Carpenter v Purcell [2008] ACTSC 34

1. This is an appeal from sentences imposed in the Magistrates Court in respect of four offences, as follows:

(a) two offences of unlawfully taking a child, under par 40(a) of the Crimes Act 1900 (ACT) (maximum penalty imprisonment for 10 years);

(b) one offence of assault with intent to commit an indictable offence, under s 22 of the Crimes Act 1900 (maximum penalty imprisonment for 5 years); and

(c) a prior offence of harbouring a child, under s 390 of the Children and Young People Act 1999 (ACT) (maximum penalty 50 penalty units, imprisonment for 6 months, or both), in respect of which the appellant was re-sentenced as a result of a breach of the good behaviour order imposed as part of the original sentence for that offence (the breach being constituted by commission of the offences mentioned above).

2. In the morning of 11 September 2007, the appellant attended Marymead Child and Family Centre with her sister for an arranged visit with her two children, then aged 25 months and 10 months respectively, who had been for some time in the custody of the Director of the Office of Children, Youth and Family Support. After the appellant terminated the visit, the two children were returned to their childcare centre. Shortly afterwards, the appellant and her sister entered the childcare centre, searched the premises and removed the appellant's two children by force. These events provided the basis for the two charges of unlawfully taking a child.

3. The appellant's actions while inside the childcare centre included saying, to a senior staff member standing at the door of the centre, words to the effect of "I have a knife. Move." This was the basis of the charge of assault. I note that in the Magistrates Court no evidence was given to establish that the appellant actually had a knife, and her solicitor indicated to the Magistrate that there was no knife.

4. The appellant, her sister and the two children were picked up outside the childcare centre by the appellant's partner, and travelled to Queensland. The appellant was arrested there on 2 October 2007 and extradited to the ACT.

5. The offences outlined above also constituted breaches of the good behaviour order made on 10 April 2007. That order was imposed in respect of an offence of harbouring a child, namely the appellant's daughter (the older of the two children involved in the later offences).

6. The appellant appeared in the Magistrates Court on 6 October 2007, and was remanded in custody. She entered a plea of guilty on 24 October 2007 and was sentenced on 27 November 2007, as follows:

(a) for the earlier offence in respect of which the appellant had breached her good behaviour order--3 months imprisonment, backdated to 6 October 2007 to take account of time already served;

(b) for the two offences of unlawfully taking a child--12 months imprisonment for each offence, to be served concurrently, but cumulative on the 3 months imprisonment in respect of the earlier offence; and

(c) for the assault offence--9 months imprisonment suspended, subject to a good behaviour order, for 3 years starting on the appellant's release from custody in respect of the other sentences of imprisonment.

7. A non-parole period of 8 months was set in respect of the sentences to be served as full-time imprisonment. This started on 6 October 2007 and will expire on 5 June 2008.

8. The appellant lodged this appeal on 28 November 2007, the day after she was sentenced, but has remained in custody ever since.

9. Grounds for appeal were set out in the Notice of Appeal, but at the hearing I gave the appellant leave to abandon three of the specified grounds and to add a new one. The amended grounds are as follows:

(a) the sentence was manifestly excessive in all respects;

(b) the sentencing Magistrate did not properly consider alternative sentencing options, other than a sentence of full-time imprisonment;

(c) the sentencing magistrate did not allow any reduction of sentence for the plea of guilty.

10. Counsel for the appellant did not seek to adduce any further evidence in support of the appeal.

11. In determining this appeal, I have applied s 214 of the Magistrates Court Act 1930 (ACT) in conjunction with principles that can be summarised as follows:

(a) First, the sentence imposed by the learned Magistrate is not to be overturned simply because I might have imposed a different sentence in the first instance (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672).

(b) Secondly, the original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error, but only if the appeal court, in re-exercising the sentencing discretion, considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal (rather than to allow the appeal and re-impose the same sentence). In some jurisdictions this approach is expressly provided for (eg subs 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237). 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).

(c) Thirdly, 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, by definition a different sentence is appropriate, and error may be inferred, given the finding that the sentence is excessive, unreasonable or unjust (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340).

Was there error in the exercise of the sentencing discretion?

12. Two grounds of appeal relevant to specific error by the learned Magistrate were stated.

13. One of the grounds was that "the sentencing Magistrate did not properly consider alternative sentencing options, other than a sentence of full-time imprisonment". This was not argued at the hearing, but in written submissions counsel for the appellant, while conceding that the pre-sentence report did not support sentencing options such as periodic detention or community service work, noted:

(a) that the learned Magistrate did not specify the community-based options she had ruled out; and

(b) that the pre-sentence report did say that "a rehabilitation program may be appropriate at this time".

14. However, the learned Magistrate made it clear that she had considered alternatives to full-time imprisonment, in the following remarks:

The defendant's criminal record contains a substantial number of convictions for a range of antisocial behaviour and unfortunately she has demonstrated consistently in recent years an unwillingness to cooperate with the authorities or comply with court orders. She has been given ample opportunity with court orders designed to address rehabilitative issues, but these have been quickly breached and have accordingly not had the desired effect. For all of these reasons she has been assessed at a high risk of re-offending and essentially unsuitable for community-based options.

I have come to the view that a period of full-time imprisonment is the only just and appropriate penalty.

15. Furthermore, a rehabilitation program is not a sentencing option as such; rather, it is something that could have been required as a condition of a community-based sentence if that had otherwise been seen as appropriate.

16. Accordingly, I do not consider that the appellant has established any error on the part of the learned Magistrate in relation to her consideration of alternative sentencing options.

Failure to give a discount for a plea of guilty

17. The appellant entered her plea of guilty 5 weeks after she was arrested and only 2 weeks after first dealing with her own legal representatives (she had previously dealt with a duty lawyer in the Magistrates Court). Her pleas were specifically drawn to the learned Magistrate's attention by her solicitor in his submissions, but were not mentioned at all by her Honour in the prepared sentencing remarks she handed down a week later.

18. Section 35 of the Crimes (Sentencing) Act 2005 (ACT) gives a sentencing court a power, rather than a duty, to reduce a sentence of imprisonment having regard to an offender's plea of guilty. There is no obligation to reduce a sentence because of a guilty plea, but I consider that the section does require a court to advert to the issue where it is considering imposing a sentence of imprisonment on a person who has pleaded guilty.

19. The learned Magistrate appears, therefore, to have fallen into error in not specifying her conclusions about the significance of the appellant's guilty plea. However, for reasons to be set out below, this does not entitle the appellant to succeed in her appeal.

20. The other ground of appeal was that the sentence was manifestly excessive.

21. Counsel for the appellant did not make any specific submissions by reference to either the maximum penalties for the several offences or penalties imposed for other instances of these offences. She did, however, refer briefly in argument to the appellant's asserted motive for the offence (that she had formed the view that her children were not being properly looked after in care), and to the difficulties the appellant had suffered in her own life. Counsel also asked me to take account of the appellant's solicitor's submissions made in the Magistrates Court.

22. Counsel for the respondent drew attention to the NSW case of WNB v Regina ([2006] NSWCCA 269), in which a child was taken by her father in the course of an access visit. The child had been in the care of NSW child welfare authorities and was taken so that she could live with her father, mother and siblings. The taking did not involve any disturbance of disruption of the kind created by the appellant's behaviour in her children's childcare centre or, apparently, any fear or distress on the part of bystanders. The offender in that case was initially sentenced to a total term of 18 months imprisonment with a 9 months non-parole period. This was reduced on appeal to a total of 12 months including a non-parole period of 6 months.

23. Unfortunately for the appellant, none of the material raised on her behalf, by itself, goes any way towards demonstrating that the sentence imposed by the learned Magistrate was excessive. On the contrary, and having regard to WNB v Regina mentioned above, the sentence appears to be well within range. In reaching this conclusion, I have had particular regard to a number of the most notable aspects of the appellant's offences, including the following:

(a) the maximum penalties for the offences concerned (10 years imprisonment for taking a child and 5 years imprisonment for this category of assault);

(b) The nature of the appellant's behaviour in the childcare centre, which must have induced considerable fear in the staff of the centre, in particular the staff member to whom the appellant mentioned the knife;

(c) the need to ensure that children who have been taken into care can be looked after in relatively normal circumstances and do not need to be confined to protect them from their parents;

(d) the potentially damaging effect of incidents such as this one on the capacity of childcare centres to remain accessible to parents and other members of the community; such accessibility is important in enabling parents and others responsible for children to have faith in the quality of care provided in such centres.

(a) that the learned Magistrate appears to have fallen into error in failing to mention the appellant's guilty pleas in considering an appropriate sentence; but

(b) that the sentences actually imposed appear to be appropriate and that the imposition of a different sentence is not warranted.

25. In the absence of other considerations, but having regard to the principles articulated above, this would lead me to dismiss the appeal.

26. However, as a result of lodging her appeal on 28 November 2007, the appellant's sentence has been stayed by s 216 of the Magistrates Court Act 1930, and she has been treated as a remand prisoner for the last few months (although it is not clear whether this treatment began, or should have begun, immediately on the lodging of the appeal or a few days later when the Registrar of this court advised ACT Corrective Services in writing that the appellant had become a prisoner on remand and not a sentenced prisoner).

27. As a result of the appellant's change of status, the period she has spent in custody since the stay of her sentence may be treated as not counting towards serving her prison sentence. In Hadba v The Queen ([2004] ACTSC 62 at [32]), the Full Court held that s 218 of the Magistrates Court Act 1930 empowered the court to vary a sentence appealed from to prevent any injustice arising from the operation of s 216 in the case of an unsuccessful appellant.

28. Accordingly, the appeal is dismissed, except to the extent necessary to vary the sentences appealed from as follows:

(a) For the earlier offence in respect of which the appellant had breached her good behaviour order--the sentence of 3 months imprisonment is backdated to 6 October 2007 to take account of time served.

(b) For the two offences of unlawfully taking a child--the sentences of 12 months imprisonment for each offence, to be served concurrently, but cumulative on the 3 months imprisonment in respect of the earlier offence, are backdated to 6 January 2008.

(c) The total period of imprisonment that is not suspended remains 15 months, and a non-parole period of 8 months was set in respect of the sentence. The non-parole period is also backdated to 6 October 2007 and will therefore expire on 5 June 2008.

I certify that the preceding 28 (twenty-eight) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Darryl Perkins Solicitor

Counsel for the respondent: ACT Director of Public Prosecutions