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[2016] ACTSC 291
Supreme Court of the ACT
2016-10-12
Refshauge ACJ
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - CRIMINAL LAW - Appeal from Magistrates Court -manifestly excessive sentence - guilty plea - dishonesty offences - totality of sentence - sentence category discrepancy - consideration
CRIMINAL LAW - Judgment and Punishment - Sentencing procedure and evidence - character references - use - contents
Crimes (Sentencing) Act 2005 (ACT), s 33
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10.2
Allred v The Queen [2015] ACTCA 21
Balthazar v The Queen [2012] ACTCA 26
Bollen (1998) 99 A Crim R 510
Carter v Nussbaum (No 2) [2013] FamCA 1014
Celeska v Langlands [2014] ACTSC 211
Cooper v Corvisy (No 2) [2010] ACTSC 166; (2010) 5 ACTLR 151
Dudzik v Western Australia [2012] WASCA 195
Hanks v The Queen [2011] VSCA 7
Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506
House v The King [1936] HCA 40; (1936) 55 CLR 499
Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346
Jovanovic v The Queen [2015] ACTCA 29
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Poole v Edwards (2016) ACTSC 159
Rees v The Queen [2012] ACTCA 6
R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306
R v Ashman [2010] ACTSC 45
R v De Simoni (1981) 147 CLR 383
R v Hutchinson [2014] ACTCA 29
R v McGrail [2016] ACTSC 142
Saleem v The Queen [2014] VSCA 190
Smorhun v Devine [2014] ACTSC 208
Topic v Department of Transport [2014] WASAT 129
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Zotos v The Queen [2014] VSCA 324
G Hampel, "Plea Making, Concepts, Preparation and Presentation of Pleas" (1978) 52 Law Institute Journal 99, 103
1. Sentencing for multiple offences can be a very complex exercise and, if care is not taken, it can appear that it has merely become a mathematical exercise which, of course, sentencing is not.
2. Nevertheless, while a broad brush approach might help manage the complexity of the sentencing, this does not mean that ordinary sentencing principles can be ignored, and there are very good reasons why a rational approach to sentencing is required and not merely an administrative approach that might gain the same outcome but without achieving the objectives of sentencing as outlined in decisions such as Pearce v The Queen (1998) 194 CLR 610 at 624; [48].
3. On 7 April 2016, Special Magistrate Doogan convicted William Thomas Law, the appellant, of 33 charges. It was, of course, a complicated sentencing exercise.
4. Twenty-two of the offences were of dishonestly obtaining property by deception, an offence prohibited by s 326 of the Criminal Code 2002 (ACT), which provides for a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
5. Four of the offences were for possession of property reasonably suspected of being stolen, an offence prohibited by s 324(1) of the Criminal Code, which provides a maximum penalty of 50 penalty units (that is, at the time, a fine of $75 000) and imprisonment for six months.
6. He was also charged with one offence of theft, contrary to s 308 of the Criminal Code, which attracts a maximum penalty of 1000 penalty units (that is, at the time, a fine of $150 000) and imprisonment for 10 years.
7. At the same time, he was convicted and sentenced for four traffic offences, one offence of supplying a false name to police and one offence of possessing a drug of dependence. These offences are not subject to the appeal.
8. The convictions for some of the offences constituted a breach of a Good Behaviour Order made on 17 December 2014, when Mr Law was convicted of driving whilst his licence was suspended by law. That Good Behaviour Order was not made when a sentence of imprisonment was imposed and suspended. The learned Sentencing Magistrate took no further action on the breach, commenting that her Honour was "mindful of the totality principle".
9. He was sentenced to a total term of imprisonment of 37 months, with a non parole period of 25 months to commence on 4 February 2016 and end on 3 March 2018. For the traffic offences and for the offence of stating a false name, he was fined a total of $1500 with three years to pay, and on the charge of possessing a drug of dependence, a Good Behaviour Order for two years, with a self surety in the sum of $500 be made.
10. Mr Law now appeals against the sentence for the dishonesty offences on the ground that the sentence was manifestly harsh and excessive.
11. This Court is granted jurisdiction to hear appeals from the Magistrates Court under Pt 3.10 of the Magistrates Court Act 1930 (ACT). In particular, Div 3.10.2 deals with, inter alia, appeals against sentence.
12. I have described in Cooper v Corvisy (No 2) [2010] ACTSC 166; (2010) 5 ACTLR 151, the principles applicable to appeals against sentences imposed in the Magistrates Court. They may be summarised as follows.
13. Sentences imposed in the Magistrates Court may be set aside if I am satisfied that the exercise or the sentencing discretion in the Magistrates Court was affected by error but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate. Sentences are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
14. Errors may be specific. 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. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence.
15. Even if I cannot identify a specific error, however, I may uphold the appeal and substitute another sentence for the original sentence if I find that the original sentence is manifestly excessive, unreasonable, plainly unjust or plainly wrong.
17. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
18. The Notice of Appeal was filed on 5 May 2016, from which date, the sentence was stayed. Mr Law, however, was not granted bail pending the appeal. Thus, he has been in custody pending the hearing of the appeal.
19. The ground of the appeal was that the sentence was manifestly harsh and excessive.
20. No application was made to adduce further evidence on the appeal.
21. Recently, the Court of Appeal, in Allred v The Queen [2015] ACTCA 21 at [29], set out the approach of a court to the one ground of the appeal, that the sentence was manifestly excessive as follows:
See also R v Thorn [2010] ACTCA 10 (at [33]).
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
61. This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.
22. It is also worth noting that the excess of the sentence must be manifestly excessive and not merely arguably excessive. See Hanks v The Queen [2011] VSCA 7 at [22].
23. The respondent cited what the Court of Appeal had said in Balthazar v The Queen [2012] ACTCA 26 at [61], that an argument of manifest excess will only succeed "if it can be shown that no reasonable sentencing judge could have imposed such a sentence". That was repeated in Jovanovic v The Queen [2015] ACTCA 29 at [41]. This followed what Maxwell P said in R v Abbott [2007] VSCA 32; (2007) 170 A Crim R 306 at 309; [14].
24. While Abbott has been followed on a number of occasions, the formulation of the test is rarely that cited above but the passage just above the one quoted above (at [23]) where, more conventionally, Maxwell P said at [13]:
The ground of manifest excess will only succeed where it can be shown that the sentence was 'wholly outside the range of sentencing options available' to the sentencing judge.
(footnote omitted)
25. The reference to "no reasonable sentencing judge" does not seem to me to be consistent with House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505, where the Court referred to the sentence or outcome being unreasonable and not the judicial officer. I see no reason why the formulation mandated by the High Court should not be preferred to that of Maxwell P in Abbott and which does not seem to have been applied by other intermediate courts of appeal nor adopted or approved by the High Court.
26. I would adopt with respect the criticism of the formulation in Abbott made by Penfold J in Celeska v Langlands [2014] ACTSC 211 at [10] and, like her Honour, follow the High Court rather than Abbott.
27. The offences were committed on four separate days. The first offence was committed on 14 November 2014. The vast majority of the offences were committed on 16 December 2014, and a number of further offences were committed on 23 December 2014. The final offence was committed on 23 April 2015.
28. The following table sets out offences, the particulars of the offences, the imprisonment imposed and the aggregation:
Bottle of Scotch Whisky, bottle of Cognac, valued at $95.00
Pair of girls' sandals, two dresses valued at $85.00
Packet of Longbeach fine silver flavour 40 pack cigarettes valued at $83.85
Bottle of Whiskey, Bottle of Bourbon valued at $84.00
25 pack of cigarettes, 50 pack of cigarettes, valued $82.85
Drivers licence, Commonwealth bank card, Medicare card, and other miscellaneous cards
29. Because of the number of offences, the evidence was a little complex and included four Statements of Facts prepared by police.
30. In my view, the evidence can be summarised in the following way without distorting or unfairly portraying it.
31. The theft was committed on 14 November 2014, when Mr Law broke into a car parked at the base of Kambah Pool Road, Kambah, and stole some electronic and computer equipment, an acoustic guitar in a case, some perfume, some cash, and assorted personal documents, with a total value estimated to be $3060.15. Mr Law was identified as the thief by the fingerprints he left in the car.
32. Mr Law was not spoken to by police until 2 February 2015 and was uncooperative with police. He was not arrested. Regrettably, there was no information about whether any of the property was recovered, though it seems unlikely that it was. That is always a relevant consideration. This constituted the offence of theft.
33. The series of offences committed on 16 December 2014 arose after someone smashed the front passenger side window of a car parked at Pine Island South, Greenway, and removed a black purse belonging to one of the owners. The purse contained the owner's Commonwealth Bank payWave debit card.
34. When becoming aware of the theft, the owner viewed her account and noted that 19 transactions had been made with the card totalling payments of $1459.48. These transactions had been made at various stores in the Tuggeranong Hyperdome.
35. Police viewed CCTV of the transactions at those stores and circulated still photographs from the footage which led to Mr Law being identified by a police officer.
36. Police then attended at Mr Law's home on 19 January 2015 and he was taken to City Police Station as he agreed to be interviewed by police. At the police station, however, he declined to respond to the allegation that he had used the stolen debit card to effect the 19 transactions.
37. The goods purchased in the transactions, as far as they could be identified, were bottles of alcohol, packets of cigarettes, electronic tablet computers, a Huffy "Green Machine" tri-wheel bike, a number of gift cards, a pair of girl's sandals and two "Frozen" dresses, a pair of men's running shoes, a number of pairs of shorts, a sweat shirt, a mini key ring, some DVDs, four Apple iTunes cards, and a number of unidentified retail items. He was also seen in the CCTV footage as being in possession of the stolen debit card. There was again, regrettably, no evidence that any of the items were recovered. The delay probably means no property was recovered, but given the nature of them, I cannot be certain. Mr Law was not arrested and was advised that he would be served with summonses in due course.
38. The total value of the property purchased with the stolen bankcard on 16 December was actually found to be $1639.48.
39. These facts constituted some of the offences charged, namely one charge of being in possession of stolen property, the card; and 19 charges of dishonestly obtaining property by deception.
40. On 21 December 2014, a driver licence, two St George Visa debit cards and a Medicare card were stolen from another vehicle parked in the large car park on Kambah Pool Road, Kambah, where the owner had left it while going for a swim. The front passenger window had been broken to gain entry and the owner's clutch bag, containing the card, had been taken.
41. On 23 December 2014, the front passenger window of another car also parked in the same car park was broken and a black wallet was stolen containing a driver licence, a Commonwealth Bank bankcard, four ANZ Bank bankcards, a student card, and various club membership cards.
42. Mr Law went to Tuggeranong Hyperdome at about 3:00 pm on 23 December 2014 and purchased some alcohol and cigarettes from a liquor store using the Commonwealth Bank bankcard. He was recognised by the retail assistant in the store who contacted the Hyperdome security and he was identified by two security officers as he was carrying three Kmart shopping bags. They contacted police who spoke to Mr Law in the car park. He identified himself as William Law but could not provide identification. Mr Law refused to permit police to search the vehicle into which he had placed the shopping bags. He was taken to Tuggeranong Police Station and the motor vehicle was taken to AFP Exhibit Management Centre, Mitchell. Police seized some clothing from Mr Law.
43. When a search warrant was obtained, police searched the motor vehicle and found the stolen driver licences and credit and other cards, as well as a white bum bag containing counterfeit Australian currency, a fixed blade hunting knife, cigarettes in cartons, bottles of alcohol, a Ninja Turtle toy figurine, a doctor's bag set, and toy shoes and jewellery. The value of the property dishonestly obtained was $235.35. This property was obviously recovered and returned to the owners, though the Statement of Facts, which should have said so, was silent on this issue.
44. On 13 January 2015, the owner of the motor vehicle attended at Tuggeranong Police Station and told the police that he did not drive the car on 23 December 2014, but declined to make a statement.
45. On 18 January 2015, police spoke to Mr Law who agreed to be interviewed by police, but when taken to City Police Station again refused to make any comments in relation to the allegations.
46. These facts constituted the following further offences charged, namely four charges of dishonestly obtaining property by deception and two charges of unlawful possession of stolen property. Mr Law was, again, not arrested but advised that he would be served with summonses in due course.
47. Finally, police were contacted by a member of the public who had been the victim of a burglary at a building site in Kingston, where some tools were stolen. He advised police that he saw some of the tools advertised on an on-line classified advertisement site "Gumtree".
48. The victim had agreed to meet the advertiser and police also spoke to the advertiser on 23 April 2015. He turned out to be Mr Law and police saw several power tools matching those stolen following the earlier burglary. Mr Law consented to police searching the vehicle he was driving and, having done so, seized a number of power tools, bolt cutters, and Mr Law's mobile phone. Those items were also obviously recovered and I assume, though the Statement of Facts did not say so.
49. These facts constituted the final offence of unlawfully possessing stolen property.
50. Mr Law was served with summonses for the offences committed on 23 December 2014. The summonses were returnable on 8 April 2015. On that day, Mr Law appeared. He was then charged before the Court with the offences committed on 14 November and 16 December 2014. A summons for the offence committed on 23 April 2015 was issued on 22 July 2015, returnable on 28 August 2015.
51. The proceedings against Mr Law were adjourned a number of times. He was, however, in custody on other offences during part of this time.
52. On 3 June 2015, he entered pleas of not guilty to the various charges. The hearing of the charges was estimated to take three weeks. A date for hearing was subsequently set to begin on 15 December 2015. On that date, however, he entered pleas of guilty to certain charges and the remaining charges were listed for hearing on various dates between 19 November 2015 and 17 December 2015. Ultimately, he entered pleas of guilty to all the remaining offences. There were then a number of further adjournments, although the reasons for those adjournments were not clear from the materials available to me on the appeal.
53. He was remanded in custody on 4 February 2016. Again, the reason for that is not apparent to me.
54. A Pre-Sentence Report was prepared for Mr Law and a reference from his father was admitted into evidence. A report from the Court Alcohol and Drug Assessment Services (CADAS) was requested, but Mr Law did not co-operate with the agency and so no report was prepared.
55. It is noted that, as expected, the author of the Pre-Sentence Report made inquiries of Mr Law's mother and father, as well as Mr Law, and then of a number of relevant agencies. It is, therefore, not merely the result of self-report by Mr Law. It also means that he alone is not necessarily responsible for any errors of fact in it. See R v Ashman [2010] ACTSC 45 at [30].
56. While the sentencing Magistrate made few findings about Mr Law's subjective circumstances, it can be accepted that the material before the Court showed the following.
57. Mr Law was born about 34 years ago in Canberra. He is an Aboriginal man with close relationships with his parents, five siblings and his extended family. His parents divorced and his mother moved to New South Wales. He is presently in a long-term de facto relationship and he and his partner have a seven year old child.
58. There was some uncertainty about his accommodation. He told the author of the
Pre-Sentence Report that he was living with his father and his mother confirmed that. His father, however, denied it when contacted, but the Court was told that he had, before his incarceration, been living with his partner.
59. Mr Law completed his Year 12 certificate and served in the Australian Army for four years. He has, since then, been employed as a removalist for 10 years.
60. While in custody, he has actively pursued the educational opportunities available to him.
61. He has a good income from his employment and described his financial situation as stable.
62. He started using alcohol when he was 24. He initially drank socially but, by 27, he was a problem drinker, consuming up to 34 standard drinks a day. He ceased such excessive drinking when he was 29 and reports that he is now only a social drinker.
63. He had, however, a history of illicit drug use between the ages of 18 and 23 and again between 29 and 32. He claimed only to have used cannabis but also reported participating in a pharmacotherapy program, being an opiate replacement program. Indeed, when first entering the Alexander Maconochie Centre, a urinalysis conducted of him disclosed the presence of methadone and methylamphetamine.
64. He was assessed as suitable for the SMART Recovery Program and was placed on a waiting list. I have described that Program in R v McGrail [2016] ACTSC 142 at [78]- [80].
65. He appears to have been admitted to that Program, but failed to attend the first session available to him. No explanation was offered by his counsel.
66. Mr Law claimed to the author of the Pre-Sentence Report that he was involved in the Winnunga Nimmityjah Men's Group, but that agency denied his involvement. This assertion, unsupported and, indeed, doubted, was a problem for his credibility, as was the uncertainty about his pre-incarceration residential arrangements and his counsel failed to address these issues in a helpful way.
67. He explained his offences as arising from his need to purchase Christmas gifts for his family. That appears to be partly confirmed by the nature of the purchases, though it does not necessarily explain the alcohol and cigarettes. There is no reason, however, why alcohol and cigarettes cannot be Christmas presents. It was also unclear why, if he had a good income, he needed to steal to provide the presents.
68. That latter issue was in part explained in submissions where the Court was advised that he had ceased working for a time from November 2014, when he went to South Australia. When he returned, he was "having some financial issues" but, after the offending and prior to being incarcerated, he regained his employment.
69. Mr Law has a concerning criminal history. Since 2000, he has been convicted of 36 offences, mostly dishonesty offences, including burglary and theft, as well as 13 traffic offences. He has also breached court orders on six occasions. His most recent offences were committed in September 2014 and his most recent offences of dishonesty in January 2010. He has been sentenced to periods of imprisonment.
70. Mr Law had also accumulated $1459.48 in savings, which he offered immediately in part payment of compensation, the balance to come from his wages.
71. As noted above (at [54]), Mr Law's father provided a reference. Her Honour was rightly critical of some aspects of the reference. It was written without any mention that the author was the father of Mr Law.
72. There is, of course, no prescriptive requirements for the form or content of character references. The tendering of them is common and is desirable as a way of presenting helpful and appropriate evidence in an efficient and inexpensive way. As Mazza JA said in Dudzik v Western Australia [2012] WASCA 195 at [35]- [36], the assumption from the tender is that they are genuine. It is surprising how many references are false, the tender of which is likely to constitute the crime of attempting to pervert the course of justice. See Zotos v The Queen [2014] VSCA 324; Saleem v The Queen [2014] VSCA 190.
73. It is, important, however, that the author gives the context in which he or she is giving the reference. See Smorhun v Devine [2014] ACTSC 208 at [53]. It is important, too, that the author sets out the basis on which the assessment of character it contains is made, else it may be given little weight. See Carter v Nussbaum (No 2) [2013] FamCA 1014 at [6].
74. To be valuable, of course, the reference should not be inconsistent with the facts of the offence: Bollen (1998) 99 A Crim R 510 at 521.
75. It is preferable, as pointed out in Topic v Department of Transport [2014] WASAT 129 at [57], though in a different context, that a reference should preferably show that the author is able to describe the person "warts and all". This, of course, requires that the author preferably sets out the circumstances under which he or she knows the person for whom the reference is given, as well as knowledge of the person's criminal history and the circumstances of the offence. I have addressed some of these issues in Poole v Edwards (2016) ACTSC 159; [98]-[100].
76. Thus, the reference here was written as though the author was simply Mr Law's employer and not his father. That was undesirable and counsel should probably have identified that and sought a clearer reference, although to be fair, he did, when tendering it, point out the relationship. Preparation for a plea in mitigation is not merely an exercise in submitting what has been provided, but in ensuring that the proper - and best - evidence is obtained; it involves preparation as well as research and structure. See G Hampel, "Plea Making, Concepts, Preparation and Presentation of Pleas" (1978) 52 Law Institute Journal 99, 103, especially at (l)(iii).
77. Mr Law's father confirmed that Mr Law worked with the removalist's firm and described him as "an enthusiastic worker who plays a vital role in the business". He said that Mr Law had expressed remorse to him.
78. The Pre-Sentence Report assessed Mr Law as at a medium risk of re-offending; to reduce this risk he would have to address his illicit drug use and his attitudes to
re-offending. The author had concluded that, although he acknowledged the wrongness of his offending, Mr Law appeared unable to identify the impacts on the owners and was said to minimise his actions.
79. The Sentencing Magistrate made it clear during the sentencing submissions that she was unimpressed with Mr Law.
80. She noted that he had denied being responsible for the thefts of the various debit and other cards but commented that he was:
not charged because they couldn't prove - nobody saw him break into the cars ... whether he did or not, but he's charged with being in unlawful possession of the cards a very short time after the cars were broken into.
81. While this is true, it is an unfortunate comment she made because it suggests that her Honour believed that Mr Law stole the credit cards, but that only lack of evidence prevented him being prosecuted for that. It risks the impression that her Honour could be affected by that perception in sentencing, even though her Honour later disavowed any reliance on it.
82. Despite the fact that, while he has a long history of dishonesty, Mr Law has no prior convictions for offences involving deception, until he committed these offences, her Honour suggested that the reference from his father, which did not disclose the relationship "has the potential to deceive and with your history, Mr Law, that doesn't surprise me". I am not sure to what history her Honour was referring.
83. Her Honour calculated the total amount taken as in excess of $5700, but the actual total was $4934.98.
84. Her Honour also commented that "who knows about his drug dealing because he has not been honest about it, and the pre-sentence report can't pin him down", but her Honour later withdrew the remark and accepted that she actually meant drug possession and use.
85. Her Honour was critical of his failure to engage with CADAS in preparing a report, though it was explained that Mr Law was placed in custody two days after he was contacted by the agency to attend for the report, though he did not call the agency back.
86. Her Honour also rejected the suggestion that Mr Law had used the credit cards to buy Christmas presents, largely because much of the purchases were for alcohol and cigarettes, which her Honour said was for himself.
87. Despite this finding, her Honour seemed to accept that a number of the items bought were likely to be Christmas presents. It is unclear on what basis her Honour held that the alcohol and cigarettes could not also be Christmas presents for the extended family to which he was close. There seemed no evidence for her Honour's finding which seemed to be mere speculation.
88. On behalf of Mr Law, it was submitted that rehabilitation was important; that was a difficult submission to sustain because there was a lack of information about options. Mr Law was not, however, someone whom the Court could completely reject as unable to be reformed. He was, it was pointed out, able to maintain employment and had saved money for compensation.
89. It was acknowledged that full-time custody was within a range of appropriate sentences, but her Honour was urged to accept that the circumstances of the offences meant that a substantial degree of concurrency was appropriate between them.
90. The prosecutor relied on Mr Law's criminal history to submit that, while rehabilitation was a factor, that point had passed and protection of the community was paramount. It may be noted in passing that, as French CJ said in Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 at 536-7; [32], the best protection to the community is rehabilitation. It is not really appropriate to use "protection of the community" as a kind of code for a prison sentence.
91. The prosecutor submitted that prior sentences had not had any discernible impact on Mr Law's behaviour and that he tried to minimise his behaviour, though there was no evidence that he had done so in the past. The prosecutor submitted that denunciation was required. The prosecutor also relied on the nature of what was purchased to question the explanation that the purchases were for Christmas presents, but seemed to relate that to his criminal history without explaining how that could help drawing that conclusion and then submitted that he "would be surprised if we don't see the defendant again for these types of offences".
92. The Sentencing Magistrate adjourned for a week before imposing her sentence. Her Honour began her sentencing remarks by pointing to the difficulty of the sentencing exercise with the large number of offences.
93. Her Honour then again repeated the error that the total property involved was $5700 rather than the actual figure in the evidence before her of $4934.98.
94. Her Honour described Mr Law's age and criminal history and that he was also in breach of Good Behaviour Orders made by the Court on earlier occasions.
95. Her Honour did not comment on any other subjective features, except for those where she found he had been untruthful to the author of the Pre-Sentence Report.
96. Her Honour remarked that Mr Law had not been truthful about where he was living and suggested that this might cast doubt on his employment and education, despite the unchallenged reference from his father. Her Honour then referred to his drug use and that his failure to attend to the SMART Recovery Program suggested untruth about his drug use. Her Honour also referred to his assertion of participation in the Winnunga Men's Group and that this was also found to be untrue.
I have noted the comments in the pre-sentence report. It notes that he is an Aboriginal male. Can I say, without being too harsh, that might be the only truth in the pre-sentence report, apart from perhaps his age. The rest of the contents of the report are full of untruths.
98. That is an untrue and unfair description, even if it is assumed that her Honour was referring only to statements made by Mr Law that were referred to in the Pre-Sentence Report. Certainly, there was no basis on which her Honour could properly have made that finding.
99. For example, his father's reference confirmed his asserted employment in the Report; the money he had saved to pay compensation confirmed his asserted "good income". The prosecution did not challenge either of these matters.
100. Counsel's assertion of his relationship and family, not controverted by the prosecution, was consistent with the assertions in the Pre-Sentence Report. Mr Law's claim that he did not break into the first car was accepted by her Honour but only after Mr Law's counsel challenged the assertion. It is not necessary to detail each matter asserted in the Report about which there was no evidence that it was untrue and no challenge by the prosecution.
101. Her Honour appears not to have read the Report carefully and considered it in the light of the prosecution submissions and the evidence.
102. Indeed, her Honour commented when considering whether to impose monetary fines that "I think somewhere it says that you're employed" suggesting that, if her Honour was not even certain of that, her Honour had not carefully considered the matters in s 33 of the Crimes (Sentencing) Act 2005 (ACT), to which she was required to have regard. Employment was an important factor in sentencing.
103. Her Honour rejected the suggestion that Mr Law was using the debit cards to buy Christmas presents because he was buying alcohol and cigarettes adding, "I suppose they could have been Christmas presents but I doubt it", without any explanation of the source of that doubt.
104. It was a pity that her Honour was not better served by any attempt by Mr Law's counsel to explain the discrepancies between Mr Law's assertions, especially to the author of the Pre-Sentence Report, and what appeared to be the actual circumstances of these matters or, at least, address them in any way. This failure left her Honour with no reason not to make the findings that Mr Law was not truthful and this was important for an assessment of his prospects for rehabilitation.
105. For example, was there a reason for Mr Law's failure to attend the SMART Recovery Program? Had he attended the Program, which was conducted weekly, between speaking to the author of the Pre-Sentence Report and the hearing nearly a fortnight later? Was there a reason why he otherwise failed to attend? None of these matters were addressed and so her Honour was left without appropriate assistance in areas that could well have been addressed.
106. Despite the Pre-Sentence Report assessing Mr Law as at a medium risk of
re-offending, her Honour described him as "a serious risk to people in this community because you are a predator in your behaviour".
107. Her Honour again described the events in language strongly suggestive that Mr Law had been responsible for the theft of the cards from the parked cars.
108. Her Honour then said that rehabilitation was "not an issue" despite then saying that normally "it is and should be for everyone", but that Mr Law has "had lots of opportunities" and that there was no information that he had engaged in meaningful rehabilitation. Her Honour then assessed the risk of recidivism differently from the assessment in the Pre-Sentence Report, saying that the Court assessed it as high because his most recent past was the best prediction of future behaviour, even though that past showed no dishonesty offences since January 2010, nearly five years before these offences.
109. Her Honour found that punishment and deterrence were very relevant, both general and personal deterrence, and that no other sentence than imprisonment was appropriate.
110. Her Honour then proceeded to impose the sentences set out above (at [28]).
111. On behalf of Mr Law it was submitted on the appeal that a careful review of the sentences imposed showed that they were manifestly excessive. This may have been because:
• the individual sentences did not reflect the seriousness of each offence but were imposed as a rather administrative approach to the sentences to reach an apparent result; or
• the sentencing Magistrate did not consider totality.
112. It was pointed out that the offence of theft, which was of goods to the total value of $3060.15, attracted a sentence of nine months imprisonment, whereas each of the offences of dishonestly obtaining property by deception, where the highest value of the goods obtained in any transaction was $99, attracted a sentence of 12 months imprisonment in each case.
113. In reply, it was submitted for the respondent that there was little to distinguish each of the offences of dishonestly obtaining property by deception. The modus operandi did not change; the criminality did not increase or decrease. The reason proffered by Mr Law for committing the offence was rejected by the sentencing Magistrate, which left her Honour finding that they were for personal gain.
114. As to totality, it was submitted for the respondent that the approach of the sentencing Magistrate to make the sentences for the offences on each occasion fully concurrent and then full accumulation between the sentences for each occasion properly met the totality principle.
115. It was further submitted for the respondent that the sentencing Magistrate had regard to the relevant subjective features of Mr Law, namely:
• the urinalysis positive for methylamphetamine on Mr Law's entry to the Alexander Maconochie Centre;
• Mr Law's claims to the author of the Pre-Sentence Report which were untrue, namely that he only ever consumed cannabis, despite the urinalysis result and his participation in opiate replacement therapy, his claim of living with his father which both he subsequently and his father denied, and his claim to be involved in an Indigenous men's group which the auspicer of the group denied;
• Mr Law's "ambivalent" attitude to the offences asserted in the Pre-Sentence Report;
• Mr Law's failure to attend the first session of the SMART Recovery Program; and
• Mr Law's criminal record which included a significant number of convictions for dishonesty offences.
116. Her Honour had concluded that his prospects of rehabilitation were "almost nil" and, it was submitted, this view was "well-supported".
117. For the respondent, it was further noted that the sentencing Magistrate applied a specified discount of approximately 20 per cent to 25 per cent for the plea of guilty for each of the offences. Suggestive of a need for some mathematical approach to sentencing, however, it was further submitted for the respondent that the sentence for the offence of theft was 9 per cent of the available maximum sentence, for the offences of dishonestly obtaining property by deception, 10 per cent of the available maximum sentence and, lastly for the offences of possession of stolen property, 67 per cent of the available maximum. The obvious discrepancy between the first two categories and the last one was, however, not explained by counsel for the respondent.
118. In Pearce v The Queen at 622-3; [39], the plurality quoted the distinguished jurist and criminologist, Sir John Barry, as warning of the need in sentencing to avoid "excessive subtleties and refinements".
119. Nevertheless, their Honours were clear in that case at 623-4; [44]-[48], that proper principle must be applied and that the question is not only "how long" will the sentence be. A proper sentence must be fixed for each offence, even if, looked at overall, the sentence imposed is not disproportionate to the criminality involved.
120. Pearce v The Queen is not inconsistent with the important principle of totality as explained in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 63, as pointed out in Johnson v The Queen [2004] HCA 15; (2004) 205 ALR 346 at 356; [26].
121. Thus, it is clear that the sentences of 12 months imprisonment for each of the offences of dishonestly obtaining property by deception, if manifestly excessive, cannot stand even if the total of the concurrent sentences - the "how long" - is correct for the total criminality for all of the offences of that type, as that would be to breach the principle established by Pearce v The Queen.
122. I accept the submission that the comparison between the sentence of nine months imprisonment for theft of goods valued at $3060.15 compared to a sentence for the offence of dishonestly obtaining property by deception, which carries the same maximum penalty but for which the value of the property was $99 or less was of 12 months imprisonment does raise a real question of manifest excess in the latter sentences. Indeed, in one case, the amount dishonestly obtained was only $19.50. A sentence of 12 months imprisonment in those circumstances is manifestly excessive.
123. I was also concerned about the sentences imposed for the possession of stolen property which was, in one case, three months imprisonment, and each of the other cases, four months imprisonment, where the available maximum was six months imprisonment.
124. It was submitted for the respondent that this was a particularly serious offence because the cards taken can be used for improper purposes such as identity fraud. There was no suggestion of that here. Indeed, in any event, the improper purpose for which the cards were put was the subject of separate offences, namely the dishonestly obtaining property by deception. To punish Mr Law for that would breach the principles set out in Pearce v The Queen at 615; [12], and R v De Simoni (1981) 147 CLR 383.
125. The potential for serious consequences, actual or potential, of certain conduct may be the reason for criminalising that conduct and providing the maximum penalty that the legislature does. Thus, the possession of a knife, for example, is a serious offence because knives have such potential to do harm. It would, however, be quite wrong to punish a person who is carrying a knife because it is possible that the knife could be used to kill someone when the actual circumstances of the offence do not disclose any intention or likely use of the knife by that offender for any such purpose.
126. In this case, the misuse of the card was separately charged and that must, therefore, not feature in the criminality of these offences for that has been taken into account in the other offences.
127. It seems to me that there was no basis for imposing the sentences that her Honour did for these offences.
128. They were no more serious examples of the offences than were the other offences not warranting exponentially more serious sentences relatively in comparison to the others.
129. Neither Mr Law nor the respondent favoured me with any comparable sentencing material.
130. I note that in Rees v The Queen [2012] ACTCA 6, the Court considered that the value of property misappropriated was relevant to sentence after the "underlying criminality" was taken into account. It is also relevant to sentencing for such offences whether the property stolen dishonestly obtained or unlawfully possessed has been recovered and restored to its rightful owner.
131. The relevance of a "gap of ... nearly four years" in the appellant's criminal history was also noted in Rees v The Queen at [2]. That was, here, inconsistent with the sentencing court's finding in this case of continuing criminality.
132. I also have regard to R v Hutchinson [2014] ACTCA 29, where the respondent had a criminal history somewhat worse than Mr Law's record and was also found to have poor prospects of rehabilitation.
133. Although not the subject of the appeal itself in that decision, the Court noted without adverse comment, sentences imposed in the Magistrates Court during the pendency of the Supreme Court sentencing.
134. In that case, Mr Hutchinson was sentenced for similar offences. For dishonestly obtaining property by deception (use of a stolen credit card), he was sentenced to two months imprisonment and three terms of three months imprisonment for obtaining property valued at $329.94, $435.70 and $690 respectively. For unlawful possession of stolen property (the credit card), he was sentenced to one month imprisonment.
135. These decisions, while, of course, not constituting any kind of precedent (Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584), are useful to assess whether my view of manifest excess is correct. I am satisfied that it is and the appeal must be upheld.
136. As I have upheld the appeal, it is necessary to re-sentence Mr Law. In my view, the sentence for the theft was not manifestly excessive and should stand.
137. For the criminality committed on 16 December 2014, I conclude that, despite the total value of the property is about half the value of that the subject of the theft charge, the totality of the criminality, having regard to the repetition, still justifies a severe sentence.
138. I accept that Mr Law was largely purchasing Christmas presents, particularly as the evidence was that he did not presently have a significant problem with alcohol. He may have had a drug problem, but the property stolen would, on the whole, not be likely to produce significant amounts of money for drugs.
139. I also accept that, while his untruthfulness to the author of the Pre-Sentence Report raises a question about his motivation for rehabilitation, the five year gap in his offending from committing dishonesty offences means that there is some prospect of reform.
140. Given Mr Law's history and the repetitive nature of the offending, no sentence but imprisonment is appropriate.
141. Again, because of the fact of multiplicity of offences, I have carefully considered the length of each sentence to ensure that Mr Law is not punished twice.
142. I have also considered whether the sentences should be wholly concurrent because, for example, they are part of the same enterprise. While a high degree of concurrency for each of the offences committed on 16 December 2014 and then on 23 December 2014 is appropriate, there is a need for some cumulation because of the repetition of offending, increasing the criminality and ensuring that there can be no legitimate perception that even in a single episode, further offending cannot just be committed with impunity.
143. I have then reviewed the length of the term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offending behaviour, but not more than that, and that the total sentence is not excessive and will leave open the realistic prospect of reform and hope for Mr Law when he is released to achieve his goals in the community. Where necessary, I have adjusted the accumulation or concurrency of the individual sentences to achieve that.
144. Thus, I propose that sentence for the offences committed on 16 December 2014 be cumulative as to nine months on the sentence for the theft offence committed on 14 November 2014, that the sentence for the offences committed on 23 December 2014 be cumulative as to six months on the earlier sentences, and that the sentence for the offence committed on 23 April 2015 be wholly cumulative on the earlier sentences producing a total sentence of 27 months. I will set a non parole period of 14 months to start on 4 February 2016 and end on 3 April 2017.
145. I, too, would allow a discount of 20 per cent for the plea of guilty in each case, though the individual sentences are so short that it will be rounded to the nearest month. In effect, had Mr Law not pleaded guilty, I would have sentenced him to 34 months imprisonment.
146. I shall make orders to give effect to these remarks.
I certify that the preceding one hundred and forty-six [146] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Law
Ilievski [2016] ACTSC 291
(2010) 5 ACTLR 151
(2011) 243 CLR 506
(1936) 55 CLR 499
(2004) 205 ALR 346
(1988) 166 CLR 59
(1998) 194 CLR 610
(1981) 147 CLR 383
(2001) 207 CLR 584
(2011) 6 ACTLR 18
(2009) 3 ACTLR 210
(1979) 23 SASR 98