Drought v Driesen [2009] ACTSC 46

4. The appellant and the complainant had been in a six-year relationship, and shared a 4-year-old son. They terminated their relationship some time before the offences were committed.

5. In the evening of 15 July 2008, the complainant received a number of text messages from the appellant on her mobile telephone, indicating that he wanted to see her and was coming over to her house. She responded, telling him that she did not wish to see him.

6. Shortly afterwards, at around 7.00 pm, the appellant arrived at the complainant's residence, asking to see her and their son. The complainant refused to allow the appellant in, and her friend apparently convinced him to leave. He returned almost immediately and began to argue with the complainant, eventually walking into her bedroom and kicking a bedside table and a bedroom mirror, smashing the mirror and damaging the wall behind the bedside table.

7. The complainant again told the appellant to leave. He walked towards her and punched her in the mouth using his closed right hand, which caused her to bleed. She quickly left the house with their child.

8. At about 8:15 pm that evening, the appellant handed himself into police at the Tuggeranong Police Station, informing officers that he had just assaulted his ex-partner. The complainant provided a statement to police at about 8:30 pm, and as a result the appellant was conveyed to the City Watchhouse and charged.

9. On 17 October 2008, the appellant was sentenced in the Magistrates Court to 8 months imprisonment for the assault offence, and 6 months (to be served concurrently) for the property offence. The maximum terms of imprisonment for the two offences were 2 years and 6 months respectively.

10. The appellant began his period of full-time imprisonment immediately on being sentenced, and lodged his appeal on 6 November 2008. He remained in custody until he was released on 6 March 2009, having served just over 5 months of his sentence.

11. The ground of appeal as set out in the original notice of appeal, which appeared to refer only to the sentence of 8 months imprisonment for the assault offence, was that the sentence was manifestly excessive. At the hearing, counsel for the appellant sought leave to amend the notice of appeal in several respects, first to extend the appeal also to the sentence of 6 months imprisonment for the property offence, and secondly to replace the original ground of appeal with a new ground, namely that, "having regard to the evidence, including the fresh evidence, a lesser penalty than that imposed by the learned Magistrate should be imposed".

12. The fresh evidence referred to in the amended ground of appeal consisted of:

(a) a letter from the appellant's potential employer, confirming a willingness to engage the appellant again if he were available for work (Exhibit 1); and

(b) a psychiatric assessment of the appellant, confirming that he was suffering from depression (Exhibit 2).

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

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

(b) Secondly, the original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error, but only if the appeal court considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence (in some jurisdictions this approach is expressly provided for - see for instance subs 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237 (10 August 2007)). Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371).

(c) Thirdly, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). Furthermore, implicit also in such a finding is the conclusion that a different sentence is appropriate.

(d) Further evidence may be admitted on appeal in various circumstances; the circumstances in which further evidence may be admitted on an appeal from a sentence imposed by a Magistrate are set out in subss 214(3) and (4) of the Magistrates Court Act. In particular, further evidence may be admitted in some cases for the purpose of considering whether a different sentence is appropriate, but generally only after an error has been identified.

14. For reasons that will become apparent, the amended ground of appeal was not pursued with any energy, although I will make some comments about that ground in due course.

15. Instead, at the beginning of the appeal hearing it emerged that there was a question about the accuracy of the appellant's criminal history as it had been put before the sentencing Magistrate. Specifically, the criminal history indicated that the appellant had been sentenced in 1999, in New South Wales, to three terms of imprisonment (4 months, 4 months and one month, apparently to be served concurrently although this was not expressly stated). However, the appellant claimed he had never served such a term, and counsel for the respondent undertook to check the accuracy of the criminal history.

16. The hearing resumed several weeks later, and by consent the respondent tendered documents setting out details of the relevant aspects of the appellant's criminal history, which indicated that the three sentences of imprisonment mentioned at [15] above had been overturned on appeal; instead, the appellant had been sentenced to several hundred hours of community service and a good behaviour order had been imposed.

17. This seemed to indicate an error of fact infecting the decision of the sentencing Magistrate. Although her Honour had not expressly referred to the terms of imprisonment in her sentencing remarks, she did refer specifically to the appellant's record, mentioning prior convictions for assault and for breaching protection orders, as well as noting the sentences imposed for some offences. Thus, it is reasonable to assume that her Honour had looked fairly carefully at the appellant's record, and that she had noticed the terms of imprisonment imposed, and apparently served, in 1999.

19. First, her Honour could legitimately have assumed, on the basis of the incorrect criminal record, that if several months imprisonment imposed in 1999 had ever had a deterrent effect on the appellant, that effect had worn off by the time he committed the current offences, and therefore that a useful deterrent effect could only be achieved with a relatively high penalty, in particular a relatively long period of full-time custody.

20. Secondly, the appellant's corrected criminal record, with the sentences of imprisonment replaced with sentences of 300 hours community service and a 12-month good behaviour order, conveys a rather different picture of the appellant's offending behaviour. For a start, although the appellant was fined for several other minor offences between 1999 and 2004, there is no indication on the record either that the community service was not performed, or that the good behaviour order was breached.

21. In 2004 the appellant was sentenced to terms of 12 months and 6 months in prison, suspended subject to good behaviour undertakings for 2 years. These undertakings also appear to have been complied with; some 19 months into the 2-year period, the appellant committed a common law breach of the peace, but this does not seem to have been treated as a breach of his good behaviour undertakings.

22. The appellant's next offence was committed shortly after the 2 years expired, and again he was sentenced to a suspended sentence on the basis of a 2-year good behaviour undertaking. On this occasion the appellant did breach the undertaking, 20 months into the 2-year period; the good behaviour order was cancelled and the appellant was sentenced to 3 months periodic detention, concurrent with the 6 months periodic detention imposed for the new offence. That periodic detention was almost complete when the appellant was taken into custody on 3 October 2008 for a breach of bail granted in respect of the current offences.

23. Thus, a picture emerges of an offender who, while continuing to offend, tries and usually succeeds in complying with the terms of any sentence imposed on him. In particular, there is a real difference between on the one hand serving out a 4-month term of imprisonment and on the other, completing community service obligations or complying with good behaviour obligations over a period of 2 years. An offender sentenced to imprisonment has no choice but to undergo the term of imprisonment; there is no commitment called for on the part of the offender. An offender sentenced to community service or compliance with a good behaviour order for 2 years has many opportunities to breach his obligations, and must make a real commitment in order to complete such a sentence successfully.

Sentencing Magistrate's decision infected by error of fact

24. In these circumstances, I considered that her Honour's sentencing decision was infected by an error of fact reflecting the incorrect criminal record that was provided to her, and I could not be satisfied that the error had not had an impact on her decision.

25. I also concluded that another sentence would be appropriate. In reaching that conclusion, I took account only of the material available to her Honour and set out in the Appeal Book (except the criminal record to the extent that it was incorrect), and of the New South Wales Certificates of Conviction tendered by the prosecution at the appeal hearing and admitted by consent under subs 214(3) of the Magistrates Court Act. I was not required at that stage to consider whether the evidence tendered by the appellant (see [12] above) and objected to by the respondent would be admissible under s 214 of that Act.

26. Apart from the information provided by the Appeal Book, two particular factors persuaded me that another sentence would be appropriate, so as to justify upholding the appeal once an error had been identified. These were my interpretation of the appellant's corrected criminal history, as set out in [20] to [23] above, together with my view that a relatively short term of imprisonment is often appropriate for a relatively minor example of an offence with a relatively low maximum penalty committed by an offender who has not previously served a sentence in full-time custody. In Moutrage v Haines [2008] ACTSC 36 (8 May 2008), I said at [40]:

The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend. However, that fact may appropriately lead a court to decide that the first custodial sentence imposed should be a relatively short custodial sentence, at least where the offences concerned are relatively less serious. This approach may be founded on a hope that a short custodial sentence might be sufficient to persuade the offender to change his ways, without exposing him for too long to those aspects of prison life that could have a negative rather than a positive effect on his long-term rehabilitation.

27. Although it was not argued specifically on the appeal, I note also that the sentence for the property offence was in fact the maximum term of imprisonment for that offence.

28. On the basis of the considerations set out above, I concluded that the original sentences of 8 months and 6 months imprisonment were inappropriately long, and that shorter sentences would have been appropriate. Having found an error of fact infecting the original sentencing decision, my conclusion about the length of the original sentences provided the basis for upholding the appeal and re-sentencing the appellant.

29. I note that I was able to reach the conclusion that the original sentences were inappropriately long without considering further evidence except that relating to the appellant's criminal record, which was admitted by consent.

30. The re-sentencing was covered by s 33 of the Crimes (Sentencing) Act 2005 (ACT) (see subs 9(2) of that Act). Section 33 requires the court to take account of specified matters that are "relevant and known to the court" (subs 33(1)). For the purpose of the re-sentencing, I considered that it was appropriate to take account of material of the kind that would be accepted in an initial sentencing hearing, even if that material was not admissible for the purposes of the appeal, and counsel for the respondent did not object to the admission of further evidence for that purpose. Accordingly, in the re-sentencing I also took account of the other evidence mentioned in [12] above, namely the psychiatric assessment of the appellant and the job offer from his former employer.

31. Because of the way this appeal developed, I was not required to reach any conclusions on the revised appeal ground nor on the ingenious argument in support of it put by counsel for the appellant. However, I outline that argument in the interests of its proper resolution in an appropriate case.

32. As mentioned at [11] above, the revised ground of appeal proposed on behalf of the appellant was that "having regard to the evidence, including the fresh evidence, a lesser penalty than that imposed by the learned Magistrate should be imposed". It is clear that this ground does not assert any specific error on the part of the sentencing Magistrate, and counsel for the appellant expressly disclaimed any intention to re-state a "manifest excess" ground using those words.

33. Rather, in reliance on comments made by Miles CJ in Campbell v Fortey (1986) 24 A Crim R 386 (Campbell), counsel for the appellant proposed a further ground, independent of the usual grounds of specific or inferred error, for considering and resolving an appeal against sentence.

34. In Campbell, Miles CJ , after considering the origins of subss 214(3) and (4) in s 23 of the Criminal Appeal Act 1968 (UK), and the interpretation of the UK provisions in the case of Lattimore (1975) 62 Cr App R 53, concluded that subs 214(3) confers an unfettered discretion on the Supreme Court to receive further evidence if it considers it necessary or expedient to do so in the interests of justice, and that subs 214(4) imposes a separate obligation on the Court to receive evidence tendered under that subsection if the criteria in that subsection are satisfied. In the course of that consideration, Miles CJ said at 390:

I come to the conclusion that the discretion to allow further evidence on an appeal under section 214(3) is unfettered and not circumscribed by any consideration that the appellant must show that the magistrate was in error on some question of law or fact or that special circumstances exist. Further, the Ordinance does not distinguish between appeals against conviction and appeals against sentence, and a person appealing against penalty does not have to show, for the purpose of adducing further evidence, error or exceptional circumstances.

However, of course, for the appeal to be successful the Supreme Court must ultimately decide that a lesser penalty is appropriate. The result might well be in practice that this Court, sitting on appeal from a magistrate on the question of penalty, may more readily exercise its powers to allow additional evidence and indeed to allow the appeal than would a court of criminal appeal sitting on an appeal against sentence for an indictable offence. [emphasis added]

35. Counsel's argument appeared to be that Miles CJ, in the highlighted words above, was identifying, in addition to the generally recognised grounds for appeals against sentence (being that the original decision was infected by specific or inferred error - see [13] above), a further independent ground of appeal, namely that the appeal court would have imposed a lesser sentence than the sentence imposed by the sentencing court.

36. Whether such a ground of appeal was available was not fully argued in the course of this appeal, and I make no finding on it. However, I note that in his decision in Campbell the learned Chief Justice, while admitting further evidence under subs 214(3) and not making a formal finding of error on the part of the sentencing Magistrate, did identify a number of inadequacies in the original decision (mainly in the nature of failures to take account of relevant considerations) before proceeding to re-sentence the appellant.

37. As noted in [28] above, the appeal was upheld. The appellant was re-sentenced to a total of 7 months imprisonment, backdated to 3 October 2008 to reflect time served, and immediately suspended subject to a 2-year good behaviour order.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: ACT Director of Public Prosecutions