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[2010] ACTSC 130
appellant. Appeal upheld; Magistrates Court sentence set aside; appellant re-sentenced to a 12-month good behaviour order with security of $100, supervision by ACT Corrective Services, and compliance with...
The Magistrate imposed periodic detention without a properly established statutory pre-sentence report. That was a specific error. The appeal court did not need to find that the original sentence was manifestly excessive before considering a new sentence. After considering further evidence about Keen’s severe mental illness and his circumstances, the Court replaced the prison sentence with a 12-month good behaviour order, supervision and treatment-related conditions.
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2,261 words · generated 02/10/2026
In Keen v Tither [2010] ACTSC 130, Penfold J heard an appeal from a sentence imposed in the ACT Magistrates Court. Brendon Keen had been convicted of common assault, constituted by spitting on a policewoman who was receiving him into the watch house after his arrest for breach of the peace. On 21 August 2009, he was sentenced to three months’ imprisonment to be served by periodic detention. Before appealing, he served seven weeks of that sentence. He lodged his appeal on 6 November 2009 (para 1).
8 cited instruments linked from this judgment.
Keen’s amended grounds of appeal raised the severity of the sentence and the claim that he had not been given a proper opportunity to make sentencing submissions. He also sought to rely on evidence about his psychiatric history. The prosecutor agreed that the psychiatric evidence could be admitted under s 214(4) of the Magistrates Court Act 1930 (ACT) (paras 2–4).
The appeal did not succeed on every asserted error. Penfold J was not satisfied that the Magistrate had denied Keen an opportunity to tender psychiatric reports or make submissions. The transcript showed that the Magistrate invited him to say what should be done about the offence, and Keen did not mention or attempt to raise his psychiatric history at that point (paras 8–11). Nor did the Court find that the Magistrate had committed a De Simoni error by referring to the victim’s status as a police officer. The Court noted that the spit landed on her outer clothing and that it was unclear whether the more serious charge originally laid could properly have been established (para 22).
The decisive error concerned periodic detention. The Magistrate had relied on material produced after a brief suitability assessment, but the appeal record did not establish that the material was a statutory pre-sentence report or that the required procedures had been followed. Among other matters, the report was not available in the Appeal Book, the transcript did not identify its author as an assessor, and it did not show an opportunity for Keen to cross-examine the report author. The transcript also did not establish that Keen had given the undertaking required for periodic detention (paras 14–19).
Penfold J held that the Magistrate had erred by imposing periodic detention without a proper pre-sentence report (para 25). The appeal court then obtained its own pre-sentence report and a forensic mental health assessment (para 46). Those materials recorded a history of severe mental illness, including symptoms described by the psychiatrist as delusions, hallucinations, disordered thought and severe disturbance of mood. The pre-sentence report assessed Keen as unsuitable for periodic detention because of his mental health problems (paras 52–53).
The Supreme Court upheld the appeal, set aside the sentence and re-sentenced Keen. The substituted sentence was a 12-month good behaviour order with $100 security, supervision by ACT Corrective Services, and a condition requiring counselling, courses, programs or treatment as directed by his supervising officer (paras 56–57; order).
The judgment addresses two connected questions: what follows from a specific error in sentencing, and how the court should re-sentence once it has found such an error.
The prosecutor argued that re-sentencing was available only if the original sentence was manifestly excessive and the identified error had caused the sentencing discretion to miscarry (para 27). Penfold J rejected the first part of that argument. She explained that manifest excess and specific error are separate bases for appellate review. A sentence may be open to appellate intervention because the sentencing process contains a specific error even though the appellant has not separately established that the sentence was manifestly excessive (paras 36, 43–45).
The Court’s approach was not that any error automatically entitles an appellant to a new sentence. Rather, once a specific error is established, the appeal court must exercise the sentencing discretion afresh and decide whether a different sentence is appropriate. If it concludes that the original sentence remains appropriate, or that re-sentencing would amount to “tinkering”, the appeal should be dismissed despite the error (paras 29–30). The Court therefore rejected both extremes: manifest excess is not a necessary extra hurdle, but a finding of error does not itself dictate the substituted outcome.
The Magistrate’s failure to obtain a qualifying pre-sentence report was a specific error because it concerned statutory steps required before periodic detention could be imposed. Penfold J identified gaps in the record relating to the report’s status and form, the ability to examine its author, and the undertaking to comply with periodic-detention obligations (paras 18–19). The judgment does not say that every defect listed would invariably have the same consequence in every case. Its conclusion was tied to the material available in this appeal: there was no basis to be satisfied that the document was a statutory pre-sentence report (para 19).
On re-sentencing, the Court considered the original material together with the psychiatric evidence admitted on appeal and the reports obtained for the appeal hearing. It noted that Keen was being sentenced for common assault, that he had severe and continuing mental illness, and that his record was relatively short apart from offences committed during a period when he appeared to have been acutely psychiatrically disturbed (para 53). The Court concluded that a different sentence was appropriate. It expressly stated that this did not mean spitting on a police officer could be acceptable; rather, the illness reduced Keen’s moral culpability for the offence (para 54).
This judgment is a 2010 ACT Supreme Court decision. It does not purport to set out a statutory amendment or a change to the legislation. Instead, it explains how Penfold J understood the existing principles governing appeals against sentence and their relationship to a statutory error in the sentencing process.
Before the decision, the prosecutor relied on Carpenter v Purcell and Ledson v Taylor to argue that a sentence could be replaced only if it was manifestly excessive, even where specific error had been identified (paras 28, 31, 34). Penfold J explained that Carpenter did not establish that rule. In Carpenter, manifest excess had been considered because it was a separate ground of appeal, and re-sentencing was declined because the original sentence remained appropriate, not because it was not manifestly excessive (paras 31–33). Penfold J respectfully disagreed with the passage in Ledson to the extent it suggested that manifest excess was required even after specific error had been shown (para 35).
The Court’s summary at para 44 is the clearest account of its approach. First, sentencing discretion is not interfered with unless error is demonstrated. Second, error may be specific, or it may be inferred from a manifestly excessive sentence. Third, after finding error, the appeal court may re-exercise the discretion but must decide whether a different sentence should be passed. The judgment adds that another sentence may be appropriate even if the original sentence was neither manifestly excessive nor outside the appropriate range (para 44(f)).
The decision also applied ACT statutory requirements concerning pre-sentence reports and periodic detention. It identified provisions including ss 41, 45(2), 46, 77(1)(d) and 78(1) of the Crimes (Sentencing) Act 2005 (ACT) as relevant to the procedure in this case (paras 12, 18–19). The judgment’s conclusion is specific: the record did not establish that the required report and related steps had been completed. The available text does not establish any subsequent legislative change, nor does it establish the current state of those statutory provisions.
At para 25, Penfold J states: “I find therefore that his Honour, the sentencing Magistrate, fell into error by imposing periodic detention without obtaining a pre-sentence report as required by the Crimes (Sentencing) Act.” In plain English, the sentence was affected by a failure to complete the statutory report process that the Court considered necessary before imposing periodic detention.
At para 30, the Court explains that if re-sentencing would produce the same sentence, or a sentence so similar that the exercise would be merely “tinkering”, the appeal must be dismissed despite the error. This clarifies that a procedural or other specific error is not an automatic ticket to a different result. The appeal court must decide what sentence is appropriate for itself.
At para 36, the Court quotes Hayne J in AB v The Queen to distinguish specific error from manifest excess. Penfold J uses that distinction to reject the argument that an appellant who establishes a particular error must also prove that the sentence was manifestly excessive. The legal question after specific error is whether a different sentence should be imposed on the appeal court’s independent exercise of discretion.
At para 44(f), the Court states that another sentence may be appropriate even if it is “neither outside the appropriate range nor manifestly excessive.” Put simply, the choice is not limited to keeping the original sentence unless it falls beyond a recognised sentencing range. The appeal court may substitute another sentence where specific error has been established and its own assessment supports doing so.
At paras 53–54, Penfold J links the psychiatric evidence to the sentence. The Court relied on the appellant’s illness, the nature of the charge and the pattern of his criminal record in concluding that a different sentence was appropriate. It also made clear that reduced moral culpability did not make the conduct acceptable. That distinction matters: the Court treated mental illness as relevant to culpability and sentence, without excusing the assault.
The judgment is most directly relevant where an ACT sentencing appeal identifies a specific error in the process used to impose a sentence and the appeal court must decide whether to re-sentence. Its analysis is especially pertinent to cases involving periodic detention where the record may not show that a statutory pre-sentence report was obtained or that the related procedural requirements were followed (paras 18–25).
The decision is also relevant to arguments framed as “the sentence was manifestly excessive”. It cautions against merging that ground with a claim of specific error. Under the approach stated at paras 29–45, each basis for appellate review has a distinct role. A specific error does not require a separate finding of manifest excess, but the appeal court must still decide whether a different sentence is appropriate.
The sentencing application in Keen’s case turned on a combination of matters: a common assault conviction, a flawed periodic-detention process, psychiatric evidence admitted on appeal, and a record that the Court characterised as relatively short apart from offences associated with a period of acute psychiatric disturbance (para 53). The judgment does not establish that psychiatric illness will always lead to a non-custodial sentence. It says that the particular evidence, offence and record before Penfold J made a different sentence appropriate in this case.
The decision also illustrates the limits of other grounds. A complaint that the offender was denied an opportunity to present evidence was not made out on the transcript before the Court (paras 8–11). A De Simoni complaint was also rejected on the facts, including because it was not clear that the more serious offence could properly have been charged (para 22). The precedent therefore supports careful separation of alleged errors rather than treating all sentencing complaints as established once one ground succeeds.
The supplied judgment contains no decisions after 15 October 2010 and gives no account of how later courts treated Keen v Tither. It would therefore be unsupported to state that later courts followed, applied, distinguished or overruled it.
Within the judgment itself, Penfold J discusses earlier authorities concerning appellate sentencing review. She explains Carpenter v Purcell, respectfully disagrees with the relevant proposition in Ledson v Taylor, and relies on the reasoning in Baxter v The Queen and AB v The Queen to explain the difference between specific error and manifest excess (paras 28–45). Those are the authorities considered by this Court, not evidence of how subsequent courts treated Keen.
For a later-treatment assessment, the judgment alone is insufficient. The available source establishes the 2010 Court’s reasoning and disposition, but not the subsequent citation history or current precedential status.
Several matters remain outside what the judgment decides. First, it does not determine how every failure to comply with a pre-sentence-report requirement should affect a sentence. The Court’s conclusion rests on the particular deficiencies in the transcript and appeal record, including the absence of a report available for examination and the lack of evidence of compliance with related procedural steps (paras 18–19).
Second, the judgment does not state that every specific sentencing error will lead to a different sentence. It expressly requires an independent assessment of whether another sentence is appropriate and recognises that an appeal may be dismissed where the original sentence remains appropriate (paras 29–30, 44).
Third, the judgment does not establish a general sentencing rule for people with mental illness. It describes the psychiatric evidence and Keen’s circumstances, then explains why those matters affected moral culpability and the sentence in this case (paras 52–54). The source does not specify how different diagnoses, symptoms, treatment histories or relationships between illness and offending would be assessed.
Finally, because the supplied material does not include later judgments or current legislative text, it cannot answer whether subsequent courts have adopted Penfold J’s analysis or whether the statutory provisions discussed have since changed. Those questions require sources beyond this judgment.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have it checked by a qualified Australian lawyer.
BRENDON RICHARD KEEN v DARREN TITHER [2010]
ACTSC 130 (15 October 2010)
Criminal Appeal Act 1912 (NSW), s 6(3)
AB v The Queen [1999] HCA 46; [1999] 198 CLR 111
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
Carpenter v Purcell [2008] ACTSC 34
Craft v Diebert [2004] ACTCA 15
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ledson v Taylor [2010] ACTSC 42
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
R v Bell [2003] NSWCCA 305
R v Scerri (Unreported, Supreme Court of the ACT, Higgins CJ, 11 December 2009)
The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383
R v Henry [2001] NSWCCA 521
R v Johnson [2005] NSWCCA 186
R v Simpson [2001] NSWCCA 534; (2001) 126 A Crim R 525
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(a) the appellant accept the supervision of ACT Corrective Services and obey all reasonable directions of the Chief Executive, or her delegate; and
(b) the appellant undertake such counselling, courses, programs or treatment as directed by his supervising officer.
1. On 21 August 2009, Brendon Richard Keen was sentenced in the Magistrates Court to 3 months imprisonment to be served by way of periodic detention. The sentence was imposed in respect of an offence of common assault constituted by spitting on a policewoman who was receiving Mr Keen into the watch house, after he had been arrested for a breach of the peace. Mr Keen served 7 weeks of the 3-month sentence as periodic detention, but then by leave lodged an appeal against his sentence on 6 November 2009.
2. At the hearing of the appeal on 27 May 2010, an amended notice of appeal was filed in Court without objection. That notice indicated that the appellant would seek to put further evidence before the Court, and identified the grounds of appeal as:
(a) first, that the sentence was too severe, having regard to the objective seriousness of the offence, the surrounding circumstances, the appellant's antecedents and the appellant's subjective features; and
(b) second, that the learned Magistrate failed to give the appellant any or proper opportunity to make submissions as to penalty.
3. The respondent prosecutor conceded that further evidence which related to Mr Keen's psychiatric history in the months leading up to the commission of the offence could properly be admitted under s 214(4) of the Magistrates Court Act 1930 (ACT), and I admit it accordingly.
4. The prosecutor further conceded that the sentencing process had been infected by error constituted by the Magistrate's failure to provide procedural fairness in his dealing with Mr Keen, and, initially, that it was therefore open to me to consider re-sentencing Mr Keen.
5. The prosecutor's concession of a failure to provide procedural fairness seems to relate to the fact that documents about Mr Keen's mental health history were not put to the sentencing Magistrate; I am not convinced that this was in fact an error, so I shall mention briefly all procedural and other kinds of errors pointed to by Mr Keen and indicate my views about them.
6. Mr Keen represented himself in the Magistrates Court. On appeal, he was represented by counsel who contended that the Magistrate denied him the opportunity to put in evidence on the sentencing the various psychiatric reports that have now been admitted. Counsel conceded that Mr Keen made no specific attempts to tender the reports, but pointed to several parts of the transcript which suggest that his Honour was fairly short with Mr Keen.
7. It is true that his Honour refused an adjournment sought by Mr Keen's counsel, who thereupon sought to withdraw. Mr Keen then represented himself and did not seek an adjournment.
8. It is also true that his Honour was fairly short with Mr Keen during the hearing, but the transcript indicates that he gave Mr Keen an opportunity to speak at each appropriate point, including making a particular effort to ensure that Mr Keen was aware, at the end of the prosecution case, that if he did not call any evidence it was almost inevitable that he would be found guilty. He explained to Mr Keen why his conviction put him in breach of an earlier recognizance, and then invited Mr Keen to make submissions on sentencing by saying "What do you want to tell me as to what I should do to you in relation to this offence?"
9. To this invitation Mr Keen said "No suggestions, your Honour ... that's your choice and your suggestions."
10. Only when his Honour suggested that his choice would be to put Mr Keen in gaol for two years did Mr Keen indicate a preference for community service; he then mentioned his attempts to keep himself out of trouble by going to school and looking for work. There followed an extended exchange about whether Mr Keen had an alcohol problem, which his Honour suggested but Mr Keen denied, but at no stage did Mr Keen mention, or try to mention, his psychiatric problem.
11. I cannot see any basis for finding that Mr Keen was denied the opportunity to tender his psychiatric reports or even that he had any wish to do so at that stage.
Failure to comply with the Crimes (Sentencing) Act before imposing periodic detention
12. Counsel for Mr Keen next said that his Honour imposed periodic detention without complying with the requirements of the Crimes (Sentencing) Act 2005 (ACT). Specifically, periodic detention was imposed without the Magistrate having obtained a pre-sentence report as required by s 78(1) of the Crimes (Sentencing) Act.
13. The process by which his Honour satisfied himself of Mr Keen's suitability for periodic detention was unlike anything known to this Court as obtaining a pre-sentence report.
14. Having found the offence proved, his Honour directed that Mr Keen be taken before a Mr O'Brien to be assessed for suitability for periodic detention or community service. His Honour noted that this would take approximately 20 minutes and adjourned the court for that time.
15. As far as I can make out from the transcript, when the hearing resumed 20 minutes later, Mr O'Brien had provided to his Honour a document which referred to Mr Keen's suitability for community service work but apparently failed to mention periodic detention. The learned Magistrate called for Mr O'Brien to be brought into court.
16. While waiting for Mr O'Brien, his Honour recorded a conviction and invited Mr Keen to tell him "What he should do to him in relation to this offence". As already mentioned, Mr Keen indicated a preference for community service, and explained to his Honour that he had been trying to keep himself out of trouble, which as also mentioned developed into a extended exchange between his Honour and Mr Keen about the inexcusable nature of Mr Keen's conduct, his drinking problem and the fact that his whole record throughout 2008 was disgraceful.
17. At that point, Mr O'Brien returned and was asked to see Mr Keen again to assess him for periodic detention. When Mr O'Brien came back into court he apparently gave another document to his Honour, who immediately referred to the requirement under the Crimes (Sentencing) Act that before a person is sentenced to periodic detention the court must obtain a report as to his suitability for such a penalty, then proceeded to impose the sentence of 3 months imprisonment to be served as periodic detention. I interpret his Honour's reference to the Crimes (Sentencing) Act requirement as an attempt to establish that the material that his Honour had received from Mr O'Brien amounted to the advice he was required to have obtained before he could impose a sentence for periodic detention.
18. However, in many respects the procedure his Honour had adopted did not comply with the Crimes (Sentencing) Act requirements relating to pre-sentence reports.
(a) The document provided by Mr O'Brien was not exhibited and does not appear in the Appeal Book.
(b) There is nothing in the transcript identifying Mr O'Brien as an assessor for the purposes of s 41 of the Crimes (Sentencing) Act.
(c) The transcript does not record anything that can be identified as an order for the preparation of a pre-sentence report as described in s 41.
(d) Mr O'Brien's report was not given orally, at least according to the transcript, and s 45(2) does not seem to have been complied with in relation to any written report.
(e) Mr Keen was not invited to cross-examine Mr O'Brien on the pre-sentence report as required by s 46.
(f) Nor does it seem that Mr Keen had in the course of his dealings with Mr O'Brien signed an undertaking to comply with his periodic detention obligations as required by s 77(1)(d) of the Crimes (Sentencing) Act.
19. Accordingly, there is no basis on which I could be satisfied that the document was a pre-sentence report as defined in s 41. His Honour appears to have fallen into error in sentencing Mr Keen to periodic detention in the absence of a commitment on Mr Keen's part to undertake periodic detention and in reliance on advice that does not appear to have amounted to a pre-sentence report and that was not, and is not, available to be examined on behalf of Mr Keen.
20. The failure to obtain a proper pre-sentence report was particularly unfortunate since it seems that on a proper application of the Crimes (Sentencing) Act ss 77 and 78 criteria, Mr Keen might well have been found unsuitable for periodic detention because of his psychiatric or psychological disorder or possibly his alcohol abuse.
21. Next, counsel for Mr Keen said that the sentencing Magistrate appeared to have fallen into error in his characterisation of the offence. Mr Keen had originally been charged with causing harm to a Commonwealth public official contrary to s 147.1(1) of the Criminal Code 1995 (Cth), an offence carrying a substantial penalty of up to 13 years imprisonment. Some months later the charge was amended to one of common assault with the much lower penalty of up to 2 years imprisonment. At least twice in his sentencing remarks his Honour referred to the fact that Mr Keen's offence involved spitting on a sergeant, at one point saying that "spitting on a sergeant is inexcusable", although he did continue "there can never be any excuse for spitting on anyone".
22. Counsel for Mr Keen initially submitted that his Honour might have fallen into the De Simoni error of treating as a circumstance of aggravation a fact that could have founded a more serious charge (The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383). However, it is not clear that Mr Keen could properly have been charged with the more serious offence of causing harm to a Commonwealth public official, since there was no apparent harm. Mr Keen's spit had landed on the victim's outer clothing and had not come into contact with her skin. Nor, if it is relevant, had there been any threat or claim by Mr Keen that his spit was particularly dangerous. Thus, treating as an aggravating feature the fact that Mr Keen's victim was an official doing her job did not involve a De Simoni error on his Honour's part.
23. Finally, counsel for Mr Keen said that if his Honour had received the material relating to Mr Keen's psychiatric history which I have admitted on the appeal, he would have seen that since about 2006, Mr Keen had been suffering acute psychiatric illness. That illness had resulted in the making of an involuntary psychiatric order in July 2008, which had expired less than six weeks before the offence for which his Honour was sentencing Mr Keen. In that context, his Honour might have taken a different view of Mr Keen's criminal record for 2008 which had involved numerous unlicensed driving offences and one serious drink-driving offence and which his Honour described, not unreasonably in the abstract, as disgraceful.
24. However, it is not clear that the Magistrate fell into error by failing to take account of material that was not before him. The evidence of psychiatric illness now before me may be relevant to the resolution of this appeal, but not as indicating an error by the sentencing Magistrate.
25. I find therefore that his Honour, the sentencing Magistrate, fell into error by imposing periodic detention without obtaining a pre-sentence report as required by the Crimes (Sentencing) Act.
26. My view is that this finding of error permits me to re-sentence Mr Keen if I am satisfied that another sentence is appropriate.
27. In subsequent submissions, and despite her earlier concession about re-sentencing, the prosecutor, while conceding the admissibility of evidence of Mr Keen's psychiatric problems and that there was error in the sentencing process, sought the dismissal of the appeal and specifically opposed any re-sentencing. She submitted that, error in the original sentencing process having been found, re-sentencing was still only available:
(a) if the original sentence was manifestly excessive; and
(b) if the error identified has caused the exercise of the sentencing discretion to have been vitiated or to have miscarried.
28. In making these submissions, the prosecutor relied on my approach in the case of Carpenter v Purcell [2008] ACTSC 34 and Refshauge J's comments in the case of Ledson v Taylor [2010] ACTSC 42. These arguments seem to reflect misunderstandings about the proper approach to an appeal against sentence, and for that reason need to be addressed in some detail.
29. In Carpenter v Purcell at [11], I set out the principles 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 (eg subs 6(3) of the Criminal Appeal Act 1912 of NSW, considered in Baxter v R [2007] NSWCCA 237). 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).
30. It is true that the application of these principles requires a degree of intellectual flexibility. This is because an appeal court that has found error cannot finally decide on the outcome of the appeal without deciding what would be the appropriate outcome of the re-sentencing that would be required if the appeal were upheld; if the appropriate sentence on a re-sentence would be the same as the original sentence, or so similar that re-sentencing would amount to tinkering, then the appeal must be dismissed despite error having been found.
31. In relying on my approach in Carpenter v Purcell to support her proposition that even if error has been found, re-sentencing is only available if the original sentence is manifestly excessive, the prosecutor appears to have misunderstood the decision in that case.
32. In Carpenter v Purcell there were three grounds of appeal, two claiming specific error plus the claim that the sentence was manifestly excessive. In considering those appeal grounds, I found specific error as claimed in one of the appeal grounds. I went on to consider the separate appeal ground that the sentence was manifestly excessive, but rejected it, finding that, having regard to the arguments made in favour of that appeal ground, the sentence was not manifestly excessive, but also was entirely appropriate.
33. The consideration of manifest excess was undertaken in that case because it was a specific and separate appeal ground, not because that inquiry was required before re-sentencing was available. In that case I considered that re-sentencing was not available despite the finding of error because the sentence imposed, rather than another sentence, was appropriate, not because the sentence was not manifestly excessive.
34. The prosecutor also relied on Refshauge J's statement in Ledson v Taylor at [46] of the processes for considering a sentencing appeal from the Magistrates Court. Principal 6 of his Honour's statement is that:
Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.
35. To the extent that this statement suggests that re-sentencing on appeal is only available where the court finds the original sentence to be manifestly excessive, unreasonable or manifestly inadequate, even where specific error has been shown, I must respectfully disagree with it.
36. A claim that a sentence is manifestly excessive is a ground of appeal quite distinct from a claim of specific error. In the High Court case of AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 159, Hayne J explained that the two grounds should not be confused. He said:
The appellant's basic contention [was] that the sentence was manifestly excessive because no discount was given for the waiver of his right not to be punished or prosecuted for non-extradition offences.
[T]he argument melds two radically different circumstances for appellate review of sentencing: specific error and manifest excess. Saying that a sentence is manifestly excessive is not the same as saying that a sentencing judge made a specific error in arriving at the sentence that is under consideration. To equate manifest excess and specific error is to invite appellate error and to obscure the true nature of appellate review of sentences. Unless the legislature has prescribed a fixed penalty, a judge sentencing an offender makes a discretionary judgement. Necessarily, then, judges may differ about the proper sentence to be imposed on the offender; there will be a range of possible sentences that could be imposed without error.
37. The prosecutor's second proposition (at [27(b)] above) seemed to emerge from a misreading of the judgment of French J in Craft v Diebert [2004] ACTCA 15 at [60]. What French J actually said was this:
The parties were in substantial agreement about the basis upon which the Supreme Court should interfere with the sentencing discretion of a magistrate. The exercise of the sentencing discretion must be shown to have been vitiated or to have miscarried. This may result from an error of law, which could be substantive or procedural, or from an error of fact.
38. French J then went on to quote a passage from the judgment of Kirby J in Dinsdale v The Queen [2000] HCA 54; (2002) 202 CLR 321 at 339 which noted that, "The necessity to show error ... is fully accepted by courts deciding appeals against sentence" and went on to explain why that was the appropriate approach to sentencing decisions.
39. That is, French J was simply restating the well-understood and unarguable proposition that generally an appeal against a sentence can only be upheld if error can be shown.
40. The prosecutor also referred to comments made by the New South Wales Court of Criminal Appeal in R v Henry [2001] NSWCCA 521 (Henry) where, having noted apparently undue leniency on the part of the trial judge in giving a plea of guilty discount, and having considered a possible error by the trial judge in picking an unduly severe starting point for his sentencing calculations (but without reaching a conclusion about whether there was error), the Court of Criminal Appeal at [18] referred to s 6(3) of the Criminal Appeal Act 1912 (NSW) and said:
it is not merely enough to show error, particularly error counter-balancing error, in what the trial judge did. It is necessary there be shown such error in the result as shows that the sentence exceeds the permissible lawful range of sentence to be imposed by the trial judge in the exercise of a lawful discretion.
41. If the court meant that only a sentence that was "out of range" could be replaced on appeal, then with respect, I prefer the reasoning of the New South Wales Court of Criminal Appeal, and Spiegelman CJ in particular, in the later case of Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284 (Baxter). In that case the argument being considered by the court was that additional evidence including evidence of post-sentence conduct is not admissible for the purpose of formulating the opinion required by subsection 6(3).
The construction for which the Crown contends in this respect does receive support from the approach to s 6(3) in the judgment of this court in R v Johnson [2005] NSWCCA 186. Hunt AJA concluded at [33]-[34] that the words in s 6(3) 'is warranted in law' require the Court to determine whether the sentence that had actually been imposed is 'outside the appropriate range for the circumstances of the particular case'.
It has been suggested that the substantive effect of this reasoning would be, if correct, that this Court would, even if it found error in some other respect, only intervene if it was also of the view that the sentence was manifestly excessive. It does not appear to me that his Honour intended such a consequence. His Honour expressly stated at [29]:
The applicant argued that, according to the Simpson case, this Court would not intervene unless it formed the view that the sentence imposed was 'manifestly excessive'. That is not the correct approach.
In contrast [33]-[34] of Johnson appear to be inconsistent with the practice of courts of criminal appeal when re-exercising the sentencing discretion pursuant to the provisions such as s 6(3). Specifically, they appear to be inconsistent with the reasoning of the High Court in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321; 115 A Crim R 558 and of this Court in Simpson.
In the High Court was concerned with the terminology of the equivalent provision in Western Australia to The judgments indicated that a court of criminal appeal is concerned with the full range of error of the character which, in Australian jurisprudence, is generally associated with the judgment in ; at 505. (See at [3] per Gleeson CJ and Hayne J, at [21] per Gaudron and Gummow JJ and at [58] per Kirby J). It is clear from the reasoning that an error identified in terms of a sentence being 'manifestly excessive' is only one kind of error that satisfies the provisions of (See at [6], [22] and [59]-[60].) affirmed that a Court of Criminal Appeal must re-exercise the sentencing discretion.
43. Finally, given that both the case of Henry and the case of Baxter focused on the New South Wales statutory provision which is not part of the ACT's statutory framework, it is useful to quote a further passage from AB v The Queen at 160 in which Hayne J, continuing his explanation of the difference between specific error and manifest excess, said:
In the [case of specific error], once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. By contrast, in the case of manifest excess, the error in reasoning of the sentencing judge is not discernable; all that can be seen is that the sentence imposed is too heavy and thus lies outside the permissible range of dispositions. Only then may the appellate court intervene and, in the exercise of its discretion, consider what sentence is to be imposed.
44. In summary, the authorities I have referred to seem to support the following propositions:
(a) The exercise of the sentencing discretion will only be interfered with if error is demonstrated.
(b) There may be specific error or there may be error that cannot be identified but can be inferred from the fact that the sentence is manifestly excessive.
(c) If error is found, the appeal court may exercise the sentencing discretion afresh and re-sentence the appellant, unless the appeal court in the exercise of its discretion concludes that no different sentence should be passed. That conclusion is clearly open where specific error is found.
(d) Where an appeal court has found error inferred from a manifestly excessive sentence, the finding of manifest excess necessarily implies that a different sentence should be passed and the court will accordingly re-sentence the appellant.
(e) Three descriptions of cases in which a sentence may be replaced by an appeal court are found in the authorities, being:
(2) where the sentence is outside the appropriate range; and
(3) where some other sentence is appropriate or, in New South Wales, "warranted in law".
(f) That is, another sentence may be appropriate or warranted in law even if it is neither outside the appropriate range nor manifestly excessive.
45. It may be true that re-sentencing will generally only be appropriate if the error appears to have had an effect on the original sentence; but this does not reflect the causal relationship between correcting the error and re-sentencing, it reflects the requirement that another sentence is appropriate - a conclusion which may be less likely the less significant the error, but which is not directly constrained by the nature or effect of the error.
46. Accordingly, having found an error in the sentencing process in the Magistrates Court, I am able to consider, by reference to both the material before the sentencing Magistrate and the new material that I have admitted in evidence, whether another sentence would be appropriate. For that purpose, I ordered a proper pre-sentence report, and later a forensic mental health assessment of the appellant.
47. The prosecutor for the respondent submitted that the sentence of 3 months imprisonment for a spitting charge, "given that the maximum penalty available is a sentence of 2 years imprisonment ... is by no means towards the high end of that scale". She referred me to a New South Wales case, R v Bell [2003] NSWCCA 305, in which the Court of Criminal Appeal confirmed a sentence of 2 years imprisonment with a non-parole period of 18 months for an assault on a police officer acting in the execution of his duty, the maximum penalty for which included imprisonment for 5 years. That assault was constituted by saying to a police officer, "I have hepatitis and I'm going to spit in your face so that you get it too and have a life of misery."
48. The prosecutor also mentioned the ACT case of R v Scerri (Unreported, Supreme Court of the ACT, Higgins CJ, 11 December 2009) which involved an offender spitting on a police officer. In that case, Higgins CJ said that he was "not inclined to impose a jail term which might otherwise be appropriate" because the offender had no significant prior record, and instead convicted the offender and imposed a 12-month good behaviour order.
49. I accept the proposition that in certain circumstances spitting, especially on a police officer, might well justify a prison sentence. That does not mean that I accept that such a sentence is appropriate in this particular case, which differs quite considerably at least from the New South Wales case referred to.
50. The prosecutor conceded however that, Mr Keen having served more than half his sentence as periodic detention, it would be appropriate in all the circumstances to suspend the rest of the sentence.
51. Counsel for the appellant submitted that, given the trivial nature of the offence and Mr Keen's subjective circumstances, the offence deserved no more than one or both of a good behaviour order and a small fine.
52. It is unnecessary for present purposes to go through the details of Mr Keen's background as set out in the pre-sentence report. That report indicated, however, that Mr Keen's main problems appear to be related to his mental health rather than to any particular criminal tendencies. The pre-sentence report author assessed Mr Keen as not suitable for periodic detention due to his mental health problems, and recommended that a forensic mental health report be obtained.
53. The forensic mental health report noted that Mr Keen has received attention from mental health professionals for the last 10 years or so, for symptoms that have included manic periods, paranoid psychotic beliefs and aggression in relation to psychosis. He has been subject to psychiatric treatment orders involving depot antipsychotic medication, which has apparently provided temporary relief from his symptoms. However, Mr Keen is said to have no insight into his mental illness and is reluctant to take medication. The psychiatrist concluded that Mr Keen has a severe mental illness although not severe mental dysfunction and that his severe mental illness is demonstrated by the presence of delusions, hallucinations, disorder of thought form and severe disturbance of mood. The psychiatrist described this as Schizoaffective Disorder, and recommended that Mr Keen should be placed on a psychiatric treatment order and stabilised on depot antipsychotic medication, and I note the advice from his counsel that Mr Keen is currently subject to a psychiatric treatment order. I am satisfied, having regard to:
(a) the fact that Mr Keen is being sentenced on a charge of common assault;
(b) the evidence of his psychiatric history and ongoing psychiatric illness that has now been admitted in the appeal hearing; and
(c) the fact that his criminal record consists of relatively minor offences and, apart from the offences committed between 2006 and 2008 when it seems he was suffering acute psychiatric disturbances, is relatively short;
that a different sentence would be appropriate in this case.
54. In reaching that conclusion, I note two things. First, my view that re-sentencing is appropriate does not in any sense reflect a view that spitting on a police officer doing her duty could ever be acceptable, but it does reflect a view that mental illness of the kind suffered by Mr Keen must reduce his moral culpability for even such an unpleasant offence.
55. Secondly, I note that Mr Keen has served 7 weeks of his sentence of imprisonment by way of periodic detention, and I note that without indicating that I regard it as an appropriate sentence to have been imposed or served.
56. Accordingly, I uphold Mr Keen's appeal and set aside the sentence imposed in the Magistrates Court. I shall now re-sentence Mr Keen by making a good behaviour order, and the good behaviour order will have just the general conditions. I am not going to try to craft one that specifically relates to the particular source of the help that Mr Keen has identified.
57. Mr Keen, please stand. I note the conviction that was recorded in the Magistrates Court for the offence of common assault and I now order you to sign an undertaking to comply with your good behaviour obligations under the Crimes (Sentence Administration) Act 2005 for 12 months with security in the amount of $100. The good behaviour order is subject to the conditions that:
(a) you accept the supervision of ACT Corrective Services and obey all reasonable directions of the Chief Executive, or her delegate; and
(b) that you undertake such counselling, courses, programs or treatment as directed by your supervising officer.
58. You will be given a written copy of the good behaviour order and it will be explained to you in detail by the court officials. In short, it means that for 12 months you need to keep out of trouble, keep in close contact with Corrective Services and in particular accept any assistance and especially any mental health assistance that's recommended to you. If you commit another offence during this 12 months, you may find yourself back before this court to be sentenced yet again for this offence, as well as losing your $100 and being dealt with for the new offence.
59. Mr Keen, I understand that at least in the past you have not been convinced that you have had a mental health problem and, while you have clearly got a right to that opinion, it does seem that you need somehow to make some changes in your life if you are not going to spend your future in and out of the courts and possibly even in and out of the prison system. For that reason, I strongly urge you, in your own best interests, to take full advantage of whatever help is being offered to you now through the mental health authorities and through Corrections during that supervision period and otherwise, because otherwise I would certainly be a bit pessimistic about your future. You may sit down.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Solicitor for the applicant: Aboriginal Legal Service (ACT)
Solicitor for the respondent: Director of Public Prosecutions (ACT)
Date of hearing: 27 May, 20 August, 15 October 2010
Keen
Tither [2010] ACTSC 130
(2000) 202 CLR 321
(1936) 55 CLR 499
(1999) 195 CLR 665
(2006) 228 CLR 357
(1981) 147 CLR 383
(1999) 198 CLR 111
(2002) 202 CLR 321
Appeal upheld; Magistrates Court sentence set aside; appellant re-sentenced to a 12-month good behaviour order with security of $100, supervision by ACT Corrective Services, and compliance with counselling, courses, programs or treatment as directed by the supervising officer.
(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, by definition a different sentence is appropriate, and error may be inferred, given the finding that the sentence is excessive, unreasonable or unjust (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340).
...
The statement in Johnson that s 6(3) requires the Court to determine whether the sentence is 'outside the appropriate range' should not be regarded as a pre-condition to the formation of the opinion for which s 6(3) provides.
...
The import of [79] of Simpson was to ensure that submissions in the Court of Criminal Appeal did not proceed as if the identification of error created an entitlement on the part of an Applicant to a new sentence, for example, by merely adjusting the sentence actually passed to allow for the error identified. That would be to proceed on the assumption that the sentencing judge was presumptively correct, when the Court has determined that the exercise of the discretion had miscarried. Section 6(3) is directed to ensuring that the Court of Criminal Appeal does not proceed in that manner, but re-exercises the sentencing discretion taking into account all relevant statutory requirements and sentencing principles with a view to formulating the positive opinion for which the subsection provides.