Znotins v Heazlewood [2008] ACTSC 35 (8 May 2008)

Last Updated: 16 June 2008

VIKTOR JOHN ZNOTINS v LEIGH ANTHONY HEAZLEWOOD [2008]

ACTSC 35 (8 May 2008)

CRIMINAL LAW - appeal from decision of the Magistrates Court of the ACT - principles for determining appeals - error of law by Magistrate - manifestly excessive sentence - Magistrates Court Act 1930 (ACT).

CRIMINAL LAW - sentencing principles - terms of imprisonment - how term of imprisonment to be served - repeat offenders - periodic detention - when maximum penalties are appropriate - Crimes (Sentencing) Act 2005 (ACT).

CRIMINAL LAW - acts of indecency - appellant charged with indecent exposure - mental health - impact of supervision by Mental Health Tribunal and ACT Health.

Crimes Act 1900 (ACT), s 393

Crimes (Sentence Administration) Act 2005, s 68

Magistrates Court Act 1930, s 214

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

Lowndes v The Queen (1999) CLR 665

Baxter v R [2007] NSWCCA 237

House v The King (1936) CLR 499

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

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

Craft v Diebert [2004] ACTCA 15

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 98 of 2007

Judge: Penfold J

Supreme Court of the ACT

Date: 8 May 2008

IN THE SUPREME COURT OF THE )

) No. SCA 98 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: VIKTOR JOHN ZNOTINS

Appellant

AND: LEIGH ANTHONY HEAZLEWOOD

Respondent

ORDER

Judge: Penfold J

Date: 8 May 2008

Place: Canberra

THE COURT ORDERS THAT:

1. (a) the application to adduce further evidence is refused;

(b) the appeal is allowed; and

(c) the appellant is sentenced to imprisonment for 4 months, the sentence to be backdated to 13 January 2008 to take account of time already served, and to be immediately suspended subject to a good behaviour order for 6 months including:

(i) a probation condition requiring the appellant to be on probation subject to the supervision of the Chief Executive, and to obey all reasonable directions of the Chief Executive or her delegate; and

(ii) a condition requiring the appellant to undertake medical treatments and supervision as reasonably directed by the Chief Executive or her delegate, or by ACT Health or the Mental Health Tribunal, whether or not under an involuntary mental health order.

Introduction

1. This is an appeal from a sentence imposed in the Magistrates Court in respect of an offence of indecent exposure under s 393 of the Crimes Act 1900 of the ACT. At the same hearing, the appellant was also re-sentenced in relation to a breach of a good behaviour order, but there is no appeal against that sentence.

Background

The circumstances of the offence

2. At about 6.50 am on 9 May 2007, the appellant, Victor John Znotins, was observed to be exposing himself in the backyard of his Canberra home. The observation was made by a neighbour who was walking her dog in the nature reserve adjacent to the appellant's backyard. The neighbour made a complaint to the ACT police, and the next day the appellant was charged with indecent exposure. The appellant appeared in the Magistrates Court on 11 May, and was remanded in custody. He entered a plea of guilty on 18 May and was sentenced on 16 August 2007.

Court processes

3. The appellant has a history of indecent exposure offences, and the conviction concerned was his 17th conviction for offences of this kind. Noting this, and that the maximum penalty for the instant offence was 12 months imprisonment, the learned Magistrate sentenced the appellant to 9 months imprisonment, backdated to 10 May 2007 to take account of the period already spent in custody. Her Honour specified that the first 3 months, just under the period already spent in custody, would be served as full-time custody, the second 3 months would be served as periodic detention, and the last 3 months would be suspended subject to a good behaviour order.

4. The appellant was accordingly released from full-time custody, and his first weekend of periodic detention began on 17 August 2007.

5. Problems with the periodic detention emerged almost immediately. The appellant failed to attend for periodic detention on several weekends, relying on medical certificates for some of the weekends missed. On 23 November 2007 the Sentence Administration Board found that the appellant had breached his periodic detention obligations, and cancelled the periodic detention order under s 68 of the Crimes (Sentence Administration) Act 2005.

6. The appellant was thereupon taken into custody, but on 26 November 2007 was released on bail, pending this appeal against sentence, which had been lodged on 20 November 2007 after an extension of time was granted.

Grounds for appeal

7. Grounds for appeal were set out in the Notice of Appeal, but the appellant's written submissions set out a different set of appeal grounds, as follows:

(a) the sentence is manifestly excessive;

(b) the Learned Magistrate erred in imposing a sentence of full time imprisonment;

(c) the Learned Magistrate erred in declining to impose a community based sentence, in addition to the time served of 3 months and 8 days;

(d) the Learned Magistrate gave excessive weight to the objective circumstances of the offence, and the appellant's criminal history;

(e) the Learned Magistrate gave insufficient weight to the subjective circumstances of the appellant;

(f) the appellant's physical and mental health have deteriorated since the date of sentence.

8. Counsel for the respondent did not object to the revised grounds of appeal.

9. At the hearing, counsel for the appellant sought to adduce further evidence, mainly about events since Mr Znotins was sentenced but in minor respects covering events in the few days before the sentencing.

Principles for determining the appeal

10. In determining this appeal, I have applied s 214 of the Magistrates Court Act 1930 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) 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 s 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237). 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) 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.

Was there error in the exercise of the sentencing discretion?

11. Counsel for the appellant did not argue the individual grounds for appeal, and indicated that, while she did rely on all the grounds, her primary ground was the first one, namely that the sentence is manifestly excessive.

12. The way in which a period of imprisonment is to be served will unarguably affect the nature of the burden imposed on the offender, but there is authority to the effect that if imprisonment is to be imposed, the appropriate term of imprisonment must be set before there is any consideration of how that term might be served (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 346, and see also Craft v Diebert [2004] ACTCA 15 at [67]). Thus, a sentence of 9 months imprisonment is only appropriate if the offence would warrant the offender being in full-time custody for that period.

13. Having decided on the proper term of imprisonment, the court must then consider whether the term is to be served in full-time custody or by periodic detention, or whether it can be suspended. Periodic detention or suspending the sentence might be chosen, for instance, in the interests of furthering the offender's rehabilitation (to the benefit of both the offender and the community), but in such a case an offender who does not take advantage of the rehabilitation opportunity being offered remains at risk of serving the period of imprisonment in full-time custody. For this reason, it is inappropriate for a court to impose a longer sentence because the court intends to suspend the sentence or allow it to be served by periodic detention; hence the need to adopt a two-stage process of first determining the appropriate term of imprisonment and secondly determining how it is to be served.

14. In considering whether the learned Magistrate's sentencing discretion miscarried, the sentence must therefore be examined as a sentence of imprisonment for 9 months, irrespective of the orders made by her Honour for most of the sentence to be served otherwise than as full-time custody.

15. The learned Magistrate identified the offence for which she was sentencing the appellant as his 17th conviction "for such an offence", and said that he "must be getting close to facing" the maximum penalty for the offence, namely 12 months imprisonment.

16. In suggesting that his repetition of indecent exposure offences made the appellant ever more likely to face the maximum penalty for the offence, the learned Magistrate appears to have fallen into error in two ways, both of which were addressed by the High Court in the case of Veen v The Queen [No. 2] ((1988) [1988] HCA 14; 164 CLR 465).

17. First, the learned Magistrate may have placed too much weight on the appellant's prior convictions, contrary to the principle that:

... the 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. ((1988) [1988] HCA 14; 164 CLR 465 at 477)

18. Secondly, the learned Magistrate may have overlooked the principle that "the maximum penalty prescribed for an offence is intended for cases falling within the worst category of cases for which that penalty is prescribed", ((1988) [1988] HCA 14; 164 CLR 465 at 478).

19. The 9 months imprisonment imposed was not the maximum penalty prescribed but was 75 per cent of it. On the other hand, the particular offence committed by the appellant fell a long way short of the worst category of indecent exposure offences. The offence was committed early in the morning within the appellant's own property, and the appellant had made some attempts, albeit not particularly effective, to provide a screen between his property and the adjoining public area from which he was observed.

20. If anything, the appellant's offence appears to be at the lower end of the spectrum of seriousness, and not of itself deserving of anything like three-quarters of the maximum penalty. Indeed, the learned Magistrate did not suggest that the appellant's offence of itself was a particularly serious case; rather, she appears to have found that it was deserving of a penalty in the higher range simply because this was the appellant's 17th conviction for a relevant offence.

21. The learned Magistrate was clearly frustrated by the apparent failure of previous sentences imposed on the appellant to deter him from further similar offences. However, even if her Honour had seen the appellant's persistent re-offending as indicating "a continuing attitude of disobedience of the law" (Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 477) rather than, as she described it, indicating "urges" that he had trouble controlling, the imposition of a penalty more than twice as high as penalties for the previous offences was still excessive.

22. It is notable that all the appellant's previous similar offences had resulted in much lower penalties, namely a maximum of 4 months imprisonment for some earlier indecent exposure offences and even periods of only 6 months imprisonment for offences involving an indecent assault and an act of indecency on a person between the ages of 10 and 16 years. In imposing a high-range penalty for a low-range offence by reference to the appellant's previous convictions, the learned Magistrate has imposed a penalty which is disproportionate to the gravity of the instant offence.

23. I therefore find that the learned Magistrate's exercise of her sentencing discretion was infected by error and that the appellant should be re-sentenced. It is accordingly unnecessary for me to examine the appeal grounds identified above as grounds (b), (c), (d) or (e), except to note that ground (d) has been made out to the extent that it relates to the learned Magistrate's approach to the appellant's criminal history. Nor has it been necessary for me to decide whether ground (f), that "the appellant's physical and mental health have deteriorated since the date of sentence", could be made out or to decide whether to admit the further evidence tendered on the appellant's behalf.

24. I note in passing, although it was not raised by counsel, that the learned Magistrate in her sentencing did not appear to take account of the appellant's plea of guilty, nor to expressly disregard it for any reason. However, because error in the exercise of the sentencing discretion has already been identified, there is no need to consider this issue further at this stage.

Re-sentencing

25. For the purpose of re-sentencing the appellant I have taken into account the periodic detention actually served by the appellant before the Sentence Administration Board cancelled the periodic detention order, and I have also noted the advice provided by the appellant's solicitor after the hearing in this court on 15 February, to the effect that a further Psychiatric Treatment Order was made on 27 February 2008.

26. In the context of re-sentencing, and having regard to my earlier examination of the level of penalty that could properly be imposed in this case, I do not consider that the other material tendered on behalf of the appellant adds anything significant to the material that was already before the learned Magistrate. Noting that original material, and in particular the nature of the offence, the appellant's status as a repeat offender, his medical and mental health problems, and his remorse and wish to deal with his offending behaviour as expressed during the hearing in the Magistrates Court, I consider that an appropriate sentence would be 5 months imprisonment, reduced to 4 months under s 35 of the Crimes (Sentencing) Act 2005 because of the appellant's guilty plea.

27. By my calculations, the appellant has now served the equivalent of 3 months and 26 days (3 months and 8 days in custody before sentence, 4 days in custody after the periodic detention order was cancelled, and 2 weeks by way of periodic detention (the 2 weeks has been worked out by reference to the order of the Sentence Administration Board setting out the remaining period still to be served by the appellant)). The outstanding portion of the 4 months imprisonment will be suspended subject to a good behaviour order for 6 months.

Orders

28. Accordingly, the orders will be as follows:

(a) the application to adduce further evidence is refused;

(b) the appeal is allowed; and

(c) the appellant is sentenced to imprisonment for 4 months, the sentence to be backdated to 13 January 2008 to take account of time already served, and to be immediately suspended subject to a good behaviour order for 6 months including:

(i) a probation condition requiring the appellant to be on probation subject to the supervision of the Chief Executive, and to obey all reasonable directions of the Chief Executive or her delegate; and

(ii) a condition requiring the appellant to undertake medical treatments and supervision as reasonably directed by the Chief Executive or her delegate, or by ACT Health or the Mental Health Tribunal, whether or not under an involuntary mental health order.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 8 May 2008

Counsel for the appellant: Ms T Warwick

Solicitor for the appellant: Darryl Perkins Solicitors

Counsel for the respondent: Mr M Clark

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 15 February 2008

Date of judgment: 8 May 2008