Taysaving v Mazlin [2006] ACTSC 41 (24 April 2006)

Last Updated: 22 May 2006

SOURIYA TAYSAVING v TRACEY MAZLIN

[2006] ACTSC 41 (24 April 2006)

APPEAL FROM MAGISTRATE - Sentence - property offences - not manifestly excessive - Magistrate not required to warn that full-time custody may be final sentence when granting pre-sentence bail.

Crimes Act 1900

Human Rights Act 2004

Bail Act 1992

House v R [1936] HCA 40; (1936) 55 CLR 499

EX TEMPORE JUDGMENT

ON APPEAL FROM THE MAGISTRATES COURT

No SCA 95 of 2005

Judge: Connolly J

Supreme Court of the ACT

Date: 24 April 2006

IN THE SUPREME COURT OF THE )

) No SCA 95 of 2005

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: SOURIYA TAYSAVING

Appellant

AND: TRACEY MAZLIN

Respondent

ORDER

Judge: Connolly J

Date: 24 April 2006

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be dismissed.

1. This is an appeal from sentences imposed by Magistrate Lalor on 8 November 2005 in relation to a count of minor theft, for which the learned Magistrate imposed two months imprisonment; one count of burglary, for which the learned Magistrate imposed a sentence of six months imprisonment cumulative upon the sentence for the minor theft; one count of theft, for which six months imprisonment was again imposed concurrent with the burglary, properly so because the two offences related to the one incident, break in and theft at commercial premises at Belconnen; and a sentence of two months for failing to appear, which was made cumulative upon the above sentences making a total sentence of 10 months imprisonment.

2. It seems to me that, at the outset, it is appropriate to observe that all the sentences, on their face, would appear to be within range and the House v R [1936] HCA 40; (1936) 55 CLR 499 test of manifestly excessive sentencing has not been made out.

3. The appellant has a long criminal record. These were multiple property offences. The offence for which two months was imposed, although described as minor theft, and it was indeed under the statute minor theft, must, it seems me, be regarded as something at the upper end for minor theft.

4. The circumstances of that were that a female citizen was, in the middle of the afternoon, going about her business on a footpath near a shopping centre and her handbag was forcibly grabbed from her by the appellant. Bag-snatching would be regarded, quite properly, by most right-thinking members of the community as a particularly unpleasant offence. Minor theft, of course, covers low-level shoplifting-type offences. A bag snatch in broad daylight must be regarded as more substantial. Two months imprisonment for that offence is, it seems to me, clearly within range.

5. The offences of burglary and theft related to breaking into commercial premises at the Belconnen Mall where, after trading hours, some force was used to open and cut a front security grill. The appellant then gained entry to the premises, stole cash from the till and some items of jewellery. Again, six months for burglary and theft of commercial premises for a person with multiple priors for dishonesty offences seems to be entirely within range and appropriate. And for the offence of failing to appear, again, given the record, seems to be entirely within range.

6. It is suggested that an error was made in relation to the process by which the sentences were accumulated, but it seems to me that that is not the case. Quite properly, Ms Warwick, for the appellant, concedes that the Magistrate fully accumulated the two offences of burglary and theft, which were the one transaction. No complaint is made about that. It is said that the bag-snatching incident occurred, and it does appear to be the case, within at most 18 hours or possibly less of the burglary at the commercial premises. But it seems to me that it would be inappropriate to regard that as one criminal transaction. One occurred after hours at night, the other occurred in broad daylight.

7. It seems to me that an additional penalty for a bag-snatch was entirely appropriate, and again in relation to the charge of failure to appear, which resulted in the warrants to issue and the appellant to be arrested, it is entirely appropriate and within range that failure to appear will result in an additional sentence. So I am not satisfied that there has been an error of principle in relation to the way the learned Magistrate went about the process of accumulation.

8. The principal ground of appeal is that his Honour erred in failing to give appropriate weight to rehabilitation. Accepting the case that the Crimes Act 1900 requires any sentencing judge or magistrate to regard prospects of rehabilitation with some significance, but also that issues of community protection be afforded significance. It seems to me that in exercising his discretion the Magistrate properly had before him, as well as the Drugs of Dependence assessment, the criminal history of the appellant, which is one of some substance. It indicates that the appellant has had difficulties with heroin from at least 1994, because that is when the first charge of administer a prohibited substance, heroin, appears.

9. His criminal record from that date shows regular offences relating to possession or use of a prohibited substance. It also shows regular property offences. It shows a pattern that one would expect to see, and that the Parliament and the community would expect to see. That is to say, in the early stages of offending and when he was a relatively young man, considerable leniency was given to him in relation to some convictions without passing sentence then leading onto recognizance to be of good behaviour, moving on to suspended sentences through the late `90s.

10. I should say in relation to all of those suspended sentences and good behaviour bonds it is implicit that those were based on prospects of rehabilitation. In 2000, in relation to another heroin offence, nine months imprisonment was imposed. It was suspended after 17 weeks, so at that stage he served some time in full-time custody. Good behaviour bonds and rehabilitation were expressly ordered.

11. In 2001, he was back for an offence of failure to comply with the treatment order. Also in 2001, possess heroin for the purpose of sale, and some ammunition offences dealt with by way of nine months imprisonment to be served by way of periodic detention. In late 2001, the periodic detention order was cancelled and he was to serve five months in full-time custody, his second period in full-time custody.

12. In 2003, some dishonesty offences result in three months imprisonment to be released forthwith, a period enabling some time served on remand, again on a good behaviour type bond, expressly going to counselling for treatment of drug issues and urinalysis. And in January 2003, there was a possess prohibited substance subsequent to that, although it appears the offence occurred beforehand.

13. Rehabilitation must always be looked at by sentencing judges and magistrates, but of course it is common experience for accused persons to say that it is going to be the last time; that they are not going to do it again. The past can provide some guidance, and the past year provides a fairly grim guide to prospects of rehabilitation. The Magistrate had before him the fact that the appellant had undergone a Naltrexone implant program before these offences occurred and, true it is that he had remained offence-free for five months, but these offences and in particular the bag snatching offence occurred while he was on a Naltrexone implant and while he had reverted to heroin use.

14. It seems to me that the Magistrate was entitled to find, as he did, that the prospects of rehabilitation were not rosy and that given the history of sentencing where significant leniency has been afforded over a period of offending that goes back to 1994, so some period of full-time custody for offences, that on their face well and truly warrant full-time custody, was appropriate.

15. In that sense, I am not satisfied that there was any error of principle in the way his Honour dealt with the question of prospects of rehabilitation. It is argued that there was an error in failing to impose a non-parole period, and it does seem to me that this may well have been a case where some form of non-parole period may well have been appropriate. But it seems to me that that is purely a matter of discretion falling within range and it would be inappropriate for me on appeal to, in effect, tinker with the sentencing process where there has been no error of principle.

16. His Honour could well have imposed some form of parole period, and if sentencing de novo I may well have found that an attractive option, but his failure to do that does not display an error of principle. His decision to impose, in effect, 10 months of full-time custody for the offences taken together with no period of parole does not, it seems to me, amount to any error of principle.

17. The argument was advanced at an early stage that by affording the appellant a level of false hope a significant error of principle had occurred and when this matter first came before the Court it was flagged that there would be an argument that the Human Rights Act 2004, which refers to cruel and inhuman punishment, could be invoked.

18. At that time there was an unresolved issue on the facts because those advising the appellant had some recollection that the Magistrate's decision before sentence to bail him to go to Perth to receive the Naltrexone implant was in the context of a Griffith remand type exercise and the argument was advanced that if a sentencing judge embarked upon a Griffith remand course and an offender complied with the requirements of the remand, it would be inappropriate to the point of an error of principle to then revoke the Griffith remand and impose a period of full-time custody.

19. It seems to me that is an argument with considerable merit, if the facts supported the argument, but it is clear from the transcript that at the bail application his Honour made it abundantly clear that this was not a Griffith remand, it was merely the granting of bail pre-sentence.

20. It seems to me from a brief look at the criminal record, that I am right in forming the view that when the appellant made those applications for bail he was not subject to any ongoing corrective supervision for prior offences so there is nothing that would invoke the special requirements of the Bail Act 1992. He was at that stage a person who was facing these charges. Prima facie, he was entitled to bail.

21. This was not a special or exceptional circumstances application for bail and the Magistrate on that basis faced with a bail application granted him bail. True it is that the Magistrate did not explain fully what the difference was between a Griffith remand and ordinary bail, but at that stage the appellant was represented by an experienced legal practitioner. It seems to me the Magistrate did not have to go beyond the exchange that occurred with his solicitor at the time.

22. It is said that by not indicating at the point of granting bail to the appellant that full-time custody was in his Honour's contemplation, the appellant was left with a false hope that by undertaking a Naltrexone treatment he would avoid a period of full-time custody. It seems to me that if a magistrate, in granting bail, was to say, "You must understand that while you have bail, you can expect to receive full-time custody", that would itself be grounds for an almost inevitable appeal that the Magistrate had closed his or her mind to a full range of sentencing options.

23. Any sentencing judicial officer at a bail application has only part of the picture. In many cases, as it seems to me in this case, the judicial officer at a bail application is dealing with a person in a statutory context which says there is a presumption in favour of bail and liberty on bail to undergo a treatment program cannot and should not be seen as in any way pre-empting a subsequent sentencing discretion.

24. In this case, at the time of the sentencing exercise the Magistrate did have before him the fact that the appellant had successfully undergone the second Naltrexone implant which would have been a factor in favour of more leniency or perhaps in favour of something other than a period of full-time custody. He also, however, had before him the Drugs of Dependence assessment, which may have been somewhat equivocal in the circumstances of this case. But most significantly, it seems to me, he had before him the appellant's prior history which was one, as I said earlier, that quite properly would have given him grounds for concern about the prospects for rehabilitation. These offences and particularly the bag-snatching offence, which members of the community rightly regard as the more serious and unpleasant offence, did occur while the appellant had a Naltrexone implant.

25. It seems to me that there is no error in the way the learned Magistrate dealt with this matter and that, indeed, a magistrate or a judge in granting bail needs to be very careful not to pre-empt what may be the full range of sentencing options available. Given the fact that these offences, on their face, warranted periods of full-time custody, and the periods of full-time custody of the order granted were well and truly within range, and given that there was an extensive criminal history which showed that many alternatives to full-time custody had been dealt with in the past by way of community service orders and a periodic detention order which had been cancelled in 2001, it seems to me that his Honour's discretion did not miscarry.

26. I would therefore dismiss the appeal.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 24 April 2006

Counsel for the appellant: Ms T Warwick

Solicitor for the appellant: Paul Edmonds Solicitor

Counsel for the respondent: Mr J Lawton

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 24 April 2006

Date of judgment: 24 April 2006