//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] ACTSC 94
Supreme Court of the ACT
2013-05-28
Magistrate Cush, Magistrate Lalor
Original judgment source is linked above.
BRENDAN DICKSON V AMANDA PATRICIA JOHNSTON, DAMIEN JOHN QUINN, ANDREW JOHN SPENCER GREGORY, GREGORY MARTIN PALETHORPE, MATTHEW JOHN CRAFT, MEGAN LOUISE MASKILL, GRAEME ROBERT COOPER AND REBECCA BAYNES
BRENDAN DICKSON V EVAN WILLIAM DAVIES, AARON LUKE ANTHONY O'NEILL, JARROD REID AND SCOTT WAYNE MCCARTHY
[2013] ACTSC 94 (28 May 2013)
APPEAL AND NEW TRIAL - Appeal - General Principles - interference with discretion of court below - jurisdiction under the Magistrates Court Act 1930 (ACT) Pt 3.10
APPEAL AND NEW TRIAL - Appeal - General Principles - admission of fresh or further evidence - Magistrates Court Act 1930 (ACT) s 214 - evidence of matters arising since the matter was heard - principles for determining when to admit fresh evidence - fresh evidence admitted
APPEAL AND NEW TRIAL - Appeal - General Principles - absence of written submissions of the applicant - undesirability of
APPEAL AND NEW TRIAL - Appeal - General Principles - interference with discretion of court below - jurisdiction under the Magistrates Court Act 1930 (ACT) Pt 3.10
APPEAL AND NEW TRIAL - Appeal - Specific Errors - error by referring to a "non-parole period" when meaning a "parole period" - insufficient to vitiate the sentence
APPEAL AND NEW TRIAL - Appeal - Specific Errors - Absence of inadequacy of reasons - principles for determining this - not made out
APPEAL AND NEW TRIAL - Appeal - Specific Errors - Failure to disqualify in circumstances of ostensible or apparent bias - error not made out
APPEAL AND NEW TRIAL - Appeal - General Principles - interference with discretion of court below - jurisdiction under the Magistrates Court Act 1930 (ACT) Pt 3.10
CRIMINAL LAW - Sentencing - the principle of totality and "manifest excess" - definition and application of
CRIMINAL LAW - Sentencing - accumulation of multiple sentences
CRIMINAL LAW - Sentencing - consideration of a plea of guilty - plea where prosecution case is overwhelming
CRIMINAL LAW - Sentencing - application of a maximum penalty for a crime - when a maximum penalty may be applied
Court Procedures Rules 2006 (ACT), rr 5193, 6906
Crimes Act 1900 (ACT), ss 162, 382(1)
Domestic Violence and Protection Orders Act 2008 (ACT), s 90, Div 6.2
Legislation Act 2001 (ACT), s 133
Legislation (Penalty Units) Amendment Act 2009 (ACT)
Magistrates Court Act 1930 (ACT), ss 214, 216, Pt 3.10, Div 3.10.2
Anne Twomey, The Constitution of New South Wales (Federation Press, 2004)
Acuthan v Coates (1986) 6 NSWLR 472
Attorney-General for Canada v Attorney-General to Ontario (1894) 23 SCR 458
Attorney-General (SA) v Tichy (1982) 30 SASR 84
Barac v Thexton [2008] ACTSC 137
Bensegger v The Queen [1979] WAR 65
Dickson v Gill [2008] ACTSC 39
Eastman v Murphy (1993) 42 FCR 145
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392
Green v Webb [2006] WASC 71
Ibbs v The Queen (1987) 163 CLR 441
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Kelleher v Parole Board of New South Wales [1983] 3 NSWLR 50
Krewaz v Jordan [2012] ACTSC 84
Lawson v Gault [2002] FCAFC 191; (2002) 125 FCR 1
Ledson v Taylor (No 2) [2010] ACTSC 48; (2010) 239 FLR 360
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Nelson v Heil [2013] ACTSC 11
Peisley v Coutts [2007] ACTSC 10
Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150
Rees v The Queen [2012] ACTCA 6
Ruane v The Queen (1979) 1 A Crim R 284
R v Durand (1925) 18 Cr App R 137
R v Ellis (1993) 68 A Crim R 449
R v Gorman [2009] ACTSC 7
R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314
R v Gumbs (1927) 19 Cr App R 74
R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267
R v Huynh [2005] NSWCCA 220
R v Meyboom [2012] ACTCA 48
R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327
R v Smith [2007] NSWCCA 100
R v Valentini (1989) 46 A Crim R 23
Taylor v Bowden [2009] ACTSC 13
Tran v Tan [2009] ACTSC 66
Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Westin v Gordon [2012] ACTSC 44
AMANDA PATRICIA JOHNSTON, DAMIEN JOHN QUINN, ANDREW JOHN SPENCER GREGORY, GREGORY MARTIN PALETHORPE, MATTHEW JOHN CRAFT, MEGAN LOUISE MASKILL, GRAEME ROBERT COOPER AND REBECCA BAYNES
1. The parties be invited to make submissions as to the appropriate orders to be made in accordance with the reasons for judgment.
EVAN WILLIAM DAVIES, AARON LUKE ANTHONY O'NEILL, JARROD REID AND SCOTT WAYNE MCCARTHY
2. The parties be invited to make submissions as to the appropriate orders to be made in accordance with the reasons for judgment.
1. Brendan Dickson, the appellant in both the appeals from the Magistrates Court that are now before me, has a long history of offending, though his offences are, for the most part, offences that do not reach into the more serious range of offending. They are clearly related to his drug addiction which is not only entrenched but of long standing.
2. The offending related to his drug addiction has brought him into court frequently and it is difficult for the courts to deal with the offences in other than the conventional way of imposing sentences of imprisonment, which has been done regularly since 1996. That he has continued offending shows that this approach has not prevented his reoffending; whether a different approach, such as through a Drug Court with its more intensive curial supervision, available elsewhere in Australia but unavailable in this jurisdiction, would be more effective, I cannot say, though it cannot be less effective than the options presently available.
3. Having committed more crimes between 2 December 2007 and 9 July 2008 generally of the same type that he has been committing over the years, namely theft, nine offences of minor theft and possessing a knife in a public place but also robbery and being unlawfully at large, Mr Dickson was either arrested or summonsed for these offences at different times before the Magistrates Court and he entered various pleas in that Court at various times. The proceedings were adjourned from time to time. Ultimately, however, he pleaded guilty to all the offences.
4. On 12 February 2009, Special Magistrate Cush sentenced Mr Dickson to a total period of twenty-one months imprisonment to commence on 9 July 2008, to take account of pre-sentence custody, and set a non-parole period of fifteen months to start on 9 July 2008 and end on 9 October 2009.
5. On 18 February 2009, Mr Dickson filed a Notice of Appeal from that sentence. The Notice of Appeal was later amended. On 13 March 2009, Mr Dickson was granted bail pending the hearing of the appeal.
6. Unfortunately, Mr Dickson did not refrain from further offending and he was subsequently charged with further offences committed between 30 May 2009 and 14 August 2009, being two offences of minor theft, two offences of driving whilst being unlicensed and an offence of contravening a protection order.
7. He first appeared in court on 12 August 2009 on some of these further charges and, after a number of adjournments, when he was charged with the balance of the offences, he pleaded guilty to each of them and appeared for sentencing before Magistrate Lalor on 3 February 2010. His Honour convicted Mr Dickson of all the offences and sentenced him to a total of eleven months imprisonment to commence on that day.
8. On 9 February 2010, Mr Dickson filed a Notice of Appeal from that sentence. Mr Dickson appears not to have been granted bail pending appeal.
9. Both appeals were heard together on 11 and 13 August 2010. Mr Dickson was granted bail on 3 December 2010 to attend a rehabilitation agency which, Mr Dickson said, would be relevant to any re-sentencing consequent upon the decision on the appeal.
10. This Court has power under Pt 3.10 of the Magistrates Court Act 1930 (ACT) to hear and determine appeals from the Magistrates Court. Div 3.10.2 of that Act regulates appeals in criminal matters such as this appeal.
11. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 at 153-4; [8]-[12] the principles surrounding such appeals. I apply them in this case.
12. The sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
13. 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. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error, I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
14. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. The consequences of that often have to be addressed at the conclusion of the appeal.
15. On 2 December 2007, Mr Dickson went into a computer store in Dickson and, declining assistance from staff, looked around the store. While staff were distracted and going about their business, he took a digital photograph frame worth $159.00 and a laptop computer valued at $1,100.00. He left the store with the items without paying for them. These were the facts leading to the first charge of minor theft.
16. On 19 December 2007, he went into another electronics store, but in the Belconnen Mall, and picked up a television set valued at $446.00. He walked past the payment counters and, when challenged by a security guard, gave a false story and managed to leave without being detained and without paying for the television set. These were the facts on which the charge of theft was based.
17. It is not clear to me why this offence was charged as a theft and not as a minor theft; that is, however, a matter for prosecutorial discretion: Lawson v Gault [2002] FCAFC 191; (2002) 125 FCR 1. As the Court noted in that case (at 8; [23]), the sentencing court can ensure that such a decision does not result in abuse; it must still impose a just sentence for the actual offence committed.
18. On 23 January 2008, Mr Dickson went into an optical retail store on the campus of the Australian National University and tried on a number of sunglasses on display, telling the sales assistant that he was awaiting a friend. After about ten minutes he left and the employee noticed that a number of sunglasses that had been on the rack where Mr Dickson had been waiting were missing. He was later intercepted by police and, after he tried to conceal them, was found to have been in possession of seven pairs of sunglasses with a total value of $1795.65. These facts led to him being charged with a further offence of minor theft.
19. On 12 February 2008, he entered the liquor aisle of a supermarket in Gungahlin where he picked up from the shelves two bottles of whisky valued at $53.46 each and two bottles of whisky valued at $52.49. He concealed them in his blue knee length shorts and left the store with the bottles of alcohol without paying for them. Mr Dickson is a tall man and I assume that, for him, shorts would be a quite commodious article of clothing, able to secrete these items. These were the facts supporting the third charge of minor theft.
20. A few minutes later, he returned to the supermarket and picked up two more bottles of whisky valued at $53.46 each, another bottle of whisky valued at $52.49 and a bottle of bourbon valued at $51.19, all of which he again secreted inside his shorts. He left the store with the bottles, without paying for them. These facts led to the fourth charge of minor theft.
21. Shortly after that, he returned to the supermarket a third time and again took bottles of liquor from the shelves: a bottle of whisky valued at $52.49 and a bottle of whisky valued at $58.44, concealing them again in his shorts. He left the store with the bottles of whisky without paying for them. These facts were the basis of the fifth charge of minor theft.
22. On 1 May 2008, Mr Dickson went into a health food store in Dickson, walked to the rear of the store and took a staff member's purse from her handbag from where she had left her handbag earlier. The staff member reported the theft to police who later saw Mr Dickson leaving the disabled toilets at the eastern end of Dickson shops. The staff member's purse was found in the toilet which Mr Dickson had occupied and, when he was searched, police also found a gold and silver coloured folding knife with a 9cm blade, secreted in the front of Mr Dickson's pants. These facts led to Mr Dickson being charged with the sixth offence of minor theft and possessing a knife in a public place.
23. On 14 May 2008, he entered an appliance store in Greenway and forced open the door of a caged area where computers were displayed. He took a laptop computer valued at $637.20 from the store without paying for it. A few minutes later, he returned to the store and took a second, apparently identical, laptop computer valued at $637.00 from the caged area and again left the store with it without paying for it. These facts constituted the basis for the seventh and eighth charges of minor theft.
24. Mr Dickson was also charged with robbery on 9 July 2008. Regrettably and surprisingly, there was no statement of facts in the appeal papers for this offence. The terms of the charge shows that he stole two bottles of liquor from a liquor retailer and that he then, immediately after doing so, used force on the victim with intent to escape the scene. It is not clear exactly what force was used and with what consequences.
25. The maximum penalty for robbery at the relevant time was 1,400 penalty units (that is, a fine of $140,000), imprisonment for fourteen years or both: s 309 of the Criminal Code 2002 (ACT). I can only assume from the sentence, nine months imprisonment, that it was not a significant use of force. It was said by Mr Dickson's counsel on the appeal to be a "spontaneous incident" with the objective seriousness in the "low end of the range"; this assessment was not challenged in the respondent's submissions.
26. Mr Dickson was released from custody for a short period of bail from 12 September 2008 until 5:00 pm on 14 September 2008 when he was to return to the Belconnen Remand Centre on condition that he remain in the custody of his partner or a police officer. He failed to return to the Remand Centre, however, and was arrested on 16 September 2008 and, as a result, charged with being unlawfully at large.
27. He was again released on bail in connection with a deferred sentence order mentioned below (at [43]) and, on 27 December 2008, he entered a department store in Phillip and removed a lock from the side of a computer. He then put the computer down the front of the pants he was wearing and left the store without paying for it. It was valued at $1,999.00. These facts led to him being charged with the ninth offence of minor theft.
28. Thus, Mr Dickson was, for these proceedings, charged with:
• nine offences of minor theft, an offence against s 321 of the Criminal Code which carries a maximum penalty of 50 penalty units (that is, a fine of $5,000) or six months imprisonment or both;
• theft, an offence prohibited by s 308 of the Criminal Code, attracting a maximum penalty of 1,000 penalty units (that is, a fine of $100,000) or imprisonment for ten years or both;
• possessing a knife in a public place, an offence by virtue of s 382(1) of the Crimes Act 1900 (ACT), rendering him liable to a maximum of 10 penalty units (that is, a fine of $1,000) or imprisonment for six months or both;
• robbery, with a maximum penalty described above (at [25]); and
• being unlawfully at large, in contravention of s 162 of the Crimes Act which specifies the maximum penalty as 100 penalty units (that is a fine of $10,000) or imprisonment for five years or both.
29. The value of a penalty unit at the relevant time was $100 for an individual: s 133 of the Legislation Act 2001 (ACT). This has since been increased by the Legislation (Penalty Units) Amendment Act 2009 (ACT), which came into effect on 21 October 2009.
30. Having appealed the sentence for the first proceedings as noted above (at [5]), and having been granted bail on 13 March 2009, Mr Dickson went into a computer store in Fyshwick on 30 May 2009 and removed a security grille. He looked around, spoke to a woman pushing a stroller and then removed a notebook computer valued at $1121.00. He left the store with the computer without paying for it. As a result, he was charged with the offence of minor theft.
31. On 16 June 2009, police saw a motor vehicle, with front end damage and with a smashed rear panel, drive into a car park in Gungahlin. They approached the vehicle and ascertained that the female driver was unlicensed. Another female passenger told them that Mr Dickson, who was in the front passenger seat, held a licence and so he could drive. As police were dealing with the female driver they did not make any inquiries as to Mr Dickson, and Mr Dickson got out of the car and into the driver's seat and started to drive away but without his seatbelt secured and with the lights off. Police warned him to affix his seatbelt and turn the lights on. Mr Dickson did so and then drove out of the car park.
32. In fact, Mr Dickson has never held a driver licence. He had been convicted of driving without a licence before. Police, on returning to Gungahlin Police Station, discovered this and arranged for a summons to be issued, charging him with the offence of driving whilst being unlicensed, as a repeat offender.
33. On 2 July 2009, a Workplace Order, under Div 6.2 of the Domestic Violence and Protection Orders Act 2008 (ACT), was made by the Magistrates Court prohibiting Mr Dickson, inter alia, from entering the premises at Westfield Shopping Centre in Woden for twelve months. The order was served on Mr Dickson on 3 July 2009.
34. On 8 July 2009, he was again seen by police to be driving a motor vehicle on a public street, this time in Civic. He was stopped by police and provided them with some identity documents. When asked for his driver licence, he told them that he did not have one and had never held one. The police later issued a summons for the offence of driving whilst being unlicensed against as a repeat offender.
35. On 14 July 2009, he entered a retail electronics store in Civic. He searched the display counter and took hold of a television set in a box. He left the store with it but without paying for it. He was followed by some other customers who helped the store security officer to detain him until police arrived. The television set was valued at $699.00. These facts form the basis for the other charge of minor theft in these proceedings.
36. On 14 August 2009, Mr Dickson entered the Westfield Shopping Centre in Woden and used an Automatic Teller Machine on the premises and then left. These are the facts that support the charge of contravening a protection order, namely the Workplace Order.
37. Thus, in these proceedings, he was charged with:
• two offences of minor theft, the penalties for which are noted above (at [28]);
• two offences of driving whilst unlicensed, contrary to s 31(2) of the Road Transport (Driver Licensing) Act 1999 (ACT), which attracts, for a repeat offender, a maximum penalty of 50 penalty units (that is, a fine of $5,000) or imprisonment for six months or both;
• one offence of breaching a protection order contrary to s 90 of the Domestic Violence and Protection Orders Act for which the maximum penalty is 500 penalty units (that is, a fine of $50,000) or imprisonment for five years or both.
38. As above (at [29]), the relevant value of a penalty unit was $100.
39. From the materials in the appeal book for the first proceedings, it is not possible to map the precise progress of the various charges.
40. It appears that Mr Dickson first appeared in court on 24 January 2008 in respect of the charge of minor theft committed on 23 January 2008. He was remanded in custody until bailed by this Court on 15 April 2008 until 17 April 2008. Summonses for a number of the other charges were returnable on 17 April 2008 when the Magistrates Court adjourned the proceedings, continuing his bail.
41. After again being granted bail in May 2008, he was later remanded in custody on what appears to be 10 July 2008 and was again granted bail by this Court on 5 September 2008 for one day and then on 12 September for three days (as noted above at [26]). He was returned to custody on 16 September 2008. Pleas of guilty were entered at various times and there were applications at least foreshadowing some of the pleas of guilty.
42. Ultimately the proceedings came on for sentence on 18 December 2008 for all offences in this first group of offences, obviously other than for the final charge of minor theft committed on 27 December 2008, which had not by then been committed. Mr Dickson was convicted of all the offences then before the court. Where necessary, he consented to jurisdiction.
43. Sentence was then deferred to 18 June 2009 and bail was granted or continued. The terms of the bail are said to appear on the bench sheet for the robbery, which, unhelpfully, was not reproduced in full in the appeal book. There was also no transcript of the proceedings on that day reproduced in the appeal book either. It appears from his Honour's later sentencing remarks, however, that his Honour was then imposing a deferred sentence order under s 27 of the Crimes (Sentencing) Act 2005 (ACT). The deferred sentence order was made to allow Mr Dickson to attend a residential drug rehabilitation agency. It appears that his Honour indicated, in accordance with s 118 of that Act, that were Mr Dickson to complete the residential rehabilitation, he would likely impose a term of imprisonment of about fifteen months of which no more than twelve months would be served by periodic detention.
44. Mr Dickson then attended the residential drug rehabilitation facility on 18 December 2008, for which the deferred sentence order had been made, but he left later that day and was arrested on 29 December 2008. He was remanded in custody. Probably because of this, sentence was then brought forward to 12 February 2009. Again, the exact circumstances of that are simply not evident, but presumably this was because there was no point seen in continuing the deferred sentence order.
45. While he had been on bail and after he left the residential drug rehabilitation facility, he committed the ninth minor theft offence on 27 December 2008 and this was added to the proceedings. A plea of not guilty was entered to that charge of minor theft, though that was changed to a plea of guilty at the sentencing hearing.
46. Mr Dickson was represented on 12 February 2009. The material in the appeal books is not helpful to understand exactly what occurred up to that date.
47. At the sentencing hearing, Mr Dickson's lawyer noted that Mr Dickson had discharged himself from the residential drug rehabilitation facility on the same day as he was admitted because he found that one of the other residents was a person who had had a violent incident with Mr Dickson's partner and he knew that the conflict with that person would cause insurmountable problems. He had, he said, been accepted into another facility, Bennelong Haven, but a bed would not be available for two weeks or so.
48. The learned Special Magistrate reminded Mr Dickson of what he had said on deferring sentence. His Honour also made the point that his obligation on leaving the facility was not to remain at large but to return to court and seek a variation of the bail and the deferred sentence order, and this he had not done.
49. It is clear that sentencing submissions had been made on 18 December 2008 and neither party saw fit to include that material in the appeal book. There was not even a Pre-Sentence Report included in the appeal book. The appeal book simply noted, curiously, "[n]ot available at this time".
50. Counsel for the prosecution in the Magistrates Court, Mr J D Mawson, referred to some authorities which he submitted were comparable sentences, particularly with respect to the robbery offence. Reference was made by counsel to Mr Dickson's "horrendous history for offences of dishonesty ... [including] 61 adult offences". Protection of the community was, he submitted, an important matter. He further submitted that Mr Dickson had "blown" the last chance given by his Honour.
51. Mr Dickson's lawyer agreed in part but submitted that Mr Dickson had always wished to go to residential drug rehabilitation. This had been a common theme in all his bail applications. Unfortunately, a number of agencies were not prepared to accept him. His lawyer referred to problems experienced by Mr Dickson's partner, though the relevance was not entirely clear. He pointed to the fact that Mr Dickson had a successful sporting career which was interrupted by injury and which led to his addiction, the cause of much of his offending. The addiction, he submitted, was ruining his life. He noted that he was well-known, that his height made him noticeable and that he had been banned from a number of places. He submitted that imprisonment without treatment would simply lead to him returning to the community without the necessary protection to avoid future offending.
52. His Honour referred to the deferred sentence order and to the likely outcomes he had specified as well as to previous sentences imposed on Mr Dickson. His Honour referred to the chances he had been given by courts in the past. His Honour noted that it was hard to sentence someone to gaol, which was to be a sentence of last resort.
53. His Honour referred to his reasons of 18 December 2008, a copy of which neither party provided me.
54. His Honour referred to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act and to Mr Dickson's "terrible record of a prior history of offences of the same or similar nature relating to dishonesty and theft". His Honour referred to the escalation represented by the robbery offence when Mr Dickson "used force against the shop owner".
55. His Honour noted that the majority of offences were minor theft, described as "shoplifting", but noted that they were still offences of theft and still punishable by imprisonment. His Honour also noted that there were victims of the offences. His Honour also noted that his record made him deserving of little leniency.
56. His Honour indicated that he would have imposed a sentence of twenty-seven months had Mr Dickson not pleaded guilty, in some cases at an early stage; this amounted to a reduction of about 20% where appropriate. His Honour considered totality. His Honour also acknowledged Mr Dickson's drug problem.
57. His Honour then imposed sentences, setting them out in a written document as well as orally pronouncing them, as follows (summarising the facts and omitting legislation references):
• CC08/1765 2nd December 2007 Dishonestly appropriate laptop and photo frame to the value of $1259.
• CC08/2279 19th December 2007 Dishonestly appropriate a TV/inbuilt DVD to the value $446.
• CC08/1224 23rd January 2008 Dishonestly appropriate 7 pairs of sunglasses to the value of $1795.65.
• CC08/3888 12th of February 2008 Dishonestly appropriate bottles of alcohol to the value of $211.90.
• CC08/3890 12th of February 2008 Dishonestly appropriate alcohol to the value of $110.92.
• CC08/3891 12th of February 2008 Dishonestly appropriate alcohol to the value of $210.
• CC08/5185 1st of May 2008 Dishonestly appropriate a ladies' purse.
• CC08/5186 1st of May 2008 Possess a pocket knife in a public place without reasonable excuse.
• CC08/5731 14th of May 2008 Dishonestly appropriate a laptop to the value of $637.20.
• CC08/10508 14th of May 2008 Dishonestly appropriate a laptop to the value of $637.00.
3 months imprisonment (concurrent with 10508 [sic])
• CC08/7727 9th of July 2008 Robbery of a bottle of Drambuie and a bottle of Dom Benedictine.
• CC08/10160 14th of September 2008 Fail to return (unlawfully at large).
72. The sentences, which totalled eleven months, were directed to commence on the day they were imposed, namely 3 February 2010.
73. Mr Dickson was born in 1977 in Sydney, the only child of his parents who divorced when he was seven years old. His mother lived an itinerant life and he felt resentment towards her for the disruptions that the frequent relocations imposed on him. He also blamed her for the absence of his father.
74. He left home at age thirteen when his mother asked staff from "Boystown" to take him in and he later moved to another youth facility in Marrickville, but left when he was sixteen. He then lived in various youth refuges, detention facilities or on the streets as a homeless person.
75. Mr Dickson's mother died from injuries she suffered in a motor vehicle accident in 2004. He has no contact with his father.
76. He attended a number of different schools but came to the attention of staff at Westfield Sports High School for his basketball skills and ability. He left the school to concentrate on his sporting career. He played professionally for the Sydney Kings basketball team from 1997 to 2000, when he transferred to the West Sydney Razorbacks but suffered a foot injury which ended his career.
77. He worked for a while in retail and in the building and construction industry but has been unemployed for some time.
78. Mr Dickson's drug and alcohol use began when he was fourteen, though he has not abused alcohol. He has, however, been drug dependent for most of his adult life. His drugs of choice are heroin and cannabis and, at the height of his addiction, he was using up to $500 worth of heroin a day.
79. In 2001, he attended the Karralika Therapeutic Community and in 2002 the William Booth Rehabilitation Services, on both occasions mandated by court orders. He was discharged from both for breaching program rules.
80. He did enter the Canberra Recovery Service on 18 December 2008 but left the same day in circumstances mentioned above (at [47]). He did enter the Bennelong Haven residential rehabilitation facility in 2009 but appears to have also been discharged from there as a result of problems involving his partner.
81. He told ACT Corrective Services that he had ceased illicit drug use at the beginning of November 2009 and a urinalysis on 4 November 2009 confirmed Mr Dickson was clear of heroin at that time. There has been no subsequent urinalysis. He also told ACT Corrective Services that he had been in contact with Directions ACT but on enquiry that agency advised that he was not known to it. Since then, however, he has had contact with that agency, connecting with its Inside Out Through-Care Program in 2010 and continuing contact after his release from the Alexander Maconochie Centre on 3 December 2010. A report from that agency dated 5 January 2011 stated that he had abstained from all illicit substances.
82. Mr Dickson has had some liver problems which have led to him being hospitalised. His foot injury does not seem to present a continuing problem for his physical health.
83. As noted above (at [64]), he has had a long term relationship with his partner for approximately ten years. It has been somewhat turbulent, exacerbated by substance abuse issues for both of them. He did, however, tell the author of the Pre-Sentence Report, prepared for the second sentencing, that he and his partner were "extremely close" and that he "feels lost without her".
84. Mr Dickson's criminal history has been referred to earlier. It consists mainly of theft offences (including many minor theft and shoplifting offences), constituting (including the offences subject to this appeal, for he has pleaded guilty to them) just over half of all offences for which he has been dealt with by the court. When other dishonesty offences, such as goods in custody and break enter and steal offences are added, the proportion is about three-quarters. He also has been dealt with on seven occasions for failing to attend in accordance with a bail undertaking and has been dealt with for breaching court orders. Of concern is that he has been dealt with for seven offences relating to the use and possession of knives and other weapons and, for a person who has never held a licence, a worrying seven traffic offences on his record.
85. He has been under the supervision of Corrective Services over the years. His more recent response to supervision has been considered poor but, since November 2009, his response improved. He has, however, provided misleading or untruthful information to his supervisor from time to time.
86. The original notice of appeal was filed by Mr Dickson himself and specified as the grounds:
Severity/and that he would not let me go to the rehab with my wife, he said because I left the first one. I wouldn't do the next one the only reason I left mancare is because there was a person I couldn't be around. On all grounds.
87. The Notice was subsequently amended and the amended grounds were:
(a) the learned Magistrate gave insufficient weight to the mitigating facts and circumstances, including the appellant's plea of guilty and prospects of rehabilitation
(b) the learned Magistrate gave excessive weight to the aggravating facts and circumstances, including the appellant's criminal history
(c) the learned Magistrate gave excessive weight to the seriousness of the offences
(d) the learned Magistrate failed to take [into] account the principles of totality
(e) the individual sentences, and the accumulated sentences, are manifestly excessive
88. Again, Mr Dickson prepared the Notice of Appeal himself and stated the one ground of "Severity of Custodial Sentence". In her submissions, however, Ms Warwick referred to the following matters which she submitted were errors:
• wholly accumulating the traffic offences (concurrent on each other) and the minor theft;
• imposing a sentence of 5 months for a minor theft which was objectively a middle range offence to which he had pleaded guilty;
• refusal of the learned Magistrate to disqualify himself;
• no credit for pre-sentence custody by back-dating the sentence or otherwise;
89. On 11 August 2010, I requested the Court Alcohol and Drug Service (CADAS) to provide an assessment report, including options for drug use treatment and counselling for Mr Dickson, if that was possible, for the hearing of the appeal.
90. In fact, CADAS was able to provide a report and this prompt assistance was much appreciated. The author of the report was also called to give evidence.
91. The prosecution objected to the admission of this evidence. It was submitted that it was not relevant to any ground of the appeal.
92. Admission of further evidence is governed by s 214(3) and (4) of the Magistrates Court Act. I considered those provisions in Grooms v Toohey (2012) 7 ACTLR 1 at 8-10; [35]-[38]. The relevant provision here is section 214(3), for the evidence is of matters arising since the matter was heard in the Magistrates Court. In Grooms v Toohey, I summarised the approach to section 214(3) that the courts should take; the following are the relevant considerations:
(a) The evidence is more likely to be admitted if it has been set out properly in an affidavit, now required by r 5193 of the Court Procedures Rules 2006 (ACT), as explained in Barac v Thexton [2008] ACTSC 137; and
(b) the evidence may not be admitted if the party seeking to adduce it has intentionally refrained from adducing it before the Magistrate so that, in the event of an unfavourable outcome, it may be relied on in the appeal; and
(c) the consideration of the interests of justice referred to in the subsection is to be read in light of the notion of a miscarriage of justice as explained by the High Court in cases such as Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 and Meissner v The Queen [1995] HCA 41; (1995) 184 CLR 132; and
(d) the discretion under this provision to admit the evidence is unfettered and is not circumscribed by any requirement to show that the Magistrate erred on any question of fact or law; and
(e) to determine whether it is in the interests of justice, however, it may be necessary to consider what the Magistrate said or did in the proceedings below; and
(f) the appellate court is obliged to receive the evidence if both parties consent to it being adduced.
93. I also referred to the consequence of the admission of the evidence as follows (at 12; [52]):
The appellate court must decide whether, under s 214(3) or s 214(4) of the Magistrates Court Act, the further evidence is to be admitted. If it is, the court must then consider whether a different sentence should, in the light of this further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened. On those proceedings, still further evidence may then be admitted, though often it is not. Some or all of that additional evidence may not have been admissible under s 214(3) or s 214(4), but should have, of course, to be admissible in sentencing proceedings. If, having considered all this evidence and, of course, the evidence before the magistrate, the appellate court considers in the exercise of its independent discretion that no other sentence than that of the Magistrates Court should be imposed, the appeal should be dismissed. If that is not the case, then the appellate court should either remit the proceedings back to the Magistrates Court to be dealt with according to law or should sentence the appellant.
94. Mr T Hickey, who appeared for the respondent, correctly observed that the question of rehabilitation to which this evidence was directed is not expressly referred to in the grounds of appeal, including what might be regarded as particulars of that ground.
95. In sentencing submissions to the learned Magistrates in both appeals, however, the submission was made that Mr Dickson should have been given an opportunity or a further opportunity to attend a residential drug rehabilitation agency either for the purposes of showing that he could address the drug addiction which was the cause of his offending behaviour or because that was an appropriate response to the offences, having regard to their seriousness. In both cases, these submissions were rejected, though they could have formed the basis for a less severe sentence.
96. While circumspect, perhaps to the point of scepticism, about claims that an offender has "turned the corner" or "seen the light" as clearly articulated in R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35], the courts do recognise that the struggle for rehabilitation from drug addiction is, for many offenders, a long journey, littered with false starts and backsliding. Those in that category cannot be said to be never able to achieve the goal of managing their addiction and leading a life without crime, sometimes then even becoming valuable members of the community.
97. Of course, a history of failed attempts, as Mr Dickson has, must lead to the most searching scrutiny of claims that "this time will be different; this time I will stick it out and succeed". Healthy scepticism and proper and critical examination of such claims does not necessarily lead to them being required to be rejected. However, acceptance should not only be cautious and taken in small steps, it should be done in a way that minimises further risk to the community.
98. It seemed to me on all the material before me that it was worth exploring the possibility that the circumstances were such that Mr Dickson may actually be ready for rehabilitation and is sufficiently committed, especially with the very direct threat of imprisonment.
99. Accordingly, I will admit the evidence. The Report is marked as Exhibit B in the appeals. I shall have regard to the oral evidence of Ms Tam Schwartz, the Report's author.
100. The Report of CADAS set out the background to Mr Dickson's drug use and treatment history, noting that, to date, his "participation in residential programs has been short lived". It also set out his family background and noted that "while ever Mr Dickson is in residential treatment, separating from his partner ... will remain a challenge for him".
101. The Report confirmed that Mr Dickson has a place at the facility operated by Wayback Ltd in Sydney. It recommended that if Mr Dickson were bailed to attend the facility, it should be on two conditions, "[f]irstly [that] he is monitored and supervised closely, and secondly [that] he should remain on a high maintenance dose of methadone." CADAS was willing to monitor Mr Dickson.
102. Ms Schwartz also gave oral evidence. Her evidence about the program conducted by Wayback Ltd was as follows:
[I]n [the Wayback] program, people are housed out in the community and they have to travel to program to do the program daily. So one of the challenges of putting someone in Way Back, and we discussed this yesterday, was if he's in a community house with somebody else who's, you know, engaging in illicit drug use, that could be a real challenge for him.
It's not really a residential rehabilitation - - - ? --- No, it's not, your Honour.
What's its focus, I mean, what's it known for, what - - - ? --- They specialise in a pharmacotherapy maintenance, that's their main business.
103. The fact that Mr Dickson would live in the community had benefits and risks. The benefit was that his partner could visit him, at least after the first 28 days of induction during which, apparently, outside visits are limited. The risk was that if someone in his accommodation was still using drugs, he may be tempted. That was the basis of the recommendation that Mr Dickson remain on methadone.
104. Ms Schwartz stated that she had known Mr Dickson professionally for some years and that CADAS had assessed him three times. On this occasion, she noticed positive changes in him and he impressed her by the research he had done on the rehabilitation programs that may be available to him.
105. She had also spoken to the staff at Wayback Ltd and told them of her view that Mr Dickson should remain on the methadone program.
106. Cross-examination of Ms Schwarz explored whether Mr Dickson had given misleading information about his methadone dosage but that did not seem to me to be significant. Ms Schwartz noted that the program was a twelve month program. As to supervision, she considered that a combination of Corrective Services supervision and CADAS monitoring was appropriate. She was unable to say what specific supervision was provided by the staff at Wayback Ltd.
107. In further examination, Ms Schwartz noted that the program was a daily program which required attendance though she was not sure whether that included the weekends.
108. I also heard from Mr Dickson, who had been in custody since January 2010. Whilst in custody, he had gained his Certificate I in Construction (White Card) and had been working towards his hospitality qualifications. He had also gained a Certificate II in Hairdressing, Certificate II in Business and a Certificate I in Hospitality (Kitchen Operations). He was currently employed in the kitchen at the Alexander Maconochie Centre. His supervisor described him as displaying "good work ethics at all times, [that] he works well independently & also in a team environment, he has a quiet disposition & when directed to complete a work task, does so".
109. He had started, but not completed, the First Steps Alcohol and Other Drugs Relapse Prevention Program, although he had completed it on previous occasions. He had three sessions to complete it. He was currently dosed on 100 mg of methadone. He understood that Wayback Ltd wished him to reduce his dosage. He said that he would negotiate that with his counsellor there, bearing in mind the concerns of Ms Schwartz. He would be happy to stay on the present methadone dose.
110. He said there was a bed available for him at the facility and I had received on 11 August 2010 a confirmatory letter from Wayback Ltd. It confirmed a place for Mr Dickson on 16 August 2010. It also set out the arrangements which included requirements to remain abstinent from drugs and alcohol, to accept supervision from NSW Probation and Parole Service and to attend compulsory group sessions, which include "Living Skills", Narcotics Anonymous and Alcoholics Anonymous Groups and Therapy Group Sessions, as well as to attend individual counselling sessions and undertake urinalysis.
111. Mr Dickson reported that urinalysis had been conducted three or four times during his time in custody and none had returned a positive result for illicit drugs, except some cannabis in the first one. As he was on remand (s 216 of the Magistrates Court Act), he was not eligible for the Solaris Therapeutic Community Program. He was also in the protection section because of an allegation that he had given information to the authorities. This may prevent his entry into the Solaris Program even when a sentenced prisoner.
112. He has had visits from his partner. He proposed that when he went to Wayback Ltd, she could visit at weekends.
113. He said he wanted to "get [his] life right". He said that, on this occasion, prison felt different; he missed his freedom and his partner. He had a sense of wasting his time.
114. He indicated that he had considered various programs and felt that the program at Wayback Ltd was best for him. He had clearly given the matter some thought and investigated the various programs available.
115. He expressed a hope to settle down, possibly get married, start a family and stay out of gaol.
116. In cross-examination, his status with respect to the First Steps Alcohol and Other Drugs Relapse Program was challenged and he admitted that, despite the implication of his earlier evidence, he was not currently enrolled in the Program though he had completed part of it. He was also challenged on his poor record of attending at residential rehabilitation programs. He admitted that he had also been charged with another theft offence which was to be dealt with in the Magistrates Court at a later date.
117. He agreed that the last occasion he had left a rehabilitation facility was because his partner had also left but he said that he believed that it would be possible to continue his relationship satisfactorily at Wayback Ltd.
118. He denied having used drugs since December 2008 but agreed that he had committed further offences. While stating that his offending was to supply his drug habit, he said the more recent offences had not been for that purpose. He seemed to suggest that his propensity for theft was an addiction in itself.
119. He did explain in detail the circumstances under which he had left the drug rehabilitation facilities on the last few occasions.
120. I did not immediately grant him bail when I reserved my decision on the appeal, but following the hearing of the appeal, Mr Dickson renewed his application for bail to attend the drug rehabilitation program conducted by Wayback Ltd. On 3 December 2010, that application was granted in an endeavour to see whether the time was now right for Mr Dickson seriously to engage in genuine and long-lasting rehabilitation.
121. The initial attempt suffered a brief setback and his entry to the program was delayed by approximately a week. Some further time then elapsed because of problems he said he had encountered when in New South Wales. These reasons were seriously challenged by the Respondent, and have not since been resolved but the attempts to get him into the program continued. Ultimately, he was admitted to the program conducted by Wayback Ltd on 10 January 2011.
122. There was some supervision by the court on 11 February 2011 when his progress seemed promising but, on 12 May 2011, he was discharged from the program when police found a number of stolen items in his bedroom. The Discharge Notice showed that he had had a rocky time in the program accumulating 26 demerit points as follows:
123. His bail was continued on 17 May 2011 but he failed to appear on 22 July 2011. He next appeared in court on 17 November 2011 when he was remanded in custody, though subsequently granted bail on 17 February 2012.
124. Regrettably, no written submissions were filed on behalf of Mr Dickson. I have noted before that absence of such submissions (Nelson v Heil [2013] ACTSC 11 at [46]) or late service of written submissions (Krewaz v Jordan [2012] ACTSC 84 at [40]) is highly undesirable. It can certainly make the hearing more complicated and less easy to conduct and often delays judgment.
125. The Respondent, of course, can only then, as in this case, address the grounds of appeal stated in the Notice of Appeal rather than the way they are actually put on the appeal. Some of the grounds of appeal may be in quite general terms, though particulars can be sought; some grounds may even be abandoned.
126. Nevertheless, Ms Warwick did hand up at the hearing notes of the points she was to make on appeal and a helpful chronology.
127. Ms Warwick submitted that the learned Special Magistrate erred in ordering that the sentences for the sixth offence of minor theft, for the seventh offence of minor theft, for the offence of robbery and for being unlawfully at large be made wholly consecutive.
128. She also noted that the typed sentence summarised above (at [57]-[58]) and the oral sentence showed the non-parole period starting on 9 October 2009 when, in fact, this was the end of the non-parole period.
129. She submitted that the sentence for robbery was manifestly excessive, especially as it was made wholly consecutive. The offence, she submitted, was at the lower end of seriousness as it was really a shoplifting and that, when Mr Dickson was confronted, he acted on impulse with no intention to confront or assault anyone. He had no prior history for such an offence. She further submitted that no reasons had been given for the accumulation or the sentence and that Mr Dickson had not been given credit for some pre-sentence custody from before June 2008.
130. As will be seen from even the amended grounds in the Notice of Appeal above (at [87]), these submissions do not directly address them squarely.
131. The Respondent's submissions addressed the grounds in the Notice of Appeal and submitted that they did not disclose error. They did, however, incidentally address some of the matters raised by Ms Warwick.
132. The Respondent submitted that the learned Special Magistrate clearly took into account the plea of guilty, expressly stating:
I would have increased the sentence by about 6 months if he had not pleaded guilty to a number of charges. I think generally I have allowed probably about 20% discount in respect of these offences. Even though some were done late in the day, I have taken into account it was a saving of time with this court.
133. The Respondent noted that his Honour had expressly referred to rehabilitation and stated that it "has been considered". His Honour pointed out that there had been multiple attempts and continued "I take [rehabilitation] into account in the length of the sentence that I impose".
134. So far as aggravating matters, including the seriousness of the offences, were concerned, the Respondent submitted that the learned Special Magistrate had properly stated that because of Mr Dickson's criminal history, "he is not entitled to leniency ... nevertheless when the court is asked to consider leniency it becomes very difficult". His Honour later said "[b]ecause he would not normally be entitled to leniency, it may be that he deserves the maximum sentence on each of the offences, even though they are of a minor nature". That, of course, is not the law.
135. As to totality and manifest excess, the Respondent referred to the leading High Court decisions on totality, Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616 at 623; [18] and Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63, submitting that multiple offences call for a total sentence greater than the sentences for one offence. Indeed, it was submitted that each succeeding offence calls for a greater punishment than the earlier offence to reflect the need for personal deterrence, referring to R v Smith [2007] NSWCCA 100 at [66]. While the learned Special Magistrate did not impose greater punishment for succeeding offences, it was submitted that the learned Special Magistrate was alive to the issue of totality.
136. Ms Warwick submitted that the learned Magistrate erred in accumulating the sentences in the way his Honour did, submitting that this led to a manifestly excessive sentence.
137. She also submitted that his Honour erred in not specifying a non-parole period.
138. She submitted that his Honour should have disqualified himself as there was a reasonable apprehension of bias; it was submitted that it was clear that the learned Magistrate remembered the bail application at which the incident had occurred. Though not entirely clear, Ms Warwick may have abandoned this ground at the hearing of the appeal.
139. Ms Warwick pointed out that no allowance had been given for pre-sentence custody and that the sentence had not been backdated.
140. She further submitted that the sentence of five months for the second minor theft was excessive, given that it was in the mid range seriousness and there had been a plea of guilty to it.
141. She also submitted that the remarks on sentence were "[v]ery rather sparse".
142. The Respondent submitted, again by reference to the Notice of Appeal, rather than the submissions made orally, that the seriousness of the offences was greater because, at the time of their commission, Mr Dickson had been at conditional liberty, referring to R v Ponfield [1999] NSWCCA 435; (1999) 48 NSWLR 327.
143. It was also submitted that the value of the property stolen though appropriate for the charge of minor theft were, in this case, quite substantial, being values of $1,121 and $699.
144. As to the multiple offending, reference was again made to R v Smith but also to the need to accumulate or partially accumulate sentences to avoid the offender being seen to escape punishment for subsequent offences, as noted in R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at 275; [41].
145. As to the charges of driving whilst unlicensed, reference was made to what had been said in Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, though of a different offence, driving whilst disqualified, and which had been adopted by Gray J in Peisley v Coutts [2007] ACTSC 10.
146. The Respondent submitted that the learned Magistrate was clearly aware of the issue of totality as his Honour made three of the sentences concurrent: see Cotter v Corvisy (2008) 1 ACTLR 299 at 310; [54].
147. The Respondent submitted that offending to feed a drug addiction is not mitigatory, relying on comments by the courts such as in R v Valentini (1989) 46 A Crim R 23 at 25. The Respondent further submitted that the desirability of rehabilitation must be balanced by the need for deterrence particularly in the light of Mr Dickson's criminal history. The prior attempts at rehabilitation also justified the learned Magistrate being somewhat sceptical about requests for further attempts.
148. The Respondent accepted that it was unclear how the learned Magistrate took the plea of guilty into account. It was submitted that a failure to state the undiscounted penalty, as required by s 37 of the Crimes (Sentencing) Act, did not invalidate the sentence. I had referred to this in Cotter v Corvisy at 311; [57] and I agree. It was also submitted that s 35(4) of that Act denied a discount when the case for the prosecution was overwhelmingly strong; in this case Mr Dickson had been caught "red-handed" in the three cases.
149. As to Mr Dickson's appalling criminal record, the Respondent referred to what the High Court said in Veen v The Queen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 477:
The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted.
150. No material was provided by either party to address the issue of whether the sentence imposed was not in accordance with current sentencing standards, so as to show they were manifestly excessive or not. The Court of Appeal has set out in R v TW (2011) 6 ACTLR 18 at 27-8; [59]-[61] how such a claim on appeal should be approached. I accept that this can be a challenge in respect to offences usually dealt with in the Magistrates Court, but the case needs to be argued rather than merely asserted.
151. It may be, from time to time, that the appellate court can see the manifest excess - or inadequacy - of a sentence from a careful assessment of the factual and subjective circumstances in the context of the maximum penalty, but ordinarily at least some insight into the standards of sentencing and "the collective wisdom of the judges" (R v Ellis (1993) 68 A Crim R 449 at 460 per Hunt CJ at CL) is required.
152. The complaint of Mr Dickson, however, was in two parts - that the accumulation was inappropriate and that the sentence for robbery was excessive in itself.
153. The learned Special Magistrate made six of the nine sentences on charges for minor theft concurrent; two were made consecutive on the sentence for those six.
154. The Crimes (Sentencing) Act provides the general rule in s 71 that, unless the court otherwise directs, sentences are to be served concurrently. There is, however, provision for the court to direct that sentences be served consecutively (s 71(2)) and the discretion to do so is entirely unconfined, except, of course, that it must be exercised judicially.
155. The courts have established some "principles" that inform these discretions as outlined in Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-3. See also the discussion in R v Meyboom [2012] ACTCA 48 at [62]- [71], [77]-[80].
156. Thus, it could properly be said that the three offences of minor theft occurring on 12 February 2008 in short succession were really part of the one incident justifying wholly concurrent sentences as stated in Ruane v The Queen (1979) 1 A Crim R 284 at 286. That is true, too, of the two offences of minor theft committed on 1 May 2008. His Honour, however, did make these sentences concurrent, though, as separate incidents, properly made them consecutive on each other.
157. As noted above, the Respondent also referred to the approach evidenced in R v Smith where Simpson J, with whom Howie and Hislop JJ agreed, pointed out (at [66]), though in respect of a quite different offence, namely armed robbery:
The guideline sentence promulgated in Henry (which is concerned with armed robberies, but is equally applicable to robbery in company) is of four to five years' head sentence, with an appropriate minimum term (depending, inter alia, upon whether or not special circumstances are found); as I have mentioned above, it incorporates some discount for a plea of guilty, although a late plea. It is also applicable where the offender is charged with a single offence. Multiplicity of offences plainly calls for a total sentence well in excess of the four to five years so promulgated. While it may be correct that each individual sentence could fall appropriately within the four to five year range, it must also be recognised that, as the offending continues, each succeeding offence calls for a greater punishment than the earlier, if only by way of personal deterrence. And to order that all sentences be served concurrently has the effect of neutralising, or at least minimising, the sentences applicable to the later offence. To sentence in that way does nothing to discourage sequential offending; indeed, it gives the appearance that once an offence has been committed, the offender has little or nothing to lose by repetition.
158. Prima facie, most of the sentences here imposed could have been made consecutive save for those I have suggested (at [156]) arise out of the one episode, but the principle of totality would have been seriously offended as a sentence of 36 months for the totality of offending would have been manifestly excessive.
159. On the other hand, it would have been inappropriate not to mark the seriousness of the continued offending by making concurrent all of the sentences on the continued serial offending by committing the minor thefts. Some clear message that additional offending cannot be committed with impunity and without any consequence is, subject to respect for the principle of totality, important.
160. His Honour had a choice. His Honour decided here to make most of the sentences for the minor theft offences wholly concurrent and two sentences for the remaining minor theft offences wholly consecutive rather than, for example, making all or a number of the sentences for the minor theft offences partially concurrent and partially consecutive; that is a choice for the sentencer. I can see no error in the choice here made.
161. As to the robbery, it may be accepted that, to use Ms Warwick's words, it was in reality "a shoplifting" and that Mr Dickson, when confronted, acted on impulse. Nevertheless, it was accompanied by a use of force by Mr Dickson and that fundamentally changed the character of the offence.
162. The legislature has provided a very serious penalty for the offence: 1,400 penalty units (a fine of $140,000 at the time of offending) or imprisonment for 14 years or both. The courts are enjoined by the High Court in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 372; [30]- [31], to pay particular regard to the maximum penalties provided by the legislature.
163. It may have been "a shoplifting gone wrong" when Mr Dickson was confronted by a store employee, but the use of force converted it into a much more serious offence and one for which the penalty actually imposed was appropriate.
164. Rather than being manifestly excessive, the total sentence was lenient, having regard to the serial offending.
165. The written sentence published by the learned Special Magistrate summarised above (at [57]-[58]), did specify the start of the non-parole period incorrectly. Clearly, what his Honour intended to specify was the start of the parole period when Mr Dickson could, subject to the decision of the Sentence Administration Board, be released on parole.
166. While this inaccuracy was repeated in the oral articulation of the sentence, it does not seem to me to be an error that vitiates the sentence. It is only too obviously a slip or clerical error. It could be amended under r 6906 of the Court Procedures Rules 2006 (ACT). See R v Gorman [2009] ACTSC 7.
167. The challenge to the sentence based on an absence or inadequacy of the reasons for sentence is not made out. Magistrates, like other sentencers, are required to give reasons for their sentence. There is, however, a need to apply appropriate standards to the evaluation of such reasons.
168. As Kirby P explained in Acuthan v Coates (1986) 6 NSWLR 472 at 479, in respect of the Local Court of NSW, it would be an error for an appeal court to examine the
unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.
169. I have noted before what McKechnie J said in Green v Webb [2006] WASC 71 at [11]:
Magistrates Courts are busy courts. Magistrates daily must deal with many matters involving different offences and different offenders. In general, a Magistrate does not have the luxury of much time for consideration or much opportunity to completely expose the reasoning process. It is inevitable that even with the most careful Magistrate, from time to time, errors will occur. In recognition of this fact, the Court in its supervisory appellate jurisdiction takes perhaps a more lenient approach to an appellant, sometimes allowing an appellant to supplement, by way of affidavit, what was probably an inadequate plea in mitigation before the Magistrate. However, there are limits. At its essence the appeal is governed by the rules of law and error must be shown.
170. His Honour clearly gave detailed reasons on 18 December 2008. Indeed, his Honour said on 12 February 2009, "on the last occasion ... I gave extensive reasons as to why I would impose the sentence" and neither party, especially Mr Dickson, has drawn my attention to any particular inadequacy in those reasons; indeed, neither saw fit to include them in the appeal book. This ground of challenge is not made out.
171. As to the pre-sentence custody said not to have been taken into account, the evidence before me does not enable me to make a final decision on that. His Honour said:
The total period of imprisonment therefore will be 21 months. That imprisonment should date from 9 July 2008. Now, having said that, I note that he did spend some period in custody prior to 9 July 2008 in respect of another matter. I understand that to be 2 weeks. I have taken that into account in determining that 9 July is the appropriate start date.
172. That seems to me to address this issue adequately. Section 63(2) of the Crimes (Sentencing) Act requires the court to take into account any period of pre-sentence custody when considering backdating. That does not mean that the period of back-dating has to start when an offender is first taken into custody. There may be subsequent periods when the offender is granted bail, for example. Ordinarily, the period of the sentence which is backdated should be continuous up to sentencing, even if the offender was not in custody during that exact period, so long as the period from when the backdating starts to the sentencing date adds up to the total period of actual pre-sentence custody for the offences. On what his Honour said, the two-week period prior to 9 July 2008 should not be included as Mr Dickson was not then being held in relation to any of these offences.
173. As orders will have to be made on this appeal, however, to deal with the stay statutorily imposed by s 216 of the Magistrates Court Act, including setting a new non-parole period, I am prepared to consider when to set the starting date of the sentence if proper evidence is adduced that shows that some period of pre-sentence custody should additionally have been recognised for the purpose of s 63 of the Crimes (Sentencing) Act. See Ledson v Taylor (No 2) [2010] ACTSC 48; (2010) 239 FLR 360.
174. Otherwise, the first appeal must be dismissed.
175. In the second appeal, the same submission of error in accumulation is made. The sentences for the breach of protection order and for one of the offences of driving whilst unlicensed were made concurrent. All incidents were, however, separate. The sentences for each could all properly have been made consecutive, subject to totality. It cannot be said that the learned Magistrate was not alive to the relevant issues.
176. I cannot discern an error in the way in which his Honour accumulated the sentences.
177. Complaint was made that a non-parole period was not set. The immediate answer to this is simple; the legislation did not permit it. A non-parole period is entirely a creature of statute. Before statutory enactment of such provisions, the only power to release a prisoner before the end of a sentence of imprisonment was by an exercise of the Royal Prerogative of mercy: Attorney-General for Canada v Attorney-General to Ontario (1894) 23 SCR 458 at 468-9; Kelleher v Parole Board of New South Wales [1983] 3 NSWLR 50 at 54-5; Anne Twomey, The Constitution of New South Wales (Federation Press, 2004), 662-5. Thus, there is no common law power for the court to release on licence or to grant parole without statutory authority.
178. Section 65 of the Crimes (Sentencing) Act is the relevant authority and it provides that where a court sentences an offender to a term of imprisonment of one year or longer or two or more terms the total of which equals or exceeds that length, it must set a non-parole period. Here, the total sentence was eleven months and so no non-parole period could be set.
179. This, I apprehend, is not the point of the complaint raised by Ms Warwick. What she raised was that, at the time the learned Magistrate imposed the sentence of eleven months imprisonment, Mr Dickson had already been sentenced by the learned Special Magistrate to a term of imprisonment with a non-parole period.
180. Section 66 of the Crimes (Sentencing) Act, provides:
(1) This section applies if -
- (a) the offender is serving a sentence of imprisonment (the existing sentence); and
- (b) the offender is sentenced to a further term of imprisonment (the primary sentence).
(2) Section 65 (Nonparole periods - court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
(3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.
(4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.
181. Thus, it appears to be suggested, the imposition of the sentence by the learned Magistrate on 3 February 2010, automatically cancelled the non-parole period set by the learned Special Magistrate and, since the combined length of the sentences was more than twelve months, a fresh non-parole period had to be set. The learned Magistrate had not done so.
182. The difficulty for Mr Dickson, however, is that, having appealed against the earlier sentence, it had been stayed under s 216 of the Magistrates Court Act, which, as noted above (at [14]), stays the enforcement or execution of the sentence until the appeal is decided, abandoned or discontinued.
183. Thus, Mr Dickson was not, at the time the further sentence was imposed by the learned Magistrate on 3 February 2010, serving the earlier sentence. That is clear from Ledson v Taylor (No 2) at 364; [27]. Thus, s 66 of the Crimes (Sentencing) Act does not strictly apply to that further sentence. This makes sense, for if the appeal is ultimately upheld and the earlier sentences set aside, there would be a problem, for a non-parole period would have been set in other proceedings (those in which the further sentence was imposed) and could not be disturbed without some difficulty yet would be based in part on a sentence that was set aside.
185. In this case, however, the dismissal of the first appeal will amount to the imposition of the sentence made by the learned Special Magistrate, as I held in Ledson v Taylor (No 2) at 364; [29]-[30] and thus, when I deal with the second appeal, I will be dealing with a person who is serving a sentence and, if appropriate can comply with s 66 of the Crimes (Sentencing) Act in making orders in the second appeal.
186. The next challenge was that the learned Magistrate did not disqualify himself. The application arose out of an earlier application by Mr Dickson for bail that had been heard by his Honour during which his Honour pointed out that Mr Dickson was in breach of two bail conditions. Mr Dickson responded "Fuck you, you can stick it up your arse", and his lawyer withdrew the application.
187. The test of whether a judicial officer should disqualify himself or herself is well-known and not in doubt. As Gleeson CJ, McHugh, Gummow and Hayne JJ said in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344; [6]:
a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.
188. The application of this principle is not always easy. As their Honours said, it requires two steps (at 345; [8]):
the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits [and] ... an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
189. Here, the outburst of profanity directed to the learned Magistrate at the bail application was said to be likely to result in a more severe sentence as a punishment for the outburst.
190. It seems to me that this cannot be sustained. Judicial officers are - and must be - sufficiently robust to take even obscene expressions of disappointment and frustration in their stride. Further, there would be a major challenge to the courts if a litigant could cause the disqualification of a judicial officer merely by abusing him or her.
191. Ms Warwick submitted that the fact that the learned Magistrate had recalled the words said by Mr Dickson meant that he was clearly affected by them. I do not agree with that conclusion. His Honour had noted the words on the file so there is no basis for saying that he was so particularly affected that they had remained in his memory. It does not follow that because they were noted on the file, they were prejudicial; they would have been seen on the file by any Magistrate who sentenced Mr Dickson.
192. I am fortified in my view that there is no substance in this challenge by a consideration of the decision of the Federal Court of Australia in Eastman v Murphy (1993) 42 FCR 145 when the court had to consider the situation where a litigant had continually interrupted proceedings in a situation described by the court (at 146) as:
a situation which must have clearly presented an affront to the dignity, authority, and effectiveness of the court.
193. The report states (at 148) that the court concluded that the error made by the learned Magistrate in having the litigant removed from the courtroom because of the outburst "did not operate to create a reasonable apprehension of bias."
194. The next challenge was that no account was taken of pre-sentence custody. The difficulty with this submission is that there is no material before me to suggest Mr Dickson was in custody between 12 August 2009, his first appearance in court on these charges, and 3 February 2010, when he was sentenced. As I have said earlier (at [173]), if such evidence is produced, this can be dealt with when the necessary consequential orders are made.
195. The one matter in relation to the challenge that the sentence was a manifestly excessive sentence that does trouble me is that the sentence for the second minor theft was for a period of five months imprisonment to be wholly cumulative with the other sentences. The maximum penalty is fifty penalty units (that is a fine of $5,000) or six months imprisonment or both. Thus, the sentence imposed approached the maximum period of custody. Despite the effect of Mr Dickson's prior convictions, which deprived him of much leniency, it seems to me that such a penalty is manifestly excessive, having regard to that maximum.
196. The circumstances of this offence have been set out above (at [35]). There are no particularly aggravating features of the offence.
197. The value of the property was $699.00. There is no doubt that the value of property stolen is a relevant factor on sentence, as noted in R v Huynh [2005] NSWCCA 220 at [27]; Rees v The Queen [2012] ACTCA 6. Here the value was less than that of the property stolen in the earlier minor theft for which his Honour imposed a sentence of three months imprisonment.
198. Mr Dickson pleaded guilty. The Respondent pointed out that he had been arrested at the store where he had been detained by other customers who saw him leave with the television. Police also saw a CCTV recording which identified Mr Dickson. It was a strong, perhaps overwhelming, prosecution case.
199. The evidence for the earlier offence, however, was also strong: Mr Dickson was clearly identified on a CCTV recording removing the computer and leaving without paying for it. Both cases were very strong prosecution cases.
200. Section 35(4) of the Crimes (Sentencing) Act deprives an offender of a sentencing discount where the prosecution case is overwhelming. This denial of discount has been interpreted in this jurisdiction by Gray J in Taylor v Bowden [2009] ACTSC 13 at [16]- [18] not to refer to the utilitarian value of a plea of guilty. See also Tran v Tan [2009] ACTSC 66 at [12]; Westin v Gordon [2012] ACTSC 44 at [90]. That value should be reflected in any sentence following such a plea.
201. I next turn to Mr Dickson's criminal record. While it is often articulated that a bad record denies an offender leniency, this does not mean that the sentence should be increased. In general terms, the maximum penalty is reserved for the worst type of offending. As Burt CJ said in Bensegger v The Queen [1979] WAR 65 at 68:
A maximum sentence prescribed by statute is not reserved for the worst offence of the kind dealt with by it that can be imagined. If such were the case it could never be imposed as the addition of further non-existing but aggravating circumstances would never be beyond the reach of imagination. The true rule is I understand it is that the maximum sentence should be reserved for the worst type of case falling within the prohibition or ... 'for the worst cases of the sort'. That expression should be understood to be marking out a range and an offence may be within it notwithstanding the fact that it could have been worse that it was.
202. See also Ibbs v The Queen (1987) 163 CLR 441 at 451-2.
203. That is not to say that the maximum punishment can never be imposed. As Moffitt P said in R v Lawrence (1980) 32 ALR 72 at 110:
The primary task of the trial judge is to impose a sentence appropriate to the criminality of the prisoner's conduct, paying due regard to subjective considerations. If the criminality is so great that the maximum is warranted, it does not become a wrong sentence because differences can be pointed to by making a comparison with another prisoner whose crime also warranted the maximum sentence being imposed. In terms the legislation does no more than prohibit a longer sentence than that stated being imposed.
204. When considering the effect of a criminal record, however, it is important to see that an offender is not punished again for that offending. This important point was made in Veen v The Queen (No 2) at 477. Before the passage cited earlier (at [149]), the court noted:
the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences.
205. This is consistent with what has long been the English approach. In R v Durand (1925) 18 Cr App R 137 at 138, the Court of Criminal Appeal said:
In considering whether a sentence in such a case as this is proper, one has to beware of treating an offence as serious in itself because it has been committed by a man who previously has committed a series of offences.
206. Similarly, in R v Gumbs (1927) 19 Cr App R 74 at 75, the Court of Criminal Appeal said:
when a man has committed serious offences and has served long terms for them, it is not required that he should suffer further severe punishment for a later offence which does not intrinsically call for it.
207. It seems to me that in all those circumstances a sentence of five months imprisonment for the second minor theft was manifestly excessive.
208. The final ground referred to by Ms Warwick was that inadequate reasons had been given. I have generally dealt with the nature of that ground above (at [167]-[170]).
209. In his reasons, which occupy over four pages of transcript, His Honour set out the facts, with reference to the course of the proceedings. It referred in some detail to what had been said in the Pre-Sentence Report. They referred to the re-sentencing in an earlier appeal by Higgins CJ, Dickson v Gill [2008] ACTSC 39. In my view, his Honour provided adequate reasons.
210. The second appeal should be upheld in part with regards to the second minor theft and any adjustments regarding pre-sentence custody as well as the re-adjustment required of the non-parole period.
211. The first appeal must be dismissed, though it will be necessary to re-adjust the sentence to take account of the periods of custody which Mr Dickson has since served and to respond to the consequences of s 216 of the Magistrates Court Act.
212. As to the second appeal, it should be upheld in part and Mr Dickson re-sentenced for the second minor theft offence, together with any adjustments that need to be made for any periods of custody that needs to be taken into account and the re-setting of a non-parole period.
213. I will hear the parties on these issues and I will make orders accordingly.
214. It will also be necessary to deal with the suspended sentence that which has been breached by the convictions for these offences.
I certify that the preceding two hundred and fourteen (214) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Solicitor for the appellant: Darryl Perkins Solicitor
Solicitor for the respondents: ACT Director of Public Prosecutions
(1986) 6 NSWLR 472
(1982) 30 SASR 84
(2010) 5 ACTLR 151
(2008) 1 ACTLR 299
(1993) 42 FCR 145
(2000) 205 CLR 337
(1986) 160 CLR 392
(2012) 7 ACTLR 1
(1987) 163 CLR 441
(2004) 78 ALJR 616
(2002) 125 FCR 1
(2010) 239 FLR 360
(2005) 228 CLR 357
(1995) 184 CLR 132
(1988) 166 CLR 59
(1997) 69 SASR 150
(1980) 32 ALR 72
(1999) 48 NSWLR 327
(2011) 6 ACTLR 18
(1988) 164 CLR 465