Craft v Diebert [2004] ACTCA 15

Craft v Diebert [2004] ACTCA 15 - ACTCA 2004 case summary — Zoe

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4. It is not easy to deduce a coherent legislative scheme from these provisions, however a number of principles seem clear.

5. First, the sentencing judge or magistrate must begin by determining the appropriate sentence for the offence, having regard to the purposes for which sentences may be imposed as specified in s 341 and the matters which must be taken into account by virtue of ss 342, 343, and 345 of the Crimes Act but without taking into account the possibility of a sentence of periodic detention pursuant to s 4 of the Periodic Detention Act, or a sentence of home detention pursuant to s 6 of the Rehabilitation of Offenders (Interim) Act 2001 (ACT).

6. Second, if the proper application of sentencing discretion has led the judge or magistrate to conclude that, in the absence of any option of sentencing the offender to periodic detention, a sentence of a term of imprisonment of not less than 3 months nor more than 24 months would be the only appropriate penalty, he or she must then consider the option provided by s 4 of the Periodic Detention Act. The fact that a judge or magistrate has formed a prima facie view that a term of imprisonment of this magnitude is required enables, rather than precludes, the exercise of the discretion so provided. Although a different threshold applies, being imprisonment for a period of no more than 18 months, the same can be said of the discretion for home detention.

7. Third, the discretion is constrained by the provision in s 345 of the Crimes Act prohibiting courts from passing sentences of imprisonment unless the Court "after having considered all other available penalties" is satisfied that "no other penalty" is appropriate in all the circumstances of the case. The fact that the judge or magistrate has already concluded that, absent any consideration of the alternative of periodic detention, no other penalty would be appropriate, does not absolve him or her from the further duty of reconsidering the application of s 345 in the context of the discretion provided by s 4 of the Periodic Detention Act_,_ or the relevant discretion in relation to home detention.

8. Fourth, in exercising that second discretion, the judge or magistrate is not constrained by the provisions of s 342 but may have regard to such matters as it considers appropriate: see s 6(2) of the Periodic Detention Act.

9. In this case, as his Honour observed, the respondent suffered from clinical depression and was the primary carer of a teenage son with attention deficit hyperactivity disorder. Mr Refshauge SC argued that issues of this kind should be considered only in exceptional cases. Whilst acknowledging that s 342(1)(j) of the Crimes Act required sentencing judges or magistrates to have regard to "the probable effect that any sentence or order under consideration would have on any of the person's family or dependents", he submitted that it would be appropriate for this Court to follow the decision of the Western Australia Court of Criminal Appeal in R v Sinclair (1990) 51 A Crim R 418 at 430. This decision suggested that a similar provision in the Commonwealth Crimes Act was not intended to change the common law principle that the effect on dependents would not be taken into account save in exceptional circumstances. With very great respect to their Honours, we must say that we are quite unable to accept that a legislative requirement to take such a factor into account can be transliterated into a prima facie requirement to ignore it merely because that would reflect the approach previously recognised at common law. A similar issue arose for consideration by the Queensland Court of Criminal Appeal in the subsequent case of R v Tilley (1991) 53 A Crim R 1 at 3 where, after referring to the aspects of retribution, deterrence and rehabilitation, Thomas J referred to the hardship that would result if the respondent were to be parted from her two and a half year old daughter and explained:

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17. The magistrate's reasons for convicting Mr Diebert focussed upon her findings of fact which included references to the evidence that had been led before her but did not outline or summarise that evidence. It appears, however, that on 5 January 2003 police executed a search warrant on a warehouse located at 26 Raws Crescent, Hume. Inside the warehouse they discovered a crop of cannabis which comprised 48 semi-mature plants being grown hydroponically and 66 seedlings individually placed in small foam blocks. The infrastructure for the hydroponic system included lights, fans, transformers, pots, wiring, plastic lining, a deodorising fan and an ozone generator. The weight of the cannabis plants seized was later found to be about 69 kilograms.

18. Mr Diebert, having been cautioned at the scene, made admissions that he owned and had cultivated the plants. He was arrested and taken into custody. When searched at the City Watchhouse he was found to be in possession of a small quantity of methamphetamine.

19. The learned magistrate described the arrangements at the warehouse as 'a large scale hydroponic set up'. She rejected Mr Diebert's evidence that all of the cannabis was for his own use. She also rejected his evidence that on average he would consume 50 to 60 or more water pipes or bongs of cannabis a day apparently unnoticed by family and work associates.

20. At the close of the hearing, and having convicted Mr Diebert, her Worship sought a pre-sentence report. She released Mr Diebert on bail.

21. Mr Diebert had a number of criminal convictions to his name. Most of those related to traffic offences. However, in January 1987 he had been convicted of cultivating a prohibited plant, namely Indian hemp in Canberra. He was also convicted of a similar offence in the same month in a New South Wales court in respect of an offence committed in New South Wales.

22. A pre-sentence report was prepared by an officer of the ACT Corrective Services on 3 October 2003. The report was broken up into a number of sections each with its own heading. Under the heading 'Social History and Background' it noted that since the offence Mr Diebert had taken responsibility as the primary carer for his youngest child, a 15-year-old boy who, it was said, suffers from Attention Deficit Hyperactivity Disorder (ADHD) and attends special needs classes at a local college. The report stated that the college had reported that there had been a dramatic improvement to the son's attendance and that this had been attributed to Mr Diebert's attention to and influence on his son.

23. The pre-sentence report disclosed that Mr Diebert, at the time, was in receipt of a sole parent benefit of $443.00 per fortnight. He owned a car, motorcycle, household and personal belongings. He reported savings of about $2,000 and had no outstanding debts or fines.

24. Referring to Mr Diebert's drug and alcohol history the report stated that he had used cannabis since age 12 and alcohol from age 16. He appeared to have used cannabis extensively over an extended period of time and had reported smoking large quantities seven days a week for 25 years. He admitted to infrequent use of other drugs. He claimed to have abstained from cannabis or other drug use for the seven months pre-dating the report. He had successfully completed the Effective Weed Control Program in September 2003 and was described as an enthusiastic participant and an advocate to younger participants about the shortcomings of the long-term use of cannabis. He had also undertaken group therapy sessions with a drug and alcohol counsellor.

25. The pre-sentence report indicated an extensive history of mental health concerns. Mr Diebert had said he had been assessed several times by mental health professionals. He said he was a chronic sufferer of anxiety, depression, tearfulness and sleep problems. He also reported that he had had one stress breakdown. He began consulting a psychiatrist in July 2002 who confirmed that he had a long history of clinical depression which initially responded well to medication. Mr Diebert ceased to consult the psychiatrist from August 2002 until July 2003. He last consulted him on 1 September 2003. The psychiatrist confirmed that he is currently prescribed Lithium and Avenzia for depression.

26. The reporting officer said that Mr Diebert had accepted responsibility for his offence but he still maintained that the crop was for his own use. He claimed that although he knew it was wrong it was a more economically feasible means of supplying his own needs rather than buying cannabis. He also claimed to have periodically grown large quantities which had lasted him for years. These claims had been rejected by the learned magistrate. She had found that the cannabis under cultivation was prepared for sale. The authorised officer reported Mr Diebert as representing a low/medium risk of re-offending. It was said to be of concern that Mr Diebert had two prior convictions for cultivation of cannabis and one prior conviction for possession of a prohibited plant.

27. Also presented to the Court in connection with Mr Diebert's sentencing was a reference from his employer. The employer confirmed that Mr Diebert had been working in his business for a little over five months. Initially he started working for one day a week and by the date of the reference, 7 August 2003, he was working three days a week. His employer described him as '... a great asset to the everyday running of my business'. He was said to have shown more and more enthusiasm for his position as a team player. Since his son had come into his care he had 'shown great responsibility'. His employer expressed the hope that Mr Diebert's ongoing employment with his company would result in a long term working relationship. He wrote:

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62. Although a particular error may not be identified it may be inferred where the sentence imposed is so manifestly excessive or inadequate that it must have been affected by error of some kind - House v R [1936] HCA 40; (1936) 55 CLR 499; R v Tait (1979) 46 FLR 386 at 388.

63. The principles enunciated in those cases, subject to statutory modification, apply to appeals against sentence generally. They were reflected in the judgment of the Full Court of the Federal Court in Petreski v Cargill (1987) 18 FCR 68 which concerned appeals against magistrates' sentencing decisions in the Australian Capital Territory. That case must however be regarded with some caution. It was overruled in the joint judgment of Gleeson CJ, Gaudron, Gummow and Hayne JJ in Western Australia v Ward [2002] HCA 28; (2002) 191 ALR 1 at 34. The basis of the overruling was that, in Petreski v Cargill as in Duralla Pty Ltd v Plant [1984] FCA 146; (1984) 2 FCR 342, the Federal Court held that appeals to the Full Court under s 24 of the Federal Court of Australia Act 1976 were appeals in the strict sense and not by way of rehearing. On that basis the Full Court of the Federal Court in Western Australia v Ward had held that it could only deal with the appeal before it under the law as it stood at the date of the hearing and not as it stood at the date of the appeal. In decisions relating to similar provisions of the Family Law Act 1975 (Cth) the High Court had held that the Full Court of the Family Court was bound, on an appeal to that court, to 'decide the rights of the parties upon the facts and in accordance with the law as it exists at the time of hearing the appeal - CDJ v VAJ (1998) 197 CLR 172 at 202; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 at 179-90. The overruling of Petreski and Cargill in Western Australia v Ward did not, however, affect the general principles governing the exercise of appellate jurisdiction in relation to sentencing appeals imported from R v House and the other authorities earlier mentioned.

Whether the Learned Magistrate Erred in the Exercise of her Sentencing Discretion

64. The Supreme Court, on appeal from the Magistrates Court evidently proceeded on the basis that the sentencing magistrate had not had proper regard to the possible application of periodic detention in the light of factors particular to Mr Diebert. Those factors were his mental health, his employment and employment history and the special needs of his son.

65. Section 4 of the Periodic Detention Act empowers a court to make a periodic detention order where:

1. A person is convicted of an offence against the law of the Territory.

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The power is constrained by the conditions specified in s 6. In particular a court shall not make an order under s 4 unless it is satisfied that it is appropriate for the offender to undertake such an order.

66. The conditions and constraints upon the exercise of a power to make a periodic detention order affect the way in which a sentencing court must approach its exercise.

67. The condition that, but for the option of a periodic detention order, the court would sentence the person to a term of imprisonment means that the court must first have satisfied the requirements of s 345 of the Crimes Act. That is to say, after having considered all other available penalties, it is satisfied that no other penalty but imprisonment is appropriate in all the circumstances of the case. In order that s 345 of the Crimes Act and s 4 of the Periodic Detention Act can stand together, it seems that periodic detention is not to be regarded as one of the 'other available penalties' mentioned in s 345. That is consistent with the character of a periodic detention order as a custodial disposition, albeit under the operation of the Periodic Detention Act. The time actually served in prison will be two sevenths of the term of imprisonment that would otherwise be imposed.

68. While s 345 of the Crimes Act mandates the consideration by the sentencing court of non-custodial options before a determination of a term of imprisonment it does not mandate the prior consideration of periodic detention. The Periodic Detention Act itself does not in terms require the court to give consideration to that option. Nevertheless the legislature has provided it as an option when a term of imprisonment of between three and 24 months is contemplated. It is consistent with its availability in those circumstances that the legislature intends that it should be considered. The making of such an order however requires a positive justification. That is so because the court is not to make such an order unless it is satisfied that it is appropriate for the offender to undertake it.

69. Absent a submission made by counsel or material before the sentencing court which would arguably justify the making of such an order, it may not necessarily follow that a judge who did not expressly advert to periodic detention could be said to have erred in principle for failing to do so. But that is not this case.

70. In this case the learned magistrate expressly referred to periodic detention and impliedly to the factors, evocative of her sympathy, which were personal to the accused and which might have been relevant to the exercise of the discretion to make such an order. It is evident from her reasons that she was not persuaded that it would have been appropriate for Mr Diebert to undertake periodic detention. In so concluding, she had regard and gave great weight to general deterrence being the necessity to send a 'message' to 'other like minded members of the community'. She did so against the background of an offence which involved a large and sophisticated commercial drug production operation. In my opinion it cannot be said that she erred in the approach which she took having regard to the provisions of the Periodic Detention Act.

71. It would, no doubt, have been preferable had the learned magistrate, in dealing with the question of periodic detention, expressly referred to the relevant provisions of the Periodic Detention Act and the individual factors which led her to the conclusion that it was not an appropriate disposition. The rolled up way in which she dealt with the question may have been less than satisfactory. It did not, however, indicate error to justify appellate intervention.

72. The learned judge on appeal evidently formed the view that there should have been a more extensive consideration of the matters relevant to the issue of periodic detention. His Honour gave weight to the mental health, employment and family concerns in deciding that such an order should be made. He did not in terms advert to the requirement that such an order should not be made unless appropriate and the associated need to justify it.

73. In my opinion, and with respect to his Honour, the judgment he made was, in the end, substitutive rather than corrective of error. For this reason the appeal against his Honour's decision should be allowed.

The Disposition

74. The question which then arises is what is the appropriate disposition of the appeal in this case? Mr Diebert had served two months of the original term of imprisonment imposed by the Magistrates Court when the order for periodic detention was made. Since that time he has served the equivalent of about seven months of periodic detention.

75. The reimposition of the original term of imprisonment without credit for the time which Mr Diebert has served in periodic detention would be unfair and oppressive. The question is whether, in the circumstances, the credit for the time served should be calculated by reference to the days actually spent in custody under the periodic detention order or by reference to the number of weeks in which he has been subjected to periodic detention as though those full weeks had been served. The latter option would reflect the equivalence between periodic detention and the alternative term of imprisonment which is specified in s 4(2) of the Periodic Detention Act.

76. In this case the appellant accepts that it would be appropriate to give credit on the latter basis and requires only that he serve the balance of the term imposed by the learned magistrate after such credit has been taken into account along with the two months originally served.

77. This would be a disposition within the power of this Court under s 37O(1)(b) of the Supreme Court Act.

78. It is an appropriate disposition having regard to the Crown's acceptance of it and to the fact that Mr Diebert has continued in employment during his periodic detention and that he has continued to play an important role in the life of his son.

79. The orders on the appeal to this Court should therefore be:

At a glance

Court

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Judgment (150 paragraphs)

Craft v Diebert [2004] ACTCA 15 (12 August 2004)

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Legislation Cited (8)

Cases Cited (8)