[2009] TASSC 74

Criminal Law - Sentence - Sentencing orders - Custodial orders - Other matters - Application for order that suspended sentence take effect - Material relevant for determining appropriate order - Information as to factual basis for sentence.

Sentencing Act 1997 (Tas), s27.

Criminal Law - Sentence - Sentencing orders - Non-parole period or minimum term - Tasmania - Two sentences of imprisonment - Global non-parole period not permitted by legislation.

Sentencing Act 1997 (Tas), s17(2)(e).

Judgment Number: [2009] TASSC 74

1 There are two matters before me - a motion to review and an application for an extension of time.

2 The motion to review relates to orders made by a magistrate on 12 May 2009, ordering that the unserved part of a partly suspended sentence, imposed by another magistrate, take effect, and that there be a non-parole period of 12 months. The notice to review was filed out of time on 24 July 2009, and that is why there is an application for an extension of time.

3 The sentence in question was imposed by the Chief Magistrate on 29 June 2007. It was a sentence of two years' imprisonment with effect from 5 July 2006, with the unserved balance of the sentence suspended. I calculate that the suspended part of the sentence amounted to 12 months and 5 days. The result of the imposition of that sentence was that the applicant was set free on 29 June 2007. The partial suspension was on condition that he be of good behaviour for two years.

4 He re-offended about 19 or 20 months later. He committed five offences or crimes on 19 February 2009. He attempted to steal from two people. He burgled a storeroom and stole from it. He assaulted somebody who went after him. He has been in custody since the following day, 20 February 2009.

5 On 12 May 2009 he appeared before another magistrate in relation to the five offences that I have just referred to, and a complaint laid by a probation officer for an offence of breaching a probation order, and on an application under the Sentencing Act 1997, s27, for the suspended part of the earlier sentence to be put into effect. He pleaded guilty to the new charges.

6 The learned magistrate made three orders. First, he ordered that the suspended part of the 2007 sentence take effect as from 20 February 2009; secondly, he sentenced the applicant to a cumulative term of five months' imprisonment in respect of the new offences to which he pleaded guilty; and, thirdly, he ordered that there be a non-parole period of 12 months.

7 The motion to review was argued initially by the applicant, without legal representation, on the ground that it was unreasonable and unjust for the suspended part of the 2007 sentence to be put into effect, because he had come so close to the end of the two-year period during which he was required to be of good behaviour before he had re-offended. I do not see any real merit in that argument. I think that it was within the reasonable bounds of the learned magistrate's discretion to have made that order. Having heard the facts about the matters for which the applicant was initially sentenced to two years' imprisonment, and become acquainted with material about his background, his mental health, and his re-offending, I do not think it can be said that it was unreasonable or plainly unjust for the suspended part of the sentence to have been put into effect. The offending was serious enough to warrant a two year sentence. Suspended sentences are meant to deter people from re-offending. If they are not put into effect, then they will not deter people from re-offending. Too frequently, they are not put into effect. I do not see any merit in the original ground of appeal.

8 However there have been two further grounds added today which I think do have merit. One of the new grounds added today was that the learned magistrate erred in imposing a non-parole period of 12 months in respect of two separate sentences. The power to make an order permitting parole is conferred by the Sentencing Act, s17. Under s17(2)(e), a court that imposes a sentence of imprisonment may order that the offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order. That provision empowers a judge or magistrate to specify a non-parole period in respect of a sentence. But it does not empower a judge or magistrate to impose a non-parole period in respect of the aggregate of two separate sentences. That is plainly what the learned magistrate purported to do, or attempted to do, or meant to do, on 12 May. He did not have the power to do that. That ground of appeal is made out.

9 Another error that has been identified by a ground of appeal added today is that the learned magistrate proceeded to deal with the application in respect of the suspended sentence under s27, without being acquainted with the facts of the offences for which the partly suspended sentence of two years' imprisonment was imposed. Neasey J said in Greaves v Smith, 52/1986 at 7, speaking of the previous sentencing regime under the Justices Act 1959, s74C:

"The scheme set up under s74C requires the court when the breach has been proved to consider the question of penalty for the original offence, in the light of the circumstances of that offence and of the offender, of the sentence then imposed, and in the light of all relevant matters which have occurred since. Such relevant matters usually include the nature of the breach and the gravity of it, but only as matters incidental to the overall question of penalty for the original offence. The objective of the suspended sentence option is reformative as well as penal, and the matters which need to be weighed when breach of suspended sentence has been proved require a careful exercise of judgment."

10 In my view, the learned magistrate erred in proceeding to undertake that sort of process under s27 without being adequately informed as to the circumstances of the original offences.

11 It follows that the motion to review has merit, and I think therefore I should grant the extension of time and allow the motion to review. Also, in granting the extension of time, I take into account that the reason that it took so long for the applicant to file a notice to review was that he was mentally ill and receiving treatment for his mental illness, and so that is why it took him a few months, rather than a matter of weeks, to get around to filing a notice to review.

12 I therefore need to consider what course is appropriate in relation to the disposition of the matter. It happens that I know that the magistrate who imposed these orders is retiring today. Therefore the matter is going to have to be disposed of by someone else - either another magistrate or me. I know all about it. The preferable course is that I make orders disposing of the matter today.

13 I have heard the facts in relation to the matters for which the Chief Magistrate imposed the partially suspended sentence of two years' imprisonment in June 2007. They relate to a large number of offences in the years 2004 to 2006. There are three stealing charges. Two of them involve fairly minor shoplifting. One involves a theft of a vehicle said to have been worth $4,000 for the purpose of trying to sell it. There was never any real likelihood that anybody was going to buy it because the applicant did not have the registration papers. There are five convictions for assault. Most of those relate to the applicant's girlfriends. A couple of those assaults were apparently quite vicious. One of them relates to an incident when the applicant menaced a man who was sitting in a public place minding his own business. The applicant, who was mentally ill, menaced him and nicked him with a knife. One of the occasions when the applicant assaulted a girlfriend resulted in two charges of breach of a family violence order. There is also a conviction for motor vehicle stealing. There are two sets of convictions for unlicensed driving, driving an unregistered vehicle, and driving an uninsured vehicle. On one of those occasions, there is a conviction for giving particulars likely to mislead. The applicant gave a false name and date of birth but the police very soon found his wallet and found out who he really was. There are two convictions for breach of bail relating to occasions when the applicant did not attend court. There is one for contravening the conditions of a notice, relating to three occasions when he did not report to a police station in accordance with a bail condition. There is a conviction for possessing a small amount of cannabis. On one of the occasions that he had driven an unregistered vehicle, he had also parked in a parking place for the disabled. In respect of two occasions, he has been convicted of possessing a dangerous article in a public place. One was a knife that he had produced during a scuffle with the police. Another was a pair of scissors that he had stolen from a shop. There is a conviction for assaulting police, and a conviction on another occasion for resisting police. It was for all of that that the Chief Magistrate sentenced him to two years' imprisonment.

14 The substantial mitigating factor in the applicant's case is that he is mentally ill. He committed the offences on 19 February at a time when he had stopped taking medication and had been drinking. Since returning to custody on 20 February this year, he has spent several months in the Wilfred Lopes Centre having psychiatric treatment, and he is now taking his medication and managing his mental illness well.

15 Because of the circumstances concerning his mental illness, I think it is appropriate that I take a more lenient course than the learned magistrate did. In my view the appropriate outcome of the motion to review will be orders that make the five-month sentence and the activated 12 months and 5 days of the earlier sentence concurrent, and which permit an application for parole to be made as soon as possible. It will be up to the Parole Board to assess the suitability of the applicant for release, and the suitability of arrangements for his accommodation, treatment, and so forth. He is a little past the half-way mark of the 12 months and 5 days that were put into effect from 20 February. It is appropriate that there be an order permitting parole to be applied for as from now.

1 That the time for filing a notice to review in respect of this matter be extended to 24 July 2009.

3 That, pursuant to the Justices Act 1959, s110(2)(i), the sentence of five months' imprisonment, imposed on 12 May 2009, take effect as from 20 February 2009.

4 That the order of the learned magistrate fixing a non-parole period of 12 months be quashed.

5 That in respect of the activated part of the suspended sentence of 29 June 2007, comprising 12 months 5 days' imprisonment with effect from 20 February 2009, the applicant is to be eligible for parole as from today (28 August 2009).