CRIMINAL LAW - sentencing principles - delay in sentencing - whether to postpone sentencing using a statutory deferred sentence or a Griffiths remand - Crimes (Sentencing) Act 2005 (ACT).

CRIMINAL LAW - sentencing principles - splitting of sentencing for related offences - principle of totality.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19

Crimes Act 1900 (ACT), s 29(3)

Crimes (Sentence Administration) Act 2005 (ACT)

Crimes (Sentencing) Act 2005 (ACT)

Magistrates Court Act 1930 (ACT), s 214

Criminal Appeal Act 1912 (NSW), s 6

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

Baxter v R [2007] NSWCCA 237 (10 August 2007)

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357

R v Griggs [1999] FCA 1573; (1999) 167 ALR 673

Evans v Shiels [2004] ACTSC 19

Kennewell v Rand [2006] ACTCA 10 (5 June 2006)

Mill v R (1988) 166 CLR 59

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

R v Mohi Harris [2007] NSWCCA 130 (12 March 2007)

R v Daniella Branka Grabovac (1997) 92 A Crim R 258

R v Brianna Arioli [2008] ACTSC SCC 34/08 (unreported, 24 April 2008)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The appellant be re-sentenced after further submissions.

1. This is an appeal from a sentence of imprisonment and a disqualification from driving imposed in the Magistrates Court for an offence of being a special driver (in this case, a disqualified driver) with level 4 alcohol under subsection 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the alcohol offence).

2. Early in the morning of 12 August 2006, the appellant, David Leslie High, was driving his vehicle along Northbourne Avenue. He was stopped by police, who performed a screening test. The result of the test was positive and the appellant was taken to City Police Station, where a breath analysis showed a blood alcohol reading of 0.202 grams of alcohol per 100 millilitres of blood. At the time, the appellant was not a holder of a driver's licence, having been, in the ACT Magistrates Court on 28 October 2002, disqualified from driving for at least five years.

3. As well as being charged with the alcohol offence, the appellant was charged with driving while disqualified contrary to s 32 of the Road Transport (Driver Licensing) Act 1999 (ACT). He first appeared in the Magistrates Court on 18 August 2006 and pleaded guilty to both charges on 7 September 2006. The sentencing process began on 3 November 2006.

4. The sentencing process was particularly complicated. Having regard to the appellant's poor driving record, the learned Magistrate was initially minded to sentence the appellant to full-time imprisonment on each charge. However, she agreed to a suggestion made by the appellant's solicitor to adopt a more complex approach, as follows:

(a) On the charge of driving while disqualified, she sentenced the appellant to six months imprisonment to be served by way of periodic detention.

(b) On the charge for the alcohol offence, she remanded the appellant until the end of the six months to give him time "to satisfy [her Honour] that he is no longer a risk to the community or that the risk is greatly lessened". Her Honour said "Had I sentenced [the appellant] today, I feel I would have had no option other than to send him to jail immediately", but she did not give any indication of the likely sentence if the appellant did manage to satisfy her of the required reduction in risk.

5. The appellant duly began serving his periodic detention, and continued with counselling and other treatment related to his alcohol abuse and other problems.

6. During this period the appellant's mother, with whom he had been living, became seriously ill and then died. This, it seems, meant that he was granted leave for several weekends that should have been included in his periodic detention and, at least partly as a result of this, he had several more weekends of periodic detention still to serve by May 2007 when he appeared in court to be sentenced for the alcohol offence.

7. By that time also, quite coincidentally, an issue had arisen in an unrelated case about the operation of s 70 of the still relatively new Crimes (Sentence Administration) Act 2005 (ACT) and its interaction with certain parts of the equally new Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). The concern was that a conviction for another offence recorded while a person was serving a prison sentence by way of periodic detention would immediately convert the periodic detention into a full-time custodial sentence, irrespective of whether the second offence was committed before or during the term of the periodic detention.

8. When the appellant appeared again on 8 May 2007, her Honour was still inclined to sentence him to a term of imprisonment on the alcohol offence but, having regard to the progress he had made in rehabilitating himself, she was inclined to require the further term also to be served as periodic detention. She specified that what she had in mind was another term of 6 months imprisonment, also to be served as periodic detention and, by implication, to be wholly or largely consecutive on the 6 months imposed for the offence of driving while disqualified.

9. The problem that had been raised in relation to the sentencing legislation meant that her Honour was, however, unwilling to impose that second sentence when the appellant appeared before her in May 2007. Both she and the appellant's solicitor were concerned that convicting the appellant and imposing the second sentence might convert the outstanding term of periodic detention into a full-time custodial sentence, which both of them wished to avoid.

10. Accordingly, it was agreed that sentencing would again be postponed. There was some difficulty in setting a further date because of uncertainty about how many more weekends the appellant needed to serve to finalise the first sentence and because of the learned Magistrate's planned absence for most of July that year. Initially, the next appearance was set for 29 June 2007 before her Honour went on leave, but in the end the appellant appeared on 9 August for imposition of the second sentence (I could find no explanation for the further delay in any of the papers before me, and nor was it explained during the appeal hearing).

11. At the 9 August hearing, the appellant's solicitor submitted that the sentence of 6 months periodic detention that had been foreshadowed by the learned Magistrate at the May 2007 appearance should be further reduced in recognition of the appellant's impressive achievements in overcoming his alcohol abuse problems and the fact that his new job, with a real estate agency, required him to work on weekends. Her Honour then sentenced the appellant, on the alcohol charge, to 6 months imprisonment, 4 months to be served as periodic detention and the last 2 months to be suspended on condition that the appellant agree to a good behaviour order for 12 months.

12. The appellant lodged this appeal on 10 August 2007, the day after he was sentenced for the second offence.

13. The original ground of appeal, lodged by the appellant personally, was that the sentence was manifestly excessive. At the appeal hearing I gave the appellant leave, with no objection from the respondent, to abandon this ground and to substitute a new ground, namely, that the learned Magistrate failed to take into account a relevant consideration in sentencing.

14. Counsel for the appellant did not seek to adduce any further evidence in support of the appeal.

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

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

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

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

Was there error in the exercise of the sentencing discretion?

Failure to take account of a relevant consideration

16. The ground of appeal advanced by counsel for the appellant at the hearing, namely that the learned Magistrate failed to take into account a relevant consideration in sentencing, related to her Honour's treatment of the three month delay between the original intended sentence date (8 May 2007) and the eventual sentence date (9 August 2007).

17. The argument put forward by the appellant's counsel is somewhat obscure and seems to rely to some extent on unstated assumptions about the significance and proper treatment of a Griffiths remand (so-called because of its use in the case of Griffiths v R [1977] HCA 44; (1977) 137 CLR 293 (Griffiths)).

18. Although counsel's submissions refer to the learned Magistrate's approach as a Griffiths remand, it is not clear how her Honour regarded the approach she finally adopted. There was some discussion between her Honour and the appellant's solicitor about whether she would use a deferred sentence under the new Sentencing Act, a Griffiths remand, or a simple adjournment of the sentencing process with a continuation of bail. During that discussion the solicitor said "there's a number of difficulties with the section 26 [sic] deferred sentence process", and her Honour said that she thought Connolly J had recently emailed one of his colleagues to the effect that a deferred sentence had taken him "four pages of notes". The solicitor then reported that Crispin J had apparently expressed the view in another case that "the new Act does not preclude even Griffiths remands" (this is a quote from the solicitor rather than a direct quote from Crispin J). Her Honour then said that she would "simply ... adjourn [the matter] for further information and reports" but also said "I'm relying on [Crispin J's] comments in relation to that as a safeguard". This suggests that her Honour did not actually decide whether she was using a Griffiths remand or something even less formal. Fortunately, that lack of clarity is not decisive in my consideration of this matter.

19. The argument made by counsel for the appellant in written submissions, was as follows:

[Deferring the sentencing process] places a considerable burden upon the offender, in that the offender has his or her sentence delayed and consequently lives under the spectre of the upcoming sentence, such spectre designed to encourage or pressure the offender toward rehabilitation.

It is in considering the effect of the extra delay that it is asserted that the Learned Magistrate fell into a subtle error with a serious impact upon the offender. Prior to the adjournment the Learned Magistrate had committed herself to, in the event of favourable progress toward rehabilitation by the offender, to [sic] 6 months of periodic detention. There were, however, 2 important factors which told against this as being the appropriate outcome at the end of the remand.

Firstly, the degree of progress made by the offender, which it must be conceded was in part recognised by her honour [sic].

Secondly, the extended length of the remand caused by factors beyond the control of the offender.

The extension was significant in the overall sentence. The initial Griffiths remand had been for a period of 6 months. The extension of the Griffiths remand increased this by 50%. This was not a matter adverted to by her honour [sic].

This extension was not due to any failure on the part of the Appellant to rehabilitate. His progress in relation to rehabilitation was exemplary. The extension of 3 months was necessitated because of the concern that the Sentence Administration Board may take the view that they had to cancel his periodic detention because of the further sentence. It appears that this additional period of supervision, of having the sentence still pending and hanging over his head was not taken into account.

It must be conceded that this aspect was not, despite the care with which the matter was approached, drawn to her honour's [sic] attention.

However, in the overall scheme of the sentence this was an important matter which was not taken into account, and which meant that the sentence was tainted by the failure to take an important matter into account.

20. In support of these propositions, counsel referred me to R v Griggs [1999] FCA 1573; (1999) 167 ALR 673 (Griggs), and Evans v Shiels [2004] ACTSC 19. Those cases seem to support the following propositions:

(a) That sentencing at the end of a Griffiths remand must reflect the circumstances existing at the time of the sentencing, rather than at earlier hearings (Evans v Shiels (supra) at [8], Connolly J quoting Crispin J).

(b) That the use of a Griffiths remand, which enables a court to assess an offender's rehabilitation progress before finally passing sentence, and which also delays the finalisation of the matter, may impose some extra burden on the offender which is not found with a suspended sentence or other form of sentence that does not require the offender to face the court again before the sentencing process is complete (Griggs, at [45], Miles J, quoting Barwick CJ in Griffiths, and at [64], Madgwick J).

21. It was not clear from counsel's submissions exactly what consequences were claimed to flow from those propositions, what was the relevance of the three-month extension of the Griffiths remand, and what the learned Magistrate might have been expected to do differently if she had paid specific attention to that extension of the period in finally imposing sentence.

22. However, a Griffiths remand could be analysed as an extended period of pre-sentence supervision by the court, in the expectation of a reduction in the post-sentence supervision by other authorities in the criminal justice system. That reduction may relate to the period of supervision or the nature or intensity of the supervision.

23. On this analysis, any extension in the pre-sentence supervision, as happened in this case, should be taken into account in determining the proper level of post-sentence supervision as effected by the sentence ultimately imposed. In the absence of any contrary indication, an unexpectedly longer period of pre-sentence supervision might appropriately lead to an unforeshadowed further reduction in either the length or the intensity of the post-sentence supervision. For instance, a foreshadowed term of imprisonment might be shortened, or ordered to be served as periodic detention, or suspended, or suspended earlier. A foreshadowed term of periodic detention might be shortened or converted into a suspended sentence.

24. In this case, neither counsel nor the learned Magistrate adverted to the extended remand period at all. The reduction from the 6-month periodic detention that she had mentioned in May 2007 was sought by the appellant's legal representative, and given by the learned Magistrate, purely by reference to the appellant's rehabilitation progress, and other changes that had taken place in his life, since the previous November. There was no suggestion that anything extra had been achieved in the last three months of the remand so as to justify a greater reduction in sentence. That is, the extra three months does not seem to have benefited the appellant in any particular way in terms of the sentence reduction sought and granted. Nor did the learned Magistrate consider whether the extended period of supervision of itself had any implications for the sentence she was about to impose.

25. I find, therefore, that, the learned Magistrate fell into error constituted by failing to take account of a relevant consideration, namely the extended pre-sentence supervision of the appellant, when she finally came to impose the sentence. I note, however, that the error consists only of the failure to advert to the extended period; I do not suggest that it would in such a case be an error not to reduce the sentence by reference to that extended supervision, only that the matter should be considered. Indeed, in this case, having regard to the identified reasons for the first period of deferral and depending on the reasons for the unexplained further deferral, her Honour might simply have mentioned the deferral and indicated that she did not consider it justified any further sentence reduction.

26. I also find that, because of that failure, the sentence appealed from in this case may need to be replaced with a different sentence, but further submissions will be needed before that sentence can be determined.

27. Although not specifically raised by counsel, and not a basis for my decision on the appeal, I mention two difficult issues emerging from the learned Magistrate's use of the Griffiths remand or a similar approach. The first issue is whether the Griffiths remand should continue to be used now that the Sentencing Act provides for deferred sentencing and the second is whether it is, in any case, appropriate to split the sentencing process for multiple offences arising out of the same incident.

28. I indicated in imposing a deferred sentence in the matter of R v Brianna Arioli [2008] ACTSC SCC 34/08 (unreported, 24 April 2008) that Part 3.5 of the Sentencing Act appears to have been intended to replace the Griffiths remand. Others may take a different view, and certainly there are attractions in using the Griffiths remand instead of having to work through the statutory requirements (I have already mentioned the learned Magistrate's reference to Connolly J's email about these requirements).

29. However, this case indicates the problems that may be created by avoiding the statutory process. First, by using an approach in the nature of a Griffiths remand instead of the legislative scheme, the learned Magistrate avoided having to give the general indication of likely sentences depending on the offender's success or failure in rehabilitating himself. This led to what might be described as "negotiations" with counsel at each further sentencing hearing, and possibly left the appellant feeling that he had not received full credit for his success in turning his life around (which would explain his initial identification of a "manifestly excessive" sentence as the ground of appeal). This lack of clarity about likely sentencing outcomes might also explain why counsel now describes the three-month delay, after the initial remand period and before sentence was passed, as inappropriately burdensome on the appellant, despite the fact that each adjournment of which a record was available was granted specifically for the benefit of the appellant (in each case with a view to protecting him from becoming subject to full-time custody).

30. Secondly, bypassing the statutory process meant that her Honour avoided considering, as would have been required by s 27 of the Sentencing Act, whether she could release the offender on bail under the Bail Act 1992 (ACT). Given that at the 3 November 2006 sentencing hearing, the appellant had been sentenced to a term of imprisonment (albeit one to be served by way of periodic detention), it is not clear that he could in fact have been granted bail for the period while that sentence was being served.

31. A consideration of the bail issue might have led the learned Magistrate to question whether it was, more generally, appropriate to separate the sentencing process for the two offences.

32. There is much authority on sentencing approaches where either:

(a) multiple charges of the same kind are laid as a result of one instance of conduct (eg Kennewell v Rand [2006] ACTCA 10 (5 June 2006), where the conduct caused a single accident that injured two people, leading to two charges of culpable driving causing grievous bodily harm); or

(b) a person is being sentenced for multiple separate offences of the same kind such as a number of different burglaries or car thefts (eg R v Mohi Harris [2007] NSWCCA 130 (12 March 2007)).

33. This case, in which one instance of conduct (driving the vehicle) gave rise to charges for two quite different offences, is somewhere in the middle of the spectrum.

34. A consistent theme throughout the cases, however, is the significance of the principle of totality. That is, after appropriate sentences have been identified for each offence separately, the way in which the various sentences are to be served must be worked out so as to ensure that the total sentence imposed is neither "crushing" (see, for instance, R v Daniella Branka Grabovac (1997) 92 A Crim R 258 at 271), nor unduly lenient having regard to the overall criminality of the offender's conduct.

35. It seems to me to be implicit in this approach that, where multiple offences are before the sentencing court, they should all be dealt with together. Splitting the sentencing makes it more difficult for a court properly to apply the totality principle, and may also make it less likely that the court will focus on the principle at all. Indeed, the decision in Mill v R (1988) 166 CLR 59 (at 66-67) indicated that the totality principle was relevant, and needed to be taken into account, even in a case where sentencing for one offence had been separated by some years from sentencing for other similar offences committed at around the same time (because the two groups of offences took place in different States and the offender served a term of imprisonment in the first State in which he was sentenced before he was available for sentence in the second State). This suggests that a sentencing court should be very reluctant to adopt an approach involving a deliberate splitting of the sentencing process for related offences.

36. My concern about splitting the sentencing process for multiple offences in the way that was done in this case is reinforced by a comment made by Miles J as he then was in Griggs. That case, like this one, involved a court sentencing the appellant on one of two counts in the indictment and deferring sentence on the other. Miles J seems to have been indicating a concern about that approach when he said (at [42]):

This was, it must be acknowledged, an unusual course. It does not fit easily into the traditional role of a court (R v Griffiths [1975] 1 NSWLR 229) and it is in the face of a general principle that an offender should not be kept waiting to be sentenced. On the other hand, the appellant did not submit that it was beyond the power of the Supreme Court to impose a sentence on the first count (to be executed according to its terms forthwith) and adjourning sentencing on the second count to a later date. The appellant did not seek leave to appeal from the decision to adjourn sentencing on the second count.

37. As already mentioned, these matters were not raised by counsel in this appeal, so they remain for consideration at an appropriate time. I will, however, take the totality principle into account in re-sentencing.

38. Given my comments about the possible application of the totality principle in the required re-sentencing of the appellant, I consider that it would be appropriate to invite further submissions before I finalise that re-sentencing.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: ACT Director of Public Prosecutions