Oldfield v Astley [2002] ACTSC 32 (27 March 2002)

Last Updated: 4 May 2002

Grant Allen Oldfield v Philip Astley [2002] ACTSC 32 (27 March 2002)

CATCHWORDS

SENTENCING - appeal from Magistrate - release on recognizance for a period longer than could be justified if release on parole - whether error of principle - whether effect was to make sentence manifestly excessive - limits of role of sentencing court.

Crimes Act 1900

Crimes (Offences Against the Government) Act 1989

Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 102 of 2001

Judge: Miles CJ

Supreme Court of the ACT

Date: 27 March 2002

IN THE SUPREME COURT OF THE )

) No. SCA 102 of 2001

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: GRANT ALLEN OLDFIELD

Appellant

AND: PHILIP ASTLEY

Respondent

ORDER

Judge: Miles CJ

Date: 27 March 2002

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The concurrent sentences for damage to property be confirmed.

3. The sentence of 18 months for assault be set aside and there be substituted a cumulative sentence of 12 months imprisonment with a non-parole period to commence on 27 September 2001 and to expire on 26 June 2002.

4. Time served to count towards the expiration of the sentence.

1.

EX TEMPORE JUDGMENT

1. Grant Allen Oldfield appeals against the severity of sentences imposed by a Magistrate. On a charge of criminal damage to property under the Crimes Act 1900 (the Crimes Act), he was sentenced to three months imprisonment, and on a charge of damage to property under the Crimes (Offence Against the Government) Act 1989, he was sentenced to another term of three months imprisonment to be served concurrently. The first offence carried a maximum six months sentence. The second carried a maximum of two years when prosecuted summarily.

2. He was also sentenced to 18 months imprisonment for an offence of assault under the Crimes Act, to be served in addition to the other two sentences. The maximum for assault is two years imprisonment.

3. The sentence of 18 months was ordered to be suspended after 12 months upon the appellant entering into a recognizance to be of good behaviour for two years, to be subject to probation supervision for 12 months, and attend any counselling or rehabilitation programs as directed. The requirement that he attend those programs seems to have been intended to apply for the whole of the two years.

4. The essential complaint is that the 18 months sentence for the assault was manifestly excessive. On the face of it, the offence was not of the most serious kind. There was an altercation between the appellant and another man over a woman with whom the appellant had had a relationship. It finished with the appellant slapping her across the face and placing his forearm against her throat, cutting off her airways. The appellant told the police that he did not deliberately place his forearm against her neck. The Magistrate seems to have no specific finding on this aspect and the doubt really should be resolved in favour of the appellant. Nevertheless, it was a very unpleasant and, I would expect, frightening experience for the woman, although not an assault which caused any physical injury.

5. It is well recognised that the seriousness of an offence is not to be measured by the act itself only. If the act is part of a continuing history of similar behaviour, the moral seriousness or culpability is the greater.

6. That, according to the High Court, has always been the approach of Courts in this country: Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477 - 478.

7. This appellant does have a long history of offences of a similar nature. Four of assault, four of assault occasioning actual bodily harm, and various offences of assaulting or resisting police, damaging property and the like. He has often been in breach of recognizances into which he has entered.

8. The Magistrate seemed to accept the appellant's contention that he behaved in that way only when affected by liquor, and that seems to have been supported by a pre-sentence report.

9. The most recent prior offence was for assault and other matters for which the appellant was sentenced to 15 months imprisonment with a non-parole period of eight or ten months, it is not clear. That sentence was imposed by the same Magistrate on 6  September, 1999.

10. It seems that he was released on parole, and it is accepted that the offences now under consideration which occurred on 25 and 26 September 2001 were committed within a few months at the most of the expiry of the sentences previously served. But it is to be recognised that there was no breach of his parole, no further offence committed whilst he was at large on parole.

11. The Magistrate's frustration at having to sentence this man yet once again emerges from the printed version of her short remarks on sentence. It also appears that the Magistrate rejected the appellant's protestations of remorse, although no reasons are given for that rejection. The pre-sentence report seems rather to support the appellant's contention.

12. It is clear that the Magistrate thought that the seriousness of the offence was reflected in the act itself, which she described accurately as appalling, and that it was not only alcohol but "behaviour and attitudinal" issues that were responsible for the appellant's repeated offending, and which need to be addressed by him.

13. It is reasonably clear that in addition to concluding correctly that the only just and appropriate sentence was one of immediate imprisonment, the Magistrate was concerned to structure the sentence as a whole so that it allowed for a maximum time under supervision.

14. That seems to explain why the Magistrate thought that, instead of fixing a non-parole period, she would order that nine months of the total sentence be suspended upon the appellant entering into a recognizance on condition that he be of good behaviour for two years and attend and participate in various programs.

15. The two years, of course, was to commence at the time of his release on entering into the recognizance. With regard to this latter aspect, the Magistrate did not state why she considered that supervision on recognizance was more effective or more desirable than supervision on parole. But what release on recognizance rather than on parole enabled the Magistrate to do and to order was to make the period under supervision much longer than could lawfully be justified if on parole.

16. One has to recognise, perhaps with regret, the limits that sentencing has on affecting human behaviour. The Magistrate was certainly entitled to her view about how effective supervision might be. Indeed, the experience of magistrates in that regard is probably more extensive and superior to experience in this Court.

17. However, with regard to the present offender, the only evidence of effective supervision in the past was when the appellant was on parole. Further, as our sentencing system stands, it is, in my view, not appropriate for a court to continue to participate, or to give the appearance of continuing to participate in the monitoring or supervision of the progress of an offender after sentence, or even before sentence, except in the exceptional circumstances of a so-called "Griffith bond".

18. Systems such as are available in drug courts interstate, or as I understand it may be available in courts in Europe, for such judicial monitoring simply do not exist in this Territory. I conclude then that a sentence of 18 months suspended after 12 months with supervision for a further 2 years was excessive in all the circumstances.

19. Having regard to the seriousness of the offence, which was not of the worst type, to the maximum available namely, two years finite imprisonment, and to the absence of special circumstances indicating a likelihood of positive response to the lengthy period of supervision proposed, in my view, 12 months imprisonment would have been sufficient to punish this offender for the offence, and nine months would be the appropriate minimum period to be served before being released to parole.

20. It may be a reasonable view to take that compulsory supervision for a longer period would be desirable, but, in my view, it is simply not available in accordance with lawful sentencing options.

21. The appeal will therefore be allowed, the concurrent sentences for damage to property are confirmed, the sentence of 18 months for assault is set aside and there is substituted a cumulative sentence of 12 months imprisonment with a non-parole period to commence on 27 September 2001, and expire on 26 June 2002.

22. Time served is to count towards the expiration of the sentence.

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

Associate:

Date: 27 March 2002

Counsel for the appellant: Mr J Subharwal

Solicitor for the appellant: ACT Legal Aid

Counsel for the respondent: Mr B Standish

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 27 March 2002

Date of judgment: 27 March 2002