Arman v Wall and Anor [2008] ACTSC 61

Supreme Court of the ACT|2008-06-26|Before: Penfold J

(a) the appeal is allowed in relation to the three sentences of imprisonment;

1. This is an appeal from three sentences of imprisonment imposed in the Magistrates Court. These relate to:

(a) two offences of contravening a protection order under s 34 of the Domestic Violence and Protection Orders Act 2001 (ACT), committed on 25 June 2007 and 9 August 2007;

2. In the same proceeding on 6 December 2007, the appellant was re-sentenced to a 2-year good behaviour order for a breach of a good behaviour order originally imposed on 12 January 2007. Although the new good behaviour order was covered in the notice of appeal, counsel for the appellant did not make any submissions about the imposition of that order.

3. The appellant lived across the road from the complainant, and there was a history of disputation. On 9 February 2007 the Magistrates Court issued a personal protection order (the 2007 protection order), on the application of the complainant, for a period of 12 months. The order prohibited the appellant from being within 100m of the complainant or her children, and from being on the complainant's premises.

4. The first breach of the 2007 protection order occurred in the early afternoon on 25 June 2007. The complainant was at her premises with her children when she heard the appellant shouting offensive comments at her from his residence across the street. After a couple of hours of this behaviour, and partly because of the distress caused to one of the complainant's children by the events, the complainant contacted police.

5. Shortly afterwards the appellant knocked on the complainant's front door, saying "I don't know you ma'am, I didn't break your door. I just wanted to apologize" (this appeared to be a reference to an earlier dispute between the appellant and the complainant). Without opening the door, the complainant told the appellant that he was not allowed to be on her property, and waited inside until police arrived.

6. When the police arrived at the complainant's residence at about 2:45 pm, they heard the appellant yelling out from across the road, calling them "piss ants". The appellant's speech was slurred and he appeared to be intoxicated. After obtaining a statement from the complainant, police arrested the appellant for breaching the 2007 protection order.

7. On 27 July 2007 the appellant appeared in the Magistrates Court in relation to the offence of 25 June 2007. His bail was continued on the condition he refrain from assaulting, intimidating, harassing or threatening the complainant and her children, and that he not consume alcohol.

8. About 8:45pm on 9 August 2007 the complainant heard yelling coming from the appellant's residence. The complainant looked out her window and saw the appellant standing on his front lawn shouting abuse.

9. The complainant's children were distressed by the abuse from the appellant, and again the complainant contacted ACT police. Shortly afterwards, the appellant also called ACT police. He made at least eight calls to the police, which included threats and abuse to staff taking the phone calls. Police formed the view that the appellant was affected by alcohol, and a police patrol went to his residence. He was in due course arrested for breach of the 2007 protection order.

10. On 12 January 2007 the appellant had appeared in the Magistrates Court charged with a breach of an earlier protection order. He was sentenced to two months imprisonment suspended upon entering into a good behaviour order. The appellant's actions on 9 August 2007 contravened the provisions of the good behaviour order.

11. On 6 December 2007, the appellant was sentenced in the Magistrates Court for the June and August offences of contravening the 2007 protection order, and for the breach (constituted by those offences) of the good behaviour order made on 12 January that year. The sentence was for a total term of 26 months imprisonment, with a non-parole period of 18 months. The sentences comprised three terms to be served entirely consecutively:

(a) 9 months imprisonment for the offence committed on 25 June;

(b) 15 months imprisonment for the offence committed on 9 August;

(c) 2 months imprisonment (by way of the imposition of the previously suspended sentence) in respect of the contravention of the good behaviour order.

12. The first term of imprisonment was backdated to 8 July 2007 to take account of time already spent in custody.

13. The appellant began his period of full-time imprisonment immediately on being sentenced, and remains in custody. He lodged an appeal against sentence on 7 December 2007.

(d) in sentencing the appellant the learned Magistrate erred, either by not giving a discount for the defendant's pleas of guilty, or by not giving any reasons for refusing to give such a discount, in breach of s 37 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act).

15. Counsel for the appellant did not initially seek to lead any further evidence on appeal. However, as a result of discussion in court about the significance of the appellant's sale of his house, an attempt was made to file an affidavit after the hearing, but it was rejected on the grounds that it did not comply with the Court Procedures Rules. Fortunately for the appellant, this extra evidence was not vital to the determination of the appeal.

16. The maximum penalty for each offence covered by this appeal is 5 years imprisonment.

17. The drafting of the grounds of appeal, and argument at the hearing, suggest some confusion about the available grounds of appeal in a case of this sort.

18. On an appeal against sentence, an original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371).

19. As well, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). That is, no specific error need be shown to justify a finding that the sentence is "manifestly excessive", and if specific error is shown then there is no need to argue manifest excess.

20. I mention for completeness that even if specific error is shown, an appeal should not be allowed and a new sentence imposed unless the appeal court also considers that a different sentence would be appropriate, so to that extent the appropriate level of the sentence will need to be considered even in an appeal based on specific error.

21. I now deal with the appellant's appeal grounds by reference to the principles set out above. Those grounds are conveniently dealt with in the reverse order from that in which they are stated in the Notice of Appeal.

22. Appeal ground (c) identifies in the alternative two errors, namely failing to give a discount for a plea of guilty and failing to give reasons for not giving such a discount, in breach of s 37 of the Sentencing Act.

23. In relation to discounts for pleas of guilty, counsel for the appellant referred me to the NSW Court of Criminal Appeal's Guideline Judgment in R v Thomson; R v Houlton [2000] NSWCCA 309. In that case Spigelman CJ said at paragraph [52]:

The absence of any reference to actual consideration of the guilty plea in the course of the sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight.

24. It is not clear that failing to give a sentencing discount as such is an error (s 35 of the Crimes (Sentencing) Act 2005 confers a power rather than a duty to give such a discount), or that failing to give reasons for refusing such a discount is in breach of s 37 of the Sentencing Act (which in fact requires only that if such a discount is given, the sentence that would have been imposed but for the discount should be specified). Rather, as implied by Spigelman CJ in the passage quoted above, the basic error in relation to sentencing discounts for pleas of guilty would involve failing to have regard to a plea of guilty. Failing to give reasons for refusing a discount might lead to a finding of error if it meant that an appeal court could not be satisfied that the plea had been properly considered.

25. The learned Magistrate did refer to the appellant's pleas when she observed that "[t]he only factor in his favour is that he's pleaded guilty", and that the pleas were "the only mitigating factor". However, her Honour did not specify that she had reduced any of the sentences because of the pleas of guilty, and nor did she indicate that she did not consider the pleas deserved any sentencing discount.

26. Counsel for the respondent pointed out, correctly, that section 35 permits, rather than requires, a sentencing court to reduce a sentence having regard to a plea of guilty. However, because her Honour did not go beyond noting the pleas of guilty to indicate what approach she took to them, her comments are not sufficient to amount to "actual consideration of the guilty plea in the course of sentencing". Thus, although the learned Magistrate was not under any obligation to give a discount in sentencing, she seems to have fallen into error constituted by failing to take account of a relevant matter (the pleas of guilty), by taking them into account but failing to give reasons for not providing any sentencing discount, or, if she did take them into account and provide a sentencing discount, by failing to identify the discount as required by s 37 of the Sentencing Act.

27. Ground (b), that the accumulation of sentences was manifestly excessive, seems to confuse the "manifestly excessive" ground, which as described above requires a finding from which error can be inferred, with the specific error of law constituted by breaching the totality principle in deciding how multiple sentences are to be served, that is, whether they are to be concurrent, consecutive, or partly concurrent and partly consecutive.

28. I have accordingly treated ground (b) as a claim based on the totality principle (which is largely how it was argued), rather than on manifest excess.

29. Counsel for the appellant submitted that the learned Magistrate erred by failing to take into account the principle of totality when she simply accumulated the three sentences rather than allowing any part of them to be served concurrently. Counsel for the appellant referred me to the ACT case of Kennewell v Rand ACTCA 10 (5 June 2006), but conceded that that case related to the proper treatment of multiple offences, and sentences, arising out of a single incident, rather than offences arising out of separate incidents for which an offender happens to be sentenced at a single hearing. In fact, the more relevant case here is Mill v R (1988) 166 CLR 59 at 62-63 in which the High Court explained the relevant principles as follows:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing_,2nd ed. (1979), pp 56-57, as follows (omitting references):_

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ´just and appropriate'. The principle has been stated many times in various forms: ´when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; ´when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.

30. Given that the three sentences were imposed in respect of three separate incidents, albeit incidents relating to the same protection order and the same complainant, it is reasonable that they should have been accumulated in some way. However, the fully accumulated period of 26 months imprisonment seems high for the combination of three offences, each with a maximum penalty of 5 years imprisonment, when each offence was at the less serious end of the spectrum of behaviour covered by the offence provision. I also consider that imposing a longer term of imprisonment for the second offence (15 months compared with 9 months for the first offence) and fully accumulating it on top of the first term of imprisonment, appears to amount to some form of double punishment for the second offence.

31. It may also be relevant in assessing the appropriateness of the total sentence in this case that the appellant had previously served only relatively brief sentences of imprisonment.

32. The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend, but in some cases that fact may appropriately lead a court to decide that the first custodial sentence imposed should be a relatively short one. It is not so clear that an offender who has already served several periods in prison (in the appellant's case, periods of 24 days, 3 months and 6 months), can claim any continuing protection from the imposition of a longer sentence if that would objectively be appropriate for the offence concerned.

33. However, I note in this context the comments of Hulme J in the case of R v Henry and Ors [1999] NSWCCA 111 (12 May 1999), a NSW Court of Criminal Appeal Guideline Judgment, referring to his earlier comments in R v Michael John Spiteri [1999] NSWCCA 3 (24 February 1999) at [39] that "actual imprisonment for, say 10 years is more than twice as severe as one of imprisonment for 5 years". Although the terms mentioned are far higher than the ones that concern me here, the general proposition that longer sentences are likely to be disproportionately more severe than shorter sentences seems to be valid. Thus, a total term of 26 months for an offender whose longest previous term of imprisonment was 6 months, whose offences carried maximum penalties of 5 years imprisonment, and whose conduct was in each case at the less serious end of the spectrum covered by the offence provision, could be classed as severe.

34. On this basis, and in the absence of any indication in the transcript that her Honour did "take a last look at the total just to see whether it looks wrong", I find that the learned Magistrate fell into error in failing to apply the principle of totality when she determined that the three terms of imprisonment should be served entirely consecutively. This finding (in contrast to some findings of error) implies also a finding that another sentence than the one imposed is appropriate.

35. Ground (a), that the sentences were "manifestly excessive", does not require the appellant to identify any error on the part of the sentencing court. Rather, establishing that a sentence is manifestly excessive allows an otherwise unidentifiable error to be inferred. Manifest excess, almost by definition, should be apparent on the face of the sentence, and is difficult to demonstrate in argument; however, to the extent that manifest excess can be demonstrated rather than simply asserted, it is possible to identify matters that might be relevant to draw to the appeal court's attention. These are similar to the matters that would be raised at a sentencing hearing, and include the objective and subjective features of the offence and the offender, possibly placed in the context of different penalties imposed in cases that are recognisably similar or, if the penalties are similar, where the objective and subjective features of the offence and the offender are recognisably different.

36. In this case, the general ground of manifest excess was not argued expressly. Counsel's submissions about the applicant's subjective features, in particular his mental health problems, could be seen as part of a "manifestly excessive" submission; alternatively they may have been submissions to the effect that her Honour erred by ignoring the appellant's mental health issues but referring to deterrence as a factor in her sentencing.

37. The transcript of proceedings in the Magistrates Court indicates that the learned Magistrate did not consider the appellant's mental health issues to be significant. She referred to the Pre-Sentence Report's findings and concluding that "there appear to be no mental health issues except perhaps limited cognitive functioning due to some brain damage and level of his alcohol intake". In particular, she did not appear to see as relevant the involvement of the NSW Office of the Protective Commissioner as the manager of the appellant's finances under Part 3A of the Guardianship Act 1987 (NSW), under an order that can only be made if the NSW Guardianship Tribunal is satisfied, among other things, that "the person is not capable of managing [his or her own affairs]" (para 25G(a)).

38. It has often been noted that "general deterrence should often be given very little weight in the case of an offender suffering from a mental disorder or abnormality because such an offender is not an appropriate medium for making an example to others" (R v Ronald Anderson [1981] VicRp 17; (1980) 2 A Crim R 379 at 384, adopted by Grove J in R v Ninus Scognamiglio (1991) 56 A Crim R 81 at 86).

39. However, while there are references in the learned Magistrate's sentencing remarks to the need for deterrence, she appears to focus entirely on specific deterrence of the appellant, and counsel for the appellant conceded at the hearing that there was a need for specific deterrence. On that basis it is not clear that the learned Magistrate fell into error in relation to the appellant's mental health problems.

40. Nor do the facts of those mental health problems establish that the sentence was "manifestly excessive". Fortunately, in the light of my earlier findings, I do not have to reach a conclusion about this issue.

41. I have found that the learned Magistrate was in error both in her treatment of the pleas of guilty, and in breaching the totality principle, and that another sentence would be appropriate. Accordingly, the appellant must be re-sentenced.

42. For the purposes of re-sentencing, I have had regard to the facts of the offences summarised above, the other material available to the learned Magistrate, the submissions of counsel in this court, and the appellant's criminal record. In particular I have accepted the submission of counsel for the appellant that the existence of an order for the management of the appellant's estate under the Guardianship Act 1987 (NSW) is itself an indication that the appellant's mental health is compromised.

43. In the circumstances, I consider that the following sentences are appropriate:

(a) for the two contraventions of the 2007 protection order--9 months imprisonment each, the second term to be consecutive on the first as to 3 months;

(b) for the breach of the good behaviour order--the imposition of the suspended sentence of 2 months imprisonment, to be served concurrently with the first 9-month sentence.

44. But for the pleas of guilty, the first two sentences would have been 12 months each, and the second one would have been consecutive on the first sentence as to 4 months (making a total of 16 months).

45. In fact, the total period of imprisonment imposed is 12 months, backdated to 8 July and therefore expiring on 7 July this year. If that had been the total original sentence, it is possible that a non-parole period would also have been set, and accordingly I propose to suspend the sentence from today, subject to a good behaviour order for 12 months from today and therefore expiring on 25 June 2009.

(a) the appeal is allowed in relation to the three sentences of imprisonment;

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.

Solicitor for the appellant: Paul Edmonds, Solicitor and Barrister

Solicitor for the respondent: ACT Director of Public Prosecutions

(Sentencing) Act 2005

Violence and Protection Orders Act 2001

(Sentencing) Act 2005

Violence and Protection Orders Act 2001

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