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Supreme Court of the ACT |
Last Updated: 16 March 2009
HUMAN RIGHTS ACT
WILLIAM KEVIN STONE v LES BRIEN & ITSHAK YOSEF [2009]
ACTSC 6 (18 February 2009)
APPEAL ─ appeal from decision of the Magistrates Court of the ACT ─ reasons for allowing appeal.
CRIMINAL LAW ─ sentencing principles ─ relevant considerations ─ s 33 Crimes (Sentencing) Act 2005 (ACT).
CRIMINAL LAW ─ sentencing principles ─ re-sentencing for breach of good behaviour orders ─ need for accused to be advised before re-sentencing hearing for offences affected by breaches ─ s 108 Crimes (Sentence Administration) Act 2005 (ACT).
CRIMINAL LAW ─ sentencing principles ─ re-sentencing for breach of good behaviour orders ─ need for accused to be advised before re-sentencing hearing for offences affected by breaches ─ relevance of right to be told about the nature and reason for a charge ─ s 22 Human Rights Act 2004 (ACT).
CRIMINAL LAW ─ sentencing principles ─ application of Crimes (Sentencing) Act 2005 (ACT) on re-sentencing ─ whether Magistrate erred in failing to advert to nature and circumstances of offences for which appellant was being re-sentenced ─ s 108 Crimes (Sentence Administration) Act 2005 (ACT).
PRACTICE AND PROCEDURE ─ Magistrates Court charge mechanisms ─ manner in which breaches of good behaviour orders are notified.
Crimes (Sentence Administration) Act 2005 (ACT), s 108
Crimes (Sentencing) Act 2005 (ACT), s 33
Human Rights Act 2004 (ACT), par 22(2)(a)
Thompson v Young [2008] ACTSC 11 (30 January 2008)
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 17 of 2008
Judge: Penfold J
Supreme Court of the ACT
Date: 18 February 2009
IN THE SUPREME COURT OF THE )
) No. SCA 17 of 2008
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: WILLIAM KEVIN STONE
Appellant
AND: LES BRIEN
First Respondent
AND: ITSHAK YOSEF
Second Respondent
REASONS FOR JUDGMENT
Judge: Penfold J
Date: 18 February 2009
Place: Canberra
Introduction
1. On 13 May 2008 I heard an appeal from two sentences of imprisonment imposed in the Magistrates Court on 29 February 2008. These were imposed as a result of breaches of good behaviour orders imposed for two offences, namely assault occasioning actual bodily harm (the assault offence), and failing to appear, without reasonable excuse, in the Magistrates Court (the fail to appear offence). The maximum penalties for these two offences include, for the assault offence, 5 years imprisonment and, for the fail to appear offence, 2 years imprisonment. Thus, the assault offence is considerably more serious.
2. At the end of the hearing I upheld the appeal on the basis that the learned Magistrate had erred in not engaging in a proper sentencing process when she re-sentenced the appellant, and remitted the matter to the Magistrates Court to be dealt with according to law. I indicated that I would provide written reasons for upholding the appeal.
3. I also noted that I considered it undesirable to call a person before a court to be dealt with for a breach of a good behaviour order imposed in respect of a particular offence and then to re-sentence the person in respect of another offence not mentioned when the person was called before the court.
4. This judgment provides reasons for upholding the appeal, and further comments on the issue of re-sentencing an offender for an offence not previously raised in the breach proceedings.
Background
5. It is necessary first to describe in some detail the processes that led to the imposition of the sentences the subject of this appeal.
The original sentencing
6. On 20 April 2007 Mr Stone was sentenced in the Magistrates Court for the assault offence and the fail to appear offence. Magistrate Campbell’s order is described in the appellant’s criminal history as follows:
On each charge: Convicted. Ordered to perform 104 hours of community service within 12 months concurrent. Released on entering a good behaviour order for 12 months. To be supervised by the Chief Executive and obey all reasonable directions for a period of 12 months or such lesser period as deemed appropriate.
7. It is clear from the opening words “On each charge” that her Honour was imposing a separate (albeit concurrent) penalty in respect of each charge, including a separate good behaviour order.
Breaches of good behaviour orders
8. Between April and July 2007, the appellant failed to comply with directions of authorised Corrective Services officers on several occasions, and repeatedly failed to perform community service work as directed.
9. From June 2007 a number of documents were prepared in relation to the appellant’s breaches. The Appeal Book contained the following documents:
10. The only document mentioning the failure to perform community service work is the first document, namely the June 2007 Statement of Facts signed by Mr Brandy.
11. The second, third and fourth documents, namely the initial Statement of Facts, the Information, and the Summons to the Defendant upon the Information, form a series (acquiring the reference number CC07/41552 at the Information stage) all relating to a breach constituted by a failure to accept supervision from ACT Corrective Services.
12. The fifth document, the Bench Information Charge sheet, also relates to a breach constituted by a failure to accept Corrective Services supervision, but carries a different reference number (CC07/41798). It is not clear whether this is the same breach covered by the CC07/41552 documents or another similar breach.
13. It is possible that further documents exist that fill in the gaps in this set of documents, for instance:
• an Information, Summons upon the Information, and Bench Information Charge sheet arising out of the June 2007 Statement of Facts about the failure to perform community service work;
• a Bench Information Charge sheet relating to Information CC07/41552;
• a relevant Statement of Facts, and an Information and Summons upon the Information bearing the same reference number as shown on the Bench Information sheet (CC07/41798).
14. However, all the documents made available to me refer to the conviction and sentence for the offence of failing to appear after a bail undertaking; none of them purports to relate to the offence of assault occasioning actual bodily harm and the sentence imposed in respect of that offence. Even if all the documents I have identified as missing do in fact exist, and were in fact made available as appropriate to the appellant in advance of the Magistrates Court proceedings on 29 August 2007 or even before the hearings in 2008, the absence of any reference to the assault offence in the existing documents means that there is no reason to assume that any related documents would refer to that offence.
15. Thus, when the appellant appeared in the Magistrates Court in response to the Summons upon Information, he was entitled to assume that he was facing proceedings:
(a) for one breach of the good behaviour order relating to the fail to appear offence; and
(b) if some or all of the missing documents that I have described above did exist, also for either or both of:
(i) a second similar breach of that good behaviour order; and
(ii) a further breach of that good behaviour order constituted by a failure to perform community service.
Court proceedings
16. It seems from the bench sheets set out in the Appeal Book that the appellant did not appear in the Magistrates Court as required on 29 August 2007. However, he was before the court on 24 September, at which point he was remanded to 16 October. On 16 October, according to the bench sheet, something (presumably the alleged breach or breaches) was admitted, and the appellant was remanded until 23 October. On 23 October Magistrate Doogan (who was not the original sentencing Magistrate) made several orders relating to compliance with the supervision and community service orders.
17. The appellant then appeared in the Magistrates Court on 15 January 2008 on a breach of bail constituted by various further failures by the appellant in relation to supervision appointments with Corrective Services and reporting for community service work.
18. Magistrate Doogan was initially inclined to take action on the breach, but agreed to the request by the appellant’s solicitor to allow the appellant more time to complete his community service work.
19. In the course of that hearing there were indirect references to the fact that the appellant had committed multiple offences. The learned Magistrate said:
Maybe I should just resentence you on the whole lot ... the other alternative is I could resentence you on these matters right now, I can cancel the recognizance that you were placed on and resentence you.
20. However, the appellant was by that stage facing several other charges, and so her Honour’s references to multiple offences could have been ambiguous to him. At no stage did her Honour or anyone else at the hearing expressly mention the assault offence.
21. At the end of the 15 January hearing, her Honour adjourned the matter to 29 February 2008, again directing the appellant to comply with the conditions of the recognizance imposed on 20 April 2007, including the community service order. She mentioned both “Charge 41798” and “Charge 41552”, and said “So it’s only those two matters”. However, as set out above, both those Informations (properly so described) related to breaches of the good behaviour order imposed in respect of the fail to appear offence; neither of them mentioned the assault offence.
22. The appellant failed to complete 104 hours of community service work by 29 February. In addition, a random urinalysis conducted by Corrective Services on 24 January returned a positive result for cannabis. Magistrate Doogan was clearly frustrated by the appellant’s lack of progress. She commented at some length about his failure to take advantages of the chances he had been offered, and then moved quickly to re-sentence him:
So I am not going to waste my time, this court’s time, by putting him over yet one more time, because that will just let him believe that he can just do it at his own pace without any consequence to him. He was charged and convicted of two serious offences, one of assault occasioning actual bodily harm, and a failing to appear charge.He was lucky, in my view, to be given 104 hours of community service, and released on the good behaviour bond with all of these conditions, and he has not shown that he can comply or he’s shown rather that he cannot comply with that good behaviour order. He’s breached that good behaviour order, and he’s failed to do the work.
MS McLAUGHLIN: Yes, your Honour. My only submission is that your Honour doesn’t necessarily have to simply adjourn it again, and indeed that wasn’t the application before the court but your Honour can vary the order and can take no further action.
HER HONOUR: I don’t propose to do that at all, and that way he escapes any consequences on those two offences.
MS McLAUGHLIN: Well by varying the order, your Honour can obviously impose a different penalty.
HER HONOUR: Yes, well that’s what I intend to do. I intend to vary the order and impose a different penalty.
MS McLAUGHLIN: As the court pleases.
HER HONOUR: And the penalty that I intend to impose is a sentence of imprisonment. So on charge 41552, I find that breach proved, the good behaviour order imposed on 20 April 2007 is revoked and I re-sentence him to a sentence of 2 months’ imprisonment. That sentence is to commence today being 29 February 2008.
On charge 41798, the good behaviour order is revoked, he’s sentenced to 1 months’ imprisonment, but that sentence is to be concurrent upon 41552 of 2007, and I don’t propose to put him on any more good behaviour orders because he’s shown that he won’t comply with provisions of good behaviour orders.
23. The comments by her Honour quoted above include a reference to the assault charge, but this is the first reference to the assault offence recorded in the transcript of that hearing. Even then, the learned Magistrate purported to impose the two terms of imprisonment by reference to the numbers of the two Informations, even though both Informations related only to the single fail to appear offence.
The appeal
24. The appellant began his period of full-time imprisonment immediately on being sentenced. He lodged an appeal on sentence on 7 March 2008. The appellant remained in custody until he was granted bail on 14 March 2008, pending the determination of the appeal. He had therefore spent a total of 17 days in custody in relation to this matter.
Grounds of appeal
25. The grounds of appeal were as follows:
(a) Regarding the order made with respect to CC07/41552; her Honour erred by re-sentencing the appellant for the offence of assault occasioning actual bodily harm (CC05/1156) as the breach charge (CC07/41552) related to the good behaviour order imposed on the original offence of failing to appear in Court (CC07/373); and(b) Regarding the orders imposed with respect to both CC07/41552 and CC07/41798;
Further evidence
26. During the hearing it was noted that evidence about the offences for which the appellant was re-sentenced could be received, and indeed further evidence such as a pre-sentence report could be ordered. This evidence was not identified as directly relevant to the appeal, and since I remitted the matter to the Magistrates Court for a further re-sentencing I did not need to consider the admission of any such further evidence.
Reasons for allowing appeal
Error of law in re-sentencing generally
27. As indicated at [2] above, I upheld this appeal at the end of the hearing on the ground that the learned Magistrate had erred in not engaging in a proper sentencing process when she re-sentenced the appellant.
28. The learned Magistrate’s comments set out at [22] above were the sum total of her sentencing remarks.
29. Her Honour’s re-sentencing power was conferred by s 108 of the ACT Crimes (Sentence Administration) Act 2005 (the Sentence Administration Act), which is set out in the Appendix to these reasons. It is clear that under subs 108(4) of that Act the ACT Crimes (Sentencing) Act 2005 (the Sentencing Act), including of course s 33, applies to a re-sentencing under s 108 of the Sentence Administration Act (Thompson v Young [2008] ACTSC 11 (30 January 2008)). The separate question whether s 108 was available at all in respect of the assault offence is considered at [36] to [45] below. For the moment I consider only the effect of s 108 where it does apply.
30. 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 (subs 33(1)).
31. The first matter that the court is required to consider is set out in par 33(1)(a), “the nature and circumstances of the offence”. This paragraph is covered by the introductory words of the subsection, and so to the extent that the court does not know the nature and circumstances of the offence, it is not required to consider those matters in sentencing. Commonly, the full nature and circumstances of an offence will not be available to a sentencing court, but this does not mean that such a court can legitimately ignore such information as is available on the court records, or fail to ask for such information if it is not put before the court. Indeed, without information that goes beyond the mere identification of an offence by reference to its generic title (eg “assault occasioning actual bodily harm”), it is hard to see that the sentencing court has an actual offence before it to enliven its sentencing power. Thus, detail about the nature and circumstances of an offence sufficient to identify the particular incident and distinguish it from any other example of the offence must be fundamental to the sentencing process, and the sentencing process cannot proceed without information about those matters.
32. In this case, as indicated in the transcript of the learned Magistrate’s sentencing remarks set out at [22] above, her Honour apparently did not have access to any information about the nature or circumstances of the particular offences for which she was re-sentencing the appellant. All she referred to was the shorthand descriptions of the two offences as created by the legislation. She did not set out, even briefly, the circumstances of the particular offences, and nor did she suggest that she had seen any material setting out that information.
33. Counsel for the appellant submitted that her Honour’s failure to advert to the nature and circumstances of the offences for which she re-sentenced the appellant constituted an appellable error. Counsel for the DPP conceded this, and I also agreed that this failure was an error sufficient to require the appeal to be allowed.
34. I note also that the Appeal Book provided to me for the appeal did not contain any material disclosing the nature or circumstances of the original offences, and that this was one of the reasons why I decided that the proper way to deal with this appeal, having allowed it, was to remit the matter to the Magistrates Court to allow for the re-sentencing to take place informed by the necessary material.
Whether the sentences were manifestly excessive
35. Having concluded that the learned Magistrate was in error in her sentencing approach in that she did not advert to the nature and circumstances of the offences, and given that no information about the nature and circumstances of the offences was available to me either, I considered that it was neither necessary nor indeed possible to make any finding about the appeal ground that the sentences were manifestly excessive.
Re-sentencing for the assault offence
36. The process by which the learned Magistrate came to re-sentence the appellant for the assault offence is set out at [6] to [23] above. The appellant’s argument was that this process was not sufficient to enliven the court’s power to re-sentence for that offence. At the hearing I indicated concerns about the process, but considered that it was not necessary to make any finding about this argument. The following material elaborates on those concerns, but still does not include any finding on the issue.
37. Section 108 of the Sentence Administration Act is set out in the Appendix to these reasons. Relevantly, it confers certain powers on a court that is satisfied that an offender has breached any of the offender’s good behaviour obligations (subs 108(1)). Among those is the power to cancel the order (par 108(2)(f)). If the order is cancelled, the court must then re-sentence the offender for the offence for which the good behaviour order was made (subs 108(3)).
38. As set out at [9] to [14] above, neither of the good behaviour order breaches alleged in the two Informations was in any way linked to the good behaviour order made in connection with the assault offence. Thus, no breach of the appellant’s good behaviour obligations imposed in connection with the assault offence was expressly before the court.
39. Given that the good behaviour order for the assault offence was in all respects concurrent with the good behaviour order imposed in connection with the fail to appear offence, it could be argued that a breach established in relation to the fail to appear order must necessarily also be a breach of the assault offence. This may be correct as a matter of logic, but that does not mean that reliance on a necessary implication of that kind is appropriate in the administration of the criminal justice system, nor, specifically, that it is sufficient to enliven the power of the court under s 108.
40. Because the assault offence had not been raised at all with the appellant, or in the Magistrates Court, before the re-sentencing, I cannot see how the learned Magistrate could have been properly satisfied (for the purposes of subs 108(1)) that the appellant had breached his good behaviour obligations under the good behaviour order imposed in respect of the assault offence. That in turn would mean that her Honour had no power under par 108(2)(f) to cancel the good behaviour order in relation to the assault offence, and therefore no power under subs 108(3) to re-sentence the appellant for that offence.
41. Counsel for the DPP conceded that the approach adopted for the Magistrates Court was “probably not the best practice”, and provided the following written submissions:
Although breach charges are a commonly used mechanism by which the Magistrates Court is informed of alleged breaches, it is submitted there is nothing in either the legislation or the common law to limit the courts [sic] jurisdiction under s 108 to the particularisation contained within a breach charge ... for two reason [sic], firstly there is no requirement under either the Sentencing Act or the Sentence Administration Act for this charge mechanism to be used, rather it appears to be simply based on legal convention in the Magistrates Court alone. Secondly, this charge mechanism is not used in the Supreme Court, which relies upon the criminal record as evidence of the charges upon which the offender is being re-sentenced.
42. I note the submissions that the “charge” mechanism is not required to be used, and that no equivalent mechanism is used in the Supreme Court. However, on reflection, I hold to the view I expressed at the hearing to the effect that, if the authorities choose to use a formal mechanism of the kind used in this case to bring breaches of good behaviour orders before the court, they should be held to the material provided to the offender through that mechanism. The risk is that an offender unfamiliar with the details of the Sentence Administration Act, and possibly his or her legal advisers (who may not be familiar with the details of the earlier sentencing process), will rely on the contents of the Information in deciding how to respond to it, and the scope for such an offender being thereby disadvantaged is real.
43. While it is true, as pointed out by counsel for the DPP, that the offender should be well aware that good behaviour orders had been imposed for multiple offences, it is also true that an offender might understandably be tempted to assume, on receiving material of the kind used in this case, that the authorities only wished to proceed against him or her on one of the previous offences, and that they had their own valid reasons for choosing to proceed in that way.
44. Counsel for the appellant drew my attention to par 22(2)(a) of the Human Rights Act 2004 (ACT), which is as follows:
(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:(a) to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge;
45. While the words of this provision do not apply directly to the situation in which the appellant found himself in relation to the breach proceedings, the provision does tend to support my view that, in general, participants in the criminal justice system should not be placed at risk of being misled or confused by the processes and forms adopted by those who administer that system.
46. I mention in passing that, since the charge mechanism used in this case is apparently not required by any legislation, there would seem to be no reason why an Information of the kind used in this case could not be drafted so as to refer, in one document, to all relevant offences and all relevant good behaviour orders. That is, ensuring that an offender has all the material that he or she needs to deal properly with the proceedings, rather than only part (and a potentially misleading part) of that information, would not require any significant increase in the volume of documents produced, but only a revision of the existing documents to ensure that all relevant information is included.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date: 18 February 2009
Counsel for the appellant: Mr M Hockridge
Solicitor for the appellant: Legal Aid Office (ACT)
Counsel for the respondents: Mr S Drumgold
Solicitor for the respondents: ACT Director of Public Prosecutions
Date of hearing: 13 May 2008
Date of judgment: 18 February 2009
Appendix ─ Crimes (Sentence Administration) Act 2005
(1) This section applies if—
(a) a court is satisfied an offender has breached any of the offender’s good behaviour obligations; and
(b) section 110 (Cancellation of good behaviour order with suspended sentence order) does not apply to the offender’s good behaviour order.
(2) The court may do 1 or more of the following:
(a) take no further action;
(b) give the offender a warning about the need to comply with the offender’s good behaviour obligations;
(c) give the chief executive directions about the offender’s supervision;
(d) amend the good behaviour order;
(e) if the offender has given security under the order—
(i) order payment of the security to be enforced; and
(ii) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended);
(f) cancel the order.
Examples for par (d)
impose or amend an additional condition of the order, or amend the term of the order
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) If the court cancels the good behaviour order, the court must—
(a) if section 109 applies to the offender’s good behaviour order—deal with the offender under that section; or
(b) in any other case—re-sentence the offender for the offence for which the good behaviour order was made (the relevant offence).
(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on a conviction for the relevant offence.
(5) The court’s powers under this section are subject to section 113 (Good behaviour orders—limitations on amendment or discharge).
(6) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the relevant offence.
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