Bahypu v McCarthy [2011] ACTSC 1 (14 January 2011)

Last Updated: 7 February 2011

BAHPYU v McCARTHY

[2011] ACTSC 1 (14 January 2011)

APPEAL – appeal from ACT Magistrates Court – appeal against severity of sentence – Parts 4.2 and 5.4 of the Crimes (Sentencing) Act 2005 (ACT) – what is required to constitute the required pre-sentence report – appeal allowed – orders of the Magistrates Court set aside – matter remitted for further hearing and decision.

Crimes (Sentencing) Act 2005 (ACT), ss 40, 40A, 41, 42, 46, 78, 79, Parts 4.2 and 5.4

Magistrates Court Act 1930 (ACT), s 218

Keen v Tither [2010] ACTSC 130 (15 October 2010)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 42 of 2009

Judge: Gray J

Supreme Court of the ACT

Date: 14 January 2011

IN THE SUPREME COURT OF THE )

) No. SCA 42 of 2009

AUSTRALIAN CAPITAL TERRITORY )

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: BEAU BAHPYU

Appellant

AND: SCOTT WAYNE McCARTHY

Respondent

ORDER

Judge: Gray J

Date: 14 January 2011

Place: Canberra

ON 25 NOVEMBER 2010 THE COURT ORDERED THAT:

1. The appeal be allowed.

2. The orders of the Magistrates Court of 15 September 2009 be set aside.

3. The matter be remitted to the Magistrates Court for further hearing and decision.

1. This is an appeal against a sentence imposed in the ACT Magistrates Court that was heard in this Court on 25 November 2010. Counsel for the respondent conceded that certain requirements of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) had not been complied with in sentencing the appellant. As a consequence, the parties were in agreement that the appeal should be allowed. These are my reasons for allowing the appeal and making consequential orders.

2. In the Magistrates Court, on 15 September 2009, the appellant, Beau Bahpyu, was convicted of a charge of driving a motor vehicle on a public street with level four alcohol in his blood and sentenced to six months imprisonment to be served by way of periodic detention. It was also ordered that the appellant be disqualified from holding a driver’s licence for three years.

3. The appellant appeals against the sentence on the ground that the sentence is manifestly excessive.

Background

4. On Sunday, 17 May 2009, in the early hours of the morning, the appellant was stopped for a random breath test on Gungahlin Drive at Mitchell. The appellant returned a blood alcohol reading, by breath analysis, of 0.163 grams of alcohol per 100 millilitres of blood. The appellant entered a plea of guilty on the first occasion the matter was before the Magistrates Court on 9 September 2009 to the charge “that he, a repeat offender, in the Australian Capital Territory on Sunday 17 May 2009, drove a motor vehicle, on a public street, with level 4 alcohol in his blood”.

5. On 9 September 2009, the matter was adjourned to 15 September 2009. A police statement of facts and criminal history was put before the court. The appellant had a history of driving offences with alcohol in his blood in 1994, 1998, 2001 and 2007. These offences had attracted fines and licence disqualification. The appellant also had some relatively minor traffic offences prior to 2001 and also, in 2001, he was fined and his licence disqualified for driving whilst his licence was disqualified.

6. After hearing submissions from the appellant’s solicitor, the magistrate imposed the sentence, the subject of this appeal. The maximum penalty for the offence is a fine of 20 penalty units and imprisonment for 12 months. Disqualification of licence is for a minimum period of 12 months and a maximum of five years.

7. The respondent prosecutor conceded that the magistrate erred by sentencing the appellant to a sentence of imprisonment to be served by way of periodic detention without ensuring that the procedures and formalities required by the Sentencing Act for imposing such a sentence had been complied with.

Pre-sentence reports and periodic detention under the Sentencing Act

8. Section 41 of the Sentencing Act, which is in Part 4.2 of that Act, gives a court power to order a pre-sentence report. Sections 41(2) and (3) of the Sentencing Act provides:

(2) However, the court must order the chief executive to prepare a pre-sentence report before sentencing the offender to serve all or any part of a sentence by–

(a) periodic detention; or

(b) community service work under a good behaviour order; or

...

(3) The court order for the preparation of a pre-sentence report may state 1 or more pre-sentence report matters, or any other matter, that the report must address.

(My emphasis.)

9. The pre-sentence report matters are referred to in s 40A of the Sentencing Act. Section 40A provides:

40A Pre-sentence report matters

For this part, each of the following is a pre-sentence report matter in relation to the offender:

(a) the offender’s age;

(b) the offender’s social history and background (including cultural background);

(c) the offender’s medical and psychiatric history;

(d) the offender’s educational background;

(e) the offender’s employment history;

(f) the extent to which the offender is complying, or has complied, with any sentence;

(g) the offender’s financial circumstances;

(h) any special needs of the offender;

(i) any courses, programs, treatment, therapy or other assistance that is available to the offender and from which the offender may benefit;

The reference in s 41(3) to “any other matter that the report must address” may be taken to include reports on matters concerning community service and periodic detention that a court directs. Section 42(3) of the Sentencing Act sets out what is required when the court directs that a pre-sentence report deal with an offender’s suitability for periodic detention. Section 42(3) provides:

(3) If a court order directs that a pre-sentence report deal with an offender’s suitability for serving all or any part of a sentence by periodic detention, the report must also—

(a) address the matters mentioned in section 79 (Periodic detention—pre-sentence report matters); and

(b) include the assessor’s recommendation about—

(i) the offender’s suitability for serving all or any part of a sentence by periodic detention; and

(ii) any condition that might be appropriate for the offender’s periodic detention.

10. In relation to determining suitability for periodic detention, s 78 of the Sentencing Act, which is in Part 5.4 of that Act, sets out what is required by the court before imposing periodic detention. Section 78(1) of the Sentencing Act provides:

78 Periodic detention—suitability

(1) The court must not set a periodic detention period for the offender unless a pre-sentence report is given to the court about the offender’s suitability to serve a sentence (or a part of a sentence) by periodic detention.

11. In determining whether to impose periodic detention the court must consider certain matters but these matters do not limit what the court may consider. Sections 78(2) and 78(3) of the Sentencing Act provide:

(2) In deciding whether to set a periodic detention period for the offender, the court must consider the following:

(a) the pre-sentence report;

(b) any medical report about the offender given to the court;

(c) any evidence given by the person who prepared the pre-sentence report;

(d) any evidence given by a corrections officer about the offender.

(3) Subsection (2) does not limit the matters that the court may consider.

12. Section 78(4) of the Sentencing Act requires that when a court considers the pre-sentence report it must consider the indicators of unsuitability mentioned in table 79, column 3 in s 79 of the Sentencing Act. Pursuant to s 42(3) of the Sentencing Act if a court directs that a pre-sentence report address an offender’s suitability for periodic detention, then the report must also address the matters mentioned in table 79 in s 79 of the Sentencing Act. Table 79 provides:

Table 79 Assessment of suitability—periodic detention

column 1 item	column 2 matter	column 3 indication of unsuitability
1	degree of dependence on alcohol or a controlled drug	major problem with alcohol or a controlled drug
2	psychiatric or psychological condition	major psychiatric or psychological disorder
3	medical condition	potential unfitness to report for periodic detention
4	criminal record	serious criminal record
5	employment and personal circumstances	potential impracticability of regular reporting for periodic detention

Consideration

13. As can be seen from the provisions set out above, s 41(2)(a) of the Sentencing Act requires a court to order a pre-sentence report before sentencing an offender to serve all or part of a sentence by way of periodic detention.

14. A document was apparently provided to the sentencing magistrate by Corrective Services entitled “Community Service/Periodic Detention Assessment”. This document “recommended” that the appellant be assessed as suitable for community service work and periodic detention. However, it was conceded by the respondent prosecutor that this document could not satisfy the requirements of Parts 4.2 and 5.4 of the Sentencing Act.

15. When a court orders the preparation of a pre-sentence report it may state one or more pre-sentence report matters referred to in s 40A of the Sentencing Act, or any other matter, that the report must address (see s 41(3) of the Sentencing Act). This indicates that a pre-sentence report can, as it was in this case, be confined to matters concerning community service or periodic detention. However, it can only do so if it addresses the considerations provided for in the Sentencing Act.

16. In relation to determining suitability for periodic detention, s 78 of the Sentencing Act sets out what is required by the court before imposing periodic detention. Section 78(1) of the Sentencing Act provides for the court to not set a periodic detention period unless the appropriate pre-sentence report is given to the court.

17. Further, in determining whether to impose periodic detention the court must consider the pre-sentence report, any medical report about the offender given to the court and any evidence given by the person who prepared the pre-sentence report. These matters do not limit what the court may consider (see ss 78(2) and 78(3) of the Sentencing Act).

18. When a court considers the pre-sentence report it must take into account the indicators of unsuitability mentioned in table 79, column 3 which can be found in s 79 of the Sentencing Act. Pursuant to s 42(3) of the Sentencing Act if a court directs that a pre-sentence report address an offender’s suitability for periodic detention, then the report must also address the matters mentioned in table 79 in s 79 of the Sentencing Act.

19. The report provided to the magistrate did not address the five matters set out in table 79 contained in s 79 of the Sentencing Act. Without these aspects being addressed by the report, either specifically or in general, the magistrate was not in a position to consider whether he should set a periodic detention period as s 78(2) of the Sentencing Act requires. It is also important because, as in this case, it may not be considered necessary to request that the specified pre-sentence report matters be addressed but rather that the report be directed only to suitability for community service and periodic detention. In the absence of information about the other pre-sentence report matters, recommendations by the assessor about suitability and appropriate conditions are of some moment in assisting the court to make its determination under s 78(3).

20. In Keen v Tither [2010] ACTSC 130 (15 October 2010) (Keen v Tither), Justice Penfold made some observations about the Sentencing Act and outlined the failures of a sentencing magistrate to comply with the Sentencing Act in respect of a pre-sentence report relating to suitability for periodic detention. Her Honour said (at [18]):

18. However, in many respects the procedure his Honour had adopted did not comply with the Crimes (Sentencing) Act requirements relating to pre-sentence reports.

(a) The document provided by Mr O’Brien was not exhibited and does not appear in the Appeal Book.

(b) There is nothing in the transcript identifying Mr O’Brien as an assessor for the purposes of s 41 of the Crimes (Sentencing) Act.

(c) The transcript does not record anything that can be identified as an order for the preparation of a pre-sentence report as described in s 41.

(d) Mr O’Brien’s report was not given orally, at least according to the transcript, and s 45(2) does not seem to have been complied with in relation to any written report.

(e) Mr Keen was not invited to cross-examine Mr O’Brien on the pre-sentence report as required by s 46.

(f) Nor does it seem that Mr Keen had in the course of his dealings with Mr O’Brien signed an undertaking to comply with his periodic detention obligations as required by s 77(1)(d) of the Crimes (Sentencing) Act.

21. In the present case, the failure is in the content of the report and its failure to address in any meaningful way the matters that such a report is required to address. It also seems to me, important that the prosecutor and defence counsel be given the right and opportunity to cross-examine on the report as provided for by s 46 of the Sentencing Act.

22. In the present case, no reference was made in the course of the sentencing hearing to the report received by the Court. In my view, the report is a report to the Court. If it is not admitted as an exhibit, as was the case here, at least, the parties’ attention to the Court having received it, should be acknowledged to give the parties the opportunity to comment.

23. In the course of the hearing, I canvassed with counsel my views on certain comments made by the magistrate in the course of the sentence and in his sentencing remarks. I do not wish to give any specific directions about these matters as, in the result, I determined to remit this matter pursuant to s 218(1)(c) of the Magistrates Court Act 1930 (ACT) for further hearing and decision. However, my comments on those matters should be drawn to the attention of the magistrate who rehears this matter. It will be a matter for the Magistrates Court to determine whether to order a pre-sentence report and the matters that are to be the subject of such a report and to then proceed to re-sentence the appellant.

24. Therefore, my formal orders were to allow the appeal, set aside the sentence appealed from and remit the proceedings for further hearing and decision.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Associate:

Date: 14 January 2011

Counsel for the appellant: Mr M Kukulies-Smith

Solicitor for the appellant: Kamy Saeedi Lawyers

Counsel for the respondent: Mr J Lundy

Solicitor for the respondent: ACT Director of Public Prosecutions

Date of hearing: 25 November 2010

Date of judgment: 14 January 2011