Jackson v Giltrap [2009] ACTSC 36

3. On the evening of 5 January 2008, the complainant, the appellant's former partner, had been drinking at a club in Dickson. She was approached by the appellant, who seemed heavily intoxicated, and decided to leave the club. The appellant followed her, yelling obscenities at her.

4. The complainant decided to return to her home in Hackett, and began walking in that direction. The appellant chased her, tackling her to the ground in the grassland behind the Dickson Swimming Pool. He straddled her as she lay on the ground, banged her head on the ground using both his hands, and hit her four times in the face. The appellant tried to unbutton the complainant's jeans, but the complainant struck him in the groin with her knee. He stood up, urinated on the complainant and left the area.

5. Police were called and found the complainant dishevelled and bleeding from the nose.

6. At about 5.30 in the morning police found a man in Hackett matching the description given by the complainant. He was stopped, and told the officers "I'm the one you're looking for".

7. On 1 February 2007 the appellant had appeared in the Magistrates Court charged with common assault of the same complainant. That assault took place in September 2006, when the appellant went to the complainant's residence affected by alcohol. He verbally abused the complainant, and then repeatedly banged her head against the wall and then the floor. On that occasion the complainant suffered bruising to her cheek and a bloodied nose.

8. For that assault the appellant was sentenced to six months imprisonment suspended upon entering into a good behaviour order for 18 months. The assault in January 2008 contravened the provisions of that good behaviour order, which still had 7 months to run.

9. On 19 March 2008, the appellant was sentenced in the Magistrates Court for the serious assault, and re-sentenced in respect of the common assault. The sentencing involved a total term of 24 months imprisonment backdated to 6 January 2008 to take account of time already spent in custody. This was expressed to be made up of 18 months imprisonment on the serious assault suspended after 12 months, and 6 months imprisonment on the common assault, to be served consecutively on the term for the serious assault. A non-parole period of 18 months was set.

10. The appellant has remained in custody since being sentenced, and has therefore spent a total of around 15 months in custody in relation to the two assault offences.

11. He lodged an appeal against sentence on 10 April 2008.

12. A number of grounds of appeal were raised in the notice of appeal, but were abandoned at the hearing. The sole ground argued was that the learned Magistrate erred in imposing a sentence of imprisonment cumulative upon a sentence of imprisonment that was to be partially suspended. Although argument was focussed on the 6-month sentence imposed in relation to the common assault offence, the nature of her Honour's sentencing approach meant that if the appellant was to be re-sentenced on the assault offence he would also need to be re-sentenced on the serious assault offence. Even if the appeal had failed entirely, the appellant would need to be re-sentenced to ensure that the time he has spent in remand custody since lodging his appeal (see Magistrates Court Act 1930 (ACT), s 216) is set against the original sentence.

13. For the purposes of determining this appeal, it is only necessary to note that a sentence may be replaced on appeal if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error and the appeal court, in re-exercising the sentencing discretion, considers that a different sentence is appropriate. 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).

14. If error is found but the original sentence nevertheless appears to be appropriate, the proper approach is, generally, to dismiss the appeal rather than to allow the appeal and re-impose the same sentence (in some jurisdictions this approach is expressly provided for - see for instance subs 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237 (10 August 2007)). I note, of course, that as mentioned in [12] above, a person who is remanded in custody while an appeal from the Magistrates Court is pending will need to be re-sentenced, even if the sentence is to remain the same, if the Court wishes to ensure that full credit is given for time served in remand custody.

15. The sentencing remarks made by the learned Magistrate suggest some confusion in the sentencing process. She said:

So on the charge of assault occasioning actual bodily harm, you will be convicted and sentenced to 18 months' imprisonment. That sentence is to be suspended after he serves 12 months.

And on charge 2420, which is the breach pursuant to section 110 of the Crimes (Sentence Administration) Act, I propose to resentence him on that offence, so I find that breach proved. He will be sentenced to 6 months' imprisonment and that sentence is cumulative, so it is added onto 786. So the total head sentence then becomes 24 months and the non-parole period is 18 months.

... the sentence is to commence on 6 January 2008 and to end on 6 July 2009, the non-parole period. He can be paroled from 6 July 2009, so the sentence is to end on 6 January 2010 and the non-parole period on 6 July 2009.

Upon his release, he is to enter into a recognizance. This is in relation to the suspended sentence part of it.

16. In the course of these remarks her Honour twice indicated that the 18-month sentence was to be partially suspended, and twice specified a non-parole period of 18 months for the total 24-month sentence. The fact that each sentencing disposition was repeated suggests that the approach does not reflect a mere slip of the tongue by the learned Magistrate.

Crimes (Sentencing) Act 2005 (ACT), s 65

1"> 17. It is hard to work out why a sentence would be expressed to contain a non-parole period and a period of suspension. However, s 65 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) requires courts to set non-parole periods for certain sentences of imprisonment, and by reason of subss 65(1) and (6), this includes sentences that are to be suspended after the offender has served one year or more in full-time custody. Those provisions are as follows:

65 Nonparole periods - court to set

(1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.

...

(6) If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.

18. The effect of these provisions seems to be that if:

(a) a court imposes a sentence of imprisonment; and

(b) the court orders that the sentence be suspended after a specified period; and

(c) the specified period exceeds one year;

then (subject to specific exceptions) the court must also set a non-parole period in respect of the non-suspended part of the sentence.

19. If the non-parole period expires before the date from which the sentence is to be suspended (the suspension date), then the offender may be released on parole before the suspension date and must be released at the suspension date even if he or she is not considered suitable for parole. This allows a court to set a minimum and a maximum period to be served in custody, although it is not clear why this is not adequately achieved simply by setting a head sentence and a non-parole period. As well, if an appropriate head sentence is set, and the offender is given scope to seek parole before the sentence is fully served, it is hard to see why a court would also specify that the offender is to be released before the end of the sentence even if the offender has failed to satisfy the parole authorities that he or she is suitable for early release.

20. Furthermore, there may be some uncertainty about the status, after the suspension date, of an offender who is released on parole before that date. Is the offender a person on parole, or a person subject to a suspended sentence and a good behaviour order, or both? If his or her parole is cancelled before the suspension date, is the offender still entitled to be released when that date arrives? These issues were not argued at the hearing, and it is unnecessary for me to reach any conclusion on them, but the questions do suggest that setting a non-parole period to expire before a suspension date would be practically undesirable, even though the setting of a non-parole period of some kind appears to be required by subs 65(6) if a sentence is to be suspended one year or more after it starts to run.

21. Setting a non-parole period to expire on the suspension date might seem to be a simple way to deal with the statutory requirement; however, I consider that there is a danger that setting the non-parole period to expire at the suspension date might be taken to amount to an unjustified refusal to set such a period.

22. This is because only the non-suspended part of the sentence (the deemed sentence) can be considered for the purpose of setting a non-parole period, and a non-parole period set to expire on the suspension date would therefore be the same length as the deemed sentence for which it is being set. Setting a non-parole period that is the same as the period of the total sentence would for all practical purposes be the same as declining to set a non-parole period at all. A court may decline to set a non-parole period "if the court considers that it would be inappropriate to set a non-parole period having regard to the nature of the offence or offences and the offender's antecedents" (subs 65(4) of the Sentencing Act) but it is not clear to me that declining to set a non-parole period because a sentence is to be partly suspended would satisfy the criteria set out in subs 65(4) for declining to set a non-parole period.

23. A non-parole period that expires after the suspension date raises an even more complex set of questions. It is not contemplated in s 65 of the Sentencing Act; since any period of suspension must be disregarded "for" s 65 (which presumably covers working out whether the section applies, working out the length of the sentence to which the section applies, and working out the length of the non-parole period), the non-parole period must end on or before the suspension date. As well, it would make no sense to set a non-parole period to end after the suspension date; the offender will be released once the sentence is suspended and there will be no cause for him or her to seek release on parole when the non-parole period expires.

24. What her Honour purported to do was in fact slightly more complex again. She set a suspension date (12 months into the 18-month sentence) earlier than the end of the non-parole period (18 months after the start of that sentence); in specifying a suspension date of 12 months for the first sentence but making it clear that she intended the appellant to serve 18 months in total, she appears to have contemplated that the appellant would not serve the last 6 months of the earlier sentence, but would then serve the full 6 months of the second sentence.

25. Accordingly, I am satisfied that her Honour fell into error in specifying that the first sentence (18 months imprisonment) was to be suspended after 12 months, that the second sentence was to be consecutive on the first sentence, and that the total 24-month sentence was to have a non-parole period of 18 months. The appeal must be upheld at least to the extent necessary to allow the sentence to be corrected.

26. Counsel for the DPP submitted that her Honour's intentions were nevertheless clear, and should be given effect in any re-sentencing. The intention was explained as:

... there be a 24 month head sentence, that there be a non-parole period of 18 months and the effectively six months is suspended and then subject to a good behaviour order.

27. I accept that her Honour's intention was for the appellant to spend 18 months in custody and to have 6 months of the sentence hanging over his head on release.

28. However, for the reasons set out above, I cannot see any point in seeking also to implement her Honour's apparent intentions in relation to providing both a suspension date and a non-parole period.

29. Assuming that her Honour's intention was as described above, namely that the appellant was intended to be in custody for 18 months and then on some form of conditional release for the remaining 6 months, then as far as I can see the only sensible way of achieving this is to rely entirely on setting a non-parole period. The more logical approach would seem to be starting the sentence on the earlier offence (6 months imprisonment) first, then adding the new sentence (18 months imprisonment) on to that, and then setting a non-parole period of 18 months. Alternatively, the sentences could be reimposed in the same order used by her Honour, but the other approach may be a better way of emphasising to the appellant that he is intended to serve the whole of the sentence re-imposed as a result of his breach of the good behaviour order. Whichever order is chosen for the two sentences, attempting to incorporate a suspension as well as a non-parole period would, for the reasons already stated, be highly problematic and to no apparent purpose.

30. However, counsel for the appellant also submitted that, if her Honour's sentencing error required the appellant to be re-sentenced, a slightly different approach should be taken to the re-sentencing for the earlier assault offence.

31. The initial sentence for the common assault offence was 6 months imprisonment, suspended subject to an 18-month good behaviour order. The breach that required her Honour to cancel the good behaviour order occurred 11 months into the 18-month term of the good behaviour order. On re-sentencing, her Honour again imposed a term of 6 months imprisonment, but this time to be served wholly in full-time custody. The appellant's counsel argued that the appellant should be given some credit in any re-sentencing for the fact that he managed not to re-offend for the first 11 months of the good behaviour order. This is not an easy argument to make out when one considers that the offence that constituted the breach of the good behaviour order was a more serious assault on the same victim. On the other hand, it is true that if the appellant had successfully completed the full 18 months before re-offending in the way he has done, there would have been no specific consequences of that re-offending in relation to the earlier offence. That is, the good behaviour order only operates for a limited time, and it is not unreasonable to see compliance with the order over time as in some way "serving" the sentence, in the same way that an offender is given credit for a partial completion of periodic detention if a periodic detention order is cancelled before it has been completed.

32. On this basis, it could be said that the appellant, in completing 11 months of the 18-month good behaviour order, had "served" nearly two-thirds of the 6-month suspended sentence before he re-offended, and I will accordingly take account of that in re-sentencing. However, although the appellant managed to complete 11 months of the good behaviour order before re-offending, the nature and severity of the re-offending suggests that those 11 months had had limited effects in terms of either rehabilitation or deterrence, and the credit to be given will accordingly be limited.

33. I will re-sentence the appellant to 6 months imprisonment on the earlier offence, but on the basis that only 4 months, rather than the full 6 months, is necessarily to be served in full-time custody, in addition to the 12 months of the other sentence to be served in that way. Thus, the total sentence will remain 24 months imprisonment, but the period to be served initially will be 16 rather than 18 months. I propose to specify a non-parole period, and no suspension date, for the new sentences, having regard to my concerns about combining non-parole periods with suspended sentences and because setting a non-parole period will ensure, in a way that suspended sentences do not, that there is careful consideration by the parole authorities of whether the appellant is in fact ready to be released after 16 months in prison.

(a) for the common assault offence - 6 months imprisonment; and

(b) for the serious assault, 18 months imprisonment, consecutive on the earlier term.

35. The sentences will be backdated to take account of time served, including after the appeal was lodged; the sentence for the earlier offence to run from 6 January 2008 to 5 July 2008, and the sentence for the later offence from 6 July 2008 to 5 January 2010. I shall set a non-parole period of 16 months, which will expire on 5 May 2009.

I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: Director of Public Prosecutions (ACT)