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[2006] ACTSC 82
Supreme Court of the ACT
2006-08-04
Connolly J
Original judgment source is linked above.
1. The cumulative component of the sentence be set aside.
2. The six months imprisonment for assault be served concurrently with the other term of imprisonment (for breach of periodic detention order) and to date from 6 March 2006.
1. This is an appeal by Neil Francis Hodgson from the orders of a Magistrate on 6 March 2006, whereby the Magistrate, following concessions made by counsel then appearing for Mr Hodgson, made orders cancelling four extant and concurrent orders for periodic detention.
2. It was common ground that it was 12 periods of periodic detention and the consequence of that was that his Honour, upon cancelling the periodic detention, appropriately imposed a sentence of imprisonment of 12 weeks. The information that led to the breach of periodic detention, which was conceded, is at page 31 of the Appeal Book, and it makes two allegations. One, that on 9 December 2005 he reported to the Periodic Detention Centre but failed to accept directions in respect to an incident in which he is said to have assaulted Officer White by physically laying his hands upon Officer White's buttocks and that that posed a threat to the good order, discipline and security of the centre. And, two, that on that same date and time when he reported to the centre and during reception procedures his property was searched and certain items of contraband were found, being a non-prescribed medication Serepax tablet. It asserts that that posed a threat to the good order, discipline and security of the centre. It seems to me that both of those grounds were sufficient to justify the cancellation which occurred.
3. He also pleaded guilty to the assault on Officer White. The statement of facts indicate that that involved, not in a violent or malicious manner and indeed probably some sort of attempt at being humorous or cheeky, to lay his hand on the officer.
4. It seems to me that the assault does stand apart from the breaches of periodic detention and that it does not follow that there is an error, a fatal error, as identified by the High Court in Pearce v The Queen [1998] HCA 57; (1998) 198 CLR 610, in the sense that he has been punished on more than one occasion for the same conduct.
5. It seems to me that the failing to accept directions in respect to the incident with Officer White and the bringing of contraband into the centre are themselves discrete bases for the appropriate cancellation of the order of periodic detention.
6. It does seem to me, however, that his Honour did fall into error in the way he approached the imposition of the sentence for the assault. He had before him the information relating to the assault. He clearly made reference to the well-known dictums of appellate courts, both here and in other parts of Australia, that it is important that good order and discipline be maintained in Corrective Services facilities and that officers are entitled to protection. And Mr Doig, for the respondents, has made reference to a number of authorities to that effect. In the matter of R v T (SCC 274 of 2004) in imposing a sentence for a person who head-butted a Corrective Services Officer, I made the point that it is a well established proposition that an assault against a police officer or Corrective Services officer should be treated seriously by the courts and deterrent sentences should be imposed, and unprovoked assaults against Corrective Services officers in the execution of their duties is a matter of aggravation.
7. It seems to me that the sentence that was imposed of six months imprisonment was a high end sentence, but given the very long criminal record of Mr Hodgson involving very many incidents of assault and disorderly behaviour going back to 1970, the combination of that record and the need to both protect the individual officer and maintain good order in a Corrective Services facility, that the punishment was at the upper end of the range, but nonetheless within the range.
8. However, his Honour, in the transcript of his reasoning, did not expressly apply his mind to the question of whether the sentence should be made partially or fully concurrent or fully cumulative with the breach of periodic detention resulting in the periodic detention order turning into a period of full-time custody. It does seem to me that, in accordance with the principles of Pearce he has, in doing so, committed an error of principle which justifies interference with the sentence at an appellate level.
9. Ms Warwick, for Mr Hodgson, drew my attention to the decision of the New South Wales Court of Criminal Appeal in R v Kitchener [2003] NSWCCA 134, where their Honours referred to an unreported decision of the New South Wales Court of Criminal Appeal in R v Kaiva (unreported, 9 November 1998), where his Honour Kirby J made the remarks that where in circumstances of parole and something to do with a breach of parole and a new head sentence, and where that was taken "into account then not backdated, the sentence gives the appearance of penalising the prisoner for a second time, in respect of the same matter", and that, it seemed to him, was undesirable.
10. It seems to me that while I am satisfied that there has not been in law a breach of the principle in Pearce, the failure to consider making the sentences concurrent, and indeed the decision to fully accumulate the sentences, does give the appearance of double punishment given that the assault occurred in the context of the breach for direction, and the attempted induction into the Periodic Centre on 9 December 2005 does seem to me that the appropriate outcome, and given for deterrence, his Honour was minded to impose an upper end sentence, which I am not going to interfere with.
11. The appropriate course would have been to make the sentence for assault commence at the same point as the commencement of the time to be served in lieu of periodic detention. The effect of that is that I will set aside that part of his Honour's sentence that made the six months fully cumulative and I will direct that the six months is to commence on 6 March 2006.
12. The effect of that is that Mr Hodgson's term of imprisonment will end on 6 September 2006 rather than 6 December 2006. In effect three months have been wiped off the period that he will serve. I direct that a transcript of my remarks be prepared and issued as my reasons for judgment on this appeal.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.
Solicitor for the Appellant: Darryl Perkins Solicitors
Hodgson
Frame and Anor [2006] ACTSC 82
(1998) 198 CLR 610