Minear v Collyer [2008] ACTSC 139 (17 December 2008)

Last Updated: 23 December 2008

BENJAMIN MINEAR v LUKE JAMES COLLYER [2008]

ACTSC 139 (17 December 2008)

APPEAL − appeal from decision of the Magistrates Court of the ACT − principles for determining appeals.

APPEAL − appeal considerations − admissibility of further evidence on appeal − Magistrates Court Act 1930 (ACT).

APPEAL − role of the DPP on appeal − appropriateness of DPP defending a sentence more severe than the one originally imposed − whether the DPP bound by original submissions on sentence.

CRIMINAL LAW − sentencing principles − nature of errors in relation to pleas of guilty.

CRIMINAL LAW − sentencing principles − error by Magistrate in treating appellant’s criminal history as a matter of aggravation.

CRIMINAL LAW − sentencing principles − whether Magistrate erred in treatment of appellant’s remorse and rehabilitation efforts.

CRIMINAL LAW − offences − act of indecency − assault occasioning actual bodily harm − common assault.

Crimes Act 1900 (ACT), subs 60(1), ss 24, 26

Crimes (Sentencing) Act 2005 (ACT), ss 10, 33, 35, 37, 77, 78

Magistrates Court Act 1930 (ACT), s 214

Criminal Appeal Act 1912 (NSW), subs 6(3)

Family Law Act 1975 (Cth), subs 93A(2)

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Baxter v R [2007] NSWCCA 237 (10 August 2007)

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357

R v Thomson; R v Houlton [2000] NSWCCA 309 (17 August 2000)

Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465

CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

R v Fowler [2007] ACTCA 4 (3 April 2007)

Raeyers v Casey [2008] ACTSC 123 (18 November 2008)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 93 of 2007

Judge: Penfold J

Supreme Court of the ACT

Date: 17 December 2008

IN THE SUPREME COURT OF THE )

) No. SCA 93 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: BENJAMIN MINEAR

Appellant

AND: LUKE JAMES COLLYER

Respondent

ORDER

Judge: Penfold J

Date: 17 December 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The appellant will be re-sentenced.

Introduction

1. Benjamin Minear has appealed from three sentences imposed in the Magistrates Court. These relate to:

(a) one offence of committing an act of indecency without consent, under subs 60(1) of the Crimes Act 1900 of the ACT (the Crimes Act);

(b) one offence of assault, under s 26 of the Crimes Act; and

(c) one offence of assault occasioning actual bodily harm, under s 24 of the Crimes Act.

2. The maximum penalties for the act of indecency and the assault occasioning actual bodily harm include 5 years imprisonment, and for assault the maximum term of imprisonment is 2 years.

Background

The circumstances of the offences

3. Late one night in August 2007 the appellant got into a taxi. He was very intoxicated. During the taxi-ride the appellant began to fondle the taxi-driver’s crotch, continuing despite the driver’s repeated requests for him to stop. This was the basis of the first charge.

4. The driver warned the appellant that he would contact the police if the appellant did not stop touching him. The appellant said words to the effect of “I don’t care, fuck police”, and began punching and kicking the driver, striking him in the face and on the shin. This was the basis of the second charge.

5. The driver then stopped the taxi on the side of the Monaro Highway in Hume, ACT. The appellant got out, and the driver locked the doors and pressed an emergency button on the taxi’s radio system. A short time later another taxi driver arrived at the scene to help the first driver. The appellant bit the second taxi driver on his arm. This was the basis of the third charge.

6. Police arrived soon afterwards and the appellant was subsequently charged.

7. At the sentencing hearing, the court heard that the appellant had a history of alcohol and drug abuse beginning when he was only 15, and that this probably related to attempts to self-manage an anxiety disorder that might have affected him since childhood. He had undergone a 12-month rehabilitation in 2003 which had enabled him to give up the use of illicit drugs, but he had since relapsed into serious alcohol abuse. On the night of the incident with the taxi drivers he was so badly affected by alcohol that police decided not to interview him.

Court processes

8. On 18 October 2007, the appellant, having pleaded guilty to all three charges, was convicted and sentenced in the Magistrates Court. He was fined $1,000 for the assault offence, and sentenced to a total term of 6 months imprisonment for the two other charges. The sentences comprised two terms to be served entirely consecutively by way of periodic detention:

(a) 3 months imprisonment for the act of indecency; and

(b) 3 months imprisonment for the assault occasioning actual bodily harm.

9. The first weekend of periodic detention was to commence on 26 October 2007, but the appeal lodged on 24 October 2007 operated to stay this sentence.

Grounds of appeal

10. The grounds of appeal were that:

(a) the sentences were manifestly excessive;

(b) the learned Magistrate erred in:

(i) failing to consider and/or improperly considering or applying the criteria contained in s 33 of the Crimes (Sentencing) Act 2005;

(ii) not allowing the proper discount for the guilty pleas;

(iii) finding that the appellant’s criminal history was a matter of aggravation.

Further evidence

11. The notice of appeal indicated that the appellant would not seek to put further evidence before the court, but at the hearing counsel sought to adduce several documents relating to the appellant’s employment status and mental health and other treatment he was receiving, and information provided orally about the appellant’s partner’s employment.

12. Counsel for the DPP objected to the admission of the further evidence because it was not foreshadowed in the notice of appeal, but more strenuously on the grounds that it was not in any case relevant to the appeal. However, for the reasons set out in [35] to [51] below, I consider that this evidence ought to be admissible in the appeal.

Principles for determining the appeal

13. In determining this appeal, I have applied s 214 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) in conjunction with principles that can be summarised as follows:

(a) First, the sentence imposed by the learned Magistrate is not to be overturned simply because I might have imposed a different sentence in the first instance (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672).

(b) Secondly, the original sentence may be replaced if the exercise of the learned Magistrate’s sentencing discretion was affected by a specific error, but only if the appeal court, in re-exercising the sentencing discretion, considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence (in some jurisdictions this approach is expressly provided for—see for instance subs 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237 (10 August 2007)). Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371).

(c) Thirdly, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). Furthermore, implicit also in such a finding is the conclusion that a different sentence is appropriate.

14. I shall now deal with the appellant’s appeal grounds by reference to the principles set out above. On the basis of those principles, the two appeal grounds (manifest excess and the three specific errors) are quite independent, and although they were argued as if they overlapped, I propose to deal with them separately and, for convenience, starting with the specific errors.

Consideration of grounds of appeal

Specific errors identified

Failure to deal properly with the criteria in section 33 of the Crimes (Sentencing) Act 2005 (ground (b)(i))

15. Counsel for the appellant submitted that the learned Magistrate erred in failing to consider, or insufficiently or improperly considering, a range of mitigating factors in sentencing. Those factors included the appellant’s acceptance of responsibility, his efforts to atone for his actions, and his attempts to rehabilitate through attendance at counselling sessions and Alcoholics Anonymous meetings. In the sentencing hearing, the learned Magistrate said “I also accept that [the appellant] is remorseful and that he has taken positive steps to address his alcohol problem which he believes caused him to act in the way that he did towards the two men that he assaulted on this particular occasion”. Although her Honour did not comment at any length about the appellant’s remorse and contrition and the help he had sought to overcome the problems that might have contributed to these offences, she clearly considered those matters, and I cannot see any basis for suggesting that she was in error in that consideration, or in the weight that she gave those matters.

Failure to allow proper discount for pleas of guilty (ground (b)(ii))

16. In the notice of appeal the sentencing Magistrate’s error was identified as “not allowing the proper discount for the guilty pleas”.

17. It is not clear that failing to give a sentencing discount as such is an error; s 35 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) confers a power rather than a duty to give such a discount. Nor is it clear that failing to give reasons for refusing such a discount is in breach of s 37 of the Sentencing Act which requires only that if such a discount is given, the sentence that would have been imposed but for the discount should be specified. Rather, the basic error in relation to sentencing discounts for pleas of guilty involves failing to have regard to a plea of guilty.

18. In the NSW Court of Criminal Appeal’s Guideline Judgment in R v Thomson; R v Houlton ([2000] NSWCCA 309 (17 August 2000)), Spigelman CJ said at [52]:

The absence of any reference to actual consideration of the guilty plea in the course of the sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight.

19. Failing to give reasons for refusing a discount might, therefore, lead to a finding of error if it meant that an appeal court could not be satisfied that the plea had been properly considered.

20. During the hearing her Honour suggested that the appellant was not entitled to the maximum discount for his plea of guilty, noting that no significant discount should be given if the case against the offender was overwhelming and also noting that the giving of a discount should not lead to a lesser penalty that was “unreasonably disproportionate to the nature [and] circumstances of the offence”.

21. However, when her Honour actually came to sentence the appellant to six months of imprisonment to be served as periodic detention, she said “but for this plea of guilty and his expressed remorse and the actions that the defendant has taken to address his behaviour, I would have imposed a sentence of nine months imprisonment to be served by way of full-time imprisonment”.

22. In argument at the hearing, counsel for the appellant conceded that the discount in fact given by her Honour partly in respect of the guilty pleas was quite a large discount. However, she insisted that the combination of her Honour’s comment that “no significant discount should be given” and the giving of a substantial discount amounted to an error consisting of “the vagueness of the Magistrate’s comments on affording a discount”.

23. It is true that her Honour did not specify the discount attributable to the guilty pleas as distinct from that attributable to remorse and rehabilitation, and her approach would certainly have been more “transparent” if she had specified the plea-of-guilty discount separately so that it could have been assessed against her earlier remarks. However, her Honour clearly took account of the guilty pleas, adverted to the law about sentencing discounts for such pleas, and then, partly by reference to the pleas, gave quite a generous discount (a sentence reduction of one-third, as well as permitting the sentence to be served as periodic detention rather than in full-time custody).

24. I therefore find that there was no error constituted by failing to give proper consideration to the guilty pleas, or indeed by the vagueness asserted by the appellant’s counsel. If her Honour did in fact fall into error, the error might have amounted to giving an excessively generous discount in the circumstances she had already described, but I refrain from making such a finding.

Treating the appellant’s criminal history as a matter of aggravation (ground (b)(iii))

25. It was submitted that the sentencing Magistrate gave undue weight to the appellant’s criminal record in sentencing.

26. In her sentencing comments, her Honour said “also an aggravating feature [is that] it is not the first time the defendant has been before the court for an offence of violence”.

27. Counsel for the appellant relied on the High Court decision of Veen v The Queen (No 2) [1988] HCA 14; (1987) 164 CLR 465, in which the relevance of an accused’s prior criminal history was explained by Kirby J (at 477) as follows:

[T]he antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.

28. To the extent that punishing an offender ever more severely because of repeat offending, rather than because the individual offences have become more serious, is justifiable, such an approach must relate to the need for specific deterrence of an offender who appears unwilling to learn from previous penalties. Even in that case, the penalty must still remain referable in some way to the actual offence committed.

29. The two offences referred to by her Honour consisted of a “resist arrest” and an “assault police”, committed in 2005. Although no details of those offences were put before me (or, apparently, before the learned Magistrate), an indication of their relatively minor nature can be found in the fact that the Adelaide Magistrates Court fined the appellant $400 but did not record a conviction on either charge. While even these offences might have reduced the appellant’s claims to leniency, counsel for the appellant submitted, and I agree, that the earlier offences could not be said to have shown that the current offences “[manifest] a continuing attitude of disobedience of the law” so as to warrant a more severe penalty within the range of penalties appropriate to the gravity of the current offences.

30. I find that her Honour erred in treating the prior criminal offences as “an aggravating feature” of the offences for which she was sentencing the appellant.

Was the sentence manifestly excessive?

31. Neither in her written submissions nor at the appeal hearing did counsel for the appellant actually argue that the overall sentence of 6 months periodic detention was manifestly excessive as such. Rather, she argued that as a result of the three specific errors identified in the Notice of Appeal, the sentence was too severe and a less severe penalty was warranted.

32. Counsel for the DPP submitted that the sentences were within range and therefore not manifestly excessive. No comparable cases were cited to support the existence of a range that included or excluded the particular sentences under appeal, but given that the maximum penalty for each offence includes imprisonment for up to 5 years, it is hard to see that sentences of 3 months imprisonment each could be out of range for offences of this nature.

33. In the absence of any argument explicitly supporting the “manifestly excessive” appeal ground, I note the appellant’s subjective circumstances, and particularly his regret and remorse, and his willingness to obtain treatment (both direct and indirect) for his alcohol problem. However, I consider that these are not enough, when set against the violence of the offences and in particular the fact that the appellant took advantage of the first taxi-driver’s vulnerability and of the second taxi-driver’s attempts to help his colleague, to indicate that sentences of three months imprisonment on each charge to be served as periodic detention, even when fully consecutive, are manifestly excessive.

Conclusions on appeal grounds

34. I have found that the learned Magistrate erred in her treatment of the appellant’s prior convictions (see [25] to [30] above), but that neither of the other errors specified, nor the claim of manifest excess, has been made out.

Further evidence

35. There is then the matter of the further evidence sought to be advanced about the effect of periodic detention on the appellant’s relationship.

Content of the evidence

36. The evidence consists of the following material:

(a) a letter from the appellant’s Canberra-based psychologist about the treatment that she is providing to him;

(b) a statement of attendance from the ACT Health Alcohol and Drug Program reporting the appellant’s attendance at 12 counselling appointments in 2007 and 2008, and also reporting the appellant’s advice that he has remained “abstinent of alcohol” since the offences were committed ;

(c) a letter from the appellant’s employer, a Canberra-based furniture business, confirming the appellant’s employment arrangements and his commitment to his work;

(d) advice given by the appellant’s counsel from the bar table about the appellant’s partner’s employment arrangements, specifically to the effect that the appellant’s partner works during the week in Sydney and returns to the couple’s principal residence only on weekends (counsel did offer to call the appellant to give sworn evidence to this effect, but this was not required).

37. The significance of this evidence was said by counsel to be:

(a) that the appellant’s rehabilitation, which was currently founded on him continuing with his current employment, his alcohol and drug counselling, and treatment from his existing psychologist, was centred in Canberra; and

(b) that the appellant’s partner, because of his employment in Sydney, is generally only available to the appellant on weekends, at their shared home just outside the ACT.

Admissibility of the evidence

38. Subsection 214(4) of the Magistrates Court Act requires the Supreme Court to receive evidence tendered in a relevant appeal if, in summary:

(a) the evidence is credible and would have been admissible on a relevant issue in the original proceedings; and

(b) there is a reasonable explanation for the failure to adduce the evidence in the original proceeding.

39. This requirement does not apply where the court is satisfied that the evidence could not afford any ground for allowing the appeal.

40. It is useful in this case to consider the tests for admitting the evidence in the reverse order.

Could the evidence afford any ground for allowing the appeal?

41. In relation to an appeal against sentence, the reference to whether the further evidence could afford any ground for allowing the appeal must have a limited scope. To the extent that the grounds for allowing an appeal against sentence consist of errors by the sentencing court, it is hard to see that evidence not available to the sentencing court could provide a ground for allowing an appeal. To say that a sentencing court fell into error, either specific or inferred, because of the absence of particular evidence would give an odd meaning to the word “error”. However, as mentioned in paragraph [13], even a sentence made in error should not be disturbed unless the appeal court considers that another sentence is appropriate, and new evidence that was not put to the sentencing court may be relevant to reaching that conclusion.

Is there a reasonable explanation for failing to adduce the evidence in the original proceeding?

42. It is necessary in answering this question first to mention the learned Magistrate’s approach to requiring the appellant’s sentences to be served by way of periodic detention.

43. The pre-sentence report available to the learned Magistrate said that, although the appellant was assessed as suitable for periodic detention, he had not consented to such an order. The relevant part of her Honour’s sentencing took the following course:

Having considered all of the factors in this case I am of the view that no other sentence other than a sentence of imprisonment is an appropriate sentence in the circumstances. And I would say, but for his plea of guilty and his expressed remorse and the actions that the defendant has taken to address his behaviour, I would have imposed a sentence of nine months’ imprisonment to be served by way of full-time imprisonment.

What I intend to do, taking those matters into account, I intend to impose a sentence – a total sentence of imprisonment of six months. I note in the pre-sentence report, Mr Bevan, that your client has not consented to periodic detention and I would be minded, unless you tell me otherwise, to impose – or to rather make an order that that sentence – six months will be the total sentence that I impose.

That that sentence be served by way of periodic detention. But if your client does not consent then he will serve that sentence in full-time jail.

MR BEVAN: Can I get some instructions, your Honour? Yes, I don’t know what the procedure – because he actually lives in New South Wales and he easily attends Symonston, there is no issue there.

HER HONOUR: He doesn’t – he works in the ACT, does he not?

MR BEVAN: Yes, yes and Symonston is very close by, closer than other places in the ACT to him.

HER HONOUR: So he consents to periodic detention?

MR BEVAN: Yes.

HER HONOUR: Stand up Mr Minear, if you would? On charge 7964, which is the assault occasioning actual bodily harm upon Mr Ting, you are convicted, sentenced to three month’s imprisonment. On charge number 8313, which is the act of indecency upon Mr Vo, you are convicted, sentenced to three months imprisonment.

44. In summary, her Honour noted the absence of consent but said that if there was no consent then the appellant would be serving his sentence in full-time custody. Unsurprisingly, he then instructed his counsel that he would consent and a periodic detention order was made applying to the full 6 months of the term of imprisonment.

45. It is not clear whether the comment in the pre-sentence report in fact reflected the appellant’s reluctance to undertake periodic detention, or originated with the report’s author and had misled the appellant into believing that periodic detention was not an option. Whatever the reason, the appellant’s counsel did not, after her Honour had indicated her intention to impose periodic detention, make proper representations about the problems that would be caused to the appellant by a sentence of periodic detention. The appellant’s failure to anticipate, and make submissions about, the impact of periodic detention may also be partly attributable to the fact that at the sentencing hearing several weeks before sentence was imposed, counsel for the DPP had said that a fully suspended sentence would be appropriate.

46. The question of when further evidence is admissible on appeal was considered in the family law case of CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172. Gaudron J, with whom McHugh, Gummow and Callinan JJ agreed, said in relation to subs 93A(2) of the Family Law Act 1975 (Cth):

The fact that the power to admit further evidence is conferred on a court exercising appellate jurisdiction is of considerable relevance. More particularly, it is relevant that it is a power to be exercised after a hearing conducted in accordance with procedures that allow the parties to put their case and, also, to answer the case made against them. That consideration requires that, ordinarily, further evidence should not be admitted on appeal if it was available, or could reasonably have been obtained, at the time of the hearing. (at [55])

Notwithstanding what has been said as to what should ordinarily be the case, different considerations may apply if the question is whether there has been some irregularity in the proceedings such that a party was unable to put his or her case effectively or effectively answer the case made by the other side. And that may be so even if the irregularity was not such as to constitute a denial of procedural fairness. (at [57])

47. I consider that her Honour’s failure to indicate at the earlier sentencing hearing that she was considering a sentence of periodic detention despite the DPP’s suggestion that a suspended sentence would be adequate, and her approach to obtaining consent to periodic detention and finalising the sentencing, were sufficiently irregular to bring this case within the test set out by Gaudron J.

48. In these circumstances, I find that there was a reasonable explanation for failing to adduce the evidence in the original proceeding.

Is the evidence credible, and would it have been admissible on a relevant issue in the original proceeding?

49. As described in [36] and [37] above, the evidence is relevant to the appellant’s rehabilitation prospects. It would certainly have been relevant at the original sentencing hearing. The written material is similar to material of the kind routinely admitted by consent in sentencing hearings in this court, and there is no reason to believe it is less credible than such similar material. It might have been preferable for the appellant to give evidence himself rather than to rely on his counsel, but as already mentioned this option was raised but not taken up either by me or by counsel for the DPP. I note that counsel for the DPP, while objecting to the evidence as not relevant on the appeal, did not dispute its credibility.

50. The effect of the evidence is outlined at [36] and [37] above. What counsel for the appellant wanted me to conclude from the evidence was that if the appellant remained working in Canberra while he was serving a sentence as periodic detention, he would rarely see his partner. The appellant’s other option would be to give up his job in Canberra so that he could spend the working week in Sydney with his partner, returning to the ACT each weekend to serve his sentence. This in turn would leave the appellant spending 6 months possibly unemployed and certainly without access to the support networks he has established in the Canberra region. Counsel for the appellant submitted that both the appellant’s current relationship, and maintaining his employment and counselling and treatment arrangements, are important to the appellant’s long-term rehabilitation.

Conclusion on further evidence

51. I find that the further evidence satisfies the criteria set out in subs 214(4) of the Magistrates Court Act and therefore should be admitted to the extent that it relates to the impact of the sentence of periodic detention on the appellant’s rehabilitation.

Is another sentence warranted?

Effect of admitting further evidence

52. The only appeal ground I find to be made out is the claim that the learned Magistrate erred in treating the appellant’s 2005 offences as an aggravating feature in relation to the current offences. In particular I have found that the sentence was not manifestly excessive, and in the absence of the further evidence I would have been inclined to dismiss the appeal on the basis that, despite the error established, another sentence was not warranted. However, the admission of further evidence to the effect set out in [50] above provides a basis for finding that another sentence, in particular a sentence other than periodic detention, is warranted.

Role of DPP on appeal

53. At the sentencing hearing in the Magistrates Court, the DPP suggested that a suspended sentence would be appropriate. However, DPP counsel at the appeal hearing submitted that periodic detention was the minimum appropriate sentence. In response, counsel for the appellant cited the cases of Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 and R v Fowler [2007] ACTCA 4 (3 April 2007) as authority for the proposition that it was not now appropriate for the DPP to seek to defend a sentence more severe than the one they had originally proposed.

54. Both Everett and Fowler involved Crown appeals against sentence, and in each case the DPP had not made any submission to the effect that the sentences being considered by the sentencing judge would be outside the proper scope of the sentencing discretion.

55. Crown appeals against sentence are not treated as on an equal footing with appeals against sentence by sentenced persons, and the courts have long tried to confine such appeals to cases raising matters of principle, as explained by Brennan, Deane, Dawson and Gaudron JJ in Everett at 299:

An appeal by the Crown against sentence has long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the [convicted person’s] freedom beyond the sentence imposed.

56. However, to say that a failure to oppose a particular sentence will tell against the strength of a Crown appeal is not the same as saying that, when a sentenced person chooses to re-open his sentence by an appeal, the Crown is not entitled to defend the sentence actually imposed just because that sentence had not been sought initially by the Crown. Nor does it follow from the principles applying to a Crown appeal that if, as a result of an appeal by the offender, the sentencing process is re-opened, the DPP is bound by its earlier sentencing submissions.

57. Accordingly, I do not consider that there is any basis for refusing to hear the submissions now made by counsel for the DPP to the effect that nothing less than periodic detention would be an appropriate sentence.

A sentence other than periodic detention is warranted

58. However, having regard to my finding of error by the learned Magistrate, to the further evidence that I have admitted that was not available to her Honour as a result of the sentencing process she adopted, and to both the sentencing submissions made by the DPP, including the original submission accepting that suspended sentences would be appropriate, I find that another sentence is warranted. Therefore the appeal will be upheld and the appellant will be re-sentenced.

Re-sentencing

59. For the purposes of re-sentencing, I have taken account of the material that was before the sentencing Magistrate and the further evidence that I have admitted. I agree with her Honour that this was a serious incident, in particular because the offences involved taxi drivers, who routinely place themselves in a position of vulnerability in order to provide an important service to the community. I further note that although the two offences arose out of the same incident, they were not interconnected in the way that, for instance, a burglary and theft from particular premises could be said to be connected. The appellant’s assault on the second taxi driver, arising as it did after the act of indecency had stopped and the first taxi-driver had secured himself in his taxi, might have been explicable by reference to the appellant’s intoxicated state but was by no means a predictable or natural successor to the first part of the incident. Thus, there is no particular reason to assume that sentences of imprisonment would necessarily run partly or fully concurrently.

60. Like the learned Magistrate, I am satisfied for the purposes of s 10 of the Sentencing Act that no sentence other than imprisonment was appropriate, and the appellant will be sentenced, for each of the act of indecency and the assault occasioning actual bodily harm, to 3 months imprisonment, to be served consecutively. But for the pleas of guilty, those sentences would have been 4 months imprisonment each.

61. Having regard to the appellant’s subjective circumstances as outlined at [7], [15], [29] and [50] above, I consider that full-time custody is not necessary in this case, and I note that periodic detention is undesirable in the interest of this appellant’s rehabilitation. I therefore propose to suspend the sentences.

62. A pre-sentence report provided for the hearing in the Magistrates Court was prepared by officers of the NSW Probation and Parole Service. The status of a NSW pre-sentence report as a basis for ordering periodic detention in accordance with ss 77 and 78 of the Sentencing Act (see Raeyers v Casey [2008] ACTSC 123 (18 November 2008)) was not argued on the appeal and I have not made any finding about that issue. However, my sentencing options at this point are limited by my view that a NSW report is not sufficient for the purposes of making an order under the Sentencing Act that can only be made by a court after receipt of a pre-sentence report under that Act. In particular I consider that, with only the NSW pre-sentence report available, I am unable to attach a community service order to the good behaviour orders required as part of suspending those sentences.

Orders

63. The orders therefore are that:

(a) the appeal is allowed; and

(b) the appellant will be re-sentenced.

I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 17 December 2008

Counsel for the appellant: Ms S Snell

Solicitor for the appellant: BevanSnell Lawyers

Counsel for the respondent: Ms C Hoult

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 1 April 2008

Date of judgment: 17 December 2008