|
|
[Home]
[Databases]
[WorldLII]
[Search]
[Feedback]
Supreme Court of the ACT |
Last Updated: 2 December 2009
JASON HAWKINS v JOHN OLIVER HAWKINS
[2009]
ACTSC 148 (6 November 2009)
CRIMINAL LAW – appeal – whether sentence manifestly
excessive – principles – need to contrast against maximum penalties,
“collective wisdom” of general pattern of sentencing – need to
identify relevant circumstances of the case.
CRIMINAL LAW –
appeal – failure to take into account pre-sentence custody –
position at common law and under the Crimes (Sentencing) Act 2005 (ACT),
ss 62, 63 – relevance of pre-sentence periodic detention – relevance
of pre-sentence custody for offences other than those for
which sentencing is to
be imposed – meaning of “in relation to”, Crimes
(Sentencing) Act 2005 (ACT), ss 63(2) – relevance of pre-sentence
custody upon activation of suspended sentence – possible discretion not to
take such time
into account, likely to be rarely exercised – appeal
allowed in part.
Magistrates Court Act 1930 (ACT), ss 207, 208
Crimes (Sentencing) Act 2005
(ACT), Pt 3.2, ss 35, 62, 63
Crimes (Sentencing
Procedure) Act 1999 (NSW), ss 24(a), 25(2)
Crimes (Sentence
Administration) Act 2005 (ACT), ss 110, 149, 151
Crimes (Amendment)
Act 1955 (NSW), s 4
Crimes Act 1900 (NSW), s 441A
Criminal
Law (Sentencing) Act 1988 (SA), s 30(2)(b)
Sentencing Act 1991
(Vic), s 18
Penalties and Sentences Act 1992 (Qld), s 161(1)
Crimes (Sentencing) Bill 2005 (ACT)
Fox R & Frieberg A, Sentencing: State and Federal Law in Victoria
(2nd ed, Oxford University Press, 1999)
Daunton-Fear M, Sentencing in South Australia (Law Book Company Ltd
and Australian Institute of Criminology, 1980)
Australian Law Reform
Commission, Same Crime, Same Time, Report 103 (ALRC, 2006)
Cotter v Corvisy (2008) 1 ACTLR 299
Kennewell v Rand
[2006] ACTCA 10
R v Clarke [1996] 2 VR 520
Lowndes v The
Queen (1999) 195 CLR 665
R v Hawkins (unreported, ACTSC,
Higgins J, 5 October 2009, SCC 110 & 114 of 2001)
Marsden v The Queen
[2002] FCAFC 229
R v Hawkins (unreported, ACTSC, Crispin J, 26
June 2006, SCC 245 of 2005)
Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509
R v Geddes (1936) 36 SR (NSW) 554
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Ellis (1993) 68 A
Crim R 449
Oliver v State of Tasmania [2006] TASSC 95
Griffiths v The Queen (1977) 137 CLR 293
R v Holder [1983]
3 NSWLR 245
Oliver (1980) 7 A Crim R 174
R v Morse (1979)
23 SASR 98
Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536
Barker v The
Queen (No 2) (1996) 70 FCR 1
R v Baltensperger [2006] SASC 246; (2006) 96 SASR
34
R v Ireland [1987] NTSC 54; (1987) 49 NTR 10
R v Williscroft & Ors
[1975] VR 292
Green v The Queen [1986] 2 Qd R 406
R v
Raggett & Ors (1990) 101 FLR 323
R v Taylor (1985)
18 A Crim R 14
R v Bloomfield (1998) 44 NSWLR 734
R v Di Simoni
[1981] HCA 31; (1981) 147 CLR 383
R v Kruger [1973] Crim LR 133
Carpenter v
Purcell [2008] ACTSC 34
Cameron v The Queen [2002] HCA 6; (2002) 209 CLR
339
R v Gilbert [1975] 1 WLR 1012
R v Judge Frederico; Ex parte
Attorney-General [1971] VR 425
Wills v Webster [1968] Tas SR (NC)
N21
R v Bennett [1975] Crim LR 654
R v Renzella [1997] 2 VR
88
Sultana v The Queen [2007] NSWCCA 107
R v Marshall
[1993] 2 Qd R 307
R v Jennings [1998] VSCA 69; [1999] 1 VR 352
Close v The
Queen (1992) 31 NSWLR 743
R v Cartwright (1989) 17 NSWLR
243
R v Williams [1975] 1 NSWLR 645
Geale v State of Tasmania
[2009] TASSC 28
R v McHugh (1985) 1 NSWLR 588
R v Deeble
(unreported, NSWCCA, Handley JA, Badgery-Parker and Hunt JJ, 19 September
1991)
R v English [2000] NSWCCA 245
R v Governor of Brockhill
Prison; Ex parte Evans [1997] 2 WLR 236
R v Newman [2004] NSWCCA 102; (2004) 145 A
Crim R 361
R v Sae (unreported, NSWCCA, Gleeson CJ, Mason P, Dowd
J, 3 April 1997)
R v Kunst [2002] QCA 400; [2003] 2 Qd R 98
Australian
Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114
FCR 472
R v Broad [1999] VSCA 149; [1999] 3 VR 31
Alimudin v McCarthy (2008)
23 NTLR 102
Metropolitan Water Board v Assessment Committee of the
Metropolitan Borough of St Marylebone [1923] 1 KB 86
R v Anderson
[2006] QCA 563
Shams v Clarson (2002) 130 A Crim R 1
R v
Edie [2006] QCA 111
R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292
R v Deering [1976] Crim LR 638
Dragon v State of
Western Australia [2008] WASCA 252
No. SCA 29 of 2009
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 November 2009
IN THE SUPREME COURT OF THE )
) No. SCA 29 of
2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: JASON HAWKINS
Appellant
AND: JOHN OLIVER HAWKINS
Respondent
ORDER
Judge: Refshauge J
Date: 6 November 2009
Place: Canberra
THE COURT ORDERS THAT:
1. Sentencing these days is a complex exercise, as I have remarked elsewhere
(Cotter v Corvisy (2008) 1 ACTLR 299 (at 303)),
and the complexity
increases especially when there are a number of different offences to be dealt
with, particularly if they have
been committed over a lengthy period of
time.
2. This was the situation confronting Special Magistrate Cush when he
sentenced the appellant, Jason Paul Hawkins, on 28 May 2009,
against which
sentence Mr Hawkins has now appealed to this Court. I note that both parties
are named “Hawkins”, both
with the initial “J”: For
ease, I shall call the appellant Mr Hawkins and, where necessary, the respondent
Senior Constable
Hawkins.
3. His Honour then dealt with Mr Hawkins for
several series of offences, which are detailed below, namely offences committed
on 15
May 2006, 30 May 2006, 28 May 2008, 4 September 2008, 4 December 2008, 17
December 2008 and 22 December 2008 as well as for a breach
of a suspended
sentence originally imposed on 14 June 2007 and re-imposed on re-sentencing on 2
December 2008.
Jurisdiction
4. Section 207 of the Magistrates Court Act
1930 (ACT) gives this Court jurisdiction to hear the appeals from decisions of
the Magistrates Court specified, inter alia, in s 208 of that Act. These
include appeals from orders of the Magistrates Court under Pt 3.2 of the Crimes
(Sentencing) Act 2005 (ACT) (the Sentencing Act). Part 3.2 of the Sentencing
Act provides for sentences of imprisonment, which is the sentence imposed on
Mr Hawkins.
5. In Kennewell v Rand [2006] ACTCA 10, the Court of Appeal
said (at [29]) of an appeal against a decision of a Judge of the Supreme Court
refusing to uphold an appeal
from the sentence of a Magistrate:
The circumstances in which an appeal court may interfere with the exercise of the discretion reposing in the sentencing judge are well known and do not need repeating: House v The King (1936) 55 CLR 499 at 505; Lowndes v R [1999] HCA 29; (1999) 195 CLR 665; and Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.
6. Those principles were set out in a passage from the decision of the Court of Appeal of Victoria in R v Clarke [1996] 2 VR 520 (per Charles JA, Winneke P and Hayne JA agreeing), expressly approved by the High Court in Lowndes v The Queen (1999) 195 CLR 665 (at 671). His Honour said (at 522):
The facts
7. Mr Hawkins is not a particularly young man, having been born 34
years ago. He has a bad criminal history which consists of seven
pages of
criminal antecedents, dating back to 1988 when he first appeared in a
Children’s Court.
8. Among the 120 offences there recorded of which he
had been convicted in 51 appearances before the courts prior to appearing before
his Honour, were included a range of dishonesty offences, from theft to
breaking, entering and stealing to assault and robbery, many
traffic offences
and a number of offences of escaping lawful custody and breach of court orders.
He has spent many years in institutions,
including prison.
9. Relevantly, he
appeared before Higgins J (as he then was) on 5 October 2001 on four counts of
burglary and two counts of theft
committed apparently on 1 March 2001. His
Honour sentenced him to a total sentence of five years imprisonment with a
non-parole period
of 18 months from 26 May 2001: R v Hawkins (unreported, ACTSC,
Higgins J, 5 October 2009, SCC 110 and 114 of 2001). In these reasons, I refer
to this sentence as the 2001 ACT Supreme Court sentence. He sought leave to
appeal
that sentence but leave was refused on 12 August 2002: Marsden v The
Queen [2002] FCAFC 229.
10. He was released on parole on 25 November 2002,
having spent the 18 months non-parole period in custody and thus having,
therefore,
three and a half years of the sentence left to serve, either on
parole of, if in breach, in custody.
11. He was, however, convicted on 13
October 2003 of offences of common assault, having goods on premises reasonably
suspected of
being stolen and possession of a loaded firearm in a public place
and sentenced by the Local Court in Wollongong to six months imprisonment.
His
parole order was revoked on the same day, the balance of the 2001 ACT Supreme
Court sentence then was calculated to expire on
12 April 2007. I pause to note
that the effect of this was to cause the sentence of imprisonment imposed by the
Local Court to be
concurrent with the period of the unexpired portion of his
sentence which he had to serve when activated by the revocation of his
parole.
12. He subsequently applied for parole again and by order dated 30
March 2004 was released on 6 April 2004 having served the term
of imprisonment
imposed by the Local Court concurrently with almost six months of the unexpired
portion of the 2001 ACT Supreme Court
sentence.
13. On 1 April 2004, he
appeared in the ACT Magistrates Court on a number of charges including two
traffic matters, an assault, recklessly
threatening to kill a person and three
offences of damaging property. Fines were imposed for the traffic matters and
he was sentenced
to six months imprisonment on each of the other charges, each
term to be concurrent and to date from 1 October 2003. Thus, he had
already
served this period of imprisonment by the time he appeared in court and the
effect of this was that the term of imprisonment
for what appear to be
reasonably serious offences was effectively made concurrent with the term of
imprisonment imposed by the Local
Court in Wollongong and the term of
imprisonment to be served following revocation of his parole for the 2001 ACT
Supreme Court sentence.
As he was, at that date, not on parole (being released
five days later) the automatic cancellation of his parole order by virtue
of s
149 of the Crimes (Sentence Administration) Act 2005 (ACT) was not
activated.
14. He was convicted on 18 October 2004 in the Yass Local Court of
traffic matters and fined $400 on each of the five charges but
was apparently
not present as a warrant under s 25(2) of the Crimes (Sentencing Procedure) Act
1999 (NSW) was issued.
15. On 16 November 2004, Mr Hawkins’ parole was
again revoked, though it was not clear to me what the specific basis for the
revocation was in this case. He became liable to serve the balance of the 2001
ACT Supreme Court sentence, namely three years.
16. On 24 May 2005, he was
again released on parole. Nearly twelve months later, on 15 May 2006, he
committed the first in time
of the offences that were to be dealt with by his
Honour, Special Magistrate Cush, and which are the subject of that appeal.
These
were offences of burglary at the premises of a hire business in Mitchell
ACT and theft from that business of electrical goods valued
at
$3,640.
17. These charges, however, were not laid until 8 October 2008
apparently because he was only identified later as having committed
these
offences by matching his DNA with DNA found in material at the scene of the
crime.
18. He committed an assault on his domestic partner on 25 August 2005.
He appears to have been arrested for that and spent some time
in custody. He
was dealt with by the ACT Supreme Court on 26 June 2006 when Crispin J said in R
v Hawkins (unreported, ACTSC, Crispin
J, 26 June 2006, SCC 245 of 2005):
In the circumstances, it is common ground between the parties that it would be appropriate for me to sentence him to the rising of the court, that sentence not reflecting any view that offences of this kind are of a trivial nature, but rather reflecting the fact that he has already spent a period of, as I say two and a half months or thereabouts in prison as a consequence of it and the particular circumstances of this case.
19. Between 15 and 17 March 2006, he committed an offence of unlawfully being in
possession of stolen property and on 11 May 2006
he committed a series of
traffic offences, namely being an unlicensed driver, driving a vehicle
displaying plates calculated to deceive,
and using an unregistered and uninsured
vehicle. He was sentenced for these offences on 22 August 2006 and fined on the
traffic
offences and sentenced to three months imprisonment on the charge of
possession of stolen property dated to commence on 30 May 2006,
the date when,
as appears below (at [20]), his parole was revoked, thus serving the parole
breach and this sentence concurrently.
20. He appeared again before the
Sentence Administration Board on 30 May 2006 for a breach of parole. I was not
informed what the
breach was. It cannot have been the conviction for assault to
which I have referred (at [18]) for that was entered after this appearance
before the Board.
21. At the hearing, he committed an assault on a custodial
officer. Though the details of that assault were not included in the Appeal
Papers in this appeal, through inclusion of, for example, an information and
statement of facts and, therefore, presumably also not
before his Honour at the
hearing, his Honour clearly had the relevant details before him for he said in
his reasons for sentence:
The assault against ... an ACT custodial officer occurred in Hearing Room 1 just after the Sentence Administration Board decided to revoke the defendant’s parole. [The custodial officer] placed his hands on the shoulders of the defendant, the defendant had punched the wall and screamed, “Fuck.” He told [him] to, “Get your hands off me, cunt.” He then swung his left elbow and hit [the custodial officer] on the face and the jaw. He was aggressive and uncooperative, but fortunately [the custodial officer] suffered no apparent injuries. The incident has some aggravating features. It was in a hearing room, it was an assault on a custodial officer, the act was unprovoked, and appears to have resulted from the defendant’s anger with the decision to revoke parole.
No point about this was taken on the appeal.
22. Mr Hawkins appeared in the
ACT Magistrates Court for that offence while still in custody on 14 June
2007 when Magistrate
Fryar sentenced him to twelve months imprisonment suspended
with a two year good behaviour order.
23. On 11 September 2007, he was again
released on parole.
24. On 14 March 2008, he was charged with a minor theft.
I do not have details of that offence but it appears to be a shoplifting
type of
offence. The prosecution took some time and he appeared in the ACT Magistrates
Court on 2 December 2008 to answer this charge,
and was fined $500. For
breaching the suspended sentence imposed by Magistrate Fryar, he was
re-sentenced to six months imprisonment
(despite her Honour’s sentence of
twelve months imprisonment) immediately suspended with a nine months good
behaviour order
and with some conditions including supervision and the supply of
samples of blood or urine.
25. On 28 May 2008, he was arrested and charged
with a number of offences. These included dishonestly and without consent
riding
a motor cycle, having that motor cycle in premises when it was reasonably
suspected of being stolen (it having number plates of another
bike affixed to
it), having (separately) the number plates for that bike on premises when they
were reasonably suspected of being
stolen, having two other motor bikes on the
premises when they were reasonably suspected of being stolen, having three other
sets
of number plates (including the ones improperly affixed to the bike
referred to earlier) for bikes which were not themselves on the
premises, the
plates being on premises when they were reasonably suspected of being stolen and
having a wallet containing credit
cards on premises when these items were
reasonably suspected of being stolen.
26. He was remanded in custody but on 1
August 2008 released on bail by this Court.
27. On 4 September 2008 he
bought a jacket valued at $79.95 from a person who had stolen it, Mr Hawkins
knowing that it was stolen.
He appeared in court on 12 September 2008 and
appears to have been granted bail when the matter was adjourned. It was
ultimately
dealt with by his Honour as one of the matters the subject of this
appeal.
28. Despite having been charged with them prior to this date, he was
not dealt with for any of the offences referred to above (in
[25] and [27]) by
the Magistrates Court on 2 December 2008 when he was dealt with as noted
above (at [24]), though he was not
immediately imprisoned on that
date.
29. The parole order in respect of the 2001 ACT Supreme Court sentence
expired on 26 November 2008. Mr Hawkins, however, remained
liable to be
dealt with under s 151 of the Crimes (Sentence Administration) Act 2005 (ACT)
for offences committed while the parole order was in force, even if he was
convicted of them after the parole order had expired.
Thus, the offence
committed on 4 September 2008 rendered him so liable even though he was not
convicted of it until after the
parole order had expired.
30. On 4 December
2008, two days after he had already been before the Magistrates Court (see [24]
above), he committed a series of
traffic offences, including driving whilst
disqualified, the twelfth such offence or similar offence for which he had been
charged
over the years, dishonestly riding a motorcycle without consent and
using an unregistered and uninsured motor cycle. He was, however,
not charged
with these offences until 16 January 2009.
31. On 9 December 2008, the
Sentence Administration Board revoked Mr Hawkins’ parole. I was not
specifically advised as to
why it did so, though it was probably because of the
conviction for theft on 2 December 2008 which would have required automatic
cancellation of his parole order under s 149 of the Crimes (Sentence
Administration) Act 2005 (ACT). A warrant was issued for his arrest.
32. He
apparently appeared before the ACT Magistrates Court on 11 December 2008 and
gave a bail undertaking to appear on 19 December
2008. He failed to appear on
that day. A warrant was issued for his arrest on that charge.
33. On 17
December 2008, he dishonestly without consent rode another motorcycle, though he
remained disqualified from driving and
was charged for those offences and for
exceeding the speed limit by fifteen kilometres per hour. Summonses were issued
on 14 May
2009.
34. On 22 December 2008, police attended Mr Hawkins’
home and located there a Demolition “Quick Cut” Stihl Saw which
had
been stolen on 11 March 2008. He was summonsed on 25 February 2009 for this
offence.
35. Mr Hawkins was arrested on 23 January 2009 by NSW Police for
shoplifting from Coles Supermarket in the Broadway Shopping Centre,
Glebe, NSW
and was on the next day extradited to the ACT. Both warrants were executed on
24 January 2009.
36. Mr Hawkins appeared in the ACT Magistrates Court
and was remanded in custody. Ultimately he came before his Honour Special
Magistrate
Cush for sentence on 21 May 2009.
37. His Honour actually
sentenced Mr Hawkins on 28 May 2009, imposing a total period of 33 months
imprisonment with a non-parole period
of 22 months. His Honour directed the
sentence to commence on 26 January 2009. That meant that the sentence ended on
25 October
2011 but Mr Hawkins will be eligible for parole on 25 November
2010. I annex as a Schedule to these reasons the sentences imposed
by his
Honour as that is necessary to understand some of the reasoning for the decision
on this appeal. The Schedule, prepared by
his Honour for which his Honour is to
be thanked, is a very useful document not only for the Court but also, no doubt,
for Mr Hawkins
and his lawyers, for it contains not only the details of the
charges and the penalties imposed but also the maximum penalty for each
offence.
38. Mr Hawkins appealed against the sentence on the sole ground that
the sentence was manifestly excessive and it is that appeal that
I now
decide.
Manifestly excessive sentences
39. This very common ground of
appeal (and the “mirror image”, namely that the sentence is
manifestly inadequate in the
case of a Crown appeal) has its genesis in
statements in the High Court, such as the following by Dixon, Evatt and
McTiernan JJ in
Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 (at 520):
But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority.
40. This requires the appellate court to give careful consideration to the circumstances of the case. As Jordan CJ said in R v Geddes (1936) 36 SR (NSW) 554 (at 556):
a Court of Criminal Appeal should intervene if the sentence appears to it to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial; but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses, and, therefore, that he has had an opportunity of forming impressions which no perusal of cold print can afford. Unless some error in principle, or some such unreasonable disproportion, appears, I think that a case is not made out for revision of the sentence.
41. Of course, in many cases, especially in the Magistrates Court, no witnesses
are called on sentence and even the offender is unlikely
to give evidence so the
advantage of the sentencer may not be significant.
42. The exercise
confronting an appellate court when considering such a ground, however, is one
which requires some elaboration and
argument. As Gleeson CJ and Hayne J said in
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 325-6):
Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.
43. As Hunt CJ at CL said in Ellis (1993) 68 A Crim R 449 (at 461):
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
44. See also Oliver v State of Tasmania [2006] TASSC 95 (at
[13]-[16]).
45. In order to make out the ground, it is necessary to show that
the sentence is excessive and manifestly so, not merely arguably
so. As was
said by Jacobs J in Griffiths v The Queen (1977) 137 CLR 293 (at 327):
The trial judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest.
46. The determination of whether a sentence is manifestly excessive (or
inadequate) is not an easy task. It must, however, be approached
rationally
and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at
[42]), must be accompanied by reasons.
See R v Holder [1983] 3 NSWLR 245 per
Street CJ (at 254).
47. Counsel is, therefore, obliged not merely to assert
the alleged manifest excess (or inadequacy) of the sentence but must also
address the basis of the assertion by identifying the relevant matters which go
to show how it is said the court can – and
should – draw the
relevant conclusion.
48. Some assistance is given by what was said by Street
CJ (with whom Begg and Slattery JJ agreed) in Oliver (1980) 7 A Crim R 174
(at 177):
The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum. This hardly needs to be stated and certainly requires no elaboration ...
The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of evenhandedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand. This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics. There is an enormous difference between recognising and giving weight to the general pattern as a manifestation of the collective wisdom of sentencing judges on the one hand and, on the other hand, forcing sentencing into a strait-jacket of computerisation. There is, moreover, always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another.
49. These two considerations are, of course, only a part of the material to be considered by the court. In R v Morse (1979) 23 SASR 98, King CJ (with whom White and Mohr JJ agreed), explained (at 99) how the appellate court should go about the task of assessing whether a sentence was manifestly excessive as follows:
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
50. See also Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536 (at 541); Barker v The Queen
(No 2) (1996) 70 FCR 1 (at 13); R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34 (at
44).
51. The standards of sentencing is a controversial factor. As was put
by Hunt CJ at CL in Ellis (at 460):
The sentencing judge is nevertheless required to give full weight to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature; that collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.
Indeed, the difference in approaches by Kirby P and Hunt CJ at CL in that
decision to what were said to be comparable cases shows
how problematic it can
be to determine this collective wisdom of sentencing judges.
52. This,
however, does not mean that any other sentence becomes a precedent, nor that
sentencers are forced into a “straitjacket
of computerisation”: R v
Ireland (1987) 49 NTR 10 (at 19). Nevertheless, for an appellate court to
conclude that a sentence
is excessive (or inadequate) some comparison with a
norm is required and the determination of what is an appropriate sentence
depends
upon an awareness of the sentences imposed in the past for the same or
similar offences: R v Williscroft & Ors [1975] VR 292 (at 301); Green v
The Queen [1986] 2 Qd R 406; R v Raggett & Ors (1990) 101 FLR 323 (at
328).
53. As was said by Street CJ (at 254) in R v Holder:
The appeal court evaluates the permissible range of sentence in the light of all of the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience.
54. Thus, despite suggestions in some cases that the submission of manifest
excess (or inadequacy) is “not capable of sustained
argument” (R v
Taylor (1985) 18 A Crim R 14 (at 17) per Young CJ), it is incumbent upon
the appellant to address the relevant
factors, point to the sentencing pattern,
with reference where appropriate to particular cases, or to more general
statistical material
(through this needs to be dealt with sensibly as set out by
Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 (at 739), and elaborate
on the particular facts of the offence, or offences, and the subjective
circumstances of the offender
from which the court may draw the relevant
conclusion.
The appellant’s submissions
55. In this case, Ms T
Warwick, who appeared for the appellant, asserted that each set of sentences was
manifestly excessive and also
that the whole sentence was excessive.
56. In
doing so, however, she did not rely on any comparable cases or statistical
material, nor did she rely particularly on the subjective
circumstances of the
appellant.
57. She did address a number of particular matters:
1. She
submitted that if the offences committed on 15 May 2006 had been dealt with at
the same time as the other matters dealt with
on 22 August 2006 (see [19]
above) then Mr Hawkins is unlikely to have received the sentence he ultimately
did for them. That
is not to say, as I understood her submissions, that the
sentence of four months imprisonment was not warranted, but that it would
have
been imposed to be concurrent with the other sentences then imposed, relevantly
three months imprisonment to commence on 30
May 2006. Whilst the Learned
Magistrate may have taken the view that Mr Hawkins should serve the
imprisonment for the offences
committed on 15 May 2006 concurrently again
with the sentence for the offence in March 2006 and the revoked parole term of
imprisonment,
it seems to me that this would have been an inadequate sentence,
having regard to the particular circumstances of the offences and
the personal
circumstances of Mr Hawkins. This challenge fails.
2. She submitted that the
cumulation of the sentences for the charges for dishonestly possessing the motor
cycle on 28 May 2008 and
the possession of the plates for the same vehicle was
manifestly excessive. So stated, there is some immediate attraction in that
submission. The plates presumably came into the possession of Mr Hawkins
while attached to the motor cycle and their removal
did not increase the
culpability by much.
Further thought, however, shows that not to be
sustainable. In the first place, the motor cycle had, at the time of its
seizure by
police, other plates on it, not belonging to it, thus leading to the
inference that the plates for the motor cycle were then available
to be used for
a deceptive purpose. Without breaching the principle of sentencing that a
person may not be punished for an offence
not charged (R v Di Simoni [1981] HCA 31; (1981) 147
CLR 383), this makes the possession, in the circumstances, potentially more
serious than merely possession of article disjoined from the principal
stolen
item.
In any event, while I am of the view that this was probably not the
offence on which to impose the cumulative sentence, and would
not have done so
myself, the total sentence for the offences committed on 28 May 2008 (part
cumulated, part concurrent) was well
within the range of the proper sentencing
discretion, as was conceded by Ms Warwick, and so in correcting the sentence I
would simply
have had to make the sentence on one of the other charges
cumulative when making this one concurrent. See R v Kruger [1973] Crim LR
133 where a “re-balancing” was approved to take account of changes
in some parts of a sentence. I see no error justifying
interference in the
sentence imposed by his Honour.
3. Ms Warwick also submitted that his Honour
had failed to give a proper discount for the pleas of guilty entered by Mr
Hawkins and
this rendered the sentences manifestly excessive.
It is true
that Mr Hawkins pleaded guilty to three charges on the first occasion they were
before the court and in the case of nine
other charges at the third mention.
These were quite early pleas.
In the case of other matters, he pleaded not
guilty in the first instance but changed the plea after they were listed for
hearing
but before the hearings commenced. These were certainly not early
pleas; indeed they are properly to be described as late.
As I said in
Cotter v Corvisy (at 311), however, following Penfold J in Carpenter v Purcell
[2008] ACTSC 34, the Sentencing Act does not require a discount to be
necessarily given, though the High Court said in Cameron v The Queen
[2002] HCA 6; (2002) 209 CLR 339 that the utilitarian value of facilitating the course of
justice would ordinarily require it to be given. Since then, of course,
the
legislature has enacted s 35 of the Sentencing Act which prohibits the court
from giving any significant reduction where the case against the offender is
“overwhelmingly strong”.
That was clearly the case with a number of
the offences for which Mr Hawkins was sentenced.
In any event, his Honour was careful to indicate in the reasons for sentence the likely sentence he would have given were a plea of guilty not to have been entered. In some cases, these were reasonably significant discounts. For example, nine months reduced to three months, eight months reduced to four months, six months reduced to two months and so on. The general pattern of accumulation and concurrency would also be relevant here. His Honour, in his reasons for sentence made it plain he provided a discount for the pleas of guilty, stating that he “reduced his overall sentence by about one quarter to take account of his pleas of guilty”. In my view, that discharged his Honour’s obligation under s 35 of the Sentencing Act.
Taking pre-sentence custody into account
61. At common law, it was not
possible to direct that a sentence should commence prior to the date on which it
was imposed: R v Gilbert
[1975] 1 WLR 1012 (at 1017); R v Judge
Frederico; Ex parte Attorney-General [1971] VR 425 (at 427, 431); Wills v
Webster [1968] Tas SR (NC) N21.
62. This did not mean that, at common law,
periods of pre-sentence custody were not taken into account. In R v Judge
Frederico;
Exparte Attorney-General, Gowans J said (at 430):
If in such a case of a long trial, the offender had been in custody during part of the trial, that could be taken into account in fixing the term of imprisonment as is ordinarily done. The penalty is, after all, determined for the circumstances of the offender as well as for the circumstances of the offence, and in order to provide for the latter consideration there is no need to have resort to any conception of a fictional imprisonment.
See also R v Bennett [1975] Crim LR 654.
63. As the Full Court of the Supreme Court of Victoria said in R v Renzella
[1997] 2 VR 88 (at 97) “a court is not
only empowered but
obliged as a matter of justice to take pre-sentence detention into
account.” Such an approach has been
said to be “long standing
sentencing practice”: Sultana v The Queen [2007] NSWCCA 107
(at [11]). See also R v Marshall [1993] 2 Qd R 307
(at 12).
64. The legislature was sometimes slow in catching up with such
law. For example, it was not until 1975 that Victoria acquired a
statutory
provision requiring credit to be given to an offender (either by the sentencing
court or by the corrections authorities)
for pre-sentence custody: R v Jennings
[1998] VSCA 69; [1999] 1 VR 352 (at 356).
65. There are, of course, a number of ways in which
such pre-sentence custody can be taken into account and this includes reducing
the sentence imposed, as was done, for example in Close v The Queen (1992) 31
NSWLR 743 where it was considered that non-continuous periods of such custody
prevented backdating. See also R v Cartwright (1989) 17 NSWLR 243 (at
258) where such an approach was said to be “perfectly
proper”.
66. An obvious way in which pre-sentence custody could be
taken into account would be by ante-dating the sentence to commence from
the
date on which the offender was taken into custody. As this was not apparently
possible at common law, as I have noted above
(at [61]), it had to await
legislative intervention before the courts could proceed in that way.
67. By
s 4 of the Crimes (Amendment) Act 1955 (NSW), a new s 441A was inserted into the
Crimes Act 1900 (NSW) providing that a sentence commences at the time it is
passed “unless the Court otherwise directs” (repealed in
1999, see
now Crimes (Sentencing Procedure) Act 1999 (NSW), s 24(a)). As the Crimes Act
1900 (NSW) was applicable in this Territory, the amendment was applied here,
presumably from that date.
68. In the UK, a similar provision was held not to
empower a court to antedate a sentence of imprisonment: R v Gilbert. In NSW,
however, that position was not accepted and that case was distinguished: R v
Williams [1975] 1 NSWLR 645 (at 647). Indeed, in that case, the court suggested
that the words “for the avoidance of doubt” were included in the
section because of the need to overcome doubts about the ante-dating of
sentences “as was customarily the practice prior to
1955”. For a
detailed analysis of decisions on this issue, see Geale v State of Tasmania
[2009] TASSC 28 per Evans J (at [39]).
69. The position in this Territory is
now clear. Section 62 of the Sentencing Act provides that, subject to, inter
alia, s 63, a sentence of imprisonment starts on the day it is imposed, unless
the offender is not in custody, when it starts on the day the
offender
“becomes subject to lawful custody”.
70. Section 63 of the
Sentencing Act provides:
(1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.
(2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.
(3) However, subsection (2) does not apply to:
(a) a period of custody of less than 1 day; or
(b) a sentence of imprisonment of less than 1 day; or
(c) a sentence of imprisonment that is fully suspended; or
(d) the suspended part of a partly suspended sentence of imprisonment.
(4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender’s arrest.
(5) Subsection (4) applies even if the offender is not convicted or found guilty of –
(a) the offence for which the offender was first arrested; or
(b) any particular offence or offences in the series.
71. The courts, however, and in particular in NSW, have consistently maintained that the preferable course to take into account pre-sentence custody is through backdating the sentence. Indeed, in Close v The Queen, it was described as required in all but exceptional circumstances (at 748). In R v McHugh (1985) 1 NSWLR 588, Street CJ said (at 590- 1):
It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing.
72. See also R v Deeble (unreported, NSWCCA, Handley JA, Badgery-Parker and
Hunt JJ, 19 September 1991).
73. This is not, however, the universal
practice. In Victoria, sentences still cannot be backdated. See Fox R and
Frieberg A, Sentencing:
State and Federal Law in Victoria (2nd ed, Oxford
University Press, 1999) (at sections 9.802 and 9.804). In South Australia, the
sentence can only be backdated to the date when the offender was taken into
custody, making it unsuitable for crediting interrupted
periods of
pre- sentence custody: Criminal Law (Sentencing) Act 1988 (SA), s
30(2)(b).
74. In this jurisdiction, as is clear from s 63 cited above, there
is a clear power to backdate a sentence.
75. As noted above (at [65]), where
there is not a continuous period of pre-sentence custody, the courts have
sometimes considered
that this is a sufficient reason for not backdating a
sentence: R v English [2000] NSWCCA 245 (at [23]). This would result in a
court having to specify, in some, perhaps many, cases, a date of commencement
when the offender
was not actually in custody.
76. That approach may no
longer have the force it once had. In the first place, the abolition of a
system of remissions for good
behaviour no longer requires that the period of
detention be continuous to allow for an assessment of such an issue. This was
articulated
by Lord Bingham of Cornhill CJ in R v Governor of Brockhill Prison;
Ex parte Evans [1997] 2 WLR 236 (at 252):
It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served. [emphasis added]
77. The section itself seems to contemplate this by the combination of “must” in s 63(2) and the terms of s 63(4). As Mary Daunton-Fear, said in Sentencing in South Australia (Law Book Company Ltd and Australian Institute of Criminology, 1980) (at p118):
Fourthly, justice probably also demands that day-for-day credit be given for pre-sentence custody rather than conferring on courts a duty to take such custody into account. Rinaldi advances a number of arguments in support of this proposition, not all of which apply to South Australia. However, one of his stronger relevant arguments is that the prisoner may lack assurance that every day of pre-sentence in custody has been taken into account unless his sentence is, in effect, ante-dated to the first day of his incarceration.
78. The power to backdate a sentence in cases where the offender has been subject to interrupted periods of custody prior to sentencing has now been put beyond doubt. In R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361, Howie J (with whom McColl JA agreed) said (at 368):
The difficulty arises in cases where, as here, the pre-sentence custody did not continue unbroken to the date of sentence. In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. Notwithstanding some doubt expressed about the latter practice in R v Sayak (unreported, Court of Criminal Appeal, NSW, No 60098 of 1993, Clarke JA, Hunt CJ at CL and Grove J, 16 September 1993), this Court has dealt with the matter in this way on more than one occasion. See R v MacDonald (unreported, Court of Criminal Appeal, NSW, No 60700 of 1995, Gleeson CJ, Kirby P and Hunt CJ at CL, 12 December 1995), R v Howard [2001] NSWCCA 309, and R v Phillips [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order.
In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour.
79. His Honour then proceeded to identify four reasons why such backdating was
desirable. They were:
1. It preserves the denunciatory and deterrent value
of the sentence to be imposed. This would be much diluted if the sentence were
decreased by a substantial period to take into account interrupted periods of
pre-sentence custody.
2. It makes it obvious to the offender that he or she
has received a credit for the period already spent in custody. There can be
no
argument about whether the discount was properly given even where the sentencer
says it has been taken into account.
3. The practice avoids disparity
erroneously arising because a comparable sentence, with which comparison is
being made, has been
markedly reduced by pre-sentence custody. This can also
show valuable statistical information.
4. Finally, as his Honour observed a
“probably less persuasive” reason, is that it avoids lengthy
sentences being imposed
in years, months and days which, his Honour pointed out
“look faintly absurd and may suggest to the uninformed that sentencing
is
an exact science that can determine an appropriate period of imprisonment in a
precise number of days.”
80. In some jurisdictions, there are limits on
the pre-sentence custody that can be taken into account, for example, where it
is not
solely in respect of the offences for which the offender is being
sentenced. Thus, originally, it was suggested by Gleeson CJ in
R v Sae
(unreported, NSWCCA, Gleeson CJ, Mason P, Dowd J, 3 April 1997) that the custody
must be exclusively referable to the
crime for which the offender is sentenced.
Similarly, in Victoria, the provision, namely s 18 of the Sentencing Act 1991
(Vic) originally referred to the pre-sentence detention which is for the
sentenced offence “and for no other reason”
which has created
difficulties explored in R v Renzella. See also R v Kunst [2002] QCA 400; [2003] 2 Qd
R 98, which refers to s 161(1) of the Penalties and Sentences Act 1992 (Qld)
which is to the same effect.
81. These problems do not appear to apply in
this jurisdiction, for s 63(2) is in very wide terms. The reference to being
“held in custody in relation to the offence” uses the ample term
“in
relation to”. This phrase comprehends a wide meaning of
relationship or connection between two subject matters. As was said
by Hill J
in Australian Competition and Consumer Commission v Maritime Union of Australia
(2001) 114 FCR 472 (at 487):
It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words “in relation to” are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both “vague and indefinite”: see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620. Like the phrase “in respect of”, the phrase “in relation to” will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used.
82. In my view, the pre-sentence custody which is referred to in s 63(2) does
not have to be referable only or even primarily to the offence for which the
sentence is imposed.
83. There may, however, be limits to this. For example,
in the Sentencing Act 1991 (Vic), s 18(1), which requires a declaration that
pre-sentence custody had been served and was to be reckoned as a period of
imprisonment already
served under the sentence, the relevant custody was that in
which the offender was “held in custody in relation to the offence
and no
other reason”. When the phrase “and no other reason” was
omitted in 1997, the question arose as to the
limits, if any, now on the
pre-sentence custody to be taken into account.
84. The issue was addressed in
R v Broad [1999] VSCA 149; [1999] 3 VR 31 where Brooking JA (with whom Tadgell and Chernov JJA
both concurred) said (at 33):
If ss 18(1) and 35(1) are to be given their literal meaning in this regard, the consequences will be startling. A person like the applicant, who has been remanded in custody while awaiting trial and who has in respect of the period in question been serving a sentence of imprisonment or detention for offences which may be in no way related to those with which the committal is concerned, will be entitled to have the time spent in custody credited not only as time served for the purposes of the pre-existing sentence but also as time served for the purposes of the sentence which is later passed. The present case concerns a sentence which intervenes between the commission of the January offences and the passing of sentence in respect of those offences. But if ss 18(1) and 35(1) are to be given the literal interpretation for which the applicant contends, the person serving a sentence of imprisonment who escapes and commits another offence while at large will, upon recapture, be entitled to claim that the portion of the sentence served between recapture and the passing of sentence for the offence committed while at large is to be credited as pre-sentence detention for the purposes of that offence. Such a result is manifestly unreasonable and contrary to the public interest. And of course a person in custody does not have to escape in order to commit an offence. A prisoner, whether a remand or a sentenced prisoner, may commit an offence in prison. If a prisoner on remand on a charge of robbery assaults a fellow prisoner or a correctional officer and is convicted and sentenced to imprisonment while still awaiting trial on the robbery charge, does the service of the assault sentence count as pre-sentence detention? The suggestion is remarkable. I do not regard as a satisfactory answer to these difficulties the presence in ss 18(1) and 35(1) of the power of the court to order otherwise.
85. Accordingly, it seems to me that while there is a discretion not to backdate
a sentence such a discretion should be very sparingly
used and only where it
would offend justice and proper sentencing principles to otherwise.
86. I
note, however, that s 63(1) is phrased in a way that imports a discretion.
That, interestingly, was not the view of the Australian Law Reform Commission
(ALRC).
See ALRC, Same Crime, Same Time, Report 103 (ALRC, 2006) where (at p
296) the ALRC suggests that s 63(2) makes it mandatory to take into account any
pre-sentence custody. That does not seem to be quite how the legislation is
framed.
87. Thus, s 63(2) is certainly mandatory, but interestingly, there
is no overall requirement to take pre-sentence custody into account, but only
“[f]or
sub-section (1)”. That sub-section, however, gives a
discretion as to whether to backdate a sentence (and only backdating;
it has
nothing to do with cumulation or starting a sentence after the date it is
imposed).
88. It is difficult to conceive of a circumstance where a sentence
of imprisonment would be backdated other than where there has been
a period of
pre-sentence custody imposed, though pre-sentence custody on another charge may
justify backdating, even though it does
not fall within s 63(2): Geale v State
of Tasmania (at [60]). Those situations can be quite varied and include a wide
range of custodial options: see Alimudin
v McCarthy (2008) 23 NTLR 102. Thus,
it may be that s 63(1) is meant to be entirely facilitative, that is empowering
a court to backdate a sentence rather than discretionary. This seems to
be
supported by the Explanatory Statement for the Crimes (Sentencing) Bill 2005
(ACT). Then s 63(2) would make it mandatory where the offender has spent a
period of custody before sentence that the court consider that when deciding
whether to backdate the sentence.
89. This would give the words “take
into account” a meaning more like “including [the pre-sentence
custody as] a
mathematical calculation” for the purposes of the
backdating, rather than “paying attention to [the pre-sentence custody]
in
the course of an intellectual process”: Metropolitan Water Board v
Assessment Committee of the Metropolitan Borough of
St Marylebone [1923] 1 KB 86
(at 99) per Lord Hewart CJ.
90. The width of the phrase “in relation
to” (see above at [81]) seems to point to a discretion and I am inclined
to think
that the court has a discretion but the point has not been fully argued
and, accordingly, I do not make a final finding on the issue.
91. I have not
been able to find much by way of authority which helps to formulate the
principles upon which such discretion should
be exercised. It may be that the
court would not backdate a sentence where it could reduce the sentence otherwise
to be imposed
because the sentence to be imposed might not be able, with the
backdating, to be properly implemented. This seemed to be the situation
in R v
Anderson [2006] QCA 563 (at [9]).
92. Similarly, it has been suggested
that where the offender has contributed to delay or otherwise become disentitled
to the benefit
of backdating (and how is not there clearly explained) the
discretion may be exercised not to backdate a sentence: Shams v Clarson
(2002) 130 A Crim R 1 (at 9). Other than in those circumstances, it was held in
Shams v Clarson, and I respectfully agree, that a sentence should take
into
account all relevant pre-sentence custody and do so by backdating the sentence.
The strength of s 63(4) and (5), however, would militate against such matters
being relevant. Indeed, these provisions would allow periods of pre-sentence
custody not directly referable to the offences for which a sentence is imposed
to be taken into account.
93. There seems to be a strong sense in the
authorities that the pre-sentence custody has to be taken into account, which
accords
with principle and the discretion is merely on the basis that backdating
is one way of doing so. Thus, Fryberg J said (at [43])
in R v Edie
[2006] QCA 111:
It is, however, well settled that a sentencing court is not obliged to proceed under s 161 [the Queensland provision about pre-sentence custody]. Independently of that section it has a discretion to frame a sentence that takes all relevant matters into account. The section does not limit or exclude the general sentencing discretion to consider a period of pre-sentence custody as a factor which may operate in mitigation, whether by reducing the head sentence, or by accelerating the date for consideration for parole, or otherwise (R v Jones (1988) 1 Qd R 672 at 675; R v Skedgwell [1999] 2 Qd R 77 at 99-100).
94. Nevertheless, as Williams JA said in R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292 (at 293):
It was obviously the intention of the legislature in enacting s 161 that a declaration that time spent in custody should be counted as part of the sentence was a preferable approach to that previously adopted by sentencing judges of making a reduction from the notional head sentence to take account of time already spent in custody.
95. The same position would appear to apply to s 63.
96. It may, however,
also be that where the offender is dealt with separately for the offences in
respect of which he or she was held
in custody, it would be inappropriate for
the pre-sentence custody to be credited twice or more frequently to the
sentences imposed
for the offences. It seems to me, however, that in the light
of the strong statements of principle I have referred to above, the
occasion for
the exercise of a discretion not to backdate a sentence to take into account
pre-sentence custody, if a discretion is
to be read into the section, will be
rare.
97. This may follow from the very wide circumstances where the
pre-sentence custody would fall within s 63(2). In this, the section is very
unlike the much more restricted provisions in Queensland and, formerly,
Victoria. The matter, however,
does not fall for decision in this case and was
not argued so I shall refrain from saying any more about it.
98. Finally,
there is the position in relation to a suspended sentence which is activated
through breach. In this case, his Honour
activated the suspended sentence
originally imposed by Magistrate Fryar and then reimposed (though for a lesser
period) by Magistrate
Burns. Mr Hawkins had spent ten days in custody on the
charge of assault for which the suspended sentence was imposed, prior to
its
imposition.
99. Mary Daunton-Fear, op cit, wrote (at 118) on that
issue:
Where imprisonment flows not from an immediate order of the sentencing court, but rather on the activation of suspended sentence, the breach of a bond or the non-payment of a fine, should the same principles apply with regard to pre-sentence custody? On balance, it is suggested that they should but it is recognised there are forceful arguments on either side. On the one hand, it can be argued, as it was in Victoria in relation to some of the situations under discussion, that offenders who suffer imprisonment indirectly as opposed to immediately, have already had a second opportunity. Further, pre-sentence custody may have been taken into account by the sentencing court in refraining from making an order for immediate imprisonment. On the other hand, if the sentencing court had reason to extend some lenience to the offender in the first place, should he, at a later stage, be in a less favourable position than one in respect of whom no reason existed? It is submitted that this would occur if the offender who is imprisoned indirectly receives no credit for pre-sentence custody while the offender sentenced to immediate imprisonment does so. [footnotes omitted]
100. There is, perhaps a little surprisingly, little by way of authority on this
issue. In R v Deering [1976] Crim LR 638, the UK Court of Appeal held
that the court activating a suspended sentence cannot give credit for time spent
in custody prior to
the imposition of the suspended sentence.
101. On the
other hand, in Dragon v State of Western Australia [2008] WASCA 252, the court
held that the time spent on remand prior to the imposition of the suspended
sentence should have been taken into account
in determining the period of the
suspended sentence to be actually served. The particular legislative provision
prevented a backdating
of the sentence.
102. Under s 110 of the Crimes
(Sentence Administration) Act 2005 (ACT), the court in dealing with an offender
who has breached a good behaviour order made on the imposition of a suspended
sentence
may “impose the suspended sentence imposed for the
offence”. Thus, the court then and there imposes the sentence of
imprisonment. It seems to me that this is then subject to s 63 of the
Sentencing Act. Thus, the legislative provisions seem to imply that
pre-sentence custody can and should be taken into account when activating a
suspended sentence.
Conclusion
103. As noted above, I have not found that
any of the specific challenges to the constituent sentences imposed by his
Honour have
been made out.
104. In relation to the overall sentence, I was
provided with no material by way of elucidation of what has been called
“the
collective wisdom” of sentencers. No comparative or
statistical material was available. I have, of course, to bring to bear
my own
knowledge of sentences imposed. Indeed the 2001 ACT Supreme Court sentence,
namely five years imprisonment for four burglaries
is a measure of sorts in
itself. I can see nothing in the individual sentences nor in the totality of
them and the way they were
cumulated that made them excessive for the offences
committed.
105. Further, little was put before me about the circumstances
of the offences or the subjective circumstances of Mr Hawkins. Thus,
nothing
additional (other than the matters mentioned above) was relied on to show that
the circumstances of the offences of the offender
made the sentences manifestly
excessive.
106. The only issue, then, is whether his Honour correctly applied
s 63 of the Sentencing Act. In my view, for completely understandable reasons,
his Honour did not do so. The additional periods of 66 days and ten days were
not taken into account and should have been.
107. Accordingly, I propose to
order that the sentence commence from 10 November 2008. The sentence will end
on 9 August 2011. Mr
Hawkins will be eligible for parole on 9 September
2010.
I certify that the preceding one-hundred and seven (107) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 November 2009
Counsel for the Appellant: Ms T Warwick
Solicitor for the
Appellant: Wilson Phillips O’Keefe Lawyers
Counsel for the
Respondent: Mr J Lawton
Solicitor for Respondent: Director of Public
Prosecutions (ACT)
Date of hearing: 9 October 2009
Date of judgment: 6
November 2009
Jason Hawkins Charges
|
CC08/10615
|
15/05/06
|
did dishonestly appropriate various electrical items belonging to National
Hire Property to the value of $3640
maximum penalty 10 years imprisonment and/or $1000 fine
4 months imprisonment
|
|
CC08/9918
|
15/05/06
|
did enter National Hire business premises at Mitchell with intent to commit
theft - goods taken and referred to in 08/10615 did dishonestly
appropriate
various electrical items to the value of $3640
maximum penalty of 14 years jail and/or a fine of $114,000
4 months imprisonment
Concurrent with 10615 |
|
CC08/6234
|
21/04/09
|
did dishonestly and without consent take a Yamaha R1 motorcycle belonging
to Russel Hocking
maximum penalty of 5 years imprisonment and/or a $5000 fine
3 months imprisonment
Consecutive to 10615 |
|
CC08/6835
|
28/05/08
|
was in possession of items reasonably suspected of being stolen or
unlawfully obtained, namely the Yamaha R1 motorcycle of Mr Hocking
referred to
in Charge 08/6234
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Concurrent with 6234 (7 months) |
|
CC08/6834
|
28/05/08
|
was in possession of an ACT Registration plate 61271, reasonably suspected
of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Consecutive to 6234 (10 months) |
|
CC08/6836
|
28/05/09
|
was in possession of a black Kawasaki Zx/9 motorcycle, reasonably suspected
of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Concurrent 6834 Reparation of $6818 ordered |
|
CC08/6837
|
28/05/08
|
was in possession of a green Kawasaki trail bike, reasonably suspected of
being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Concurrent 6834 |
|
CC08/6838
|
28/05/08
|
was in possession of an ACT registration plate 62968, reasonably suspected
of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Concurrent 6834 |
|
CC08/6839
|
28/05/08
|
was in possession of a NSW Registration plate TML75, reasonably suspected
of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Concurrent 6834 |
|
CC08/6840
|
28/05/08
|
was in possession of an ACT registration plate 70598, reasonably suspected
of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Concurrent 6834 |
|
CC08/6841
|
28/05/08
|
was in possession of a blue wallet and cards with name John Nennut,
reasonably suspected of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
1 month imprisonment Consecutive to 6834
(11 months) |
|
CC08/9742
|
04/09/08
|
was in possession of a black Nike Storm jacket retailing $79.95 from the
Footlocker store, reasonably suspected of being stolen or
unlawfully obtained
6 months imprisonment and/or a $5000 fine
1 month imprisonment Consecutive to 6841
(12 months) |
|
CC09/1267
|
04/12/08
|
Repeat offender drove whilst disqualified maximum penalty of $I0,000 fine
and or a 1 year imprisonment
4 months imprisonment Consecutive to 9742
Disqualified from obtaining or holding a driver's licence until the Court orders |
|
CC08/1269
|
04/12/08
|
did dishonestly without consent ride a red Honda trail bike belonging to
Alex Wright
maximum penalty of 5 years imprisonment and/or a $5000 fine
4 months imprisonment
Concurrent with 1267 (16 months) |
|
CC09/1270
|
04/12/08
|
did use an unregistered/registrable vehicle
Maximum fine of $2000 Sentence to the rising of the Court
|
|
CC09/1271
|
04/12/08
|
did use an uninsured vehicle
Maximum fine of $5000
Sentence to the rising of the Court
|
|
CC09/1568
|
09/01/09
|
Failure to appear
maximum penalty of 2 years imprisonment and/or a $20,000 fine
2 month imprisonment
Consecutive to 1267 (18 months) |
|
CC09/2183
|
09/01/09
|
Was in possession of a Stihl Quickcut demolition saw, reasonably suspected
of being stolen or unlawfully obtained
6 months imprisonment and/or a $5000 fine
3 months imprisonment
Consecutive to 1568 (21 months) |
|
CC09/4071
|
|
Breach of Good Behaviour Order
Convicted of common assault, suspended sentence of 12 months
6 months imprisonment
Consecutive to 2183 (27 months) |
|
CC09/5344
|
|
did dishonestly without consent ride a motorcycle belonging to James
Brennan
maximum penalty of 5 years imprisonment and/or a $5000 fine
4 months imprisonment
Consecutive to 4071 (31 months) |
|
CC09/5345
|
|
did exceed speed limit by greater than or equal to 15kmph in a non School
zone
$143 or $2000 fine
Sentenced to the rising of the Court
|
|
CC09/5346
|
|
Repeat offender drove whilst disqualified
maximum penalty of $10,000 fine and or a 1 year imprisonment
6 months imprisonment 4 months
Concurrent with 5344 Other 2 months Consecutive Disqualified from obtaining or holding a driver's licence until the Court orders (33 Months) |
I sentence Mr Hawkins to 33 months imprisonment. I set a non-parole period of 22 months
I direct that the sentence is to start on the 26th of January 2009. His sentence will end on the 25th of October 2011 and I direct be eligible for parole on the 25th of November 2010
Signed
Dated
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/act/ACTSC/2009/148.html