. Because of the plea of guilty that had been entered in respect of these charges, I consider that the Magistrate was entitled to have regard to that as an admission on the part of the appellant as to the commission of these offences. The Magistrate quite properly remarked that this did not aggravate the penalty that he might impose. It did, however, suggest that rehabilitation might not be appropriate as a prevailing sentencing principle. I do not consider that he erred in this approach.

7. The appellant has a significant criminal history. His first conviction for an offence involving dishonesty occurred in Western Australia in 1990. He was convicted of 10 counts of false pretences and released on probation until May 1991. In 1992, in the Australian Capital Territory, he was convicted of three counts of theft and sentenced to six months imprisonment, suspended, to be of good behaviour for three years together with a community service order. The appellant's next appearance before a court was in 1993 in Queensland where he had 11 counts of false pretences and one count of attempted false pretences found proven against him but was released without conviction and placed on probation for two years. On the same day in another Queensland court, two further counts of stealing and one count of false pretences were found proven against him and again he was released without conviction. The appellant's next conviction involving dishonesty occurred in NSW in 1994 where he was convicted of passing a valueless cheque and dishonestly obtaining financial advantage by deception. He was fined $500.00 and ordered to pay the court costs. In 1995 the appellant appeared in the ACT Magistrates Court where he was convicted of one charge of theft and one charge of breaching the recognisance that he had entered into in 1992. On each charge he was sentenced to imprisonment for three months to be served concurrently. On the same day he was also convicted of attempted theft. On this charge he was sentenced to 12 months imprisonment to be released after six months on entering a recognisance to be of good behaviour for two years subject to the supervision of the Director of Adult Corrective Services (DACS) for 12 months. He was also convicted of eight charges of theft and sentenced to six months imprisonment to be served concurrently with the attempt theft conviction.

8. The appellant appeared before the ACT Magistrates Court again in 1999 when he was convicted of minor theft and sentenced to six months imprisonment suspended on entering a recognisance to be of good behaviour for 12 months and accept the supervision of DACS for 12 months. He was also convicted of obtaining a service by deception and sentenced to 208 hours of community service. This sentence gave rise to the breach of recognisance and failure to complete the community service order, both of which were before the Magistrate on this occasion.

9. That extensive criminal history of offences involving dishonesty clearly militates against extending any form of leniency in respect of the offences that are the subject of this appeal. Indeed, the failure to obey the terms of his last recognisance demonstrates what a poor candidate the appellant would be for rehabilitation. A challenge to the Magistrate's sentencing approach on the basis of some said to be perceived failure of the Magistrate to emphasise rehabilitation cannot succeed.

10. The next point that Mr Corr took on the appellant's behalf has more substance. It was put that the appellant should not have been convicted of three breaches of the one recognisance. I agree, but not for the reasons Mr Corr advanced. There is, in fact, no offence of "breach of recognisance" as the Magistrate appears to have assumed.

11. Subsection 556C(4) of the Crimes Act is in these terms:

"(4) Where a person who has been released in pursuance of an order made under section 556B appears before the court on summons or warrant issued under subsection (1) or as a result of having been committed to be dealt with by the court under subsection (3), the court, if it is satisfied that -

(a) the person has failed during the period of good behaviour to comply with a condition specified in the order in accordance with subparagraph 556B(1)(a)(ii); or

(b) the person has failed to pay, as provided by in the order, the penalty or an instalment of the penalty for the payment of which he or she has given security; or

(c) the person has been convicted, whether within or outside the Territory, of an offence committed during the period of good behaviour;

may -

(d) ...

(e) in a case where the person having been sentenced, was released forthwith or after he or she had served a specified part of the sentence imposed on him or her - commit the person to prison to undergo imprisonment for such term, being a term not exceeding the sentence or the balance of that sentence, as the case requires, or make any order (including an order under subsection 556(1)) which the court would, if he or she had then and there been sentenced for the offence of which he or she was originally charged, be empowered to make."

12. A breach of any one of the subparagraphs 556C(4)(a), (b) or (c) is sufficient to invoke the procedure. More than one subparagraph being contravened does not mean that there can be successive considerations of the extent to which the invocation of the one suspended sentence may be considered. Further, there is no "conviction" for the "breach of recognisance" required by the section. The court satisfies itself that the contravention has occurred and then may order imprisonment or make such other order as the court could have on sentencing for the original offence.

13. It follows that each "conviction" for breach of recognisance which the Magistrate recorded and each sentence of six months imprisonment thereon should be set aside. It is clear that the court should have considered one charge of breach of recognisance constituted as it was by the failure to pay the compensation and court costs and the failure to accept supervision upon which the recognisance was conditioned, as well as the commission of the offences in respect of which the appellant was before the court. Being satisfied of those matters, the court could properly order that the appellant serve the six month sentence of imprisonment that had been imposed but from which the appellant had been released upon recognisance.

14. A further point taken by Mr Corr related to the breach of the community service order to undergo 208 hours of community service. As I have noted above, the Magistrate sentenced him to six months imprisonment on this charge. The Magistrate does not say so but I assume that he intended to make an order under ss 556K(5) of the Crimes Act revoking the community service order. Then, in terms of ss 556K(7) of the Crimes Act, he could make such order "that the court would if the person were then before the court for sentence for the offence in respect of which the community service order was made, be empowered to make". Further, the court is required by ss 556K(7)(a) to have regard to any work performed pursuant to the community service order.

15. In the appellant's case he had performed 72 hours of the order. If this had been taken into account, it is difficult to see how the Magistrate would have been justified in imposing a sentence of six months imprisonment. Indeed, without the detail of the offence in respect of which the community service order was made, it is difficult to see the justification for the order that was made. The original charge was obtaining service by deception and he was sentenced in conjunction with an offence of minor theft for which he received six months imprisonment suspended. I consider a sentence of two months imprisonment would be appropriate having regard to the community service that the appellant did complete. However, as the appellant is now being dealt with in respect of the breach of recognisance on the minor theft charge, any sentence imposed on this charge should be cumulative upon the sentence imposed in respect of that charge.

16. At the hearing of this appeal, it became apparent that the dishonesty offences with which the appellant had been charged related solely to the renting of the storage unit and paying for it by way of a credit card transaction which he was not authorised to enter into. Instead of the five offences of making and using a false instrument and attempted theft, the appellant could properly have been charged with the one charge of obtaining a service by deception (s 105 Crimes Act 1900). That offence carries a penalty of five years. The offences with which he was charged carry penalties of 10 years.

17. At my invitation, and with the consent of the respondent, the appellant amended his appeal to cover this aspect as well as the other aspects to which I have referred.

18. I propose to allow the appeal and set aside the convictions and sentences imposed by the Magistrate in respect of the offences of dishonesty.

19. The prosecution now wish to charge the appellant with obtaining a service by deception in respect of the substratum of facts upon which the offences of dishonesty were based. I have given leave to the prosecution to file an ex officio indictment and have taken Mr Scott's plea to that charge and propose to sentence him in respect of it. In light of what I consider should have been the approach of the Magistrate to the breaches of recognisance, I should also set aside the convictions and sentence for those breaches. The prosecution now elects to proceed upon the breach of recognisance involving the commission of an offence which I give leave to amend to specify the offence of obtaining a service by deception and in respect of that breach, I also take into account the appellant's failure to pay the compensation, court costs and CIC levy and his failure to accept supervision.

20. As far as the offence in respect of compliance with the community service order is concerned, the conviction and sentence of six months imprisonment should be set aside and in lieu, an order made revoking the community service order.

21. As I have indicated, I would consider the appropriate sentences for the breach of recognisance and breach of the community service order to be six months and two months imprisonment respectively. I consider that a sentence of four months imprisonment on a charge of obtaining a service by deception as appropriate. It is also appropriate to cumulate each of these sentences on each other which gives an effective sentence of 12 months imprisonment. I would fix a non-parole period of six months. The first sentence imposed should be backdated to 4 May 2001, the date upon which the appellant went into custody, and the non-parole period should commence on that date and end on 3 November 2001.

22. The effect of fixing a non-parole period means that the period of release to parole after serving at least six months of the sentence that I have imposed, will enable the appellant to serve the remainder of his sentence in the community on the conditions that may be imposed upon such release. If the appellant breaches his obligations under a parole order releasing him to parole, he will be liable to have that parole revoked and be required to serve the unexpired remainder of his total sentence of twelve months.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice

Associate:

Date: 25 September 2001

Counsel for the appellant: Mr G Corr

Solicitor for the appellant: Darryl Perkins Solicitors

Counsel for the respondent: Ms S Cronin

Solicitor for the respondent: ACT Director of Public Prosecutions

Dates of hearing: 8 August, 18 September 2001

Date of judgment: 25 September 2001