Harper v Low and Wood [2009] ACTSC 136 (19 October 2009)

Last Updated: 26 October 2009

JASON HARPER v CAMERON PAUL LOW & JOEL WOOD [2009]
ACTSC 136 (19 October 2009)

APPEAL – principles for determining appeal – operation of s 214 Magistrates Court Act 1930 (ACT) – original sentence only to be replaced if affected by error and appeal court considers that a different sentence is appropriate – even if no specific error, original sentence may be replaced if found to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

APPEAL – obligation on sentencing courts to give reasons for decisions – operation of ss 10(4) and 10(5) Crimes (Sentencing) Act 2005 (ACT) – whether s 10(5), which ensures an unchallenged sentence operates validly despite non-compliance with s 10(4), negates obligation to provide reasons – s 10(5) does not protect sentence from appeal nor prevent appeal court finding error as a result of failure to give reasons.

APPEAL – failure to address requirement that sentence of imprisonment be imposed only if the court is satisfied that no other penalty is appropriate – satisfaction may possibly be inferred from imposition of sentence – how appropriate state of satisfaction reached, or whether proper consideration given to alternatives, cannot be inferred.

APPEAL – obligation on sentencing courts to give reasons for decisions – obligation to record reasons for sentences – failure to record reasons relates to an obligation that arises as a consequence of the sentencing rather than in the exercise of the sentencing discretion.

APPEAL – obligation on sentencing court to give reasons for decisions – nature of obligation in different circumstances – whether failure to give reasons is an appellable error.

APPEAL – failure to give reasons – failure to mention plea of guilty where counsel disagreed on significance of plea – possibility that the Magistrate had not considered plea as required before imposing prison sentence – Magistrate erred in failing to have regard to guilty plea.

APPEAL – appeal against sentence of four months imprisonment to be served as periodic detention – whether another sentence was appropriate – appeal court not to tinker with sentence – appellant had extensive criminal history though two prior relevant offences were minor examples of the offences – offence unpremeditated – first custodial sentence – anxiety over custody of son – financial difficulties – relationship with complainant satisfactory – paid work available – offence unprovoked and dangerous – no basis for finding that another sentence was appropriate.

Crimes Act 1900 (ACT), s 24
Crimes (Sentencing) Act 2005 (ACT), ss 10, 33, 35, 82, 83
Criminal Appeal Act 1912 (NSW), s 6(3)
Magistrates Court Act 1930 (ACT), s 214

Acuthan v Coates (1986) 6 NSWLR 472
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
Carpenter v Purcell [2008] ACTSC 34
Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 661
Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154
Drought v Driesen [2009] ACTSC 46
GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198
House v The King [1936] HCA 40; (1936) 55 CLR 499
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
McNamara v Edwards [2009] ACTSC 91
Morris v Hanley [2001] NSWCA 374
Moutrage v Haines [2008] ACTSC 36

Pettitt v Dunkley [1971] 1 NSWLR 376
R v CJP [2003] NSWCCA 187
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383

Re Doogan; Ex parte Lucas-Smith and Others [2005] ACTSC 74; (2005) 193 FLR 239

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 1 of 2008

Judge: Penfold J
Supreme Court of the ACT
Date: 19 October 2009

IN THE SUPREME COURT OF THE )
) No. SCA 1 of 2008
AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: JASON HARPER

Appellant

AND: CAMERON PAUL LOW

First Respondent

AND: JOEL WOOD

Second Respondent

ORDER

Judge: Penfold J
Date: 19 October 2009
Place: Canberra

THE COURT ORDERS THAT:

1. The appeal is dismissed, except to the extent necessary for any required re-sentencing.
2. The parties be heard as to any required re-sentencing or any other consequential order.

Introduction

1. Jason Harper has appealed from a sentence imposed in the Magistrates Court on 19 November 2007 in respect of an offence of assault occasioning actual bodily harm (the assault offence) under s 24 of the Crimes Act 1900 (ACT), the maximum penalty for which includes imprisonment for up to 5 years. At the same hearing, Mr Harper was also sentenced for a failure to appear offence, and re-sentenced in relation to a breach of a good behaviour order, but there is no appeal against either of those sentences.

Background

Circumstances of the offence

2. Late one evening in July 2007, Mr Harper was in his bedroom with his sister (the complainant) and another man. He was sitting at a desk, cutting up photographs with a pair of scissors. Mr Harper’s sister, who was sitting on his bed, asked him to repay money he owed her. According to the statement of facts tendered in the Magistrates Court without objection, he offered her drugs instead, but she refused this offer. An argument developed and Mr Harper attacked his sister, pushing her to the bed and holding the pair of scissors to her neck, then punching her on the right side of her face causing bruising. Mr Harper’s sister also sustained a cut to a finger while defending herself from Mr Harper’s attack. She pleaded with Mr Harper to leave her alone; he told her to get out of his house, and kicked her several times in the legs.
3. The complainant reported the assault to police, and early the next morning Mr Harper was arrested in relation to the matter.

Court proceedings

4. On 19 November 2007, Mr Harper was sentenced for the assault offence to 4 months imprisonment to be served by way of periodic detention.
5. An appeal against sentence was lodged on 22 February 2008, after leave to appeal out of time was granted.

Grounds of appeal

6. The original appeal against conviction, and the original grounds of appeal set out in Mr Harper’s notice of appeal (which challenged the Magistrate’s reliance on the police statement of facts on the basis that the statement was partly false), were abandoned at the hearing. Counsel for the appellant did not specifically identify alternative appeal grounds relating to the sentence, but submitted that there had been “a reasonably significant flaw” in the sentencing procedures. She also made submissions about both objective and subjective circumstances of the offence that did not relate to any specific flaw in the sentencing process but that would be relevant in determining, if required, whether another sentence was appropriate.

Further evidence

7. During the hearing Mr Harper gave sworn evidence about his current circumstances, and I ordered an updated pre-sentence report, for use in considering the appropriateness of Mr Harper’s sentence should a sentencing error be identified and also for use in any possible re-sentencing of Mr Harper.

Principles for determining the appeal

8. 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] 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.

(i) 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; (2005) 228 CLR 357 at 371).

(ii) 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 (NSW), considered in Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284).

(c) Thirdly, for the purpose of determining, after a finding of error, whether a different sentence is appropriate, the court may take account of the appellant’s circumstances at the time of hearing the appeal (Douar v The Queen [2005] NSWCCA 455; (2005) 159 A Crim R 154 at [121] to [124]); this approach was taken, by the NSW Court of Criminal Appeal, in applying a specific statutory provision, s 6(3) of the Criminal Appeal Act 1912 (NSW), but I can see no basis for refusing to follow it in the ACT subject to the admissibility of the evidence under s 214 of the Magistrates Court Act 1930.

(d) Finally, 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.

Consideration of grounds of appeal

The obligation to give reasons

9. Counsel for Mr Harper submitted that there had been “a reasonably significant flaw” in the sentencing process in that the sentencing Magistrate had failed to give reasons for his decision.
10. There is clear authority for the proposition that sentencing courts must give reasons for their decisions (see for instance R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383 (Thomson) at [42], adopted in R v CJP [2003] NSWCCA 187 at [63]).
11. In Re Doogan; Ex parte Lucas-Smith and Others [2005] ACTSC 74; (2005) 193 FLR 239 (Re Doogan), the Full Court of the ACT Supreme Court (Higgins CJ, Crispin and Bennett JJ) said at [171] and [172], in relation to the Coroner’s failure to give substantial reasons for her decision not to disqualify herself from an inquiry:

It is true that judicial officers have a duty to give reasons for their decisions, but the reasons need not be extensive, and in some cases little more may be required than a statement of the main conclusions on which the decision is based: see, for example, Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria [2001] HCA 49; (2001) 207 CLR 72 at 83-84.
A failure to provide even brief reasons may constitute an error of law.

12. The Full Court then summarised the arguments put by counsel:

In the present case, however, Mr Burnside pointed out that the application had been argued over several days and the nature of the oral argument had been foreshadowed in written submissions. He argued that it is not unusual for an extemporaneous judgment to be given on such an application and that neither the legal principles nor the factual allegations relied upon by the prosecutors had been disputed. The issue for determination had essentially been dependent upon a judgment as to the impression that may have been formed by a lay observer and her Worship had expressed the opinion that the facts relied upon did not provide adequate grounds for an apprehension of bias. It was difficult to see what more could have been required of the first respondent.

13. The Full Court concluded, however:

Whilst these submissions were persuasively argued, we are satisfied that it was an error to fail to provide reasons that addressed, albeit briefly, the contentions that had been advanced in support of the application.

Operation of Crimes (Sentencing) Act 2005 (ACT)

14. Counsel for the respondent noted that Re Doogan pre-dated the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), and drew my attention to ss 10(4) and (5) of that Act. Section 10(4) expressly requires the court to record its reasons if a sentence of imprisonment is imposed, while s 10(5) provides that a failure to do so does not invalidate such a sentence.
15. However, the s 10(4) obligation to record reasons assumes the need to articulate those reasons in some form; that is, it relies on the requirement to give reasons rather than being in any sense inconsistent with, or in substitution for, that requirement. Nor does s 10(5) water down the s 10(4) obligation to articulate reasons sufficient to be recorded. All that s 10(5) does is to ensure that a sentence that stands unchallenged operates validly irrespective of an irregularity following its imposition; it does not protect the sentence from review through an appeal process, and nor does it prevent an appeal court finding that the judicial officer’s sentencing discretion miscarried as a result of the initial failure to give reasons (a similar approach to a similar validation provision is hinted at, although not expressly stated, in the NSW case of R v CJP at [64], see [10] above). A failure to record reasons that have been articulated in the sentencing process is probably not a sentencing error as such, if only because it relates to an obligation that arises as a consequence of the exercise of the sentencing discretion rather than as part of the exercise of that discretion.
16. I note also that his Honour, as well as not articulating any general reasons for the sentence of imprisonment, did not address the requirement in s 10 that a sentence of imprisonment is only to be imposed if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate. While it might be inferred, from the imposition of the prison sentence itself, that the sentencing Magistrate was in fact satisfied as required by s 10, it is not so easy to infer his reasons for reaching the appropriate state of satisfaction or to infer that he has done so after a proper consideration of the possible alternatives.
17. As indicated above I consider provisions such as ss 10(4) and (5) of the Sentencing Act to build on, rather than to be inconsistent with or in substitution for, the pre-existing general requirement to give reasons for judicial decisions. The fact that ACT decisions including Re Doogan pre-date the Sentencing Act may explain why the Sentencing Act does not specify a general requirement to give reasons for sentencing decisions (apart from the requirement to record, and convey to the offender in writing, the reasons for a decision to impose a prison sentence, see ss 10, 82 and 83 of the Sentencing Act) but there is nothing in the Sentencing Act to suggest that it was intended to override any pre-existing authorities requiring reasons to be given or more generally to overturn any common law obligation on courts to give reasons for decisions, nor that it was intended to exclude cases in which there is a failure to give reasons from the class of cases in which appellable error may be found.

Is a failure to give reasons a sentencing error?

18. Accepting for the moment that there is a general obligation on courts to give reasons for their decisions, and more particularly in relation to the exercise of judicial discretions, there remains the question whether a failure to give reasons is of itself an appellable error. Different appellate courts have taken slightly different approaches to this question, which is not readily answered by reference to the usual formulation of the grounds for appellate review (see [8] above), and which raises even more difficult issues when posed in the context of limited appellate review (for instance where an appeal lies only if an error of law can be shown).
19. In Crystal Dawn Pty Ltd v Redruth Pty Ltd [1998] QCA 373 Muir J (with whom Pincus JA and Williams J agreed) said at [15] that:

It is well established that there is a duty on the part of judicial tribunals to give reasons for their decisions and that failure to give reasons which ought to be given amounts to appellable error.

20. The careful qualification of this statement by the reference to reasons “which ought to be given” appears to provide broad scope for an appellate court to determine whether the reasons that were given were sufficiently inadequate to allow a finding of error.
21. In Morris v Hanley [2001] NSWCA 374, a case that has been described (Spender J in Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd [2006] FCA 661 (Citrus Queensland) at [18]) as marking “the ‘high water mark’ of a judge’s obligation to give reasons for interlocutory orders”, Heydon JA (with whom Foster and Rolfe AJJA agreed) found that there had been an “error of principle” by the primary judge. In an ex tempore judgment that Heydon JA described at [23] as “in many respects [going] well beyond what was called for by the duty to give reasons”, and in which the primary judge said that the question of delay was a relevant factor, Heydon JA found at [24] that the primary judge had nevertheless not explained “how he took the defendants’ delay into account”.
22. On the other hand, Heydon JA in the same case noted qualifications on the obligations to give reasons. At [22] he commented on the nature of the obligation in relation to interlocutory orders:

The duty of judges to give reasons for the directions and orders they make must be lower where interlocutory orders affecting matters of practice and procedure are involved than they are where orders are made after a trial. That must be so if for no other reason than that litigation would clog up to the point of stagnation if full reasons had to be given for the tens or hundreds of interlocutory orders which many primary judges make in a week in busy trial courts.

23. At [24] he noted the significance of comments made by judicial officers during argument:

Sometimes what might otherwise be said to be a deficiency in the reasons of a primary judge can be compensated for by a clear explanation in the course of argument by the primary judge for the outcome.

24. Relevantly in the present appeal, I note that the general requirement to give reasons for sentencing decisions is also qualified to some extent by the proposition that the proper performance of this obligation in a magistrate’s court must be assessed having regard to the environment in which such courts operate. As explained by Kirby P in relation to the NSW Local Courts (Acuthan v Coates (1986) 6 NSWLR 472 at 479), it would be an error for an appeal court to:

... [examine] this unedited and unpunctuated record of ex tempore remarks in a busy magistrate’s court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.

25. It is also appropriate, especially in examining the reasons provided by busy magistrates, to heed Spender J’s reminder (Citrus Queensland at [19]) that an inappropriately strict approach to the requirement to give reasons may contribute to explaining “the view of trial judges that appellate judges can be likened to those who come down out of the hills after the battle is over and shoot the wounded”.
26. Finally I note that a failure to give reasons, when identified by an appeal court as an error, may require the appeal court to order a new trial rather than to correct the primary judge’s error in the way that is often done where the nature of the error, or the outcome of the erroneous exercise of discretion, can be identified (see for instance Pettitt v Dunkley [1971] 1 NSWLR 376).

The Magistrate’s sentencing remarks

27. The learned Magistrate made the following sentencing remarks:

In relation to charge 9396/2007 you are sentenced to 4 months imprisonment. It’s to be served by way of periodic detention which is to commence today, the sentence period, periodic detention period starts today and ends on 18 March 2008.
The first detention period starts on 23 November and you’re to report for the first periodic detention at the Symonston Periodic Detention Centre, Mugga Lane, Red Hill, on that date at 7pm.

28. That was the sum total of his sentencing remarks in relation to the assault offence. Those remarks do not include reasons. Nor did his Honour canvass any sentencing issues during the hearing except as mentioned in [33] to [36] below.
29. Section 33 of the Sentencing Act sets out a long list of matters to be considered in deciding how an offender should be sentenced. Not all of them are relevant in all cases, and the court is only required to consider those of the listed matters that are relevant and known to the court (s 33(1)).
30. Before imposing sentence on Mr Harper, the Magistrate had heard submissions from the prosecution about the seriousness of the offence, Mr Harper’s extensive criminal record including convictions for possessing an offensive weapon in 2005 and assault occasioning actual bodily harm in 2002, and conditions that might be imposed on any good behaviour order. He had heard from Mr Harper’s counsel as to Mr Harper’s parental responsibilities and the concerns they were then causing him, Mr Harper’s financial problems, his employment opportunities, his remorse and his wish to learn how to curb his temper and be a better role model for his child. Mr Harper’s counsel also pointed out that the bodily harm involved was not particularly serious, and that the assault had been unpremeditated.

Unresolved matters

31. The Magistrate thus had before him a reasonable amount of material relevant to the matters listed in s 33, including the matters raised by counsel (mentioned at [30] above), Mr Harper’s plea of guilty, and an updated pre-sentence report. It is not clear whether his Honour had seen the original pre-sentence report, but I do not consider that anything turns on that in this particular case.
32. Much of that material was not contentious, and if his Honour accepted and proposed to take account of it, there might have been no need for him to refer to it explicitly. However, the two counsel did not appear to agree on the gravity of the offence in general, the significance of the actual injuries compared with the potential injury, or the significance of the past or present relationship between Mr Harper and his sister. As well, the significance to be attributed to Mr Harper’s plea of guilty was not straightforward; while it was a relatively early plea, it seems to have been the result of negotiations with the DPP and had apparently led to the dropping of two other charges against Mr Harper. Furthermore, the Magistrate’s final view about the drugs allegation in the statement of facts (see [33] to [36] below) was by no means clear. While noting Kirby P’s comments quoted at [24] above, I nevertheless consider that for each of these matters, it would have been at least desirable for the Magistrate to indicate whether and if so to what effect the matter influenced his sentencing decision.

Mr Harper’s alleged offer to supply drugs

33. The only matter queried by the Magistrate during the hearing was the discrepancy between the admitted statement of facts, which said that Mr Harper had offered his sister drugs in payment of his debt to her, and the Pre-Sentence Report noting Mr Harper’s denial of any drug use since early 2006. His Honour drew from those two claims the inference that Mr Harper must have been supplying drugs, saying “If he’s not presently using, he’s supplying”. Mr Harper’s counsel said that he was instructed that Mr Harper did not use or supply drugs, and that Mr Harper denied making the offer recorded in the statement of facts.
34. The following exchange then took place:

HIS HONOUR: He’s pleaded guilty to it.
MR PERKINS: Yes, I know that.
HIS HONOUR: He’s admitted them.
MR PERKINS: I’ve had dealings with the defendant for a number of years now your Honour, I’m not aware of any other allegations that he uses illicit substances.
HIS HONOUR: All right.

35. This exchange may be interpreted as having concluded with the sentencing Magistrate accepting that Mr Harper was not supplying drugs, but might equally have indicated only that his Honour was not willing to engage in further argument on the matter.
36. The appeal ground relating to the contents of the statement of facts was abandoned at the hearing, so I do not need to consider the substance of that ground further. However, the admission without challenge of a statement of facts containing material that was allegedly incorrect and potentially prejudicial, and the Magistrate’s approach to that material, are matters that would desirably have been dealt with expressly in his Honour’s sentencing remarks.

Mr Harper’s plea of guilty

37. The effect of not mentioning the plea of guilty either in sentencing remarks or during the sentencing hearing was to raise the possibility that his Honour had not considered the plea in the context of imposing a prison sentence and had therefore erred in failing to take account of a relevant consideration (see s 35 of the Sentencing Act). In Thomson, Spigelman CJ said at [52]:

The absence of any reference to actual consideration of the guilty plea in the course of 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. This conclusion is significantly influenced by the express statutory obligations.

38. Spigelman CJ was referring to s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW), which requires a plea of guilty to be “taken into account”, but then gives the court a discretion whether to give a sentencing discount in respect of the plea, subject only to a requirement to give and record reasons for any decision not to give such a discount. The ACT formulation, that the court “must consider” the fact of a plea of guilty and may then in its discretion give a sentencing discount, does not seem to me to be materially different in its effect, and I do not consider that the legislative provisions differ sufficiently to found an argument that Spigelman CJ’s views should not be followed in the ACT.
39. Because the sentencing Magistrate did not indicate whether or how he had taken account of the guilty plea, there is no scope for, and no purpose in, trying to work out how exactly the plea should have been accounted for. In particular I do not propose at this stage to consider the impact of any agreement between the DPP and Mr Harper’s counsel, but I note in this context the High Court’s observations in GAS v The Queen [2004] HCA 22; (2004) 217 CLR 198, drawn to my attention by counsel for the DPP, in which Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in a joint judgment made general observations (at [42] to [44]) about the need to ensure the proper recording of any agreements between counsel for the prosecution and counsel for the defence that might be relevant to an accused’s decision to plead guilty.
40. I find that the sentencing Magistrate erred in failing to have regard to Mr Harper’s plea of guilty, which I infer from his failure to mention the plea at any point during the hearing or the sentencing despite the disagreement between the DPP and Mr Harper’s counsel about how it should be dealt with.

Conclusion—was there a sentencing error?

41. I find that the sentencing Magistrate erred at least in his failure to deal with Mr Harper's plea of guilty. His failure to give any reasons for the sentence imposed on Mr Harper may have concealed other sentencing errors, and was probably also an error in itself, but in the current case I do not see a need to reach a firm conclusion on that question. Since I have transcripts of the proceedings in the Magistrates Court as well as all the written material that was available to the sentencing Magistrate, and since Mr Harper has given evidence in the appeal, I do not see any need, despite the absence of reasons, to send the matter back to the Magistrates Court for the sentencing discretion to be re-exercised there.

Is another sentence appropriate?

42. Counsel for Mr Harper noted the following matters that might have been relevant on sentencing and, once error had been identified on appeal, might be relevant to whether a sentence other than the sentence of 4 months imprisonment to be served as periodic detention would be appropriate:
(a) that although Mr Harper had an extensive criminal record, it included only two prior offences indicating violence or a risk of violence, and that judging by the penalties imposed, both of those incidents were relatively minor examples of the offences;
(b) that the sentence of imprisonment imposed on Mr Harper was the first sentence required to be served in any form of custody (Mr Harper’s criminal record shows a sentence of 3 months imprisonment imposed in July 2004 but suspended subject to a good behaviour order, and Mr Harper was apparently never required to serve any part of that prison term);
(c) that the incident was spontaneous rather than premeditated;
(d) that at the time of the incident Mr Harper had been anxious about proceedings in the Family Court over the custody of his son which concerned, among other things, the refusal of the child’s mother to return the child after a school holiday visit;
(e) that Mr Harper was responsible for the day-to-day care of his son;
(f) that Mr Harper had financial difficulties relating to $8,000 of unpaid fines;
(g) that by the time of the sentencing Mr Harper was getting on well with his sister (the complainant) and other family members;
(h) that at the time he was sentenced, Mr Harper had paid work available to him as a fencer.
43. Mr Harper’s oral evidence on appeal did not take any of these matters further, but it did confirm that Mr Harper had been less than conscientious in performing his periodic detention obligations and, in particular, that despite claiming to have believed that he was not required to attend periodic detention after lodging an appeal, he had largely given up attending periodic detention some weeks before seeking leave to appeal out of time.
44. The updated pre-sentence report noted that as a result of a recent Family Court order, Mr Harper had custody of his nine-year old son for three days each week, from 4.00 pm on Sundays until Wednesday afternoons. I note that arrangement would enable him to combine his parental responsibilities with attending for periodic detention.
45. Any or all of the matters raised by counsel might properly have influenced a sentencing decision. However none of them, and not even all of them taken together, convince me that another sentence would be more appropriate than the sentence of 4 months imprisonment, to be served as periodic detention, for what was an unprovoked and potentially very serious attack, however spontaneous and however reflective of general anxiety, by a person with a long criminal history. In reaching this conclusion I note “the strong resistance that exists against appellate ‘tinkering’ with sentences” (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [62] per Kirby J).
46. In particular, I should comment on counsel’s submissions that the sentence under appeal was the first sentence required to be served in custody. I have noted in other appeals that a first custodial sentence, for a relatively less serious offence, need not be very long (see Moutrage v Haines [2008] ACTSC 36; Drought v Driesen [2009] ACTSC 46; McNamara v Edwards [2009] ACTSC 91); this is not, however, the same as saying that there can never be a first custodial sentence for a relatively less serious offence. In fact, in imposing a sentence only one month longer than Mr Harper’s previous suspended prison sentence, and requiring the sentence to be served by periodic detention, the sentencing Magistrate may have deliberately imposed the least burdensome version of a custodial sentence in recognition that this was the first such sentence imposed on Mr Harper (as well as having regard to Mr Harper’s expressed intention of taking up full-time work). At the same time, his Honour might also legitimately have taken account of Mr Harper’s apparent disregard of the law over a long period, and concluded that the sentence for this particularly dangerous offence needed to provide a stronger incentive to Mr Harper to change his behaviour than had previously been provided by more lenient sentencing dispositions.

Conclusions

47. I have found that the sentencing Magistrate erred at least in failing to address Mr Harper’s plea of guilty. This would be sufficient for me to uphold Mr Harper’s appeal and re-sentence him.
48. However, having considered the objective and subjective features of the offence, the sentence actually imposed and the developments in Mr Harper’s circumstances since then, I have not been convinced that a different sentence is appropriate. This means that despite my finding of error, but subject to the matters mentioned in [49] and [50] below, the proper course is for me to dismiss Mr Harper’s appeal (see [8(b)(ii)] above, and Carpenter v Purcell [2008] ACTSC 34).

Possible need for re-sentencing

49. At the appeal hearing, there was some uncertainty about how much of the sentence under appeal Mr Harper had in fact served, and when. Apart from the stay of his sentence resulting from his appeal, there had also been some failures to attend for weekend detention. It is possible that, apart from this appeal, Mr Harper might already have been required to serve the outstanding portion of the sentence in full-time custody.
50. There was also a question about the backdating of the original sentence to take account of time spent in custody before the sentence was imposed. Counsel for Mr Harper noted that the Magistrate sentenced Mr Harper without resolving an uncertainty about whether time spent in custody by Mr Harper could be attributed to the offence concerned. The matter was raised but not argued or resolved before sentence was imposed. Nor was the actual disagreement argued before me, so I am not in a position to reach any conclusion on it, but if there is a real argument to be made that Mr Harper’s sentence should have been backdated by two weeks, this may also need to be canvassed further.
51. Accordingly, I will hear the parties as to any consequential orders required, in particular any orders for the re-imposition of the sentence that might be needed to ensure that it operates appropriately.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Associate:

Date: 19 October 2009

Counsel for the appellant: Ms T Warwick
Solicitor for the appellant: Darryl Perkins Solicitors
Counsel for the respondents: Mr M Thomas
Solicitor for the respondents: ACT Director of Public Prosecutions
Date of hearing: 8 September, 24 October 2008
Date of judgment: 19 October 2009