Redden v Slavin-Molloy [2008] ACTSC 37 (29 April 2008)

Last Updated: 28 July 2008

JAY THOMAS REDDEN v MELANIE THEA SLAVIN-MOLLOY [2008]

ACTSC 37 (29 April 2008)

CRIMINAL LAW - appeal from decision of Magistrates Court of ACT - principles for determining appeals - severity of sentence - manifestly excessive sentence - Magistrates Court Act 1930 (ACT).

CRIMINAL LAW - sentencing principles - terms of imprisonment - how multiple sentences are to be served - Crimes (Sentencing) Act 2005 (ACT).

CRIMINAL LAW - offences - contravention of protection order - Domestic Violence and Protection Orders Act 2001 (ACT).

Domestic Violence and Protection Orders Act 2001 (ACT), s 34

Crimes (Sentencing) Act 2005 (ACT), ss 70, 71

Crimes (Sentencing Procedure) Act 1999, s 55

Crimes (Sentencing) Bill 2005

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

ON APPEAL FROM THE MAGISTRATES COURT

No. SCA 2 of 2008

Judge: Penfold J

Supreme Court of the ACT

Date: 29 April 2008

IN THE SUPREME COURT OF THE )

) No. SCA 2 of 2008

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT

BETWEEN: JAY THOMAS REDDEN

Appellant

AND: MELANIE THEA SLAVIN-MOLLOY

Respondent

ORDER

Judge: Penfold J

Date: 29 April 2008

Place: Canberra

THE COURT ORDERS THAT:

(a) The appeal is allowed;

(b) The appellant is sentenced to:

(1) for the offence of breaching a protection order on 5 August 2007--6 months imprisonment backdated to 28 August 2007 and expiring on 27 February 2008;

(2) for the offence of breaching a protection order on 6 August 2007--6 months imprisonment, backdated to 28 October 2007 and expiring on 27 April 2008. Introduction

1. This is an appeal from sentences imposed in the Magistrates Court in respect of two offences of contravening a protection order under s 34 of the Domestic Violence and Protection Orders Act 2001 of the ACT.

2. At the same hearing, the appellant was convicted and sentenced in respect of six other charges, but these are not covered by the appeal.

Background

Circumstances of the offences

3. In December 2006 a person with whom the appellant had been in a relationship was granted a protection order against the appellant for a period of two years. This order precluded the appellant from being within 100 metres of the protected person, and from harassing, threatening or intimidating her.

4. At about 11:45 pm on 5 August 2007 the appellant attended the protected person's home. When she refused to let the appellant inside, he began yelling, and apparently attempted to break down her door. She called for help, and the appellant fled the scene.

5. Just before 7:00 pm the next day, 6 August, the appellant returned to the protected person's home, again trying to obtain entry. When this was refused, he struck the front door to the residence, causing damage to the door. The appellant ran away when he was told that the police were being called.

Court processes

6. Before committing the offences described above, the appellant had appeared in the Magistrates Court on 23 May 2007 for a number of earlier offences, including four charges of contravening a protection order. The appellant was convicted and sentenced, among other things, to a total of 9 months imprisonment (consisting of two concurrent sentences of 3 months and a cumulative sentence of 6 months) to be served by way of periodic detention. The sentence of 6 months imprisonment to be served as periodic detention was imposed for one of the protection order breaches.

7. The appellant failed to comply with his periodic detention obligations, and the periodic detention order relating to the 3 months imprisonment was revoked in July 2007 by the Sentence Administration Board (SAB), rendering the appellant liable to serve the sentence in full-time custody. The appellant was taken into custody to begin serving that sentence on 28 August 2007.

8. On 26 November 2007, the SAB cancelled the second periodic detention order (relating to the 6-month term of imprisonment). The second period of imprisonment will be completed on 12 May 2008, because the effect of the SAB's decision was to start the second term of imprisonment from 13 November 2007, some two weeks before the appellant would have completed the earlier term of imprisonment.

9. Between August and December 2007 the appellant appeared in the Magistrates Court on seven occasions in relation to the August breaches of the protection order and several other matters. Sentencing was delayed for reasons relating to the SAB's consideration of the second periodic detention order and the learned Magistrate's availability to complete the sentencing process.

10. Finally, on 17 December 2007, the appellant was sentenced to terms of imprisonment in respect of two offences of driving while disqualified, one offence of breaching a good behaviour order, and the two August breaches of the protection order, as follows:

(a) for the two driving offences and the breach of the good behaviour order--three terms of 3 months imprisonment, all to be served concurrently starting on 28 August 2007 (the day the appellant had been taken into custody as a result of the cancellation of the first periodic detention order);

(b) for the first August breach of the protection order--10 months imprisonment, 6 months of which was to be cumulative on the 6 months imprisonment imposed by the SAB to start on 13 November 2007;

(c) for the second August breach of the protection order--15 months imprisonment, 12 months of which was to be cumulative on the 6 months imprisonment imposed by the SAB to start on 13 November.

11. The learned Magistrate also imposed a non-parole period of 12 months, backdated to 28 August 2007 and therefore expiring on 27 August 2008. This meant that the appellant would remain in prison for at least 3 months after the expiration of the 6-month period of imprisonment he was already serving.

Grounds for appeal

12. Counsel for the appellant raised two grounds of appeal. The first was that there was an error in the sentencing process relating to the timing specified by the learned Magistrate for the several sentences to be served. The second was the general ground that the sentences were manifestly excessive.

Concurrent and consecutive sentences

13. Because of my decision on the "manifestly excessive" ground, there is no need for me to reach a conclusion on whether the sentencing process was infected by error constituted by a breach of s 71 of the Crimes (Sentencing) Act 2005. However, it may be useful at least to indicate the issue raised at the appeal hearing.

14. The sentences as imposed by the learned Magistrate ran so that there was a gap of about 6 weeks between the end of the three 3-month sentences (which in effect had already been served before the date on which they were imposed) and the start of the 10-month period imposed in respect of the first August breach of the protection order. This gap was, however, covered by the 6 months imprisonment then being served as a result of the cancellation of the 6-month periodic detention order, so there would be no break in the period for which the appellant was to be in custody.

15. Counsel for the appellant submitted that the learned Magistrate's approach to sentencing (specifically, the imposition of a package of sentences including one that was neither concurrent with nor consecutive on a sentence to be served earlier) was not permissible under s 71 of the Crimes (Sentencing) Act 2005, which deals with how multiple sentences are to be served.

16. Section 71 depends for its operation on two concepts, the "primary sentence" and the "existing sentence", which are defined in s 70 as follows:

(1) This part applies to a sentence of imprisonment (a primary sentence) imposed by a court on an offender if -

(a) any of the following apply in relation to the offender:

(i) when the primary sentence is imposed, the offender is serving another sentence of imprisonment (an existing sentence);

(ii) the offender has been sentenced to another sentence of imprisonment (also an existing sentence) but, when the primary sentence is imposed, the other sentence has not yet started;

(iii) the offender is sentenced to another sentence of imprisonment (also an existing sentence) in the same proceeding; and

(b) the existing sentence is for an offence against a territory law; and

(c) the primary sentence is not fully suspended.

17. The "primary sentence" is the sentence that the court is in the process of imposing. Each of several other sentences may be "an existing sentence" or "also an existing sentence" (emphasis added). These are a sentence the offender is already serving, another sentence previously imposed but not yet started, and another sentence imposed in the current sentencing proceeding.

18. Thus, when a court comes to impose a "primary" sentence, there may be (and there were in this case) multiple "existing sentences" with different start and end dates.

19. The relevant subsections of s 71 are as follows:

(1) In the absence of a direction under subsection (2), the primary sentence must be served concurrently with the existing sentence.

(2) The court may direct that the primary sentence be served consecutively (or partly concurrently and partly consecutively) with the existing sentence.

20. It is difficult to work out what meaning is to be given to s 71(1), and what the sentencing court is required to do, where there are multiple "existing" sentences with different start and end dates (a situation which is clearly contemplated by the words of s 70).

21. The Explanatory Statement for the Crimes (Sentencing) Bill 2005 does not help in resolving this uncertainty. Apart from material paraphrasing individual provisions, it reads as follows:

Clause 70 - Application of part 5.3

Clause 70(1) identifies two concepts: a primary sentence and an existing sentence. In essence the primary sentence is the sentence being contemplated at the time the court is sentencing an offender. A existing sentence is either: another sentence already being served by the offender; another sentence against the offender made but not yet executed; or another sentence being imposed at the same time as the primary sentence.

In essence, part 5.3 contemplates how courts should deal with two or more sentences. This part assists the Court to answer the question: should the sentences be served concurrently, consecutively, or partially overlap? Concurrent has its common meaning of `occurring side by side', or `existing together'. Likewise, consecutive has its common meaning of `following one another'.

...

Clause 71 stipulates the application [sic] concurrent and consecutive sentences. The default position is that both sentences are served concurrently.

22. It is apparent that the author of the Explanatory Statement has not recognised the disjunction between cl 70, which deals with "how courts should deal with two or more sentences" and cl 71(1), which covers the default position only in relation to "both sentences".

23. An examination of the equivalent NSW provision (s 55 of the Crimes (Sentencing Procedure) Act 1999) provides some clues as to the meaning of ss 70 and 71. Those sections appear to be intended to convey the same meaning as the NSW provision, but the ACT provision is notably different in its structure and wording.

24. First, the ACT provisions identify the various existing sentences that may be relevant to the imposition of a new sentence, and separately specify how the several sentences may interact. This separation appears to have masked the question whether the operative provision (s 71) applies only to one "existing" sentence (and if so, which one?) or to all of them (and if so, how?). In contrast, the NSW Act, by adverting to the possibility of multiple existing sentences in the operative provision, ensures that the case of multiple sentences is not overlooked.

25. Furthermore, the NSW Act, in providing that a sentence "is to" be served in a specified way, is simply a statement of how things will happen. In contrast, the ACT provision, to the effect that sentences "must" satisfy the specified requirements, reads as an implicit direction to the court to sentence in a particular way.

26. The NSW default provision (s 55(1)) is accordingly easier to read as simply a provision about how sentences will run, absent any direction from the court, and about the powers of the court to override the default arrangements. Questions of the impact of the ACT provisions generally, whether they are intended to impose obligations on the sentencing court, and whether the learned Magistrate might have failed to comply with any such obligations in the approach he took to this sentencing, are not readily answered, and fortunately do not need to be decided for the purposes of this appeal.

Were the sentences manifestly excessive?

27. Counsel for the appellant submitted that the 10-month and the 15-month sentences were manifestly excessive. In support of this submission counsel made two main points about the appropriateness of the penalties.

28. The first was that although the sentences were not a substantial proportion of the maximum penalty (25 per cent in the case of the second and longer one) they were nevertheless substantial sentences in themselves having regard to the objective seriousness of the offences.

29. In support of this claim, counsel conceded that the offences were serious, but pointed to a range of mitigating factors. The matters that contributed to the seriousness of the offences included:

(a) that they involved a degree of actual or threatened violence (at least to the home of the protected person);

(b) that one breach occurred late at night while the protected person was alone; and

(c) that the behaviour constituting the first breach was repeated on the next evening.

30. The mitigating factors asserted were:

(a) that despite the existence of the protection order, the appellant and the protected person had resumed their relationship in the months before August 2007;

(b) that the appellant had been paying the protected person's rent on the understanding that she would repay him in due course;,

(c) that the visits to the protected person's home that constituted the two breaches were made to collect the money owed to the appellant;,

(d) that one of the visits had been arranged by telephone earlier on the day in question ; and

(e) finally, that the protected person had visited the appellant in the Belconnen Remand Centre with the result that she herself was eventually prosecuted for aiding and abetting a breach of the protection order.

31. It is hard to know how much weight to place on these claims in mitigation. None of them is apparently disputed by the respondent, but nor are they included in the agreed statements of facts, and nor was any supporting evidence (other than, apparently, from the bar table) put before the learned Magistrate.

32. Indeed his Honour, if he did hear the assertion that one of the two visits was pre-arranged with the protected person, appears to have placed little reliance on it, saying "it has not been suggested on behalf of the defendant that he had any belief that the [complainant] welcomed or consented to his attendance at her premises". Of course, there is no necessary inconsistency between a claim by the appellant that the visit was notified in advance and a finding by the learned Magistrate that there was no belief that the complainant welcomed or consented to the appellant's visit.

33. As well, counsel submitted that the two sentences of imprisonment of 10 and 15 months respectively were excessive by comparison with the previous sentence for a protection order breach of 6 months imprisonment to be served by way of periodic detention.

34. It is clear that, within the range of sentences suitable by reference to the objective seriousness of an offence, the need for personal deterrence will sometimes drive a sentencing court towards the severe end of that range of suitable sentences. However, it is not at all clear that behaviour that is not objectively a serious example of the offence will ever justify a penalty close to the maximum penalty, irrespective of repetition (see, for instance, Veen v The Queen (No. 2) [1988] HCA 14; (1987) 164 CLR 465).

35. Given that the relatively high sentences for the August offences may have reflected the learned Magistrate's concerns about the need for specific deterrence, it is useful to consider the significance of specific deterrence in this case.

36. The circumstances of the previous protection order breach for which the appellant received the 6-month term of imprisonment were not before me, and it is not clear that they were before the learned Magistrate when he imposed the sentences now subject to appeal. However, in the absence of that information, it appears that his Honour might have imposed significantly higher penalties for the later offences not because they were noticeably more serious offences but simply because they were the latest in a series of breaches of the protection order.

37. The two later sentences were at least twice as severe as the most severe of the various sentences previously imposed for protection order breaches. However, given the circumstances of the later offences, if the earlier offences were so much less serious as to justify the sentencing differentials, it is hard to see that they would have justified terms of imprisonment at all. This is particularly so if all the mitigating factors mentioned by counsel for the appellant in relation to the later offences are accepted.

38. 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.

39. In this case, any feeling by the learned Magistrate that penalties needed to be increased because previous penalties had been ignored may have been premature. That is, although the appellant had previously been sentenced to two terms of imprisonment totalling 9 months, they were to be served by periodic detention, and it seems that, at the time the two later offences were committed in early August, the appellant had not served any full-time custody or even any periodic detention. It cannot be assumed, therefore, that his actions in early August were informed by any understanding of the reality of a custodial sentence. Thus, any sense that his Honour might have had that shorter custodial sentences were not an effective deterrent for the appellant was not justified by the appellant's behaviour to that point.

40. It may seem inappropriate to give the appellant any leeway on this basis given that he should by early August have completed several periods of periodic detention and had failed to do so, but this does not change the position that, as far as his record shows, when he committed the August offences he had not experienced any form of custodial sentence.

Determination of the appeal

41. For the purposes of determining this appeal, it would be enough for me to find either specific error on the part of the sentencing Magistrate and that the imposition of another sentence is warranted, or that the sentences were manifestly excessive such that error can be inferred. If I find that the sentences were manifestly excessive, that of course implies that other sentences are warranted.

42. In this case, counsel for the appellant argued the "manifestly excessive" ground rather than identifying specific errors. In all the circumstances, in particular the comparison between the lengths of the earlier custodial sentences and the later sentences, the temporal relationship between the August breaches and the appellant's first experience of full-time custody, and the mitigating factors mentioned above, I find that the sentences of 10 and 15 months full-time custody were excessive, such that error on the part of the learned Magistrate can be inferred, and that the imposition of other sentences is warranted.

Re-sentencing

43. Accordingly, it is necessary to re-sentence the appellant.

44. Having regard to the information that was before the learned Magistrate, and the information offered by counsel for the appellant that was not challenged by counsel for the respondent (in particular the information about the protected person's behaviour while the appellant was in the remand centre), I consider that sentences of 6 months each, the second one to be served with the first one concurrently as to 4 months and consecutively as to 2 months, would be appropriate. But for the appellant's pleas of guilty, the two sentences would have been for terms of imprisonment of 8 months each.

45. The question then is the date to which the sentences should be backdated. The learned Magistrate appears to have concluded that the second two offences should not amount to a "free kick", in the sense of providing no further imprisonment than had resulted from the cancellation of the periodic detention orders in relation to the earlier offences. This conclusion is understandable. However, given:

(a) the delay in sentencing the appellant for the second two offences, most or all of which appears to have been beyond the appellant's control;

(b) the learned Magistrate's assurance to the appellant on 8 October 2007 that the time served during at least part of that delay would be taken into account; and

(c) my view that the August offences were committed in the absence of any real deterrent effect from the periodic detention orders;

I do not consider that it would be proper now to set those sentences so as to ensure a further period of imprisonment for the appellant after the end of the imprisonment arising out of the cancelled periodic detention orders.

46. Accordingly, the sentence in respect of the 5 August offence will be backdated to 28 August 2007, with the sentence in respect of the 6 August offence starting on 28 October 2007 and expiring on 27 April 2008. The net effect of this, of course, is that those periods of imprisonment have now been completed and the appellant will remain in custody only in respect of the cancelled 6-month periodic detention order.

47. It would be unfortunate if the appellant were to treat this result as any kind of indication that this court does not take breaches of protection orders seriously. By the time he is released next month, he will be a person who has served at least three periods of full-time imprisonment for breaches of protection orders, and he should not expect any leniency if he commits further such offences. Nor will a sentencing court in the future be constrained by any reluctance to commit to prison a person who has not previously served a period of full-time custody.

Orders

48. The orders are as follows:

(a) The appeal is allowed;

(b) The appellant is sentenced to:

(1) for the offence of breaching a protection order on 5 August 2007--6 months imprisonment backdated to 28 August 2007 and expiring on 27 February 2008;

(2) for the offence of breaching a protection order on 6 August 2007--6 months imprisonment, backdated to 28 October 2007 and expiring on 27 April 2008.

I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 29 April 2008

Counsel for the appellant: Mr S Gill

Solicitor for the appellant: Legal Aid Office (ACT)

Counsel for the respondent: Mr M Clark

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 18 April 2008

Date of judgment: 29 April 2008