Supreme Court of Tasmania|1999-03-31|Before: Cox CJ

Burke, Phillipa Jane v Dunham, Nathan Wayne; Boyle, John Bernard v Dunham, Nathan Wayne; Buxton, Colin Henry v Dunham, Nathan Wayne; Buxton, Colin Henry v Dunham, Nathan Wayne [1999] TASSC 35 (31 March 1999)

FILE NO/S: BDR LCA 25/1998, 26/1998, 27/1998, 28/1998

Magistrates - Appeals from and control over magistrates - Tasmania - Notice to review - The hearing - Generally - Review of sentence - Principles applicable - Whether partly suspended sentence of imprisonment was erroneous as manifestly inadequate.

1 These four notices to review were heard together. They are in respect of some of the sentences imposed upon the respondent in petty sessions on 2 December 1998 when he was dealt with in respect of pleas of guilty to a total of fifty-five counts spread over twelve different complaints. He pleaded not guilty to other matters of complaint which then stood adjourned for hearing. Of the fifty-five charges, thirty-four related to breaches of bail in that having left the premises at which he was required by the terms of his bail to reside, he was found on thirty-four separate occasions to be residing elsewhere. The learned magistrate treated them as a single continuing offence and no complaint is made of that by the applicant prosecutors. In addition, there were two charges of failing to appear and seven further charges of breach of bail (principally curfew breaches). A further count was for a breach of a probation order. In respect of many of these matters, the learned magistrate imposed non-custodial sentences and no complaint is any longer made in respect of those sentences, save a technical one that in proceeding merely to "record a conviction" on them or some of them, the learned magistrate erred in that by virtue of the Sentencing Act 1997 ("the Act"), s7(g), his only option was to "record a conviction and order the discharge of the offender". I will dispose now of this ground of appeal as it applies to those charges which are subject to any of the four notices to review.

2 In my opinion the sentencing options in the Act, s7, are not exhaustive. Section 6 specifically provides:

"6 This Act is a consolidation, not a codification, of the State's sentencing law and it does not derogate from the powers that a court may exercise, or the rights that a person may have, under any other enactment or law for or in relation to the sentencing of offenders."

3 The recording of a conviction without more (subject to any mandatory sentence) has always been an option for a court. Where the matter of complaint is concluded with such an order, a further order that the offender be discharged from that matter of complaint may well be appropriate procedurally, but it is purely consequential upon the resolution of the complaint in that way. A failure to pronounce any such order could not per se invalidate the order recording the conviction. Even if I am wrong about that, s93(1) provides that the failure of a court to comply with any procedural requirement of the Act in sentencing an offender does not invalidate a sentence imposed by it. Nothing in that subsection prevents an appeal court from reviewing a sentence in circumstances where there has been such a failure (s93(2)), but it would be difficult to show that a prosecutor could be aggrieved by such a failure. This ground is not made out.

4 The complainants have confined their notices to seeking reviews of only some of the sentences pronounced. The notices relate to the following charges:

(a) Notice No 25/1998: two charges of driving while disqualified contrary to the Road Safety (Alcohol and Drugs) Act 1970, s19A where wholly suspended sentences of imprisonment were, it is said, imposed; and two counts each of breach of bail, driving an unregistered vehicle and driving a vehicle in respect of which no premium had been paid. On the last six charges, convictions were recorded. It is no longer claimed that such a sentence was inadequate, but reliance was placed on the technical argument which I have already dismissed. The reason I say "it is said" that wholly suspended sentences were imposed on the driving while disqualified charges will shortly appear.

(b) Notice No 26/1998: a third charge of driving while disqualified where a wholly suspended sentence of imprisonment was again, it is said, imposed.

(c) Notice No 27/1998: three counts of breach of a restraint order where a conviction was recorded. The claim that this was manifestly inadequate was not pursued and reliance was placed only on the technical argument I have mentioned and dismissed as untenable.

(d) Notice No 28/1998: one count each of burglary and stealing where a wholly suspended sentence of imprisonment was again, it is said, imposed.

5 There has not been any application to review other sentences of imprisonment, the execution of which was not suspended. The learned magistrate imposed the following custodial sentences, all of which were cumulative upon each other:

These sentences amount to ten months and were directed to commence on 8 October 1998 when he was first taken into custody, but having pronounced these sentences, the learned magistrate expressed himself as follows:

"As to the terms of imprisonment - they are the ones that should be imposed in my view - I also need to consider whether any part of the sentence should be suspended. I must take into account the period of time you have already served in prison by being on remand which is a period of two months. The current wording of the Sentencing Act makes it unclear that we can any longer back-date a term of imprisonment but I note the Supreme Court has continued to do so and, obviously, because it is much easier than trying to create some artificial formula to cover the situation so I intend to adopt their practice by back-dating the term of imprisonment to the 8th of October of 1998. I intend to suspend six months of the term of imprisonment I have imposed which means you will serve approximately four months imprisonment. I suspend that on condition that you be of good behaviour and not commit any offence involving dishonesty or any breaches of the Road Safety Alcohol and Drugs Act or any breaches of the Bail Act. I am doing that because I am taking into account the fact that you have now served a term of imprisonment and, hopefully, you will now consider, yourself, some rehabilitation. If, however, - I didn't say how long they were suspended for, did I? Thank you. That is suspended for a period of two years. That is to ensure that, (a), you follow rehabilitation yourself, and, also, it will mean, if you re-offend, I have no doubt any court, whether it be myself or any other magistrate, will, in fact, make you serve that six months in prison."

It will be observed that the learned magistrate did not indicate which of the various sentences were to be the subject of suspension of execution. The complaints are endorsed in such a way as to indicate that the execution of the particular sentences, the subject of three of the notices to review, was suspended and counsel for the applicants initially presented argument on the basis that those matters of complaint, being for driving while disqualified and offences of dishonesty, were manifestly inappropriate vehicles for suspension of their execution. However, there was no more reason to suspend them than to suspend the sentences of imprisonment for the various breaches of bail and of the probation order which do not purport either in the learned magistrate's comments or in the endorsements on the complaints to have been suspended.

"11 - (1) A court may impose on an offender who has been convicted of more than one offence specified in one or more complaints or indictments -

(b) a separate sentence for each of those offences; or

(i) one sentence for all of the remaining offences; or

(ii) a separate sentence for each of the remaining offences; or

(iii) a separate sentence for each other group of the offences remaining as the court determines and a separate sentence for each offence remaining, if any, as is not within any such group."

Unfortunately the learned magistrate's order does not fit into any of those categories. He could have achieved the result he appears to have intended by either specifying which of the separate sentences he pronounced were to be wholly or partly suspended, or he could have imposed one sentence for all the offences he considered worthy of punishment by way of imprisonment and then suspended the execution of the last six months of that sentence. He did neither, so that it remains unclear which of the sentences the respondent must serve. The Act, s93(2), however, preserves the court's power to review the sentences which are the subject of appeal. It is necessary, however, to bear in mind the principle of totality and to review the learned magistrate's decision in the light of what he was seeking to achieve, namely an overall sentence of imprisonment of ten months' duration, with the execution of the last six months thereof suspended on conditions which required the offender not to commit any offence against the Road Safety (Alcohol and Drugs) Act 1970, the Criminal Code and the Bail Act 1994.

7 Counsel for the applicants concedes that an overall sentence of ten months' imprisonment is not inadequate. His complaint is that the execution of no part of that term should have been suspended. Equally, counsel for the respondent does not submit that any one of the sentences, whether its execution was suspended or not, was excessive. That being the case, although I do not have all the material which was before the learned magistrate (eg, I have no material in respect of the breach of a probation order, save that a sentence of one month's imprisonment was imposed thereon and appears to have been treated by the magistrate's clerk as one, the execution of which was not suspended), the issue resolves itself into one of whether the learned magistrate was in error in suspending the execution of six months of the aggregate sentence.

8 The respondent was born on 11 April 1979. On his nineteenth birthday he burgled a restaurant and stole frozen goods to the value of $75.87. Numerous complaints against him had been found proved in the Children's Court: in 1993, seven charges each of burglary and stealing; in January 1994, one count of stealing; in May 1994, one count of burglary and six counts of stealing; in July 1994, one count of stealing; in January 1995, one count of motor vehicle stealing and three charges each of burglary and stealing; in February 1996, two counts of dishonestly obtaining a financial advantage; in April 1996, one count of obtaining goods by a false pretence and one count of receiving, plus one count of unlawful possession; in May 1996, one count of "possess stolen property"; and in July 1996, one count of motor vehicle stealing. In January 1998, in the adult court, he was convicted of one count of receiving. On this charge he was sentenced to four weeks' imprisonment, the execution of which was wholly suspended. In the Children's Court he had been committed to Ashley Boys Home on two separate occasions and had been sentenced to one month's imprisonment in April 1996. In addition, he was placed on probation and also ordered to do community service orders. By the time the present sentences were imposed, in the adult court alone he had been fined on eight separate occasions and he had been made subject to suspended sentences of imprisonment for fourteen separate offences at courts held on 5 January 1998, 19 May 1998, 23 June 1998 and 7 July 1998. Throughout the year 1998, prior to the present matters which were dealt with in December, the respondent was convicted of forty-eight different offences committed prior to any of the present charges and which ranged from crimes of dishonesty, breaches of bail, assaulting or resisting police to driving offences. In respect of the latter, the respondent's previous record included one conviction for driving while disqualified in January 1998, three convictions for offences against the Road Safety (Alcohol and Drugs) Act 1970, s6, seven convictions for driving without a licence and several convictions for driving unregistered and uninsured vehicles. For a young man of 19½ years, he has accumulated a prodigious record of offences and has shown a complete disregard for the law and the orders of the courts.

9 A presentence report prepared in July 1998 indicated that the respondent's relationship with a female had ended acrimoniously and that he had returned to his parents' home. The reporting officer said:

"In summary, Dunham has, in recent months, made an effort to co-operate with his supervising Probation Officer, however, problematic emotional entanglements and conflict with members of the community who are seeking retribution for Dunham's past misdemeanours have impeded efforts of rehabilitation."

In late October 1998, the same reporting officer said:

"On the 25th August 1998 Dunham's mother advised Community Corrections that she could no longer tolerate her son's anti-social behaviour and had banished him from her home. She said she had been subjected to violent and threatening behaviour and was at the 'end of her tether'. She said she was unaware of Dunham's whereabouts.

Since the 10th August 1998 Dunham has not reported to the Corrections office. His Probation Officer has, however, spoken to him on several occasions within the precincts of the Court and in the street. On each occasion Dunham has agreed to come into the office to discuss matters but has failed honour [sic] this commitment. It was noted that he gave the Court a residential address of 10 Oates St Burnie. This residence has been checked on several occasions and Dunham has been found to not be living there. One of the residents of that address has told the Probation Service that Dunham did not live at that address.

As a result of his non-compliance with the conditions of the Probation Order imposed on the 5th January 1998, Dunham has been charged with a breach of a Probation order.

In summary, in the first months of the supervision period Dunham showed signs of being more willing to co-operate with those trying to assist him. In recent months, however, he has blatantly avoided all attempts at guidance from Community Corrective services. In light of his current attitude it is considered that his rehabilitation is beyond the scope of community based services."

10 The learned magistrate was informed by counsel for the respondent that his misbehaviour in 1998 had stemmed from his inability to cope with the breakdown of the relationship referred to in the presentence report and that there were prospects for rehabilitation because he now really wanted to develop that relationship which, it appears, the lady in question was prepared to renew, provided the respondent mended his ways. She had advised counsel that in the two weeks prior to the respondent's incarceration on 8 October 1998, they "had recommenced friendly relationships" and that "particularly in terms of his anger management things were improving quite markedly in that two weeks". It was submitted that the influence of the respondent's girlfriend gave the court reason to hope that the respondent could be rehabilitated.

11 The principles governing the exercise of the discretion to suspend the execution of all or part of a sentence are well known, as are the constraints upon an appellate court when reviewing the exercise of any discretion (R v Percy [1975] Tas SR 62, R v Causby [1984] Tas R 54, R v Meers 32/1998; House v R [1936] HCA 40; (1936) 55 CLR 499, Cranssen v R [1936] HCA 42; (1936) 55 CLR 509 and Harris v R [1954] HCA 51; (1954) 90 CLR 652). In R v Percy (supra), Neasey J said at 73:

"... it is almost self-evident that a sentence of imprisonment should not be suspended unless there is some reasonable prospect, from the circumstances of the case or of the offender, that remission from actual imprisonment combined with the expectation that the sentence will have to be served if the conditions of suspension are breached will have sufficient deterrent effect; or will sufficiently move the offender towards reform of his conduct as to achieve that reformation."

12 In the present case, the learned magistrate had insufficient material to conclude that there was any reasonable prospect that the partly suspended sentence he imposed would deter the respondent from repetition of offences in each of the categories for which he had been convicted, or that the potential for the balance of the term being activated in the event of breach would move the respondent towards reform of his conduct. Time and again he had been given sentences short of imprisonment and he had already served at least one short sentence of actual imprisonment. His main offending had occurred after the breakdown of his relationship with his girlfriend and that relationship had only been renewed for a fortnight before his remand in custody. So short a period as a fortnight was insufficient to demonstrate any lasting change of attitude and at about the time it was said to be taking place, the respondent, according to the probation officer, was maintaining a policy of avoiding his supervisor and had supplied that person with an incorrect address.

13 On the material before him there was no justification for yet again suspending a substantial amount of the total term imposed. The net result has been the imposition of a sentence which in toto is manifestly inadequate. The appeal is upheld and I will proceed to impose a substituted sentence after counsel for the respondent has been heard in respect of any further matters relevant to sentence.

Burke, Phillipa Jane v Dunham, Nathan Wayne; Boyle, John Bernard v Dunham, Nathan Wayne; Buxton, Colin Henry v Dunham, Nathan Wayne; Buxton, Colin Henry v Dunham, Nathan Wayne [1999] TASSC 35

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Burke, Phillipa Jane v Dunham, Nathan Wayne; Boyle, John Bernard v Dunham, Nathan Wayne; Buxton, Colin Henry v Dunham, Nathan Wayne; Buxton, Colin Henry v Dunham, Nathan Wayne [1999] TASSC 35 (31 March 1999)

Cases Cited (3)