Hall v CL [2015] ACTSC 286

APPEAL - Criminal law - jurisdiction, practice and procedure - appeal from the Magistrates Court - Galambany Court - role of Galambany Court - circle sentencing - appeal against sentence - robbery - dishonestly driving someone else's motor vehicle without consent - driving without a driver licence - Div 3.10.2 and Div 3.10.3 of the Magistrates Court Act 1930 (ACT) - manifestly inadequate - residual discretion of appellate court

Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Crimes (Sentencing) Act 2005, ss 33(1)(za), 33(1)(m)

Crimes Legislation Amendment Act 2008 (ACT), Pt 1.11

Magistrates Court Act 1930 (ACT), ss 4C, 216, 208(1)(e), 219F(5), 219F(8), s 291L, 291M, 291N; Pt 3.10; Div 3.10.2, 3.10.3

Ashdown v The Queen (2011) 219 A Crim R 454

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 31 VR 634

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

Green v The Queen [2011] HCA 49; (2011) 244 CLR 462,

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

PR v The Queen [2014] ACTCA 40

R v Campbell [2010] ACTCA 20

R v Chatfield [2012] ACTCA 32

R v CL (Unreported, Supreme Court of the Australian Capital Territory, SCC No 418 of 2009, SCC No 115 of 2012, SCC No 167 of 2012, Burns J, 15 May 2013).

R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267

R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7:

R v McMahon [2014] ACTSC 280

R v Morgan (2014) 24 VR 230

R v Nicholson (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC No 133 of 2012, 6 September 2012

R v O'Brien [1987] Tas SR 167

R v Shaw (Unreported, Victorian Court of Appeal Phelps CJ, Hampel and Vincent JJ, 126 of 1992, 23 October 1992

R v Wanganeen [2010] SASC 237; (2010) 108 SASR 463

R v Wheeler [2000] NSWCCA 34

R v Williams [2014] ACTCA 30

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Ivan Potas, Jane Smart, Georgia Brignell, Brendan Thomas and Rowena Lawrie, Circle Sentencing in New South Wales. A Review and Evaluation (Judicial Commission of NSW, Sydney, 2003)

Fiori Rinaldi, Dismissal of Crown Appeals Despite Inadequacy of Sentence (1983) 7(6) Crim LJ 306

Magistrates Court of the Australian Capital Territory, Galambany Court Practice Direction No. 1 of 2012

Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non Adversarial Justice (The Federation Press, Sydney, 2014) 2nd Ed, Ch 11

Kate Warner, Sentencing in Tasmania (The Federation Press: Sydney, 2002) 2nd ed

Legal Aid ACT (Respondent)

1. At about 10.15 pm on 13 April 2015, the respondent, CL, approached a male, the victim in this case, who was sitting alone in his car in a carpark near to a school in Kambah.

2. CL opened the door of the car and, at his invitation, the victim got out of the car. Also at CL's request, the victim threw his wallet back into the car. CL then forcefully shoved the victim in the chest, causing him to stumble backwards.

3. CL then drove the victim's car away. The victim called the police who, through a handy device on the victim's phone, which was still in the car, managed to locate CL and arrest him.

4. He was charged with offences of robbery, dishonestly driving someone else's motor vehicle without consent and driving without a driver licence.

5. He appeared in the Magistrates Court and, because of his aboriginality, applied for and was dealt with in the Galambany Circle Sentencing Court (the Galambany Court). This is the name of the Magistrates Court when dealing with Circle Sentencing. See Chapter 4C of the Magistrates Court Act 1930 (ACT).

6. After participation in the Circle Sentencing on 19 August 2015, CL was sentenced to a total period of 18 months imprisonment of which 6 months was to be served by full-time custody and the balance suspended and a Good Behaviour Order made for 2 years.

7. The informant has now appealed against the inadequacy of the sentence.

8. Part 3.10 of the Magistrates Court Act confers jurisdiction on this Court to hear appeals from the Magistrates Court, including appeals against sentences imposed by it, and Div 3.10.2 and Div 3.10.3 regulate those appeals.

9. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.

10. 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.

11. 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 or inadequate, unreasonable, plainly unjust or plainly wrong.

12. Apart from these matters, there are differences between the procedure under Div 3.10.2 and Div 3.10.3 of the Magistrates Court Act where the appeal is an appeal against sentence. It is, however, not possible from the Notice of Appeal itself to determine which provision is the source of the appeal.

13. This is the result of the repeal by Pt 1.11 of the Crimes Legislation Amendment Act 2008 (ACT) of the order nisi procedure formerly applicable for review appeals under Div 3.10.3 of the Magistrates Court Act, which procedure had made the distinction obvious.

14. If, however, Div 3.10.2 of the Magistrates Court Act applies, then, under s 216, the filing of the Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal. This is a rather odd result, for the appellant is the prosecution in the proceedings below and it is not clear why the enforcement of the sentence should be stayed pending a prosecution appeal; indeed, it seems inappropriate.

15. Further, the procedure under Div 3.10.3 of the Magistrates Court Act is more appropriate for the conduct of prosecution appeals. For example, there is in s 219F(5) an express application of the "residual discretion" (see CMB v Attorney-General (NSW) [2015] HCA 9; (2014) 89 ALJR 407 at 415; [33]), a discretion inappropriate to an appeal by an offender, and the appellant must pay the respondent's costs in any event under s 219F(8), also inappropriate for an appeal by an offender. Both of these are particularly appropriate for a prosecution appeal against sentence.

16. Nevertheless, Mr M Fernandez, who appeared for the appellant, stated that the appeal was brought under Div 3.10.2 of the Magistrates Court Act. Section 208(1)(e) is, in its terms, able to encompass a prosecution appeal against sentence, despite these curiosities. It must await another day as to whether the proper construction of these provisions is to require a prosecution appeal to be brought under Div 3.10.3.

17. The informant filed the Notice of Appeal on 20 August 2015. The Notice pleaded one ground, that the sentences imposed were manifestly inadequate.

18. No further particulars of the factors that were relevant to this issue were set out in the Notice. That is not inappropriate, but the appellant must, at some stage, identify those factors which are the combination of matters from which the conclusion is to be drawn about an appropriate sentence and which can then be compared with actual sentences. A conclusion - for such it is - can then be drawn as to whether the sentence imposed was manifestly inadequate (or excessive). See PR v The Queen [2014] ACTCA 40 at [48] - [49] and the approach set out clearly in R v Williams [2014] ACTCA 30 at [13] - [18].

19. The facts have been summarised above (at [1] - [3]) but it is necessary to say a little more about them. I take these from the police Statement of Facts read out in Court and, as without objection, is to be accepted as an accurate statement of the facts for sentencing purposes.

20. The victim was, as noted above, sitting alone in his car, a Ford Fiesta, in the carpark of a non-government school in Kambah at about 10.15 pm on 13 April 2015. He was holding his wallet, containing various cards in his name, and his mobile phone. The doors of the vehicle were unlocked and the keys were in the ignition, but it was turned off.

21. The victim saw a movement and, as he looked, the car door was opened by CL who said, "How about you get out of the car". CL had his right hand on the top of the door frame and his left hand out of sight.

22. The victim threw his phone onto the front passenger seat and CL said, "How about you leave your wallet, too". he victim felt scared and shocked by what CL did but also because he could not see CL's left hand. Presumably he thought there may be a weapon in it, but that was not stated.

23. In any event, the victim threw his wallet onto the front passenger seat as well and got out of the car. Using both hands, CL then shoved the victim forcefully in the chest, which caused the victim to stumble backwards away from the car but not, it appears, to fall over.

24. As the victim turned back to the car, he heard the door close and the engine being started. CL was in the driver's seat and he then drove away as the victim ran across the road to get help. He went to a nearby house and called the police who arrived shortly after.

25. The victim's phone was still in the car. It contained a handy device which allowed its location to be ascertained. As a result, police were able to locate the car at an address in Swinger Hill. When they arrived there, they saw the vehicle and CL with a female behind him.

26. When asked whose car it was, CL said that he "[j]ust got it off a mate for $250". When asked who was his friend, he said, "I can't tell you; I'm not a dog".

27. The female then got into the passenger seat of the car and CL got into the driver's seat and tried to lock the door but Sergeant Colin Giumelli, one of the police officers at the scene, managed to open the door and pull the keys from the ignition. CL then jumped out of the car and started to run away but tripped over and was arrested by Sergeant Giumelli.

28. CL did identify himself to Sergeant Giumelli and he was then taken to the ACT Watch House where he was charged. He declined to be interviewed by police.

29. At the time of committing the offence, CL was on parole. He had been sentenced in this Court on 15 May 2013 for offences of aggravated robbery (the circumstances of aggravation being that he had at the time an offensive weapon), theft, assault occasioning actual bodily harm and intentionally wounding. He was sentenced to a total term of five years imprisonment with a non-parole period of two years and three months. See R v CL (Unreported, Supreme Court of the Australian Capital Territory, SCC No 418 of 2009, SCC No 115 of 2012, SCC No 167 of 2012, Burns J, 15 May 2013).

30. He was released on parole but the parole order was cancelled on 5 May 2015 for various breaches of conditions of the order, not including the commission of the current offences. He was required to serve the balance of his sentence until 17 January 2018, subject to earlier release on parole.

31. CL was charged with robbery, being the theft of a motor vehicle, before which he used force on the victim. He was also charged with dishonestly driving that motor vehicle without the owner's consent and with driving whilst suspended.

32. He appeared in the Magistrates Court on 14 April 2015 and was remanded in custody. He has remained in custody since then.

33. On 24 June 2015, he entered pleas of guilty and consented to the jurisdiction of the Magistrates Court.

34. Because of his aboriginality, he was referred to the Galambany Court. I deal with that below.

35. After hearing from the prosecutor and CL's counsel, the panel (see below at [75]-[82]) engaged in dialogue with CL. They then consulted with the Magistrate in private and sentence was imposed.

36. Section 291M of the Magistrates Court Act provides that the Magistrates Court is known as the Galambany Court when sitting to provide circle sentencing. Circle sentencing is a form of criminal justice sentencing based on a Canadian model which relies on restorative justice concepts. It is described in Ivan Potas, Jane Smart, Georgia Brignell, Brendan Thomas and Rowena Lawrie, Circle Sentencing in New South Wales. A Review and Evaluation (Judicial Commission of NSW, Sydney, 2003) Part 1, pp 1-2; and in Michael King, Arie Freiberg, Becky Batagol and Ross Hyams, Non Adversarial Justice (The Federation Press, Sydney, 2014) 2nd Ed, Ch 11, especially pp 211-2.

37. The Magistrates Court Act, s 291L, described circle sentencing as:

... the step in a sentencing proceeding for an Aboriginal or Torres Strait Islander offender that includes members of the Aboriginal or Torres Strait Islander community.

38. The process has also been described by Stuart TCJ in the Territorial Court of Yukon in R v PM [1992] CanLII 2814, where his Honour identified the following benefits of the less formal and re-arranged physical or procedural setting of circle sentencing:

• It challenges the monopoly of professionals;
• It encourages lay participation;
• It enhances information;
• It constitutes a creative search for new options;
• It promotes a sharing of responsibility;
• It encourages the offender's participation;
• It involves victims in sentencing;
• It creates a constructive environment;
• It provides a greater understanding of justice system limitations;
• It extends the focus of the criminal justice system;
• It mobilizes community resources;
• It merges values of those of aboriginal and western peoples.

39. His Honour also pointed to the protection of individual rights in the proceedings with an open court, transcripts of proceedings, an upper limit to sentences, an opportunity for the offender to speak, representation of both the prosecution and offender by legal representation and proving disputed facts in the customary manner.

40. His Honour expressed a caution, however, when he added at p 24:

These changes to the sentencing process are not the makings of a panacea. They are relatively small steps in a very long journey to move the criminal justice system from its destructive impact on people and communities to doing what it should - working closely with communities to prevent crime, protect society, rehabilitate offenders and process conflict in a manner that builds not undermines a sense of community.

41. These matters have not been ignored in Australia and Circle Sentencing has been a part of the criminal justice system since South Australia established Nunga Courts in 1999. See R v Wanganeen [2010] SASC 237; (2010) 108 SASR 463 at 471-5; [13]- [25].

42. Appropriate participation in such a process has been consider to be mitigatory. See the decision of the Victorian Court of Appeal in R v Morgan (2014) 24 VR 230 at 237-8; [34]-[41] where it was also noted that participation can be rehabilitative. In that case, the sentence was reduced on appeal as a result.

43. A Practice Direction, No 1 of 2012, "Galambany Court Practice Direction", has been issued under 291N of the Magistrates Court Act. It sets out the aims of the court as follows.

(i) involve Aboriginal and Torres Strait Islander communities in the sentencing of Aboriginal and Torres Strait Islander defendants;

(ii) increase the confidence of Aboriginal and Torres Strait Islander communities in the sentencing process;

(iii) reduce barriers between the ACT Magistrates Court and Aboriginal and Torres Strait Islander communities;

(iv) provide culturally relevant and effective sentencing options for Aboriginal and Torres Strait Islander defendants;

(v) provide Aboriginal and Torres Strait Islander defendants with support services that will assist them to overcome their offending behaviour;

(vi) provide support to victims of crime and enhance their rights and participation in the Galambany Circle Sentencing Court process; and

(vii) reduce repeat offending by Aboriginal and Torres Strait Islander defendants.

44. The arrangements for the Court are that a panel of members, namely persons who are members of the Aboriginal and Torres Strait Island Community, are selected for the purpose. As I understand it, though the Practice Direction is not very clear on this, these are elders of that community who have a significant cultural role in that community. See Potas et al at p 44-5.

45. The Court is then convened with the defendant and his or her lawyer, the prosecutor, the Magistrate, the Panel members and the Galambany Court Co-ordinator. The victim may also participate, as may members of the defendant's family. It did not appear that the victim did participate in these proceedings, though members of his family did.

1. The Galambany Court is to be conducted in a way that:

(i) enables the Galambany Court to address the underlying issues causing the defendant's offending behaviour in determining an appropriate sentence;

(ii) encourages the full participation of the offender and the reaching of an agreement about the appropriate sentence; and

(iii) provides all participants, including the victim and other members of the community, with an opportunity to address the court about the defendant's offending behaviour.

47. As to the sentence, the Practice Direction further provides:

1. Members of the hearing panel may recommend what they consider to be an appropriate sentence for the defendant. Before recommending an appropriate sentence the hearing panel must consider factors relevant to the sentencing process as prescribed by sections 32 and 33 of the Crimes (Sentencing) Act 2005. The hearing panel must consider culturally inclusive aspects to the sentence.
2. Where possible, any recommended sentence should be achieved through the consensus of the hearing panel members.

1. contains goals that are realistic and appropriate;
2. sets out times for implementation and completion of goals; and
3. provides for the monitoring and regular review of the measures specified in the recommended sentence.

49. The Practice Direction also makes it clear, however, that the Practice Direction does not remove or limit the discretion of a Magistrate to impose a lawful sentence.

50. Much of the evidence about the subjective circumstances of CL came from the Pre-Sentence Report, but also from the submissions of his counsel.

51. CL was 24 at the time of sentence. He identifies as Aboriginal. He reported a good childhood with good family relationships, though he started to misbehave at age 13.

52. He left school at Year 9 and has since had limited employment. He has, however, completed a Certificate III in Fitness and that will allow him to work in the physical fitness industry.

53. He has a mental health issue which, rather coyly and unhelpfully, the Pre-Sentence Report did not identify, though it stated that he was receiving "appropriate medication"; he is no longer taking it. He has completed the Cognitive Self Change Program and the Anger Management Program while in custody.

54. He has a long history of alcohol and drug use which started when he was 13, the same time that his behaviour deteriorated. This drug use has been problematic and contributed to his criminality. When returned to custody on his arrest, he tested positive for opiates, cannabis, methamphetamines and benzodiazepine. His use was assessed by an assessment tool as of a substantial level.

55. The Pre-Sentence Report did state that CL had made some progress in addressing his criminogenic risks but had been unable to sustain abstinence from drugs and alcohol and good mental health. He was assessed as being at a high risk re-offending, especially because of his mental health, drug use, limited education, lack of employment and "[a]ttitudes".

56. He was, he said, abstinent for the first few months of his parole and kept his appointments with ACT Corrective Services. He said, however, that his "lifestyle started to interfere with his ability to comply with his parole", though this rather curious statement was no more clearly explained. In any event, he slipped back into the use of the illicit drug, Ice.

57. CL has a long criminal history with 34 offences on his record, as well as 4 breaches of court orders. The majority the offences he has committed were violence offences, including robbery and attempted robbery, followed by dishonesty offences.

58. He and his partner of two years are expecting a child and this was said to have had a significant effect on him - the baby is due on 1 December 2015.

59. His counsel repeated that CL has taken full responsibility for his criminal behaviour and hence pleaded guilty at an early time.

60. He struggled with the recent death of his uncle and his father but has a good relationship with his mother.

61. His continued incarceration has, he recognised, achieved nothing for him and he does not want to be an absent father, but wants to find employment, the lack of which was, he feels, a big factor in his relapse while on parole. He believes he may be able to find work in the construction industry but he may seek a qualification through the Canberra Institute of Technology to move into counselling.

62. The Pre-Sentence Report also reported that staff at the Alexander Maconochie Centre reported "a shift in attitude ... noting that there had been significant improvement in his behaviour since he had been in custody from 15 April 2015".

63. I had a transcript of the proceedings. As I have noted above, the facts were read out without objection. A Pre-Sentence Report had also been obtained and it was tendered also.

64. An order of the Sentence Administration Board cancelling CL's parole order that it had made was also before the Court.

65. Counsel for the prosecution made submissions in the usual way. It was submitted that the robbery was a serious example of the offence because of the time of day and the fact that, as a result, the victim was without a car, phone or wallet late at night in a car park. Of course, the victim was able to contact police with no apparent difficulty.

66. It was submitted that the incident would have been "an absolutely terrifying incident" for the victim, though there was no victim impact statement. It is not clear on what evidence that submission was based.

67. Nevertheless, as pointed out by the prosecutor, a very serious aspect of the offence was that CL was on parole at the time, he having been released only a few months earlier. He identified the offence for which CL had then been sentenced, namely theft of liquor from a store and the stabbing of a security guard on the way out of the store.

68. The prosecutor also referred to the Pre-Sentence Report and that, in it, CL accepted that his behaviour was wrong and he took responsibility for his actions, though she submitted that there were things that were "easy to say" but not consistent with his actions as shown by the criminal record.

69. He also pointed out that, where CL said he was "proud of himself for not using physical violence", he had, in fact, done so by pushing the victim.

70. The prosecutor also referred to the fact that CL was a young man, but with a history of committing violent offences and suggested that there was no leniency open to him. The offence was not out of character and he was at a high risk of re-offending. She referred to the plea of guilty which provided a utilitarian value to the criminal justice system but it was in the light of an overwhelming prosecution case. She submitted that only a sentence of imprisonment was appropriate.

71. She submitted that a new non-parole period was required but suggested that there was a real question as to whether a non-parole period should be set all.

72. CL's counsel referred to his subjective circumstances, much of which is set out above (at [50]-[62]). She stated that, after his release on parole, he used drugs on one evening but then tried to resist for two weeks but was unable to do so and relapsed.

73. On the day of the offence, he awoke but got into an argument with some people in his home. He left and later committed the offence.

74. His counsel emphasised the change in attitude that his impending fatherhood had caused. She also emphasised that he had been open and frank with her about the offending and his relapse. She also emphasised that he took full responsibility for his actions and this resulted in him pleading guilty at an early stage.

75. An important part of circle sentencing is for CL to engage directly with the panel members and, if present, the victim. There was no indication that the victim was present in this hearing.

76. CL then spoke and confirmed that what his counsel had said was correct. He said he wanted to "be there for my baby" and he wanted to "be a proper father". e affirmed that in the last 10 years, he "haven't got nowhere [sic]". He said, "I'm still in the same spot as I was 10 years ago".

77. One of the panel members pointed out the effects of using Ice and, especially the "big concerns" if he had a baby while still using.

78. CL then explained that he did not commit the crime for drugs and that he is not craving for drugs at that moment. He expressed a frustration at himself for relapsing when he was "doing so well". He stated that he had undertaken rehabilitation, though there were no specifics mentioned. He admitted his relapse and the panel seemed to accept his honesty. They remarked on the fact that he had had no counselling when he was released on parole, though it should be noted that one of his parole conditions, which he breached, was to undertake one-on-one counselling. There was no suggestion that it had not been offered, rather that he had not taken it up. This was a point emphasised by the panel, one member pointing out to him, "you can't do it by yourself, mate. You've got to get that help ...".

79. The panel challenged him about his re-offending and he explained that he had not "been offending for the whole [sic] [he] was out" and that it was "one night that went wrong". He said:

I've got shame and regret of [sic] what I did that I can't change it now and it's just up to me now, in the future, to do it better next time.

80. The panel also sought comments from the mother and aunty of CL. They said that they felt he was capable of turning his life around and living a decent life in the community. He was described as a loving person with his family, well-mannered and that he had never disrespected his mother. His aunty suggested that he deserves another chance.

81. They were challenged as to whether he was "trying to pull the wool over [the panel's] eyes" and his aunty said that she thought he was sorry this time and his mother said that he was ready for his baby.

82. CL told the panel members that he was prepared to be involved in group counselling but would prefer one-on-one counselling, though he did not explain why he had not taken that up when released on parole with a condition to do it.

83. The Court then adjourned so that the panel members could discuss the matter and give a recommendation to the Magistrate.

84. When the Court resumed, the Magistrate proceeded to sentence CL. Her Honour referred to the objective seriousness of the offences, aggravated by the fact that he was on parole when he committed them. Her Honour referred to the pleas of guilty and confirmed that a discount would be given for them.

85. Her Honour referred to his age and personal circumstances as set out in the Pre-Sentence Report and to his criminal history, which, her Honour noted, reduced the degree of leniency that could be extended to him.

86. Her Honour referred to the need to have regard to rehabilitation as a very significant factor, as well as totality, given the sentence he was currently serving.

87. Her Honour also noted that deterrence was important, to prevent repetition of the offending and to protect the community. Her Honour also proposed that the sentence denounce his conduct.

88. Her Honour then convicted CL of each offence and imposed the following sentences:

(i) Driving without a driver licence: $400 fine with no time to pay;

(ii) Dishonestly taking someone else's motor vehicle without consent: 6 months imprisonment (reduced from 8 months for the plea of guilty) to commence on 14 April 2015;

(iii) Robbery: 18 months imprisonment (reduced from 24 months for the plea of guilty) to commence on 14 April 2015 and be suspended on 13 October 2015 with a good behaviour for two years.

89. It was a term of the Good Behaviour Order that CL was required to submit to urinalysis for drug testing, to attend programs at Relationships Australia and the Winnunga Nimmityah Mens' Group for grief counselling and parenting and family support from Gugan Gulwan. It is important to note that Winnunga Nimmityah and Gugan Gulwan are specifically culturally relevant aboriginal organisations.

90. Although referring to the principle of totality in her remarks on sentence, her Honour did not explain how the principle was intended to apply in this case. The effect of the sentence was to extend the non-parole period by one year, from 13 October 2014 (which meant he could have applied for parole at any time after the Sentence Administration Board had referred him back to custody on 5 May 2015) to 13 October 2015 (thus delaying, for at least that period, any further release on parole). It resulted, however, in the whole of the sentence being served concurrently with the sentence imposed for the earlier offences.

91. As noted above (at [17]), the sole ground of the appeal was that the sentence was manifestly inadequate.

92. This was based on four matters, described in the submissions of the appellant as follows:

1. having regard to the seriousness of the offence, the criminal history of the respondent and the poor prospects of rehabilitation the individual sentences imposed were manifestly inadequate;
2. the lack of accumulation between the robbery sentence and the drive motor vehicle without consent sentence meant the sentences were in total manifestly inadequate;

1. given the poor prospect of rehabilitation, the suspension of the sentence after only six months is redolent of manifest inadequacy;

1. having regard to the lack of accumulation with existing sentences the sentences imposed were manifestly inadequate.

93. The appellant then identified the relevant factors (see R v Williams) on which it relied to conclude that the sentence was manifestly inadequate. These were:

• The maximum penalties for the offences which were: robbery - 1400 penalty units (that is, at the time, a fine of $210,000) and imprisonment for 14 years; dishonestly taking someone else's motor vehicle without consent - 500 penalty units (that is, at the time, a fine of $75,000) and imprisonment for five years.
• The sentence for robbery was nearly 10% of the statutory maximum and the sentence for dishonestly taking someone else's motor vehicle without consent was 10% of the statutory maximum.
• The relevant features of the offence of robbery were (as set out in the appellant's submissions):
  • The respondent used actual force to shove the victim away from the car, as opposed to threatening to use force;
  • The victim was in a vulnerable position, alone in a car park at night time;
  • The items stolen were of considerable value, a car, wallet and mobile phone;
  • Most significantly the respondent had been on parole for seven months, having been released for violent offences, including aggravated robbery, which was committed in circumstances where he had stabbed a security guard in the shoulder who had prevented him from leaving a store after he had stolen alcohol, and an offence of wounding, in which he had stabbed a person in the stomach with scissors.
• CL had a serious criminal record for like offences, relevantly, in 2013, convictions for common assault, aggravated robbery, assault occasioning actual bodily harm and intentional wounding, three convictions for common assault in 2010 and earlier convictions for assaults occasioning actual bodily harm, common assault, attempted aggravated robbery and making a demand with menaces as well as convictions for theft and minor theft offences, aggravated burglary, dishonestly riding in someone else's motor vehicle without consent and unlawful possession of property.
• CL had served substantial terms of imprisonment including the earlier sentence he was still serving, said by Mr Fernandez to be for 3 years and 7 months, though I did not understand that period, and an earlier sentence of 12 months imprisonment, suspended after serving 9 months, for the third offence he had committed of dishonestly riding in someone else's motor vehicle without consent.
• The prospects of rehabilitation for CL were poor, having regard to the following matters (set out in the appellant's submissions);
  • Being assessed as a high-risk of general re-offending;
  • He was on parole at the time he committed the offences. However, by the time the subject offences were committed, the respondent had already been breached by the parole for failing to comply with a number of conditions of his parole;
  • He had previously been subject to a number of community based orders including three Good Behaviour Orders which he had failed to complete;
  • He had been assessed as using drugs at a substantial level in the year prior to 31 July 2015;
  • He had long criminal history dating back 10 years, comprising of serious offending;
  • Notwithstanding he had completed rehabilitation programs while in the AMC in 2014, he had committed the subject offences.

94. The appellant also challenged the concurrency of the sentence imposed for the offence of dishonestly taking someone else's motor vehicle without consent with the sentence for the offence of robbery, submitting that it did "nothing to signify the separate criminality of the driving of the motor vehicle".

95. Reference was made to a decision of R v Nicholson (Unreported, Australian Capital Territory Supreme Court, Nield AJ, SCC No 133 of 2012, 6 September 2012) when the accused there was sentenced for the offence of robbery to three years imprisonment, the first nine months of which was to be served by full-time imprisonment followed by nine months periodic detention and the balance of the sentence suspended. I found this case of no assistance. The method of commission of the offence was quite different from this case and the subjective circumstances of the offender were quite different. A sentence is not a precedent: Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 605; [57]. A single sentence will rarely be of any assistance in sentencing much less in a sentencing appeal.

96. CL defended the appeal on two bases: that the sentence was not manifestly inadequate and that the prosecution had not negated the residual discretion that the Court had not to interfere with the sentence even if error is shown.

97. As to manifest inadequacy, Ms S Saikal, counsel for CL, submitted that the appellant had not demonstrated this. She submitted that the matters referred to as relevant factors were generally not in dispute and were before the sentencing court and taken into account by it.

98. As to the objective seriousness of the offence, Ms Saikal pointed out that the use of force was at least at the low end of seriousness and the property, though of a high value (a car), was recovered shortly afterwards. That the property was recovered is a relevant factor in assessing the seriousness of the offence (Kate Warner, Sentencing in Tasmania (The Federation Press: Sydney, 2002) 2nd ed, 341; [12.202]) though in some cases its mitigatory effect may be slight (R v Shaw (Unreported, Victorian Court of Appeal Phillips CJ, Hampel and Vincent JJ, 126 of 1992, 23 October 1992) at p 11).

99. Ms Saikal also referred to the mitigating factors of the early guilty plea, remorse, the behavioural change noted in the Pre-Sentence Report, the motivation CL now had to care for his child, his frank comments to the panel about his drugs and crime, the support of his family, his youth and the community-based and culturally relevant rehabilitation.

100. Ms Saikal also submitted that, given the period of imprisonment to which CL was already subject, the principle of totality (Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-3) required that the lengthy sentence should not be extended.

101. She noted that the panel had expressed a view that there was limited opportunity for rehabilitation in custody. The panel identified avenues for rehabilitation that were incorporated into the sentence imposed, especially in the conditions of the Good Behaviour Order.

102. Ms Saikal attached to her submissions tables from the ACT Sentencing Database which, she submitted showed that the sentences were not outside the range of sentences imposed in the Territory, representing current sentencing practice which is required, by s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT), to be taken into account.

103. For robbery offences dealt with in the Magistrates Court, there were only 10 cases but 10% of the sentences were of full-time imprisonment, 50% were partially suspended sentences and the remaining 40% were fully suspended sentences. Of those sentenced to a partially suspended sentence, one was a 4-month sentence, two were 6-month sentences, one was a 9-month sentence and one was a 12-month sentence.

104. For the offence of dishonesty taking someone else's motor vehicle without consent, 50% of the 70 cases resulted in full-time custody, with 14% sentenced to a fully suspended sentence, 21% sentenced to a Good Behaviour Order.

105. Of those sentenced to prison, the periods ranged from 2 months to 24 months with 45% being for 6 months or less.

106. It is, of course, important to take statistical information of this kind with considerable caution, for it rarely identifies the factors and principles that are the key to sentencing. It is, however, a mandated requirement that regard be had to sentencing practice. See Ashdown v The Queen (2011) 219 A Crim R 454 at 511.

107. A significant challenge by CL to the appeal was the submission as to the role of the Crown appeal and that the Crown had not negatived the residual discretion.

108. Ms Saikal submitted that the Crown had to identify an error and that, as I understood her submission, this had to demonstrate that there was a principle of law that required some appellate precedent in order for the Court to exercise jurisdiction. There was, she submitted, no principle of law that required clarification in this case. Thus, it is not enough to show manifest inadequacy; what is necessary is for the appellate court to be required to lay down principles for the governance and guidance of sentencing courts and, as she put it in oral submissions, there is no case here that "issues of concurrency and consecutive sentences are crying out for appellate intervention and precedent being set".

109. As to the residual discretion, Ms Saikal submitted that the appellant had not negated the exercise of the residual discretion.

110. In further submissions filed by leave, CL submitted that information from the Sentence Administration Board showed an additional issue to be addressed. The information that came from the Board was a statement from the Acting Secretary as follows:

I've just spoken with the Chair of the board. He said that the length of an applicant's parole period could be a factor that is considered, depending on the facts of the situation. So I suppose then the answer is it may be considered or it may not be considered depending on the merits of each individual application.

111. The supplementary submission on behalf of CL was that, as the fact that extending the head sentence may be a factor taken into account by the Board in considering parole, it raises the exercise of the residual discretion.

112. The submission pointed to the reference in Director of Public Prosecutions (Vic) v Karazisis [2010] VSCA 350; (2010) 31 VR 634 at 658; [104] to some of these matters that may be relevant to the exercise of the residual discretion to dismiss a Crown appeal: delay, parity, the totality principle, rehabilitation and fault on the part of the Crown.

113. It was submitted that the plans CL had for rehabilitation "may be compromised by extending the head sentence as the Board may consider CL then not suitable to be granted parole".

114. The appellant submitted that it was not necessary to identify a specific error where the ground for appeal was manifest inadequacy of the sentence. The appellant also submitted that the principle articulated in R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 at 275; [39]- [40] applied, where the Court said:

In Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610; 103 A Crim R 372 at [45] the High Court made it clear that a sentence should be appropriate for the offence for which it is imposed. It is a corollary that no sentence should reflect criminality extending beyond the particular offence to which it relates. Thus, if additional or greater criminality inherent in the commission of second, third and subsequent offences is to be punished at all, some accumulation of sentences is almost always required. As was also said in Pearce (at [49]:-

Further, to make the sentences imposed on those two counts wholly concurrent may also be said to reveal error in that to do so failed to take account of the differences in conduct which were the subject of punishment on each count.

An increase in the number of offences will commonly also demonstrate a need for greater weight to be given to many if not all of the purposes of sentencing and for the effective sentence to be longer that if only one offence had been committed. Making sentences wholly concurrent means that the second and subsequent effectively constitute no punishment and sends a clear message to those members of the criminal community who chose to live by breaking and entering and stealing or the like that once they have committed one or a few offences, they can continue offending with virtual impunity so far as sentences are concerned. Absent good reason, it should not occur - see R v Brown [1999] NSWCCA 323 at [24]; R v Mungomery [2004] NSWCCA 450; (2004) 151 A Crim R 376 at 381.

115. In any event, the appellant submitted, appellate intervention in the case of manifest inadequacy is required to maintain consistency in sentencing standards. In Green v The Queen [2011] HCA 49; (2011) 244 CLR 462, the Court said at 477-8; [37]:

As was said in _R v Borkowsk_i:

"[T]he purpose of a Crown appeal is not simply to increase an erroneous sentence imposed upon a particular individual. It has a wider purpose, being to achieve consistency in sentencing and the establishment of sentencing principles. That purpose can be achieved to a very significant extent by a statement of this Court that the sentences imposed upon the respondent were wrong and why they were wrong."

116. There is also a practical aspect, where public confidence in sentencing could be eroded by the absence of additional punishment for more than one offence. See R v Wheeler [2000] NSWCCA 34 at [36]- [37].

117. Finally, the appellant submitted that the possible effect of an extension of the head sentence is irrelevant to the exercise of the residual discretion for, it was submitted, the way in which the Executive will administer the sentence is irrelevant and that to rely on that would "smuggle in" by the back door the principle of "double jeopardy", declared in R v Chatfield [2012] ACTCA 32 not to apply to this Territory. The appellant pointed out that a successful Crown appeal will often require adjustment of a non-parole period or a head sentence and this risk is not to be considered for the reasons set out in Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638 at 653; [28].

118. Although the Crown is not a party to this appeal, I am satisfied that the principles applicable to Crown appeals against a sentence also apply to prosecution appeals against sentence from the Magistrates Court.

119. In R v TW (2011) 6 ACTLR 18 at 20; [4], I set out the principles as follows:

1. An appeal by the Crown should be brought only in the rare and exceptional case to establish some point of principle.
2. Occasions may arise for the bringing of a Crown appeal:

1. when a sentence reveals such manifest inadequacy or inconsistency in sentencing standards as to constitute an error in principle; 2. where it is necessary for a court of criminal appeal to lay down principles for the governance and guidance of courts having the duty of sentencing a convicted person;

1. to enable the courts to establish and maintain adequate standards of punishment for crime;

1. to enable idiosyncratic views of individual judges as to particular crimes or types of crimes to be corrected; 2. to correct a sentence which is so disproportionate to the seriousness of the crime as to shock the public conscience; and 3. to ensure, as far as the subject matter permits, that there will be uniformity of sentencing.
2. When, in response to a Crown appeal, the court decides to resentence an offender it ordinarily gives recognition to the element of double jeopardy involved by imposing a sentence that is somewhat lesser than the sentence it considers should have been imposed at first instance.
3. The appellate court has an over-riding discretion which may lead it to decline to intervene even if it concludes that error has been shown

The third principle, referred to above at (iii), as to the element of double jeopardy, no longer applies in this Territory as a result of the decision in R v Chatfield.

120. I note that also in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 300 it was explained that the reference to a point of principle "must be understood as encompassing what is necessary to avoid ... manifest inadequacy or inconsistency in sentencing standards".

121. The Court of Appeal set out in R v Campbell [2010] ACTCA 20 at [32]- [35] the task faced by an appellant seeking to show that a sentence as manifestly inadequate (or excessive) where it was said:

1. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):

[46] The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen ..., must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).

[47] Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

...

1. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

1. It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

1. The same can apply, mutatis mutandis, to claims that a sentence is manifestly inadequate.

123. Ms Saikal's challenge that the appeal in this case was not competent because it did not set out to establish some precedent for a sentencing principle cannot be accepted. It is inconsistent with what was said in Everett v The Queen, cited above (at [120]).

124. The Director of Public Prosecutions (Vic) v Karazisis at 655-6; [90]-[91], Ashley, Redlich and Weinberg JJA referred as follows to what Spigelman CJ had said in R v JW [2010] NSWCCA 49; (2010) 77 NSWLR 7:

1. Spigelman CJ correctly, with respect, expressed doubts as to how the notion that Crown appeals should be a 'rarity' could, in any practical sense, be deployed as a sentencing principle. His Honour posed the question how the Court could possibly determine that, in some quantitative manner, Crown appeals had become too frequent, and should therefore be discouraged. He noted that, in R v Holder, Street CJ had specifically rejected the idea that courts should adopt a posture of discouraging the bringing of Crown appeals. In that case, however, somewhat curiously, that observation followed almost immediately after Street CJ had said that courts were 'understandably more ready to ascribe error where the ground is manifest excess than where the ground is manifest inadequacy'.
2. In considering whether the idea that Crown appeals should be 'rare and exceptional' continued to have any currency after the enactment of s 68A, Spigelman CJ observed that, once an error in the House sense had been demonstrated by the Crown, the result had to be that an offender had not been sentenced according to law. In his Honour's view, that meant that, prima facie, it was the duty of the Court of Criminal Appeal to set aside that sentence, and re-sentence the respondent appropriately. (footnotes omitted)

125. The reference to s 68A was to s 68A of the Crimes (Appeal and Review) Act 2001 (NSW) which abolished "double jeopardy" as a consideration that an appellate court could take into account on a Crown appeal against sentence.

126. His Honour had then considered what effect the abolition of the power of the court to take into account double jeopardy had had on Crown appeals. That abolition was effected in NSW and Victoria by statute; it has been effected in this Territory by court decision, R v Chatfield.

127. The Victorian Court, at 656; [92], continued to refer to what Spigelman CJ had said in R v JW, with apparent approval:

1. Having given this matter careful consideration, Spigelman CJ concluded that s 68A, upon its proper construction, removed at least one central component of the restraint typically shown by appellate courts in dealing with Crown appeals, namely the need to approach them through the prism of their having to be 'rare and exceptional'. To the extent that the 'rare and exceptional' criterion had existed and operated as a sentencing principle, it derived solely from double jeopardy, and could therefore no longer be justified. Other aspects of the residual discretion, separate and distinct from 'anxiety and distress', were not necessarily affected.

128. Accordingly, I am satisfied that the appeal should not be dismissed on the ground that it does not seek to establish some new sentencing principle.

129. As to the residual discretion, I accept that it is, as the Court described it in Director of Public Prosecutions (Vic) v Karazisis at 657; [100], "of uncertain width". It seems to me, however, that it is firmly embedded in the notion of fairness and this is to be seen as the thread through the examples provided in that case, described above (at [112]). See R v O'Brien [1987] Tas SR 167 at 180. See also Fiori Rinaldi, "Dismissal of Crown Appeals Despite Inadequacy of Sentence" (1983) 7(6) Crim LJ 306.

130. I accept, too, that the Crown must negate the entitlement of the offender to have the residual discretion exercised in his or her favour. So much has been clearly established by CMB v Attorney-General for New South Wales.

131. It is, of course, not easy to prove a negative, especially when the content is, as with the residual discretion, "of uncertain width". While the onus of disproof remains firmly on the Crown or the prosecution appellant, I do not consider that such an appellant has to hunt for such issues to negate them. There must be an evidentiary or other appropriately clear basis on which the question of fairness or injustice arises and it is then for the appellant to negative it for the appeal to succeed.

132. In this case, the only issue raised by CL was the vague suggestion that the length of a parole period might affect whether parole would be granted to him. I do not comment directly on whether that is a proper consideration, though I would have thought that, as so expressed, it might not be so. The non-parole period has, of course, been set by the sentencing Court and it is the minimum period that the Court thinks the offender must serve in full-time custody. I do not think the Sentence Administration Board should second-guess that. Of course, however, the Board has a discretion as to whether to release an offender on parole, but how it takes into account the length of the parole period should not undermine the sentencing that the court has imposed.

133. Nevertheless, it may not be an improper consideration if appropriately addressed. That the length of the parole period becomes a relevant factor, as the appellant points out, may be the result of the proper adjustment of the sentence following manifest inadequacy.

134. It seems to me that more needs to be shown than merely that the parole period would be longer and that the Board will have regard to this factor when making a parole order or not.

135. Indeed, in this case, it seems to me that Burns J was clearly of the view that CL required a lengthy period of supervision on parole when he imposed a relatively short non-parole period. In the circumstances, I would respectfully agree that a lengthy period of parole was, in this case, required. In my view, the non-parole period as reset by the learned sentencing Magistrate was not manifestly inadequate.

136. Having given the matter anxious thought, I do find that the sentence is manifestly inadequate, but only in respect of the failure to accumulate some portion of the head sentence. The learned Magistrate, though referring to the question of totality, did not show how it should apply in this case. In the absence of a clear explanation, it is difficult to see any clear justification not to have made some accumulation of this sentence on the existing sentence.

137. The offences were in no way related to those already committed, other than that they were drug related. They were incidents of separate criminality. That justifies some accumulation.

138. I reject as unhelpful the mathematical approach of the appellant to suggest that merely to state that the sentence was a certain percentage of the maximum penalty can help in determining whether the sentence was manifestly inadequate.

139. I am satisfied that the length of each of the sentences were within a reasonable range, having regard to the precise circumstances of their commission. I am also satisfied that the complete concurrence was appropriate. The taking of the motor vehicle was the theft that constituted an element of the robbery. It is even more a clear overlap and a very common situation that the sentences for burglary and the theft committed at the same time are almost always made concurrent. See R v McMahon [2014] ACTSC 280 at [94].

140. The sentence did, however, actually increase the non-parole period by a year and that had a direct and immediate effect which did meet, to an extent, the denunciation of the crimes and act as some deterrent.

141. The Good Behaviour Order, however, was clearly constructed having regard to the advice of the panel of the Galambany Court, which should be respected as much as possible. That is important. It is a matter that is also required to be taken into account, in my view, under s 33(1)(m) of the Crimes (Sentencing) Act. Clearly a long period of parole and under a Good Behaviour Order is important for a man who has shown very significant attitudes of reform with the strong motivation of fatherhood to reinforce them, though he has a long and bad criminal history which is always a relevant predictor of future conduct.

142. In my view, however, it would not be possible to reconstruct a sentence that retains this aspect because the sentence, if imposed at the current length, would, if made partially cumulative, not commence until well after the new parole period had commenced. It is not, in my view, possible - or, if possible, desirable - to suspend a sentence that has not commenced.

143. Accordingly, I consider that the careful construction of the sentence following the appropriate process of the Galambany Court means that it would only be possible to restructure the sentence by not imposing a Good Behaviour Order in the terms the Court did. That I consider to be undesirable in the light of the relevant sentencing considerations, especially the particular contribution of the Galambany Court process.

144. In those circumstances, I consider that there would be sufficient injustice or unfairness to entitle me to exercise the residual discretion not to interfere with the sentence, despite its manifest inadequacy, based on the failure to accumulate to some degree the head sentence.

145. The principles set out in R v Harris are important but, like all sentencing principles, are not overwhelming or mandatory. In addition, the contribution that the Galambany Court makes should not be lightly ignored, though it is not immune from review and interference in an appropriate case.

I certify that the preceding one hundred and forty-six [146] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.