Peisley v Coutts [2007] ACTSC 10 (15 February 2007)

Last Updated: 7 May 2008

DAVID JEREMY PEISLEY v BRETT COUTTS [2007] ACTSC 10

(15 FEBRUARY 2007)

CRIMINAL LAW - sentence - appeal from Magistrates Court - parity of sentence between co-offenders - discrimination warranted where conduct and criminal antecedents diverge.

CRIMINAL LAW - appeal from Magistrates Court - appropriate and proportionate sentence required for each offence - offences part of a series - appropriateness of partial cumulation.

Road Transport (Driver Licensing) Act 1999 (ACT), s 32

Crimes Act 1900 (ACT), s 434B

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

R v Tiddy [1969] SASR 575

Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Police v Cadd [1997] SASC 6566; (1997) 69 SASR 150

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 22 of 2006

Judge: Gray J

Supreme Court of the ACT

Date: 15 February 2007

IN THE SUPREME COURT OF THE )

) No. SCA 22 of 2006

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: DAVID JEREMY PEISLEY

Appellant

AND: BRETT COUTTS

Respondent

ORDER

Judge: Gray J

Date: 15 February 2007

Place: Canberra

ON 2 FEBRUARY 2007, THE COURT ORDERED THAT:

1. The appeal be allowed.

2. The appellant be re-sentenced:-

* On the charge of breach of recognisance (CC06/3132 - which is a re-sentencing of matter CC03/6100), the magistrate's sentence of two months imprisonment to commence on 24 May 2006 be confirmed.

* On the charge of drive whilst disqualified (CC05/3439), the magistrate's sentence of four months imprisonment cumulative upon the sentence imposed on CC06/3132 above be confirmed. In respect of that charge, the magistrate's disqualification of the appellant's driver's licence for three years also be confirmed.

* On the charge of drive whilst disqualified (CC05/3440), the magistrate's sentence of four months imprisonment to be served concurrently with matter number CC05/3439 be confirmed. The disqualification of the appellant's driver's licence for three years be confirmed.

* On the charge of drive whilst disqualified (CC05/3445), the magistrate's sentence be set aside and the appellant be re-sentenced to four months imprisonment to be served concurrently with matters number CC05/3439 and CC05/3440. The disqualification of driver's licence for three years be confirmed.

* On the charge of drive whilst disqualified (CC05/3446), the magistrate's sentence be set aside and the appellant be re-sentenced to four months imprisonment to be served concurrently with matters CC05/3439, CC05/3440 and CC05/3445. The disqualification of the appellant's driver's licence for three years be confirmed.

* In matter number C05/9610 (the conspiracy to traffic in a trafficable quantity of cannabis charge), the magistrate's sentence of 15 months imprisonment to be cumulative upon all the preceding sentences be confirmed. In relation to each of these matters, the magistrate's order of conviction is to stand and a non-parole period of 15 months to commence on 24 May 2006 and expire upon 23 August 2007 is to be fixed.

1. David Jeremy Peisley, the appellant, appeals against a sentence imposed in the ACT Magistrates Court on 24 May 2006. The appellant pleaded guilty to one charge of conspiracy to traffic in a trafficable quantity of cannabis, four charges of driving whilst disqualified and one charge of breach of a recognisance as a consequence of his conviction on the conspiracy charge.

The circumstances of the offences

2. The charges arose out of a police surveillance operation that commenced in December 2004 when the police began intercepting and monitoring calls from a mobile telephone owned by a co-conspirator. In March 2005, a telephone service in the appellant's name was also monitored and, subsequently, on 17 March 2005, the police executed a search warrant at the appellant's residential address. The police found several pieces of paper recording lists of prices of various quantities of cannabis. A significant sum of money was also found in the appellant's residence. The police also had under observation a co-conspirator, Ashley Charnock, and witnessed a supply of cannabis by that co-conspirator. The Statement of Facts put before the magistrate stated:

From the information received by monitoring of telephone calls, police estimate that the defendant and his co-conspirators were selling a significant quantity of cannabis on a weekly basis. Police estimate the conspirators sold many thousands of dollars worth of cannabis during the period of the conspiracy.

3. The police surveillance, to which I have referred, also brought to light the offences of driving whilst disqualified. The offences were detected in the course of the surveillance operation and related to the appellant driving a motor vehicle on four separate days in the period 24 January 2005 to 3 February 2005. The appellant has a significant past history of offences related to the driving of motor vehicles including offences of driving whilst his licence was disqualified or cancelled. The most relevant prior convictions were those in the ACT Magistrates Court in March 2004, where he had been disqualified from holding or obtaining a licence until 14 May 2005 and in the Queanbeyan Local Court on a further charge of drive whilst disqualified, where his licence was further disqualified for two years from 14 May 2005.

4. The conviction for conspiracy to traffic in a trafficable quantity of cannabis put him in breach of a recognisance that had been imposed when a sentence of six months imprisonment for possessing a trafficable quantity of cannabis for the purposes of sale or supply was suspended by the ACT Magistrates Court in November 2003.

The sentences

5. The magistrate proceeded to sentence the appellant by dealing firstly with the breach of recognisance charge and on that charge she re-sentenced the appellant on the original charge to a sentence of two months imprisonment. That sentence was to date from 24 May 2006, the date upon which the appellant was sentenced. In respect of the first two charges of drive whilst disqualified, the appellant was sentenced to four months imprisonment, cumulative upon the sentence for breach of recognisance. Those sentences were ordered to be served concurrently. On the other two drive whilst disqualified charges, the appellant was sentenced to six months imprisonment, three months of which was to be cumulative upon the two previous drive whilst disqualified charges. In respect to each of the drive whilst disqualified charges, the appellant's driver's licence was disqualified for three years. In relation to the conspiracy charge, a sentence of 15 months imprisonment was imposed and was ordered to be served cumulative upon the six months imprisonment that had been imposed for the third and fourth drive whilst disqualified charges. Overall, the sentence was a sentence of two years imprisonment from 24 May 2006. In respect of these sentences, the magistrate fixed a non-parole period of eighteen months to commence on 24 May 2006 and to expire on 23 November 2007.

The appeal

6. The appellant has appealed against the sentences imposed upon the third and fourth drive whilst disqualified offences as well as the sentence imposed on the charge of conspiracy. The grounds of appeal set out in the notice of appeal are:

(i) The penalty imposed was harsh and unreasonable.

(ii) The Magistrate failed to give proper weight to relevant matters pursuant to Section 342 of the Crimes Act.

(iii) The Magistrate took into consideration matters inappropriate in the sentencing process.

(iv) Findings of fact made by the Magistrate not supported by evidence.

(v) The Magistrate failed to take into account parity of sentencing of a co-offender.

(vi) The exercise of the Magistrate's discretion miscarried.

7. In support of these grounds, Mr Gillies, who appeared as counsel for the appellant, raised a number of issues but did not, other than in a general way, relate those issues to the grounds of appeal.

Conspiracy charge

8. In relation to the conspiracy charge, Mr Gillies took issue with the magistrate's characterisation of the offence as a significant commercial enterprise and as to the appellant's motivation with respect to it. I have already set out the assertions in the statement of facts concerning the police estimation of the extent of the conspiracy. The appellant was represented by experienced counsel. No issue was taken with this aspect of the statement of facts upon which the magistrate was entitled to rely for the purpose of assessing the nature and extent of the conspiracy charge. The only issue taken before the magistrate was with the amount and ownership of the significant quantity of cash found during the police search of the appellant's premises. In light of that, the magistrate was quite justified in making the findings that she did concerning the extent of the enterprise and the appellant's motivation in respect of it. Having regard to the specific assertions that had been made in the statement of facts, the appellant cannot fairly criticise the magistrate's findings based upon the matters before her on the sentencing hearing and in respect of which the appellant did not take issue. Indeed, having regard to the nature of the conspiracy, in my view, the sentence of 15 months which she imposed can be said to be at the lower end of the range of penalties open to her.

Parity between co-offenders

9. Although one of the grounds of appeal raises the issue of parity of sentencing with a co-offender, Mr Gillies' submissions seemed more directed to the nature and extent of the conspiracy rather than any issue arising from the sentencing of the co-conspirators. He did seek to make something of the fact that the conspirators were not charged together but, in fact, the same magistrate dealt with each of them and did so on the same factual basis in each case.

10. The charge of conspiracy alleged Adam Rudnicki and Ashley Charnock as the co-conspirators. On the day prior to sentencing the appellant, the magistrate had sentenced Adam Rudnicki on the counterpart charge of conspiracy to 52 periods of periodic detention. A week later, on 31 May 2006, it appears that she sentenced Ashley Charnock to 12 months imprisonment on the conspiracy charge.

11. In Mr Charnock's case, there were a number of other charges and a total sentence of 26 months imprisonment was imposed. The magistrate's sentencing remarks do not give a breakdown of the individual sentences but there is a notation on the information in respect of the conspiracy charge that states "12 months imprisonment cumulative to 05/40914". It is difficult to ascertain from the magistrate's sentencing remarks or from the court file itself whether the sentence for the conspiracy charge was additional to a period of almost three months pre-sentence custody that Mr Charnock had served before he was sentenced. I am inclined to think that it was. In any event, nothing was put to me that would suggest that there is any real disparity between the sentence imposed on the appellant and that imposed in respect of Mr Charnock.

12. In Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, Brennan J said (at 617):

The sentencing of co-offenders always requires a comparison of their conduct and antecedents. The imposition of comparable sentences upon co-offenders whose respective conduct and antecedents warrant disparate sentences is unjust. Similarly the imposition of disparate sentences upon co-offenders whose conduct and antecedents are comparable is unjust. A justified sense of unfair treatment is produced in either case. To facilitate the comparison of conduct and antecedents it is desirable that, where practicable, co-offenders be sentenced by the same judge at the same time.

As regard must be had to the comparative gravity of the conduct of co-offenders and to their respective antecedents, an appealable error is not shown by an offender who merely points to a lesser sentence imposed upon his co-offender.

13. In the present case, there are significant differences in the antecedents of Mr Rudnicki both as to his criminal history, the stability of his life and his prospects of rehabilitation which distinguish his case from the cases of his co-conspirators. These differences were recognised by the magistrate when she sentenced Mr Rudnicki. In my view, the sentence imposed on Mr Rudnicki reflects the "due discrimination" that should be made in sentencing co-offenders (see R v Tiddy [1969] SASR 575 at 577 cited with approval in Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295 at 309).

Rehabilitative prospects

14. Mr Gillies strongly criticised the magistrate for her comment that she was sentencing the appellant on the basis that "... there has to be more than a mere glimmer of hope and at the moment with this defendant there is not", when referring to the rehabilitative prospects of the appellant. However, it is clear from the Probation and Parole Report that the magistrate had before her that it was open to the magistrate to take such a pessimistic view of the appellant's rehabilitative prospects. That report records that it was not until 28 April 2006 that any attempt was made by the appellant to address his drug and alcohol problems. At that stage he entered Arcadia House Detoxification Unit in which he remained but six days. The ultimate conclusion in that report was in these terms:

Mr Peisley is a young man who has a history of cannabis use. His efforts in the past to overcome his illicit drug use appear to have been short lived, possibly because he has minimised his addiction and the associated difficulty in surmounting it. His own critical willingness to associate with other drug users indicates that he has little insight in respect of the immediate causes of his cannabis use.

The report goes on to say:

His current assertions of good intent are yet to be tested over time and in a community setting.

15. I do not regard the magistrate's observations on this aspect as insupportable and I do not see that they indicate error in fixing a non-parole period of 18 months in the context of a head sentence of 24 months. Overall, having regard to the appellant's previous criminal history and, even having regard to his comparatively young age, it was open to the magistrate to fix, as she did, the non-parole period as being two-thirds of the head sentence.

The drive whilst disqualified charges

16. Mr Gillies made the point that in relation to the drive whilst disqualified charges, there appears to be no apparent distinction with respect to the objective seriousness of those charges but in respect of one group, the magistrate considered that four months imprisonment was an appropriate response, in respect of the other group, that six months imprisonment should be imposed. There is also the consideration that the magistrate partially accumulated the second group of drive whilst disqualified offences in circumstances where all of the drive whilst disqualified offences had occurred over a relatively short and isolated period of time.

17. The approach that the magistrate was required to take in such circumstances is that set out in the judgment of McHugh, Hayne and Callinan JJ in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at 623 [45]:

To an offender, the only relevant question may be "how long", and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59).

18. Gummow, Callinan and Heydon JJ explained in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 that this is not necessarily an immutable approach and the court regarded Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, cited in Pearce, as the expression of a preferred rather than mandatory approach. In Johnson (supra), at 356, it was accepted that sentencing judges "should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected".

19. However, in the present case there is no explanation or obvious reason to justify the magistrate distinguishing the quantum of the sentence to be imposed on the four such closely connected series of offences that she was dealing with. The proportionality principle requires that the sentence should bear a reasonable proportionality to the facts of the offence. There is nothing which distinguishes the four offences here under consideration from each other. Nor does there appear to be any premise upon which partial concurrency can be supported by dividing what is essentially the one series of offences into two groupings.

20. When regard is had to the total effective sentence for these offences, the result is a total sentence of seven months imprisonment. That must be viewed against the maximum penalty set for the offence of drive whilst disqualified as a repeat offender which is 100 penalty units, imprisonment for one year, or both (s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT).

21. The magistrate was also entitled to give consideration to the provisions of s 434B of the Crimes Act 1900 (ACT) which provides:

434B Joinder of charges

(1) Charges against the same person for any number of offences against the same provision of a territory law may be joined in the same information or summons if the charges are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.

(2) If a person is convicted of 2 or more offences mentioned in subsection (1), and the offences relate to doing or failing to do the same act, the court may impose 1 penalty in relation to both or all the offences, but the penalty must not exceed the total of the maximum penalties that could be imposed if a separate penalty were imposed in relation to each offence.

22. That provision would justify (in the appropriate case) the imposition of a single penalty in respect of the drive disqualified offences Even if that course were not to be followed, the provision would support the appropriate penalties being made concurrent in a case like the present where the series of offences were virtually indistinguishable.

23. There is no doubt that the magistrate should have taken a serious view of the appellant's offending by his complete disregard of the court orders disqualifying him from holding a driver's licence. The reasons for so doing in respect of such offences are set out clearly in the South Australian Full Court case of Police v Cadd [1997] SASC 6566; (1997) 69 SASR 150 and do not need repetition here.

24. However, in the absence of reasons for adopting the course that she did or there being an apparent justification for it, I consider that the magistrate erred in increasing the sentence for the latter two of the drive disqualified offences and in ordering partial cumulation.

25. When this matter last came on for hearing, I took the view that I should deal with this matter by giving effect to the view that I have just expressed. It was agreed by counsel that that was best done by upholding the appeal and re-sentencing the appellant. That would involve fixing a new non-parole period which, broadly, would give effect to the proportion that the magistrate considered appropriate. To the extent necessary, I directed that the notice of appeal should be amended to bring before me the whole of the sentence and the time abridged for doing so. On that basis, on 2 February 2007, I made the following orders:

1. Appeal upheld;

2. The appellant be re-sentenced:

* On the charge of breach of recognisance (CC06/3132 (which is a re-sentencing of matter CC03/6100)), I confirm the magistrate's sentence of two months imprisonment to commence on 24 May 2006.

* On the charge of drive whilst disqualified (CC05/3439), I confirm the magistrate's sentence of four months imprisonment cumulative upon the sentence imposed on CC06/3132 above. In respect of that charge, I confirm the magistrate's disqualification of the appellant's driver's licence for three years.

* On the charge of drive whilst disqualified (CC05/3440), I confirm the magistrate's sentence of four months imprisonment to be served concurrently with matter number CC05/3439. I also confirm the disqualification of the appellant's driver's licence for three years.

* On the charge of drive whilst disqualified (CC05/3445), I set aside the magistrate's sentence and I sentence the appellant to four months imprisonment to be served concurrently with matters number CC05/3439 and CC05/3440 and also confirm the disqualification of driver's licence for three years.

* On the charge of drive whilst disqualified (CC05/3446), I set aside the magistrate's sentence and I sentence the appellant to four months imprisonment to be served concurrently with matters CC05/3439, CC05/3440 and CC05/3445. I confirm the disqualification of the appellant's driver's licence for three years.

* In matter number C05/9610 (the conspiracy to traffic in a trafficable quantity of cannabis charge), I confirm the magistrate's sentence of 15 months imprisonment to be cumulative upon all the preceding sentences. In relation to each of these matters, the magistrate's order of conviction is to stand and I fix a non-parole period of 15 months to commence on 24 May 2006 and expire upon 23 August 2007.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 15 February 2007

Counsel for the appellant: Mr A Gillies

Solicitor for the appellant: Ken Cush & Associates

Counsel for the respondent: Mr A Doig

Solicitor for the respondent: Director of Public Prosecutions (ACT)

Date of hearing: 9 August, 2006, 13 December 2006,

2 February 2007

Date of judgment: 15 February 2007