APPEAL AND NEW TRIAL - appeal from Magistrates Court - purported discontinuance - no power unilaterally to discontinue appeal - leave to withdraw - where sentences disclose problems with sentence - appeal upheld to the extent of re-imposing sentence in a different order.

CRIMINAL LAW - jurisdiction, practice and procedure - judgment and punishment - need to impose a sentence on each of multiple offences - Pearce v The Queen (1998) 194 CLR 610.

Trade Practices Act 1974 (Cth)

Workplace Relations Act 1996 (Cth), s 178

Court of Petty Sessions Ordinance 1930 (Cth), s 151

Crimes (Sentencing) Act 2005 (ACT), ss 17, 33, 34, 65, 84, 103

Court Procedures Rules 2006 (ACT), Ch 2, Div 2.11.6, r 5001

Magistrates Court Act 1930 (ACT), s 216, Pt 3.10

Crimes Act 1900 (ACT), s 24

Road Transport (Driver Licensing) Regulation 2000 (ACT), s 21

Crimes (Sentence Administration) Act 2005 (ACT), Div 6A.3.8

Osman v Larkham [2011] ACTSC 81

R v Musso [2002] NSWCCA 487

Director of Public Prosecutions v Grabovac [1998] 1 VR 664

Australian Competition and Consumer Commission v Australia Safeway Stores Pty Ltd & Ors (1997) 145 ALR 36

Mill v The Queen (1998) 166 CLR 59

Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560

R v Edirimanasingham [1961] AC 454

J by his litigation guardian Vardanega v Australian Capital Territory (2009) 234 FCR 399

Peverill v Crampton [2010] ACTSC 79

Blundell v Sentence Administration Board of the ACT and Ors [2010] ACTSC 151

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THERESIA MCCARRON, LUKE VINCENT AND CHRISTOPHER JAMES TANNER

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. The appellant be given leave to amend his Notice of Appeal to add a ground of appeal against the entry of a conviction on charge number CC10/10854 instead of a non-conviction order.

2. The sentences imposed by the Magistrates Court on 13 April 2011 be set aside.

(a) on charge number CC11/2517, Mark Burge is sentenced to imprisonment for three months to commence on 19 February 2011 and end on 18 May 2011;

(b) on charge number CC11/2518, Mark Burge is sentenced to imprisonment for three months to be wholly concurrent on the sentence on charge number CC11/2517, that is, to commence on 19 February 2011 and end on 18 May 2011;

(c) on charge number CC11/2519, Mark Burge is sentenced to imprisonment for three months to be wholly concurrent on the sentence on charge number CC11/2517, that is, to commence on 19 February 2011 and end on 18 May 2011;

(d) on charge number CC11/7449, Mark Burge is sentenced to imprisonment for eighteen months wholly cumulative on the sentence on charge number CC11/2517, that is, to commence on 19 May 2011 and end on 18 November 2012 with a non-parole period of twelve months to commence on 19 February 2011 and end on 18 February 2012; and

(e) charge number CC10/10854, is dismissed under s 17 of the Crimes (Sentencing) Act 2005 (ACT).

1. The circumstances in which I make the orders in this appeal are somewhat curious. The appellant, Mark Burge, was, on his plea of guilty, convicted in the Magistrates Court of five offences and sentenced to terms of imprisonment. He then appealed against the sentences.

2. On 17 May 2011 he filed what he termed a Notice of Discontinuance. Discontinuance by notice is provided for in Ch 2 of the Court Procedures Rules 2006 (ACT) (the Rules) in Div 2.11.6. Some of the rules in Ch 2 are applicable to appeals (see r 5001(3) of the Rules); Div 2.11.6 is not amongst them.

3. The court may, of course, grant leave to the appellant to withdraw the appeal, as was recently granted, for example, in Osman v Larkham [2011] ACTSC 81, but there is no provision for unilateral discontinuance.

4. That is for a very good reason. Appeals to the Supreme Court from the Magistrates Court against sentences imposed in the latter court, are provided for in Pt 3.10 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act); that Part includes s 216 which stays the sentence pending the appeal. Thus, if an appeal is ended, it is necessary for the court to consider how to deal with the effect of that stay.

5. This is particularly relevant where an appellant has been sentenced to imprisonment and not granted bail pending the appeal. That was the situation in relation to Mr Burge, whose application for bail pending the appeal was refused on 21 April 2011. It can also be important to deal with issues such as ancillary orders like licence disqualification which may need to be reconsidered and possibly reviewed.

6. Ordinarily, where an appellant indicates (and the filing of the purported Notice of Discontinuance would be a good such indication) that he or she wishes to withdraw the appeal, leave would be granted readily, subject to any consequential orders that might need to be made.

7. In this case, however, Mr A Doig, who appeared for the respondent, very properly drew my attention to some issues in the way that the sentences were formulated which might have unintended consequences adverse to Mr Burge. He submitted that I should remit the sentence back to the Magistrates Court to be corrected or appropriately varied to accord with what appears to have been the learned Sentencing Magistrate's intention. I adjourned the proceedings to consider how best to proceed.

8. Despite the fact that I do not have the transcript of the proceedings, I consider that the problems are largely in terms of the implementation of the sentence and while I could set aside the orders and remit them to the Magistrates Court, it seems to me to be as easy and appropriate for me to deal with them myself. Because of the need to make some appropriate orders in any event, I consider that dealing with the matter now is the proper option.

9. There was one matter raised by Mr Doig and one other matter which needs also to be addressed. I shall deal with each in turn.

(a) on 17 January 2011, obtaining property, namely $42, by deception, being an offence in contravention of s 326 of the Criminal Code 2002 (ACT) (the Criminal Code), which attracts a maximum penalty of 1,000 penalty units (a fine of $110,000) or ten years imprisonment or both;

(b) between 16 January 2011 and 21 January 2011, receiving stolen property, itemised in an annexure to the information and consisting of a number of computer games, being an offence contrary to s 313 of the Criminal Code, which provides for the same maximum penalty;

(c) on 20 January 2011, obtaining property, namely $32, by deception;

(d) on 21 August 2010, assault occasioning actual bodily harm, being an offence against s 24 of the Crimes Act 1900 (ACT) (the Crimes Act), the maximum penalty for which is five years imprisonment;

(e) being an unaccompanied learner driver, an offence under s 21(4) of the Road Transport (Driver Licensing) Regulation 2000 (ACT), which provides a maximum penalty of 20 penalty units, namely a fine of $2200.

11. In the circumstances, I do not need to set out the facts of the offences, save perhaps to note that the victim of the assault suffered relatively severe injuries, including a laceration to the bridge of his nose, swollen eyes and injuries to his face.

12. In respect of the charges, the learned Sentencing Magistrate imposed the following sentences as recorded in the bench sheets and warrants, copies of which were before me:

(i) on charge (a), three months imprisonment consecutive to the sentence on charge (d) to commence on 19 August 2012 and end on 18 November 2012;

(ii) on charge (b), three months imprisonment concurrent on the sentence on charge (a) and consecutive on charge (d) to commence 19 August 2012 and end on 18 November 2012;

(iii) on charge (c), three months imprisonment concurrent on the sentence on charge (a) and consecutive on charge (d) to commence on 19 August 2012 and end on 18 November 2012;

(iv) on charge (d), eighteen months imprisonment to commence on 19 February 2011 and end on 18 August 2012 with a non-parole period of twelve months;

(v) on charge (e), "Convicted, no separate penalty".

13. The warrants on each of charges (a), (b) and (c), as drawn, show that Mr Burge is sentenced to a total term of imprisonment of three months to be served as full-time detention to start from 19 August 2012 and end on 18 November 2012. Mr Burge was also given an official notice of sentence of imprisonment in each of these matters. The document states that it is made under s 103 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), but that relates to a notice of a good behaviour order; the correct section seems to be s 84 of the Sentencing Act. In any event, the notice states:

The earliest day that the offender will become entitled to be released from detention or be eligible to be released on parole (on the basis of the information currently available to the court) is 18 November 2012.

14. The warrant on charge (d) as drawn shows that Mr Burge is sentenced to a total term of imprisonment of eighteen months to be served as full-time detention to start from 19 February 2011 and to end on 18 August 2012 and that a non-parole period of twelve months is set to start from 19 February 2011 and end on 18 February 2012 and that "the earliest date that the offender will become eligible to be released on parole is 18 February 2012". The official notice of sentence of imprisonment is to the same effect.

15. As can be seen, the effect of these orders and warrants is that, on 18 February 2012, Mr Burge can be considered for parole by the Sentence Administration Board. Parole can then be granted as he is not detained on any other warrant but, if granted parole, he will on 19 August 2012, have to be returned to prison for three months on each of the sentences on charges (a), (b) and (c).

16. It seems to me that this is so extraordinarily unlikely that it cannot have been intended. There is, in any event, no basis for such a sentence. What appears to have been intended is that the sentences be cumulative as proposed but that there be a single non-parole period in respect of the whole sentence.

17. It may be that the problem arises because, in the Magistrates Court, each charge is a separate offence, charged separately and, so far as I understand, with a separate file. In contradistinction, in the Supreme Court, multiple offences are usually included in the same indictment and one file is then used, so that the sentence is on the one file and contained in the one order, with the one warrant and notice of imprisonment.

18. The setting of the non-parole period is provided for in s 65 of the Sentencing Act which is as follows:

(1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.

(2) The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.

(3) When the court sets the nonparole period, the court must state when the nonparole period starts and ends.

(4) However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender's antecedents.

(5) If the offender is subject to a sentence of life imprisonment, the court must not set a nonparole period for any sentence of imprisonment that is imposed on the offender.

(6) If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.

19. Her Honour appears to have applied this provision. She had imposed "2 or more terms of imprisonment that total 1 year or longer". It must be implied that this means that the imposition of the sentences is at the same time. Thus, by s 65(1), the section applied to this case.

20. Her Honour then set a non-parole period as required by s 65(2). That was, however, apparently set only on the sentence on charge (d), namely the most serious charge. Thus, it has not been incorporated into the other sentences, leaving them to commence effectively at the end of the longer sentence and apparently being unaffected by the possible grant of parole that could earlier occur.

21. There are a number of ways that this can be addressed, both in terms of sentencing and administration practices. For example, the sentencer could impose a non-parole period on each of the sentences. That would be quite odd in some ways in this case because the non-parole period on charges (a), (b) and (c) would be specified to end before the sentences themselves would start. While it is possible that this is strictly correct and in accordance with the Sentencing Act, it would appear quite odd and could raise problems with the corrections administration. An administrative mechanism could be implemented to have multiple sentences all included in the one committal order, warrant for imprisonment and official notice of sentence to imprisonment, as is done in this Court.

22. There is another approach and it is also the way I can resolve it, by imposing (or, in the case of this appeal, re-imposing) the sentences but in the reverse order, that is the sentences for charges (a), (b) and (c) first imposed and then the sentence for charge (d) to be consecutive on those sentences and to start the non-parole period from the date of sentence. It would not then be necessary to specify a non-parole period for the first imposed sentences for they would all expire well before the non-parole period ends.

23. It will, however, be necessary for the Magistrates Court to address this issue in the future for it would be unfortunate were someone in Mr Burge's position to be granted parole and then arrested some time later, to serve a further sentence intended to be incorporated into the non-parole period.

24. I will take the option I have suggested above (at [22]) and set aside the orders made and, as the sentences all seem well justified by the facts included in the papers, reinforced by the fact that the appellant seeks to withdraw the appeal, re-impose the same orders but in a different sequence to make the position clear.

25. The learned Sentencing Magistrate dealt with the charge of being an unaccompanied learner driver by convicting him of the offence and then apparently imposing no penalty or "no separate penalty".

26. It is not entirely clear what is intended by this annotation. The use of the word "separate" as a qualifier implies that some "general" or other penalty has been or might be imposed.

27. The Sentencing Act does not in terms make provision for such an order. The common law did not make provision for such an order. As was stated in Pearce v The Queen (1998) 194 CLR 610, in the well-known passage of the judgment of McHugh, Hayne and Callinan JJ (at 623-4; [45]):

To an offender, the only relevant question may be 'how long', and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality [Mill v The Queen (1988) 166 CLR 59].

28. Their Honours continued, in the judgment, by emphasising the important role of the individual sentence. Their Honours said (at 624; [49]):

Looked at overall, it may well be said that the effect of the sentences imposed on this appellant was not disproportionate to the criminality of his conduct. Nevertheless, we consider that the individual sentences imposed on counts 9 and 10 were flawed because they doubly punished the appellant for a single act, namely, the infliction of grievous bodily harm. Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in the conduct which were the subject of punishment on each count.

29. These passages have received considerable judicial attention. That is proper and inevitable. As Sully J noted (at [31]) in R v Musso [2002] NSWCCA 487, what the High Court said in Pearce v The Queen is:

...not optional sentencing advice; it is imperative and authoritative direction from the High Court to sentencing judges.

30. The Victorian Court of Appeal in Director of Public Prosecutions v Grabovac [1998] 1 VR 664, said of the imposition of multiple offences (at 683):

What the judge should have done was to fix the appropriate term for each offence, then to direct such cumulation and concurrency as would likewise reflect the criminality of each episode of offending and finally to look at the end result to see if the principle of totality had been breached and to see otherwise whether it was a crushing head sentence. I would not suggest that this should be a mechanical process. Obviously a judge could fairly fix on a degree of concurrency and cumulation with an eye to what would not offend against the principle of totality; after all that is the object of the rules relating to both concurrency and cumulation. But the starting point should be sentences which are proportionate to and appropriate for each offence.

31. The principles do not only apply to custodial penalties. Thus, when considering the imposition of fines under the Trade Practices Act 1974 (Cth), Goldberg J in Australian Competition and Consumer Commission v Australia Safeway Stores Pty Ltd & Ors (1997) 145 ALR 36, referred (at 53) to what the High Court had said in Mill v The Queen (1998) 166 CLR 59, in a statement of the totality principle and then said:

As Spender J pointed out in McDonald v R at [1994] FCA 956; (1994) 48 FCR 555 (at 556); [1994] FCA 956; 120 ALR 629 (at 631):

Implicit in that statement is that the sentence for each offence should be 'properly calculated in relation to the offence for which it is imposed'.

It is explicit in this statement that a sentencer or penalty fixer must, as an initial step, impose a penalty appropriate for each contravention and then as a check, at the end of the process, consider whether the aggregate is appropriate for the total contravening conduct involved: McDonald v R at [1994] FCA 956; (1994) 48 FCR 555 at 563, per Burchett and Higgins JJ.

32. See also Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 per Buchanan J (at 581-2; [96]), where the court was required to address an appeal against financial penalties imposed by a Magistrate for breaches of s 178 of the Workplace Relations Act 1996 (Cth).

33. A failure to impose a penalty seems to breach this direction. Without some statutory justification, it would seem to require appellate intervention. In some jurisdictions, there is provision for the imposition of what is termed a "general sentence". Such a sentence is "a sentence intended by the judge to cover more than one count" according to Lord Tucker in R v Edirimanasingham [1961] AC 454 (at 460). See J by his litigation guardian Vardanega v Australian Capital Territory [2009] ACTSC 170; (2009) 234 FLR 399 (at 419; [100] to [103]). It does not seem to me that there is any power to impose a general sentence in this Territory.

34. The Sentencing Act does not make provision either for a general sentence or for a sentence of "no separate penalty". It is true that the imposition of a conviction has elements of penalty in it. See Peverill v Crampton [2010] ACTSC 79 (at [131]). I do not, however, consider that what I said there meant that the conviction was a sentence (notwithstanding the definition of sentence in the Sentencing Act) but that, in the case where a non-conviction order might otherwise be considered, there was a penal element in the making of a conviction in itself.

35. In inspecting the Sentencing Act, I note that in s 33(1) and (3) and in s 34(1), there is a reference in each place to an offender being "sentenced (if at all)" which might be said to imply that a sentencer may proceed not to impose a sentence.

36. I have carefully read the Explanatory Statement for the Bill which became the Sentencing Act and can find in it no suggestion that there is an intention to abrogate the rule in Pearce v The Queen. It is difficult to accept that a major policy shift such as that would be intended with no reference made to it in the Explanatory Statement. See Blundell v Sentence Administration Board of the ACT and Ors [2010] ACTSC 151 (at [88]).

37. Of course, it is necessary to give the words of ss 33 and 34 of the Sentencing Act some meaning. I have heard no argument on this issue, however, so my view must be provisional. Nevertheless, it seems to me that the reference is to the court acting under s 17 of the Sentencing Act, for that section provides its own code of relevant circumstances in s 17(3) which makes ss 33(1) and (3) and s 34(1) irrelevant. The exclusion, therefore, of these provisions when a court considers whether to act under s 17 would be rational and appropriate. It would appear that an order under at least s 17(2)(a) is no sentence at all.

38. In any event, it would be at least curious if a significant change in the jurisdiction of the court were to be included almost incidentally in such provisions.

39. I am satisfied, therefore, that "no separate penalty" is not a sentence and does not discharge the court's duty to act in accordance with the mandatory principles established by the High Court in Pearce v The Queen.

40. In those circumstances, however, it seems to me that I should impose a sentence as one should have been imposed, but without increasing the burden on Mr Burge, particularly where the appellant seeks to withdraw the appeal. Mr Doig did not submit that I should increase the sentence.

41. Ordinarily, a fine would be imposed for such an offence. Under previous provisions for the enforcement of fines (see s 151 of the Court of Petty Sessions Ordinance 1930 (Cth) as enacted), it was possible to require payment of a fine forthwith and in default to specify a period of imprisonment so that an offender already sentenced to imprisonment could serve such a period concurrently or consecutively to the term already being served and thereby meet issues of totality including possible concurrency. The more complicated and discretionary provisions about the enforcement of fines, contained in Div 6A.3.8 of the Crimes (Sentence Administration) Act 2005 (ACT), make that impossible or at least impractical, even though there are good policy reasons for them to be in the form they now are.

42. It seems to me, then, that it would be desirable to act in some way to bring the prosecution for this offence to a conclusion. If I were not to do so, then, there being no sentence imposed, it would theoretically be possible for Mr Burge to be called upon to be sentenced for this offence at some later time.

43. While nothing in s 17(3) of the Sentencing Act, would justify taking action under that section, s 17(4) makes it clear that the court is not limited to those considerations. All the special circumstances of this matter seem to me to justify a sentence under s 17, though ordinarily, such an offence should be resolved by the imposition of a financial penalty. Such a sentence is less serious than that imposed by the Learned Sentencing Magistrate.

44. In order to dispose of this matter, I will set aside the sentences and re-impose them in a different order and with dates to take into account the time spent by Mr Burge in custody awaiting the hearing of this appeal.

I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Respondents: ACT Director of Public Prosecutions