Supreme Court of the ACT|2009-11-06|Before: Higgins J, Crispin J

Hawkins v Hawkins [2009] ACTSC 148 (6 November 2009)

[2009] ACTSC 148 (6 November 2009)

CRIMINAL LAW - appeal - whether sentence manifestly excessive - principles - need to contrast against maximum penalties, "collective wisdom" of general pattern of sentencing - need to identify relevant circumstances of the case.

CRIMINAL LAW - appeal - failure to take into account pre-sentence custody - position at common law and under the Crimes (Sentencing) Act 2005 (ACT), ss 62, 63 - relevance of pre-sentence periodic detention - relevance of pre-sentence custody for offences other than those for which sentencing is to be imposed - meaning of "in relation to", Crimes (Sentencing) Act 2005 (ACT), ss 63(2) - relevance of pre-sentence custody upon activation of suspended sentence - possible discretion not to take such time into account, likely to be rarely exercised - appeal allowed in part.

Crimes Act 1900 (NSW), s 441A

Fox R & Frieberg A, Sentencing: State and Federal Law in Victoria (2nd ed, Oxford University Press, 1999)

Daunton-Fear M, Sentencing in South Australia (Law Book Company Ltd and Australian Institute of Criminology, 1980)

Australian Law Reform Commission, Same Crime, Same Time, Report 103 (ALRC, 2006)

Kennewell v Rand [2006] ACTCA 10

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

R v Hawkins (unreported, ACTSC, Higgins J, 5 October 2009, SCC 110 & 114 of 2001)

Marsden v The Queen [2002] FCAFC 229

R v Hawkins (unreported, ACTSC, Crispin J, 26 June 2006, SCC 245 of 2005)

Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Oliver v State of Tasmania [2006] TASSC 95

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

R v Holder [1983] 3 NSWLR 245

R v Morse (1979) 23 SASR 98

Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536

Barker v The Queen (No 2) (1996) 70 FCR 1

R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34

R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292

Green v The Queen [1986] 2 Qd R 406

R v Taylor (1985) 18 A Crim R 14

R v Bloomfield (1998) 44 NSWLR 734

R v Kruger [1973] Crim LR 133

Carpenter v Purcell [2008] ACTSC 34

R v Gilbert [1975] 1 WLR 1012

R v Judge Frederico; Ex parte Attorney-General [1971] VicRp 51; [1971] VR 425

R v Bennett [1975] Crim LR 654

R v Renzella [1997] 2 VR 88

Sultana v The Queen [2007] NSWCCA 107

R v Marshall [1993] 2 Qd R 307

Close v The Queen (1992) 31 NSWLR 743

R v Cartwright (1989) 17 NSWLR 243

R v Williams [1975] 1 NSWLR 645

Geale v State of Tasmania [2009] TASSC 28

R v McHugh (1985) 1 NSWLR 588

R v Deeble (unreported, NSWCCA, Handley JA, Badgery-Parker and Hunt JJ, 19 September 1991)

R v English [2000] NSWCCA 245

R v Governor of Brockhill Prison; Ex parte Evans [1997] 2 WLR 236

R v Sae (unreported, NSWCCA, Gleeson CJ, Mason P, Dowd J, 3 April 1997)

Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472

Alimudin v McCarthy [2008] NTCA 7; (2008) 23 NTLR 102

Metropolitan Water Board v Assessment Committee of the Metropolitan Borough of St Marylebone [1923] 1 KB 86

R v Anderson [2006] QCA 563

R v Edie [2006] QCA 111

R v Deering [1976] Crim LR 638

Dragon v State of Western Australia [2008] WASCA 252

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The commencement date of the sentence imposed by the Learned Special Magistrate be set aside and the sentence commence on 10 November 2008.
It be declared that Jason Hawkins be eligible for parole on 9 September 2010.
Otherwise the appeal is dismissed and the sentences of the Learned Special Magistrate confirmed.

1. Sentencing these days is a complex exercise, as I have remarked elsewhere (Cotter v Corvisy (2008) 1 ACTLR 299 (at 303)), and the complexity increases especially when there are a number of different offences to be dealt with, particularly if they have been committed over a lengthy period of time.

2. This was the situation confronting Special Magistrate Cush when he sentenced the appellant, Jason Paul Hawkins, on 28 May 2009, against which sentence Mr Hawkins has now appealed to this Court. I note that both parties are named "Hawkins", both with the initial "J": For ease, I shall call the appellant Mr Hawkins and, where necessary, the respondent Senior Constable Hawkins.

3. His Honour then dealt with Mr Hawkins for several series of offences, which are detailed below, namely offences committed on 15 May 2006, 30 May 2006, 28 May 2008, 4 September 2008, 4 December 2008, 17 December 2008 and 22 December 2008 as well as for a breach of a suspended sentence originally imposed on 14 June 2007 and re-imposed on re-sentencing on 2 December 2008.

4. Section 207 of the Magistrates Court Act 1930 (ACT) gives this Court jurisdiction to hear the appeals from decisions of the Magistrates Court specified, inter alia, in s 208 of that Act. These include appeals from orders of the Magistrates Court under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Part 3.2 of the Sentencing Act provides for sentences of imprisonment, which is the sentence imposed on Mr Hawkins.

5. In Kennewell v Rand [2006] ACTCA 10, the Court of Appeal said (at [29]) of an appeal against a decision of a Judge of the Supreme Court refusing to uphold an appeal from the sentence of a Magistrate:

The circumstances in which an appeal court may interfere with the exercise of the discretion reposing in the sentencing judge are well known and do not need repeating: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Lowndes v R [1999] HCA 29; (1999) 195 CLR 665; and Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.

6. Those principles were set out in a passage from the decision of the Court of Appeal of Victoria in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 (per Charles JA, Winneke P and Hayne JA agreeing), expressly approved by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 (at 671). His Honour said (at 522):

A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere if there is manifest inadequacy [or excess] or it is shown that the sentencing judge fell into material error of law or fact (Allpass [(1993) 72 A Crim R 561] at 562-3).

7. Mr Hawkins is not a particularly young man, having been born 34 years ago. He has a bad criminal history which consists of seven pages of criminal antecedents, dating back to 1988 when he first appeared in a Children's Court.

8. Among the 120 offences there recorded of which he had been convicted in 51 appearances before the courts prior to appearing before his Honour, were included a range of dishonesty offences, from theft to breaking, entering and stealing to assault and robbery, many traffic offences and a number of offences of escaping lawful custody and breach of court orders. He has spent many years in institutions, including prison.

9. Relevantly, he appeared before Higgins J (as he then was) on 5 October 2001 on four counts of burglary and two counts of theft committed apparently on 1 March 2001. His Honour sentenced him to a total sentence of five years imprisonment with a non-parole period of 18 months from 26 May 2001: R v Hawkins (unreported, ACTSC, Higgins J, 5 October 2009, SCC 110 and 114 of 2001). In these reasons, I refer to this sentence as the 2001 ACT Supreme Court sentence. He sought leave to appeal that sentence but leave was refused on 12 August 2002: Marsden v The Queen [2002] FCAFC 229.

10. He was released on parole on 25 November 2002, having spent the 18 months non-parole period in custody and thus having, therefore, three and a half years of the sentence left to serve, either on parole of, if in breach, in custody.

11. He was, however, convicted on 13 October 2003 of offences of common assault, having goods on premises reasonably suspected of being stolen and possession of a loaded firearm in a public place and sentenced by the Local Court in Wollongong to six months imprisonment. His parole order was revoked on the same day, the balance of the 2001 ACT Supreme Court sentence then was calculated to expire on 12 April 2007. I pause to note that the effect of this was to cause the sentence of imprisonment imposed by the Local Court to be concurrent with the period of the unexpired portion of his sentence which he had to serve when activated by the revocation of his parole.

12. He subsequently applied for parole again and by order dated 30 March 2004 was released on 6 April 2004 having served the term of imprisonment imposed by the Local Court concurrently with almost six months of the unexpired portion of the 2001 ACT Supreme Court sentence.

13. On 1 April 2004, he appeared in the ACT Magistrates Court on a number of charges including two traffic matters, an assault, recklessly threatening to kill a person and three offences of damaging property. Fines were imposed for the traffic matters and he was sentenced to six months imprisonment on each of the other charges, each term to be concurrent and to date from 1 October 2003. Thus, he had already served this period of imprisonment by the time he appeared in court and the effect of this was that the term of imprisonment for what appear to be reasonably serious offences was effectively made concurrent with the term of imprisonment imposed by the Local Court in Wollongong and the term of imprisonment to be served following revocation of his parole for the 2001 ACT Supreme Court sentence. As he was, at that date, not on parole (being released five days later) the automatic cancellation of his parole order by virtue of s 149 of the Crimes (Sentence Administration) Act 2005 (ACT) was not activated.

14. He was convicted on 18 October 2004 in the Yass Local Court of traffic matters and fined $400 on each of the five charges but was apparently not present as a warrant under s 25(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) was issued.

15. On 16 November 2004, Mr Hawkins' parole was again revoked, though it was not clear to me what the specific basis for the revocation was in this case. He became liable to serve the balance of the 2001 ACT Supreme Court sentence, namely three years.

16. On 24 May 2005, he was again released on parole. Nearly twelve months later, on 15 May 2006, he committed the first in time of the offences that were to be dealt with by his Honour, Special Magistrate Cush, and which are the subject of that appeal. These were offences of burglary at the premises of a hire business in Mitchell ACT and theft from that business of electrical goods valued at $3,640.

17. These charges, however, were not laid until 8 October 2008 apparently because he was only identified later as having committed these offences by matching his DNA with DNA found in material at the scene of the crime.

18. He committed an assault on his domestic partner on 25 August 2005. He appears to have been arrested for that and spent some time in custody. He was dealt with by the ACT Supreme Court on 26 June 2006 when Crispin J said in R v Hawkins (unreported, ACTSC, Crispin J, 26 June 2006, SCC 245 of 2005):

In the circumstances, it is common ground between the parties that it would be appropriate for me to sentence him to the rising of the court, that sentence not reflecting any view that offences of this kind are of a trivial nature, but rather reflecting the fact that he has already spent a period of, as I say two and a half months or thereabouts in prison as a consequence of it and the particular circumstances of this case.

19. Between 15 and 17 March 2006, he committed an offence of unlawfully being in possession of stolen property and on 11 May 2006 he committed a series of traffic offences, namely being an unlicensed driver, driving a vehicle displaying plates calculated to deceive, and using an unregistered and uninsured vehicle. He was sentenced for these offences on 22 August 2006 and fined on the traffic offences and sentenced to three months imprisonment on the charge of possession of stolen property dated to commence on 30 May 2006, the date when, as appears below (at [20]), his parole was revoked, thus serving the parole breach and this sentence concurrently.

20. He appeared again before the Sentence Administration Board on 30 May 2006 for a breach of parole. I was not informed what the breach was. It cannot have been the conviction for assault to which I have referred (at [18]) for that was entered after this appearance before the Board.

21. At the hearing, he committed an assault on a custodial officer. Though the details of that assault were not included in the Appeal Papers in this appeal, through inclusion of, for example, an information and statement of facts and, therefore, presumably also not before his Honour at the hearing, his Honour clearly had the relevant details before him for he said in his reasons for sentence:

The assault against ... an ACT custodial officer occurred in Hearing Room 1 just after the Sentence Administration Board decided to revoke the defendant's parole. [The custodial officer] placed his hands on the shoulders of the defendant, the defendant had punched the wall and screamed, "Fuck." He told [him] to, "Get your hands off me, cunt." He then swung his left elbow and hit [the custodial officer] on the face and the jaw. He was aggressive and uncooperative, but fortunately [the custodial officer] suffered no apparent injuries. The incident has some aggravating features. It was in a hearing room, it was an assault on a custodial officer, the act was unprovoked, and appears to have resulted from the defendant's anger with the decision to revoke parole.

22. Mr Hawkins appeared in the ACT Magistrates Court for that offence while still in custody on 14 June 2007 when Magistrate Fryar sentenced him to twelve months imprisonment suspended with a two year good behaviour order.

23. On 11 September 2007, he was again released on parole.

24. On 14 March 2008, he was charged with a minor theft. I do not have details of that offence but it appears to be a shoplifting type of offence. The prosecution took some time and he appeared in the ACT Magistrates Court on 2 December 2008 to answer this charge, and was fined $500. For breaching the suspended sentence imposed by Magistrate Fryar, he was re-sentenced to six months imprisonment (despite her Honour's sentence of twelve months imprisonment) immediately suspended with a nine months good behaviour order and with some conditions including supervision and the supply of samples of blood or urine.

25. On 28 May 2008, he was arrested and charged with a number of offences. These included dishonestly and without consent riding a motor cycle, having that motor cycle in premises when it was reasonably suspected of being stolen (it having number plates of another bike affixed to it), having (separately) the number plates for that bike on premises when they were reasonably suspected of being stolen, having two other motor bikes on the premises when they were reasonably suspected of being stolen, having three other sets of number plates (including the ones improperly affixed to the bike referred to earlier) for bikes which were not themselves on the premises, the plates being on premises when they were reasonably suspected of being stolen and having a wallet containing credit cards on premises when these items were reasonably suspected of being stolen.

26. He was remanded in custody but on 1 August 2008 released on bail by this Court.

27. On 4 September 2008 he bought a jacket valued at $79.95 from a person who had stolen it, Mr Hawkins knowing that it was stolen. He appeared in court on 12 September 2008 and appears to have been granted bail when the matter was adjourned. It was ultimately dealt with by his Honour as one of the matters the subject of this appeal.

28. Despite having been charged with them prior to this date, he was not dealt with for any of the offences referred to above (in [25] and [27]) by the Magistrates Court on 2 December 2008 when he was dealt with as noted above (at [24]), though he was not immediately imprisoned on that date.

29. The parole order in respect of the 2001 ACT Supreme Court sentence expired on 26 November 2008. Mr Hawkins, however, remained liable to be dealt with under s 151 of the Crimes (Sentence Administration) Act 2005 (ACT) for offences committed while the parole order was in force, even if he was convicted of them after the parole order had expired. Thus, the offence committed on 4 September 2008 rendered him so liable even though he was not convicted of it until after the parole order had expired.

30. On 4 December 2008, two days after he had already been before the Magistrates Court (see [24] above), he committed a series of traffic offences, including driving whilst disqualified, the twelfth such offence or similar offence for which he had been charged over the years, dishonestly riding a motorcycle without consent and using an unregistered and uninsured motor cycle. He was, however, not charged with these offences until 16 January 2009.

31. On 9 December 2008, the Sentence Administration Board revoked Mr Hawkins' parole. I was not specifically advised as to why it did so, though it was probably because of the conviction for theft on 2 December 2008 which would have required automatic cancellation of his parole order under s 149 of the Crimes (Sentence Administration) Act 2005 (ACT). A warrant was issued for his arrest.

32. He apparently appeared before the ACT Magistrates Court on 11 December 2008 and gave a bail undertaking to appear on 19 December 2008. He failed to appear on that day. A warrant was issued for his arrest on that charge.

33. On 17 December 2008, he dishonestly without consent rode another motorcycle, though he remained disqualified from driving and was charged for those offences and for exceeding the speed limit by fifteen kilometres per hour. Summonses were issued on 14 May 2009.

34. On 22 December 2008, police attended Mr Hawkins' home and located there a Demolition "Quick Cut" Stihl Saw which had been stolen on 11 March 2008. He was summonsed on 25 February 2009 for this offence.

35. Mr Hawkins was arrested on 23 January 2009 by NSW Police for shoplifting from Coles Supermarket in the Broadway Shopping Centre, Glebe, NSW and was on the next day extradited to the ACT. Both warrants were executed on 24 January 2009.

36. Mr Hawkins appeared in the ACT Magistrates Court and was remanded in custody. Ultimately he came before his Honour Special Magistrate Cush for sentence on 21 May 2009.

37. His Honour actually sentenced Mr Hawkins on 28 May 2009, imposing a total period of 33 months imprisonment with a non-parole period of 22 months. His Honour directed the sentence to commence on 26 January 2009. That meant that the sentence ended on 25 October 2011 but Mr Hawkins will be eligible for parole on 25 November 2010. I annex as a Schedule to these reasons the sentences imposed by his Honour as that is necessary to understand some of the reasoning for the decision on this appeal. The Schedule, prepared by his Honour for which his Honour is to be thanked, is a very useful document not only for the Court but also, no doubt, for Mr Hawkins and his lawyers, for it contains not only the details of the charges and the penalties imposed but also the maximum penalty for each offence.

38. Mr Hawkins appealed against the sentence on the sole ground that the sentence was manifestly excessive and it is that appeal that I now decide.

39. This very common ground of appeal (and the "mirror image", namely that the sentence is manifestly inadequate in the case of a Crown appeal) has its genesis in statements in the High Court, such as the following by Dixon, Evatt and McTiernan JJ in Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 (at 520):

But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority.

40. This requires the appellate court to give careful consideration to the circumstances of the case. As Jordan CJ said in R v Geddes (1936) 36 SR (NSW) 554 (at 556):

a Court of Criminal Appeal should intervene if the sentence appears to it to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial; but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses, and, therefore, that he has had an opportunity of forming impressions which no perusal of cold print can afford. Unless some error in principle, or some such unreasonable disproportion, appears, I think that a case is not made out for revision of the sentence.

41. Of course, in many cases, especially in the Magistrates Court, no witnesses are called on sentence and even the offender is unlikely to give evidence so the advantage of the sentencer may not be significant.

42. The exercise confronting an appellate court when considering such a ground, however, is one which requires some elaboration and argument. As Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 325-6):

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

43. As Hunt CJ at CL said in 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.

44. See also Oliver v State of Tasmania [2006] TASSC 95 (at [13]-[16]).

45. In order to make out the ground, it is necessary to show that the sentence is excessive and manifestly so, not merely arguably so. As was said by Jacobs J in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 (at 327):

The trial judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest.

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, quoted above (at [42]), 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.

48. Some assistance is given by what was said by Street CJ (with whom Begg and Slattery JJ agreed) in Oliver (1980) 7 A Crim R 174 (at 177):

The first initial consideration is the statutory maximum prescribed by the legislature for the offence in question. The legislature manifests its policy in the enactment of the maximum penalty which may be imposed. The courts are, of course, absolutely bound by the statutory limit itself as well as by the legislative policy disclosed by the statutory maximum. This hardly needs to be stated and certainly requires no elaboration ...

The second initial consideration is the ascertainment of the existence of the general pattern of sentencing by criminal courts for offences such as those under consideration. The task of the sentencing judge, no less than the task of an appellate court, is to pursue the ideal of evenhandedness in the matter of sentencing. Full weight is to be given to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature. That collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand. This is not to suggest that sentences are to be arbitrarily dictated by mathematical application of statistics. There is an enormous difference between recognising and giving weight to the general pattern as a manifestation of the collective wisdom of sentencing judges on the one hand and, on the other hand, forcing sentencing into a strait-jacket of computerisation. There is, moreover, always a danger, as is recognised on the civil side in the assessment of general damages, of seeking to use a factual assessment in one case as a legal precedent or authority to govern the decision in another.

49. These two considerations are, of course, only a part of the material to be considered by the court. In R v Morse (1979) 23 SASR 98, King CJ (with whom White and Mohr JJ agreed), explained (at 99) how the appellate court should go about the task of assessing whether a sentence was manifestly excessive as follows:

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.

50. See also Kelly v The Queen [1992] FCA 7; (1992) 33 FCR 536 (at 541); Barker v The Queen (No 2) (1996) 70 FCR 1 (at 13); R v Baltensperger [2006] SASC 246; (2006) 96 SASR 34 (at 44).

51. The standards of sentencing is a controversial factor. As was put by Hunt CJ at CL in Ellis (at 460):

The sentencing judge is nevertheless required to give full weight to the collective wisdom of other sentencing judges in interpreting and carrying into effect the policy of the legislature; that collective wisdom is manifested in the general pattern of sentences currently being passed in cases which can be recognised judicially as relevant to the case in hand.

Indeed, the difference in approaches by Kirby P and Hunt CJ at CL in that decision to what were said to be comparable cases shows how problematic it can be to determine this collective wisdom of sentencing judges.

52. This, however, does not mean that any other sentence becomes a precedent, nor that sentencers are forced into a "straitjacket of computerisation": R v Ireland (1987) 49 NTR 10 (at 19). Nevertheless, for an appellate court to conclude that a sentence is excessive (or inadequate) some comparison with a norm is required and the determination of what is an appropriate sentence depends upon an awareness of the sentences imposed in the past for the same or similar offences: R v Williscroft & Ors [1975] VicRp 27; [1975] VR 292 (at 301); Green v The Queen [1986] 2 Qd R 406; R v Raggett & Ors (1990) 101 FLR 323 (at 328).

53. As was said by Street CJ (at 254) in R v Holder:

The appeal court evaluates the permissible range of sentence in the light of all of the admissible considerations affecting the case in hand, and drawing upon its own accumulated knowledge and experience.

54. Thus, despite suggestions in some cases that the submission of manifest excess (or inadequacy) is "not capable of sustained argument" (R v Taylor (1985) 18 A Crim R 14 (at 17) per Young CJ), it is incumbent upon the appellant to address the relevant factors, point to the sentencing pattern, with reference where appropriate to particular cases, or to more general statistical material (through this needs to be dealt with sensibly as set out by Spigelman CJ in R v Bloomfield (1998) 44 NSWLR 734 (at 739), and elaborate on the particular facts of the offence, or offences, and the subjective circumstances of the offender from which the court may draw the relevant conclusion.

55. In this case, Ms T Warwick, who appeared for the appellant, asserted that each set of sentences was manifestly excessive and also that the whole sentence was excessive.

56. In doing so, however, she did not rely on any comparable cases or statistical material, nor did she rely particularly on the subjective circumstances of the appellant.

57. She did address a number of particular matters:

1. She submitted that if the offences committed on 15 May 2006 had been dealt with at the same time as the other matters dealt with on 22 August 2006 (see [19] above) then Mr Hawkins is unlikely to have received the sentence he ultimately did for them. That is not to say, as I understood her submissions, that the sentence of four months imprisonment was not warranted, but that it would have been imposed to be concurrent with the other sentences then imposed, relevantly three months imprisonment to commence on 30 May 2006. Whilst the Learned Magistrate may have taken the view that Mr Hawkins should serve the imprisonment for the offences committed on 15 May 2006 concurrently again with the sentence for the offence in March 2006 and the revoked parole term of imprisonment, it seems to me that this would have been an inadequate sentence, having regard to the particular circumstances of the offences and the personal circumstances of Mr Hawkins. This challenge fails.

2. She submitted that the cumulation of the sentences for the charges for dishonestly possessing the motor cycle on 28 May 2008 and the possession of the plates for the same vehicle was manifestly excessive. So stated, there is some immediate attraction in that submission. The plates presumably came into the possession of Mr Hawkins while attached to the motor cycle and their removal did not increase the culpability by much.

Further thought, however, shows that not to be sustainable. In the first place, the motor cycle had, at the time of its seizure by police, other plates on it, not belonging to it, thus leading to the inference that the plates for the motor cycle were then available to be used for a deceptive purpose. Without breaching the principle of sentencing that a person may not be punished for an offence not charged (R v Di Simoni [1981] HCA 31; (1981) 147 CLR 383), this makes the possession, in the circumstances, potentially more serious than merely possession of article disjoined from the principal stolen item.

In any event, while I am of the view that this was probably not the offence on which to impose the cumulative sentence, and would not have done so myself, the total sentence for the offences committed on 28 May 2008 (part cumulated, part concurrent) was well within the range of the proper sentencing discretion, as was conceded by Ms Warwick, and so in correcting the sentence I would simply have had to make the sentence on one of the other charges cumulative when making this one concurrent. See R v Kruger [1973] Crim LR 133 where a "re-balancing" was approved to take account of changes in some parts of a sentence. I see no error justifying interference in the sentence imposed by his Honour.

3. Ms Warwick also submitted that his Honour had failed to give a proper discount for the pleas of guilty entered by Mr Hawkins and this rendered the sentences manifestly excessive.

It is true that Mr Hawkins pleaded guilty to three charges on the first occasion they were before the court and in the case of nine other charges at the third mention. These were quite early pleas.

In the case of other matters, he pleaded not guilty in the first instance but changed the plea after they were listed for hearing but before the hearings commenced. These were certainly not early pleas; indeed they are properly to be described as late.

As I said in Cotter v Corvisy (at 311), however, following Penfold J in Carpenter v Purcell [2008] ACTSC 34, the Sentencing Act does not require a discount to be necessarily given, though the High Court said in Cameron v The Queen (2002) 209 CLR 339 that the utilitarian value of facilitating the course of justice would ordinarily require it to be given. Since then, of course, the legislature has enacted s 35 of the Sentencing Act which prohibits the court from giving any significant reduction where the case against the offender is "overwhelmingly strong". That was clearly the case with a number of the offences for which Mr Hawkins was sentenced.

In any event, his Honour was careful to indicate in the reasons for sentence the likely sentence he would have given were a plea of guilty not to have been entered. In some cases, these were reasonably significant discounts. For example, nine months reduced to three months, eight months reduced to four months, six months reduced to two months and so on. The general pattern of accumulation and concurrency would also be relevant here. His Honour, in his reasons for sentence made it plain he provided a discount for the pleas of guilty, stating that he "reduced his overall sentence by about one quarter to take account of his pleas of guilty". In my view, that discharged his Honour's obligation under s 35 of the Sentencing Act.

Ms Warwick further submitted that his Honour had not applied s 63 of the Sentencing Act (see [70] below) and had not, therefore, properly taken into account the pre-sentence custody Mr Hawkins suffered. When sentenced, Mr Hawkins had been in custody since 26 January 2009. While the warrant which had been executed on his extradition from New South Wales related to the parole breach for which the Sentence Administration Board had issued it, another warrant was also then executed in respect of the charge of failing to appear in accordance with his bail undertaking, one of the offences for which his Honour sentenced him. He was thus in custody for an offence for which his Honour sentenced him. It is not difficult to accept that the whole of the outstanding charges were then relevant, if not formally, to his pre-sentence custodial confinement.
He had, however, as noted above (at [25]), also been arrested on 28 May 2008 on certain other of the charges for which his Honour sentenced him and was not released until 1 August 2008 when bail was granted. He spent a total of 66 days in custody on those charges for which his Honour also sentenced him. His Honour did not consider this period, probably because they were not pointed out to him.
Further, Mr Hawkins had been charged on 4 June 2007 with the assault of the custodial officer and sentenced for that on 14 June 2007, representing a further ten days in custody for these offences. This period was also not considered by his Honour, probably for the same reason. The question arises as to whether they should have been considered.

61. At common law, it was not possible to direct that a sentence should commence prior to the date on which it was imposed: R v Gilbert [1975] 1 WLR 1012 (at 1017); R v Judge Frederico; Ex parte Attorney-General [1971] VicRp 51; [1971] VR 425 (at 427, 431); Wills v Webster [1968] Tas SR (NC) N21.

62. This did not mean that, at common law, periods of pre-sentence custody were not taken into account. In R v Judge Frederico; Exparte Attorney-General, Gowans J said (at 430):

If in such a case of a long trial, the offender had been in custody during part of the trial, that could be taken into account in fixing the term of imprisonment as is ordinarily done. The penalty is, after all, determined for the circumstances of the offender as well as for the circumstances of the offence, and in order to provide for the latter consideration there is no need to have resort to any conception of a fictional imprisonment.

See also R v Bennett [1975] Crim LR 654.

63. As the Full Court of the Supreme Court of Victoria said in R v Renzella [1997] 2 VR 88 (at 97) "a court is not only empowered but obliged as a matter of justice to take pre-sentence detention into account." Such an approach has been said to be "long standing sentencing practice": Sultana v The Queen [2007] NSWCCA 107 (at [11]). See also R v Marshall [1993] 2 Qd R 307 (at 12).

64. The legislature was sometimes slow in catching up with such law. For example, it was not until 1975 that Victoria acquired a statutory provision requiring credit to be given to an offender (either by the sentencing court or by the corrections authorities) for pre-sentence custody: R v Jennings [1998] VSCA 69; [1999] 1 VR 352 (at 356).

65. There are, of course, a number of ways in which such pre-sentence custody can be taken into account and this includes reducing the sentence imposed, as was done, for example in Close v The Queen (1992) 31 NSWLR 743 where it was considered that non-continuous periods of such custody prevented backdating. See also R v Cartwright (1989) 17 NSWLR 243 (at 258) where such an approach was said to be "perfectly proper".

66. An obvious way in which pre-sentence custody could be taken into account would be by ante-dating the sentence to commence from the date on which the offender was taken into custody. As this was not apparently possible at common law, as I have noted above (at [61]), it had to await legislative intervention before the courts could proceed in that way.

67. By s 4 of the Crimes (Amendment) Act 1955 (NSW), a new s 441A was inserted into the Crimes Act 1900 (NSW) providing that a sentence commences at the time it is passed "unless the Court otherwise directs" (repealed in 1999, see now Crimes (Sentencing Procedure) Act 1999 (NSW), s 24(a)). As the Crimes Act 1900 (NSW) was applicable in this Territory, the amendment was applied here, presumably from that date.

68. In the UK, a similar provision was held not to empower a court to antedate a sentence of imprisonment: R v Gilbert. In NSW, however, that position was not accepted and that case was distinguished: R v Williams [1975] 1 NSWLR 645 (at 647). Indeed, in that case, the court suggested that the words "for the avoidance of doubt" were included in the section because of the need to overcome doubts about the ante-dating of sentences "as was customarily the practice prior to 1955". For a detailed analysis of decisions on this issue, see Geale v State of Tasmania [2009] TASSC 28 per Evans J (at [39]).

69. The position in this Territory is now clear. Section 62 of the Sentencing Act provides that, subject to, inter alia, s 63, a sentence of imprisonment starts on the day it is imposed, unless the offender is not in custody, when it starts on the day the offender "becomes subject to lawful custody".

70. Section 63 of the Sentencing Act provides:

(1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.

(2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.

(3) However, subsection (2) does not apply to:

(a) a period of custody of less than 1 day; or

(b) a sentence of imprisonment of less than 1 day; or

(c) a sentence of imprisonment that is fully suspended; or

(d) the suspended part of a partly suspended sentence of imprisonment.

(4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender's arrest.

(5) Subsection (4) applies even if the offender is not convicted or found guilty of -

(a) the offence for which the offender was first arrested; or

(b) any particular offence or offences in the series.

71. The courts, however, and in particular in NSW, have consistently maintained that the preferable course to take into account pre-sentence custody is through backdating the sentence. Indeed, in Close v The Queen, it was described as required in all but exceptional circumstances (at 748). In R v McHugh (1985) 1 NSWLR 588, Street CJ said (at 590- 1):

It is desirable sentencing practice that, where there has been a period of pre-sentence custody exclusively referable to the offences for which sentence is being passed, the commencement of the sentence (and the non-parole or non-probation period) should be back-dated for an equivalent period. This is to be preferred to a process of assessing the proper sentence (and non-parole or non-probation period) and allowing, as it were, a discount in consequence of the pre-sentence custody. The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing.

72. See also R v Deeble (unreported, NSWCCA, Handley JA, Badgery-Parker and Hunt JJ, 19 September 1991).

73. This is not, however, the universal practice. In Victoria, sentences still cannot be backdated. See Fox R and Frieberg A, Sentencing: State and Federal Law in Victoria (2nd ed, Oxford University Press, 1999) (at sections 9.802 and 9.804). In South Australia, the sentence can only be backdated to the date when the offender was taken into custody, making it unsuitable for crediting interrupted periods of pre- sentence custody: Criminal Law (Sentencing) Act 1988 (SA), s 30(2)(b).

74. In this jurisdiction, as is clear from s 63 cited above, there is a clear power to backdate a sentence.

75. As noted above (at [65]), where there is not a continuous period of pre-sentence custody, the courts have sometimes considered that this is a sufficient reason for not backdating a sentence: R v English [2000] NSWCCA 245 (at [23]). This would result in a court having to specify, in some, perhaps many, cases, a date of commencement when the offender was not actually in custody.

76. That approach may no longer have the force it once had. In the first place, the abolition of a system of remissions for good behaviour no longer requires that the period of detention be continuous to allow for an assessment of such an issue. This was articulated by Lord Bingham of Cornhill CJ in R v Governor of Brockhill Prison; Ex parte Evans [1997] 2 WLR 236 (at 252):

It has in our experience been the practice to assume that all periods of custody before sentence, other than custody wholly unrelated to the offences for which sentence is passed, will count against the period of the sentence to be served. [emphasis added]

77. The section itself seems to contemplate this by the combination of "must" in s 63(2) and the terms of s 63(4). As Mary Daunton-Fear, said in Sentencing in South Australia (Law Book Company Ltd and Australian Institute of Criminology, 1980) (at p118):

Fourthly, justice probably also demands that day-for-day credit be given for pre-sentence custody rather than conferring on courts a duty to take such custody into account. Rinaldi advances a number of arguments in support of this proposition, not all of which apply to South Australia. However, one of his stronger relevant arguments is that the prisoner may lack assurance that every day of pre-sentence in custody has been taken into account unless his sentence is, in effect, ante-dated to the first day of his incarceration.

78. The power to backdate a sentence in cases where the offender has been subject to interrupted periods of custody prior to sentencing has now been put beyond doubt. In R v Newman [2004] NSWCCA 102; (2004) 145 A Crim R 361, Howie J (with whom McColl JA agreed) said (at 368):

The difficulty arises in cases where, as here, the pre-sentence custody did not continue unbroken to the date of sentence. In such a case the court is faced with two options: it can simply state that the pre-sentence custody is being taken into account and reduce the sentence accordingly; or it can backdate the sentence even though the offender was not actually in custody on the date when the sentence is deemed to have commenced. Notwithstanding some doubt expressed about the latter practice in R v Sayak (unreported, Court of Criminal Appeal, NSW, No 60098 of 1993, Clarke JA, Hunt CJ at CL and Grove J, 16 September 1993), this Court has dealt with the matter in this way on more than one occasion. See R v MacDonald (unreported, Court of Criminal Appeal, NSW, No 60700 of 1995, Gleeson CJ, Kirby P and Hunt CJ at CL, 12 December 1995), R v Howard [2001] NSWCCA 309, and R v Phillips [2002] NSWCCA 167. There is nothing in s 47 of the Act that would suggest that a court could not make such an order.

In my view, although there is an element of fiction involved in backdating a sentence to a period when the offender was not in custody, there is much to be said in its favour.

79. His Honour then proceeded to identify four reasons why such backdating was desirable. They were:

1. It preserves the denunciatory and deterrent value of the sentence to be imposed. This would be much diluted if the sentence were decreased by a substantial period to take into account interrupted periods of pre-sentence custody.

2. It makes it obvious to the offender that he or she has received a credit for the period already spent in custody. There can be no argument about whether the discount was properly given even where the sentencer says it has been taken into account.

3. The practice avoids disparity erroneously arising because a comparable sentence, with which comparison is being made, has been markedly reduced by pre-sentence custody. This can also show valuable statistical information.

4. Finally, as his Honour observed a "probably less persuasive" reason, is that it avoids lengthy sentences being imposed in years, months and days which, his Honour pointed out "look faintly absurd and may suggest to the uninformed that sentencing is an exact science that can determine an appropriate period of imprisonment in a precise number of days."

80. In some jurisdictions, there are limits on the pre-sentence custody that can be taken into account, for example, where it is not solely in respect of the offences for which the offender is being sentenced. Thus, originally, it was suggested by Gleeson CJ in R v Sae (unreported, NSWCCA, Gleeson CJ, Mason P, Dowd J, 3 April 1997) that the custody must be exclusively referable to the crime for which the offender is sentenced. Similarly, in Victoria, the provision, namely s 18 of the Sentencing Act 1991 (Vic) originally referred to the pre-sentence detention which is for the sentenced offence "and for no other reason" which has created difficulties explored in R v Renzella. See also R v Kunst [2002] QCA 400; [2003] 2 Qd R 98, which refers to s 161(1) of the Penalties and Sentences Act 1992 (Qld) which is to the same effect.

81. These problems do not appear to apply in this jurisdiction, for s 63(2) is in very wide terms. The reference to being "held in custody in relation to the offence" uses the ample term "in relation to". This phrase comprehends a wide meaning of relationship or connection between two subject matters. As was said by Hill J in Australian Competition and Consumer Commission v Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 (at 487):

It may be accepted that there will always be a question of degree involved where the issue is the relationship between two subject matters. The words "in relation to" are wide words which do no more, at least without reference to context, than signify the need for there to be some relationship or connection between two subject matters: see Smith v Commissioner of Taxation (Cth) [1987] HCA 48; (1987) 164 CLR 513 at 533 per Toohey J and PMT Partners Pty Ltd (In liq) v Australian National Parks and Wildlife Service [1995] HCA 36; (1995) 184 CLR 301 at 328 per Toohey and Gummow JJ. But the phrase is both "vague and indefinite": see per Taylor J in Tooheys Ltd v Commissioner of Stamp Duties (NSW) [1961] HCA 35; (1961) 105 CLR 602 at 620. Like the phrase "in respect of", the phrase "in relation to" will not, at least normally, apply to any connection or relationship no matter how remote: see Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 51 per Dawson J. The extent of the relationship required will depend upon the context in which the words are used.

82. In my view, the pre-sentence custody which is referred to in s 63(2) does not have to be referable only or even primarily to the offence for which the sentence is imposed.

83. There may, however, be limits to this. For example, in the Sentencing Act 1991 (Vic), s 18(1), which requires a declaration that pre-sentence custody had been served and was to be reckoned as a period of imprisonment already served under the sentence, the relevant custody was that in which the offender was "held in custody in relation to the offence and no other reason". When the phrase "and no other reason" was omitted in 1997, the question arose as to the limits, if any, now on the pre-sentence custody to be taken into account.

84. The issue was addressed in R v Broad [1999] VSCA 149; [1999] 3 VR 31 where Brooking JA (with whom Tadgell and Chernov JJA both concurred) said (at 33):

If ss 18(1) and 35(1) are to be given their literal meaning in this regard, the consequences will be startling. A person like the applicant, who has been remanded in custody while awaiting trial and who has in respect of the period in question been serving a sentence of imprisonment or detention for offences which may be in no way related to those with which the committal is concerned, will be entitled to have the time spent in custody credited not only as time served for the purposes of the pre-existing sentence but also as time served for the purposes of the sentence which is later passed. The present case concerns a sentence which intervenes between the commission of the January offences and the passing of sentence in respect of those offences. But if ss 18(1) and 35(1) are to be given the literal interpretation for which the applicant contends, the person serving a sentence of imprisonment who escapes and commits another offence while at large will, upon recapture, be entitled to claim that the portion of the sentence served between recapture and the passing of sentence for the offence committed while at large is to be credited as pre-sentence detention for the purposes of that offence. Such a result is manifestly unreasonable and contrary to the public interest. And of course a person in custody does not have to escape in order to commit an offence. A prisoner, whether a remand or a sentenced prisoner, may commit an offence in prison. If a prisoner on remand on a charge of robbery assaults a fellow prisoner or a correctional officer and is convicted and sentenced to imprisonment while still awaiting trial on the robbery charge, does the service of the assault sentence count as pre-sentence detention? The suggestion is remarkable. I do not regard as a satisfactory answer to these difficulties the presence in ss 18(1) and 35(1) of the power of the court to order otherwise.

85. Accordingly, it seems to me that while there is a discretion not to backdate a sentence such a discretion should be very sparingly used and only where it would offend justice and proper sentencing principles to otherwise.

86. I note, however, that s 63(1) is phrased in a way that imports a discretion. That, interestingly, was not the view of the Australian Law Reform Commission (ALRC). See ALRC, Same Crime, Same Time, Report 103 (ALRC, 2006) where (at p 296) the ALRC suggests that s 63(2) makes it mandatory to take into account any pre-sentence custody. That does not seem to be quite how the legislation is framed.

87. Thus, s 63(2) is certainly mandatory, but interestingly, there is no overall requirement to take pre-sentence custody into account, but only "[f]or sub-section (1)". That sub-section, however, gives a discretion as to whether to backdate a sentence (and only backdating; it has nothing to do with cumulation or starting a sentence after the date it is imposed).

88. It is difficult to conceive of a circumstance where a sentence of imprisonment would be backdated other than where there has been a period of pre-sentence custody imposed, though pre-sentence custody on another charge may justify backdating, even though it does not fall within s 63(2): Geale v State of Tasmania (at [60]). Those situations can be quite varied and include a wide range of custodial options: see Alimudin v McCarthy [2008] NTCA 7; (2008) 23 NTLR 102. Thus, it may be that s 63(1) is meant to be entirely facilitative, that is empowering a court to backdate a sentence rather than discretionary. This seems to be supported by the Explanatory Statement for the Crimes (Sentencing) Bill 2005 (ACT). Then s 63(2) would make it mandatory where the offender has spent a period of custody before sentence that the court consider that when deciding whether to backdate the sentence.

89. This would give the words "take into account" a meaning more like "including [the pre-sentence custody as] a mathematical calculation" for the purposes of the backdating, rather than "paying attention to [the pre-sentence custody] in the course of an intellectual process": Metropolitan Water Board v Assessment Committee of the Metropolitan Borough of St Marylebone [1923] 1 KB 86 (at 99) per Lord Hewart CJ.

90. The width of the phrase "in relation to" (see above at [81]) seems to point to a discretion and I am inclined to think that the court has a discretion but the point has not been fully argued and, accordingly, I do not make a final finding on the issue.

91. I have not been able to find much by way of authority which helps to formulate the principles upon which such discretion should be exercised. It may be that the court would not backdate a sentence where it could reduce the sentence otherwise to be imposed because the sentence to be imposed might not be able, with the backdating, to be properly implemented. This seemed to be the situation in R v Anderson [2006] QCA 563 (at [9]).

92. Similarly, it has been suggested that where the offender has contributed to delay or otherwise become disentitled to the benefit of backdating (and how is not there clearly explained) the discretion may be exercised not to backdate a sentence: Shams v Clarson [2002] WASCA 121; (2002) 130 A Crim R 1 (at 9). Other than in those circumstances, it was held in Shams v Clarson, and I respectfully agree, that a sentence should take into account all relevant pre-sentence custody and do so by backdating the sentence. The strength of s 63(4) and (5), however, would militate against such matters being relevant. Indeed, these provisions would allow periods of pre-sentence custody not directly referable to the offences for which a sentence is imposed to be taken into account.

93. There seems to be a strong sense in the authorities that the pre-sentence custody has to be taken into account, which accords with principle and the discretion is merely on the basis that backdating is one way of doing so. Thus, Fryberg J said (at [43]) in R v Edie [2006] QCA 111:

It is, however, well settled that a sentencing court is not obliged to proceed under s 161 [the Queensland provision about pre-sentence custody]. Independently of that section it has a discretion to frame a sentence that takes all relevant matters into account. The section does not limit or exclude the general sentencing discretion to consider a period of pre-sentence custody as a factor which may operate in mitigation, whether by reducing the head sentence, or by accelerating the date for consideration for parole, or otherwise (R v Jones (1988) 1 Qd R 672 at 675; R v Skedgwell [1999] 2 Qd R 77 at 99-100).

94. Nevertheless, as Williams JA said in R v Guthrie [2002] QCA 509; (2002) 135 A Crim R 292 (at 293):

It was obviously the intention of the legislature in enacting s 161 that a declaration that time spent in custody should be counted as part of the sentence was a preferable approach to that previously adopted by sentencing judges of making a reduction from the notional head sentence to take account of time already spent in custody.

Hawkins v Hawkins [2009] ACTSC 148

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Judgment (246 paragraphs)

Hawkins v Hawkins [2009] ACTSC 148 (6 November 2009)

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Legislation Cited (16)

Cases Cited (24)