Irwin v Houlihan [2008] ACTSC 90 (26 September 2008)

Last Updated: 26 September 2008

JASON IRWIN v LUKE GERARD HOULIHAN [2008]

ACTSC 90 (26 September 2008)

CRIMINAL LAW – appeal from decision of the Magistrates Court of the ACT – principles for determining appeals – error of law by Magistrate.

CRIMINAL LAW – sentencing principles – discount for assistance to authorities – requirement to state penalty that would have been imposed but for assistance – Crimes (Sentencing) Act 2005 (ACT) ss 36, 37.

CRIMINAL LAW – offences – trafficking in MDMA – re-sentencing – offence committed for financial gain rather than to support drug addiction – early plea of guilty – absence of prior criminal history – co-operation with authorities.

EVIDENCE – further evidence – effect of changes occurring after appellant sentenced – appellant’s child born after sentencing – health problems of child’s mother affecting care of child.

Crimes (Sentencing) Act 2005 (ACT), ss 36, 37

Magistrates Court Act 1930, s 214(4)

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

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 82 of 2007

Judge: Penfold J

Supreme Court of the ACT

Date: 26 September 2008

IN THE SUPREME COURT OF THE )

) No. SCA 82 of 2007

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JASON IRWIN

Appellant

AND: LUKE GERARD HOULIHAN

Respondent

ORDER

Judge: Penfold J

Date: 26 September 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The appellant be sentenced to 15 months imprisonment backdated to 22 August 2008. The sentence to be suspended from today, subject to the appellant agreeing to a good behaviour order for 18 months including a community service obligation of 300 hours, to be performed within that period of 18 months.

Introduction

1. This is an appeal from a sentence of imprisonment imposed in the Magistrates Court. On 3 September 2007 the appellant was sentenced to 15 months imprisonment, to be served by way of periodic detention, for the offence of trafficking in the controlled drug known as MDMA or Ecstasy, the penalty for which includes imprisonment for up to 10 years. At the same hearing he was also sentenced for possession of a traffickable quantity of LSD, and possession of a sum of money, being the proceeds of crime. Neither of these sentences (a 6-month suspended sentence of imprisonment and an 18-month good behaviour order), nor an order made for the forfeiture of the money, have been appealed against.

Background

The circumstances of the offence

2. Early in the morning of 13 May 2007, security officers in a bar at the Australian National University observed the appellant receiving sums of money in exchange for items that they could not identify. The officers approached the appellant, escorted him to a backroom of the bar area, and searched him. A quantity of MDMA (150 tablets) and a quantity of LSD were found, as well as $475.00.

3. In due course, police attended and arrested the appellant. Later that day police searched his car and found more MDMA.

The grounds of appeal

4. The initial notice of appeal was lodged on 28 September 2007, by which stage the appellant had served several periods of weekend detention. For some reason there was no information before me about how many periods were served except the appellant’s recollection, passed on in instructions to his counsel, that he had served four or possibly five periods before he attended one weekend and was told that his appeal had stayed the sentence and that he was not required to remain for the weekend.

5. The initial ground of appeal was that the sentence of 15 months periodic detention was manifestly excessive. At the hearing, that ground was abandoned and replaced with the ground that the learned Magistrate had erred in his application of s 37 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).

6. As well, the appellant sought to put further evidence before the court. This related to events since the appellant was sentenced, and counsel for the respondent agreed that the evidence should be admitted under par 214(3)(a) of the Magistrates Court Act 1930 in the interests of justice.

Comments on grounds of appeal

7. On an appeal against sentence, an original sentence may be replaced if the exercise of the learned Magistrate’s sentencing discretion was affected by a specific error. 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).

8. As well, 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). That is, no specific error need be shown to justify a finding that the sentence is “manifestly excessive”, and if specific error is shown then there is no need to argue manifest excess.

9. Furthermore, even if specific error is shown, an appeal should not be allowed and a new sentence imposed unless the appeal court also considers that a different sentence would be appropriate.

The operation of s 37 of the Sentencing Act

10. Section 36 of the Sentencing Act relates to sentencing “discounts” for assistance to the authorities, as follows:

Reduction of sentence—assistance to law enforcement authorities

(1) This section applies if—

(a) an offender is convicted or found guilty of an offence; and

(b) the offender assisted, or undertook to assist, law enforcement authorities in—

(i) preventing, detecting or investigating the offence or any other offence; or

(ii) a proceeding in relation to the offence or any other offence.

(2) A court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed having regard to the degree of assistance provided, or undertaken to be provided, to law enforcement authorities.

Note The DPP may appeal against the reduced sentence if the offender does not comply with the undertaking (see s 137).

(3) In deciding whether to impose a lesser penalty for the offence, and the nature and extent of the penalty to be imposed, the court must consider the following matters:

(a) the effect of the offence on the victims of the offence, the victims’ families and anyone else who may make a victim impact statement;

Note For who may make a victim impact statement, see s 49.

(b) the significance and usefulness of the offender’s assistance to law enforcement authorities, taking into account any evaluation by the authorities of the assistance provided or undertaken to be provided;

(c) the truthfulness, completeness and reliability of any information or evidence provided by the offender;

(d) the nature and extent of the offender’s assistance or promised assistance;

(e) the timeliness of the assistance or undertaking to assist;

(f) any benefits that the offender has gained or may gain because of the assistance or undertaking to assist;

(g) whether the offender will suffer harsher custodial conditions because of the assistance or undertaking to assist;

(h) any injury suffered by the offender or the offender’s family, or any danger or risk of injury to the offender or the offender’s family, because of the assistance or undertaking to assist;

(i) whether the assistance or promised assistance is in relation to the offence for which the offender is being sentenced or an unrelated offence;

(j) if the offender is to serve a sentence of imprisonment—the likelihood that the offender will commit further offences after release from imprisonment.

(4) A lesser penalty imposed under this section must not be unreasonably disproportionate to the nature and circumstances of the offence.

11. Section 37 requires that a court relying on s 36 to impose a lesser penalty must state the penalty it would otherwise have imposed and the reasons for the imposition of the lesser penalty.

12. The appellant contends that the learned Magistrate took account of the assistance given by the appellant and apparently reduced the sentence. He failed to state the penalty he would otherwise have given and to state the reasons for imposing the lesser penalty.

13. The assistance provided to the authorities in this case related entirely to the appellant’s own activities. In particular, he volunteered the information that there were more drugs in his car. He also made various admissions about the details of the offences. Although he admitted having obtained the drugs in Sydney, there is no suggestion that, for instance, he provided any information to police about the supplier.

14. The learned Magistrate’s reference to the assistance given “without which many of the charges before the court may not have been able to have been brought or at least not in the fullness with which they are presently put before the court” appears to me to be an adequate explanation of why he would have imposed a reduced sentence in reliance on s 36. However, his comment that “Ordinarily I would have had no hesitation in sentencing you to an immediate term of imprisonment” was made at the beginning of a process in which his Honour also listed several other matters that inclined him towards leniency. It is therefore impossible to work out from his Honour’s comment what the actual sentencing discount for assistance to the authorities was (for instance, was the 15 months reduced from a longer period, or did the learned Magistrate consider that the discount was represented by permitting the sentence to be served by way of periodic detention?).

15. I therefore find that the learned Magistrate’s comments did not satisfy the s 37 requirement.

16. In the circumstances of this case, the ability to work out the measure of the sentencing discount may not have been important; the assistance concerned had been given, and it had no continuing significance once the appellant’s convictions were recorded. In contrast, where assistance is offered by an offender and the assistance has not been fully provided at the time the offender is sentenced (for instance, where the offender offers to give evidence against a co-offender), the prosecution may appeal against any sentence reduction if the offered assistance is ultimately not delivered (s 137 of the Sentencing Act). In such circumstances, it is of vital importance for any such appeal that both the nature of the assistance offered, and the exact sentencing discount, are specified by the sentencing court. If this were such a case, the learned Magistrate’s comments would not have been sufficient for the purposes of s 37.

17. In this case, the absence of a clear identification of the sentencing discount may not be so important, but it remains an error.

18. If non-compliance with s 37 of the Sentencing Act were the only ground of appeal I would, despite finding a sentencing error, have dismissed the appeal on the basis that the actual sentence was nevertheless appropriate.

Further evidence

19. However, as mentioned at [6] above, the appellant also sought, and was allowed, to introduce further evidence in support of his appeal.

20. The further evidence relates to events following the birth of the appellant’s child in November 2007. Before the child’s birth, the appellant’s partner had been diagnosed with a form of epilepsy. She gave evidence at the appeal that since the birth, she has suffered problems in the mornings that have led to her dropping, or nearly dropping, the child when picking her up out of the cot.

21. Apart from the oral evidence of the appellant’s partner, the evidence offered on behalf of the appellant was not particularly convincing. Medical information about the partner’s health problems, and even information about what medical investigation or treatment the partner was seeking or receiving, was sketchy at best. There is a certificate from a consultant neurologist concluding that “The EEG [of the partner] is abnormal and is consistent with a primary generalised epilepsy with some evidence for photo sensitivity”. There is a certificate from a Youth Health Centre referring to the epilepsy diagnosis and the partner’s problems in the mornings, and advising that she “needs to be supervised 24 hours per day until her condition is properly diagnosed and treated”. However, there was no information about the partner’s prognosis, specifically about how long her problems were likely to last and whether they were likely to get more or less severe in the period during which the appellant’s periodic detention would be served.

22. However, despite these inadequacies in the evidence offered, I accept that as a result of changes in the health of the appellant’s partner after the birth of the child, she has found it harder than might have been predicted to care for the child by herself, and that this has put the child at some risk on the days when the appellant was serving periodic detention.

Conclusion

23. In the circumstances considered by the learned Magistrate the sentence imposed was, in my view, appropriate despite the error constituted by a failure to specify how s 37 of the Sentencing Act was applied. However, because of the changed circumstances affecting the appellant’s family, I propose to allow the appeal and re-sentence the appellant having regard to those changed circumstances.

Re-sentencing

24. As already indicated, I consider the sentence of 15 months imprisonment as imposed by the learned Magistrate to be appropriate, having regard on the one hand to the seriousness of the offence, the number of MDMA tablets involved, the fact that the appellant had imported the drug from New South Wales, and the fact that the appellant had engaged in the offence purely for financial gain rather than to support any kind of drug addiction and, on the other hand, to the appellant’s previously clean record, plea of guilty, and co-operation with the authorities. In deciding that the 15 months imprisonment is appropriate, I have started from a sentence of two years imprisonment, reduced by six months in respect of the appellant’s early plea of guilty and by a further three months in recognition of his co-operation with authorities after his arrest.

25. However, having regard to the further evidence about the appellant’s partner’s health problems and the risk to the child, I consider that the part of the sentence that has not already been served by way of periodic detention should be suspended, subject to a good behaviour order that includes a substantial community service obligation. The community service obligation will ensure that the appellant suffers a significant infringement on his free time for an extended period, while leaving him available to support his partner in the care of their child at the most difficult times of each day.

26. Accordingly, the appellant will be re-sentenced to 15 months imprisonment. In the absence of evidence of the kind that presumably should have been available from the Sentence Administration Board, I have assumed that the appellant in fact served the first five weekends of his sentence, and the sentence will therefore be backdated to 22 August 2008, thus giving him credit for serving 5 weeks of his sentence. The sentence will be suspended from today, subject to the appellant agreeing to a good behaviour order for 18 months including a community service obligation of 300 hours, to be performed within that period of 18 months.

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

Associate:

Date: 26 September 2008

Counsel for the appellant: Mr I Bradfield

Solicitor for the appellant: Porters Lawyers

Counsel for the respondent: Ms L Hoult

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

Date of hearing: 20 March 2008

Date of judgment: 26 September 2008