APPEAL - JURISDICTION, PRACTICE AND PROCEDURE - Appeal from the Magistrates Court - appeal against sentence -manifestly excessive - principle of totality - accumulation - discount for plea of guilty

Crimes (Sentencing) Act 2005 (ACT) s 35

Crimes Act 1900 (ACT) s 382(1)

House v The King [1936] HCA 40; (1936) 55 CLR 499

Legal Aid ACT (Appellant)

1. The appellant appeals against orders made by the Magistrates Court on 28 August 2015 in relation to a series of offences. The Magistrates Court sentenced the appellant for seven offences that occurred on four occasions.

2. On 4 March 2015, the appellant committed two offences of possessing a knife, and one of obtaining property by deception. In respect of these matters, the Magistrates Court imposed a sentence of one month's imprisonment for one of the possess knife offences, two months' imprisonment for the second possess knife offence, and three months' imprisonment for the obtain property by deception offence. The one-month sentence was made cumulative on the two-month sentence, and the three-month sentence was partially accumulated, resulting in an effective sentence of five months.

3. On 13 March 2015, the appellant committed a further offence of possessing a knife. The Magistrate sentenced the offender to two months' imprisonment, made entirely cumulative on the five months' sentence imposed for the first set of matters.

4. On 27 March 2015, the appellant failed to appear at court. For that offence he received a 12 month good behaviour order, which is not the subject of an appeal, but is relevant to note in order to understand his offending history, placement on bail (on 6 April 2015 he was placed on bail for the outstanding matters), and the total import of the sentences imposed on 28 August 2015.

5. On 21 June 2015, while on bail, the offender committed an offence of possessing a knife without reasonable excuse. The Magistrates Court imposed a three-month sentence, which was made entirely cumulative on the earlier sentences.

6. The overall result was that the offender was to serve 10 months' full-time imprisonment. Upon his release, he was to be subject to a 12-month good behaviour order.

7. By the time that he was sentenced, the offender had already spent about two months in custody, and that period was taken into account.

8. The maximum available penalty for possessing a knife, contrary to s 382(1) of the Crimes Act 1900 (ACT), is six months' imprisonment, and the maximum available penalty for obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT), is 10 years' imprisonment.

9. The offender's criminal history was important to the sentencing exercise. He had six prior convictions for possessing a knife without reasonable excuse, most recently on 4 September 2014. On 10 November 2014, the Magistrates Court imposed a one-month sentence for that offence. Prior similar offences had resulted in a variety of sentences ranging from no penalty to the imposition of a sentence of two months' imprisonment.

10. I do not know the circumstances of each of the earlier six offences. However, it is unfortunate that offences of a similar nature did not result in a gradually increasing penalty rather than a fluctuating one. That might have sent a stronger message to the offender.

11. As the offender has, in the past, received sentences of up to two months' imprisonment for offences of this type it is unsurprising that he makes no complaint about the length of the individual sentences imposed on the subject occasion, and has focused his appeal around the overall sentence.

(a) the sentences imposed by the Magistrates Court were manifestly excessive in all the circumstances; and

(b) the Magistrates Court failed to have sufficient regard to principles of totality in the manner in which the sentences were structured.

13. On the hearing of the appeal, the grounds were further refined.

14. First, for the two possess knife offences that were part of the same episode on 4 March 2015, the Magistrate entirely accumulated the sentences, leading to a sentence of three months' imprisonment. It was submitted that the only proper exercise of the Magistrate's discretion would have been to have made those sentences wholly concurrent.

15. I do not accept that submission. The possession of two knives is more serious than the possession of one knife. Each knife represented a threat to public safety. The overall sentence of three months' imprisonment for the possess knife offences sits comfortably with earlier sentences of one or two months' imprisonment for similar offences. Further, the individual and combined sentences sit comfortably when compared to the maximum available penalty of six months' imprisonment. When offences of a similar nature occur on the same occasion, it is usual practice to impose sentences that are partially concurrent, but there is no requirement to do so. It was open to the Magistrate to impose partially concurrent sentences.

16. The sentences that were imposed for the three offences that occurred on 4 March 2015 were made partially concurrent with the possess knife sentences, resulting in a sentence of five months' imprisonment for that group of offences. If they had been wholly accumulated, the sentence would have been six months' imprisonment. I find no error in the Magistrate's approach to this matter.

17. The appellant's second contention is the Magistrate failed to refer to the availability of a discount for the pleas of guilty pursuant to s 35 of the Crimes (Sentencing) Act 2005 (ACT).

18. Pursuant to s 35, a court may impose a lesser penalty if there is a plea of guilty, but a court is not required to do so.

19. Pursuant to s 35(4), a sentencing court must not make any significant reduction for a plea of guilty if the prosecution's case was overwhelmingly strong. Arguably the prosecution's case on all of these matters was a strong one.

20. Pursuant to s 35(2)(b) and s 35(5), the timing of a plea may affect the discount. In this case, the pleas were entered at various times between 18 June and 16 July. In relation to each offence, there had been a number of appearances before the Magistrates Court before the plea was entered, and it could not be said that the plea was entered at the earliest reasonable opportunity.

21. There is no requirement for a sentencing judicial officer to spell out the amount of the discount, if any, that has been allowed under s 35. It is preferable that judicial officers do so because the consistent imposition of a certain discount may create an incentive for other offenders to enter a plea of guilty, knowing the level of discount that is likely to be applied.

22. In this case, the judicial officer was a very experienced criminal lawyer who could not possibly have overlooked the relevance of the fact that pleas of guilty were entered in each matter. I do not discern any error in the fact that the Magistrate did not clearly articulate the fact that she was aware of the pleas of guilty, did not specifically refer to s 35, and did not spell out what discount, if any, she allowed. On the other hand, as I have said, the preferable course would have been to note the pleas of guilty, to note the stage at which they had been entered, and to spell out what, if any, discount was allowed.

23. The third matter relied upon by the appellant was that the overall sentence of 10 months' imprisonment is manifestly excessive given the totality of the criminality.

24. It is trite to say that in order to succeed on an appeal of this nature the appellant must establish error within the meaning of House v The King [1936] HCA 40; (1936) 55 CLR 499. In other words, it is necessary for an appellant to identify express or implied error. Error will be implied if a discretion (including the sentencing discretion) has been exercised in such a way that the result is manifestly wrong, plainly unreasonable or unjust.

25. Sentencing is fundamentally a discretionary exercise, both in relation to the imposition of individual sentences and in relation to the structuring of a group of sentences. In this case, the result of the Magistrate's actions on 28 August 2015 was that the appellant was to spend 10 months in custody, followed by a 12-month good behaviour order. Some may regard that overall sentence as a very substantial sentence. The Magistrate herself described it as lenient. But different judicial officers will always have different views.

26. The question is whether the overall sentence was outside the sentencing range, and in my view it was not.

27. The Magistrate expressly had regard to considerations of accumulation, concurrency and totality. In her reasons for decision at page 13, line 35 she said:

I've taken into account the totality of the sentencing, and in my view it is an appropriate sentence. It's a lenient sentence, and I'm giving you an opportunity to do something for yourself when you get out, all right.

I've taken into account what the judges of the Supreme Court say in relation to sentencing, particularly cumulative sentences and looking at the totality of the whole sentence and using some instinctive synthesis to ensure that it's fair and just in all the circumstances, and that's what I propose to do today.

29. The Magistrate knew that she must consider accumulation and totality, and decide whether the sentences overall were appropriate. There is no reason to conclude that she failed to undertake that task.

30. The appeal is dismissed and the orders of the Magistrates Court are confirmed.

I certify that the preceding thirty [30] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.