Leeson v Grech [2023] ACTSC 355

1. Daniel Grech was sentenced in the Magistrates Court for a series of personal violence and driving offences arising out of episodes of domestic conflict with his female partner. The offences were committed between March and April 2021. At that time, Mr Grech was on parole for other sentences. On 16 November 2021, the Sentence Administration Board cancelled his parole and determined that he was liable to serve a balance of 2 years and 14 days on those earlier sentences. Subject to any further grant of parole, that meant Mr Grech was required to be imprisoned for the earlier offences until 29 November 2023.

2. The Magistrate sentenced Mr Grech for the further offences on 14 April 2022. His Honour imposed sentences which, with partial accumulation, gave an effective sentence of 10 months. The Magistrate stated that he was making that sentence cumulative on Mr Grech’s existing head sentence (which his Honour took to be the balance of 2 years and 14 days specified by the Sentence Administration Board). If the further sentence was to be cumulative upon the existing sentences, the commencement date for the further sentence should have been 30 November 2023. However, the Magistrate purported to backdate the sentence to a week before the date on which parole had been revoked (the additional week was to give credit for a week Mr Grech had spent on remand for the further offences). His Honour then purported to suspend the sentence after six months, which he said meant “a release date of 8 May 22 is imposed”.

3. The Magistrate clearly intended that Mr Grech should be released from custody on 8 May 2022. That intention was, with respect, misconceived. As already explained, at the time of the Magistrate’s decision, Mr Grech was serving the balance of his earlier sentences following the revocation of his parole. In sentencing Mr Grech for the further offences, the Magistrate had no power to backdate or suspend the earlier sentences. The commencement dates for sentences were fixed by the judicial officers who imposed them. Furthermore, any future release on parole for those sentences was properly a matter for the Sentence Administration Board.

4. Mr Grech was not released on 8 May 2022. On the application of his legal representative, the matter was relisted before the Magistrate on 26 May 2022. On that occasion, the Magistrate demanded to know why Mr Grech was still in custody. The prosecutor explained that Mr Grech was serving the existing sentences that had been imposed by other courts and that the Magistrate had no jurisdiction to interfere with those other sentences. That was plainly correct. His Honour’s only function concerning the earlier sentences was to set a new parole period for the new total effective sentence, as required under ss 65 and 66 of the Crimes (Sentencing) Act 2005 (ACT). The prosecutor appearing on 26 May 2022 (who had not appeared at the proceedings on sentence) endeavoured to explain the operation of those provisions. Rather than checking the sections at that point, the Magistrate berated the prosecution for not having made the submission earlier. In fact, the prosecutor who had appeared at the proceedings on sentence had provided detailed written submissions as to the proper approach to the statutory requirement to set a new non-parole period, as had the legal representative appearing for Mr Grech. The error arose because the Magistrate elected to take a different course. In any event, the Magistrate refused to correct the sentence, saying it was a matter for the Director of Public Prosecutions (DPP) to appeal if the sentence was thought to entail error.

5. On 15 June 2022, the DPP filed an application for leave to appeal out of time. The proposed notice of appeal and appeal bundle were filed on 20 June 2022. The sole ground of appeal was that the Magistrate had imposed a sentence which was contrary to law. The DPP did not contend that the sentences were too lenient or seek to have them increased. It was sought only to have Mr Grech sentenced according to law. The appeal had to be heard urgently because Mr Grech was due to appear before the Sentence Administration Board on 23 June 2022. The parties apprehended that the Board may not be inclined to grant parole so long as there was uncertainty concerning the status of the sentences for the further offences.

6. I accordingly heard the appeal on the morning of 23 June 2022. I was satisfied that the sentences imposed by the Magistrate misconceived the operation of the Crimes (Sentencing) Act 2005 and contravened the requirements of that Act. Incidentally, the remarks on sentence also reveal that the Magistrate misconceived the powers and functions of the Sentence Administration Board. While that discrete error was not the subject of any ground of appeal, it clearly informed the course his Honour took.

7. At the conclusion of the hearing, I made orders (reserving my reasons) allowing the appeal and resentencing Mr Grech in time for the parole hearing, which was scheduled for that afternoon. These are my reasons for making those orders.

The previous sentences

8. Mr Grech had previously been sentenced to terms of imprisonment by the Supreme Court in 2017 and the Magistrates Court in 2020. Apart from short periods on parole, he had been in custody since 2015.

9. Mr Grech’s custodial history was addressed in helpful detail in the affidavit relied upon by the DPP in support of the appeal. The following summary is drawn heavily from that affidavit.

10. The first sentence was imposed by Walmsley AJ on 7 June 2017: R v Vimahi; R v Grech (No 2) [2017] ACTSC 176. His Honour sentenced Mr Grech to an effective term of imprisonment of six years and six months with a non-parole period of three years and three months. That sentence commenced on 14 March 2015 and ended on 13 September 2021. The non-parole period expired on 13 June 2018.

11. On 3 July 2018, the Sentence Administration Board ordered that Mr Grech be released to parole on 17 July 2018 until 13 September 2021. However, on 12 September 2019, Mr Grech was arrested in relation to further offences and refused bail. On 17 September 2019, the Sentence Administration Board cancelled Mr Grech’s parole order, whereupon he became liable to serve the remaining three years, two months and two days of his sentence unless again released to parole.

12. The second sentence was imposed by Magistrate Campbell when her Honour dealt with Mr Grech for those further offences on 16 January 2020. Her Honour sentenced Mr Grech to a term of imprisonment for 18 months commencing on 19 May 2022. The commencement date reflected approximately six months concurrency with the earlier sentences. Section 66(3) of the Crimes (Sentencing) Act provides that the imposition of a further sentence of imprisonment on an offender who is subject to an existing sentence of imprisonment automatically cancels the existing non-parole period. The judicial officer who imposes the further sentence is then required to set a new non-parole period taking the new sentence into account: s 65(2) of the Crimes (Sentencing) Act (read in combination with s 66(2) of the Act). In accordance with those requirements, Magistrate Campbell set a new non-parole period which expired on 16 November 2020.

13. It may be noted that the new non-parole period set by Magistrate Campbell expired before the commencement of the sentence imposed by her Honour at the same time. While that may seem curious, the course her Honour took was entirely orthodox. Unlike the position in some other jurisdictions, the sentencing legislation in the Territory contemplates that an offender will always have a single non-parole period even if that person is serving more than one sentence of imprisonment. Presumably, the purpose of that approach is to provide clarity for the offender as to the date after which they will be eligible for parole and to simplify matters for Corrective Services and the Sentence Administration Board. If an offender is sentenced for several offences at the same hearing, s 65(2) of the Crimes (Sentencing) Act requires the sentencing judicial officer to set a single non-parole period reckoned by reference to the total effective sentence.

14. To illustrate the operation of s 65(2), if Mr X was sentenced by Judge A to imprisonment for three years for one offence and an additional two years for a second offence, giving a total effective term of five years, Judge A might fix a single non-parole period of three and a half years, being 70% of the total term.

15. Section 66 ensures that, if an offender is later sentenced to a further term of imprisonment while serving an existing sentence of imprisonment, the requirement for a single non-parole period remains. That section provides: 66 Nonparole periods—setting if sentence currently being served (1) This section applies if— (a) the offender is serving a sentence of imprisonment (the existing sentence); and (b) the offender is sentenced to a further term of imprisonment (the primary sentence). Note Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence. (2) Section 65 (Nonparole periods—court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence. (3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence. (4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.

16. To illustrate the operation of s 66, if Mr X was later sentenced by Judge B for a different offence to a further term of imprisonment for two years, giving a total effective sentence of seven years, the imposition of that sentence would, by force of s 66(3), automatically cancel the previous non-parole period of three and a half years. Judge B would then be required in accordance with s 66(2) to fix a new non-parole period reckoned by reference to the new total effective sentence of seven years, including the previous sentence.

17. The non-parole period is the minimum portion of the sentence the offender must serve in prison before being eligible for parole. In setting that period, the Court has a broad discretion. The relevant principles were summarised by Murrell CJ in Taylor v R [2014] ACTCA 9 at [19] as follows (cited with approval by the Court of Appeal recently in The Queen v Ruwhiu [2023] ACTCA 18 at [18]): The proper approach to fixing a non-[parole] period is well established and can be summarised as follows. 1. A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served. 2. An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community. 3. The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion. 4. Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton v The Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed: ... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed. (Citations omitted.)

18. The principles may be taken to be the same when the Court is required to set a new non-parole period after sentencing an offender serving an existing sentence to a further term of imprisonment. So far as the statute is concerned, the Court’s discretion in that respect is constrained only by the prohibition imposed by s 66(4) that the new non-parole period must not make the offender eligible to be released on parole earlier than under the original non-parole period. That makes sense from a sentencing perspective because one would not expect an offender to be rewarded for committing further offences. Furthermore, the constraint in s 66(4) respects the status of the original sentence as an exercise of judicial power. To permit a judicial officer to reduce the non-parole period set as part of the sentencing exercise undertaken by a different judicial officer to be the minimum period the offender should spend in custody for the sentences imposed would be to permit a de facto review of the earlier exercise of the sentencing discretion.

19. Where, as here, Judge B is sentencing an offender whose non-parole period for earlier sentences has already expired, the structure of the sentence required to be imposed under s 66(2) might seem anomalous. In the case of Mr X, Judge B would be imposing a sentence of imprisonment for two years with a non-parole period of at least three and a half years that had already expired. However, the anomaly is resolved when it is understood that the object of the legislative scheme is for an offender to have a single non-parole period from time to time, regardless of the number of sentences of imprisonment being served or when they were imposed. To put the matter another way, in the Territory, the non-parole period attaches to the offender and must be re-set if new sentences are imposed. For that purpose, Judge B is required to set a non-parole period as if the sentences previously imposed by Judge A had formed part of the sentencing exercise undertaken by Judge B. However, if Judge B formed the view that the offender should remain eligible for parole, there would be no impediment to setting a new non-parole order that had already expired.

Decision of the Sentence Administration Board

20. In accordance with the new non-parole period set by Magistrate Campbell on 16 January 2020, the offender was eligible for parole from 16 November 2020. He was released to parole by the Sentence Administration Board on 20 January 2021. However, in April 2021, he was arrested for further offences. On 27 April 2021, his parole order was revoked.

21. On 16 November 2021, after Mr Grech had spent a short further period on parole, the Sentence Administration Board cancelled the parole order and Mr Grech became liable to serve the balance of the sentences imposed by Walmsley AJ and Magistrate Campbell, which by then was a period of imprisonment for 2 years and 14 days commencing on 16 November 2021 and ending on 29 November 2023. As noted at the outset of this judgment, that meant that, subject to any further grant of parole, Mr Grech was required to be imprisoned on the earlier sentences until 29 November 2023. Importantly, that was the position that obtained at the time Mr Grech was sentenced by the Magistrate for the present matters.

The sentences under appeal

22. It is important to understand that the Director-General’s authority and obligation to imprison Mr Grech at that point derived from the sentences imposed by Walmsley AJ and Magistrate Campbell. Most recently, there had been an order for imprisonment issued by the Sentence Administration Board. The Board has power to make such orders to give effect to its decisions concerning parole but that is not an exercise of sentencing power. The power to sentence a person to imprisonment reposes in the judiciary. Some of the Magistrate’s remarks in his sentencing decision suggest his Honour was labouring under the misapprehension that it was the Board, not the Court, that had most recently fixed a sentence imposed on the offender. That impression, in turn, appears to have led his Honour to think it was open to him to vary or suspend the existing sentences. It was not.

23. The proceedings on sentence were heard on 12 January 2022. At the conclusion of the hearing, the Magistrate sought further assistance on two points. The first concerned the requirement to set a new non-parole period. The Magistrate referred to the fact that the “traditional approach” when offences are committed whilst on parole is to accumulate the further sentence at least partially on the existing sentence. He also referred to the “traditional 50% to 70% of the head sentence ratio”. His Honour expressed a concern that the application of that approach would result in a sentence that would be “too draconian”.

24. As is clear from the principles summarised in Taylor set out above, the sentencing discretion was not constrained in that way. The proportion of the sentence to be served is a matter for judicial discretion and “cannot be reduced to a mathematical formula”. The proposition that there should be “a judicially determined norm or starting point” for the period of imprisonment to be served by a federal offender was firmly rejected by the High Court in Hili v The Queen [2010] HCA 45; 242 CLR 520 at [13]. There is no warrant for applying such a norm as a percentage of the head sentence in the case of Territory offenders. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge or magistrate has a wide discretion.

25. The second matter raised by the Magistrate was whether his Honour could instead take the approach taken by Elkaim J in R v Gordon [2021] ACTSC 283 of partially suspending the further sentence. However, Gordon was a case in which the offender had committed the further offences whilst in custody. Offences committed in custody are among the categories of offences carved out of the regime of automatic cancellation and re-setting of a non-parole period, being defined as “excluded offences” in s 64 of the Crimes (Sentencing) Act. The combined effect of that section and s 118 of the Crimes (Sentence Administration) Act 2005 (ACT) meant that Mr Gordon would have to serve the whole of the further sentence with no eligibility for parole.

26. The effect of those provisions is to deprive prisoners who commit further offences in gaol of the benefit of supervision on parole and instead turn them out at the end of their further sentences with no ongoing supervision. Whether that is sound policy is a matter for the legislature. In any event, as already noted, Elkaim J mitigated the draconian impact of those provisions on Mr Gordon by partly suspending the further sentences. His Honour was not required (or indeed authorised) to set a non-parole period for the further sentences. Importantly, his Honour did not purport to suspend any existing sentence.

27. The prosecutor’s further submissions to the Magistrate in the present case did not explain the irrelevance of the decision in Gordon but noted that it was subject to appeal. Mr Grech’s further submissions were silent as to the application of Gordon but did set out in detail the correct approach to the setting of a new non-parole period under the provisions that applied to the task of sentencing Mr Grech.

28. The Magistrate sentenced Mr Grech on 14 April 2022. His Honour accepted that the offences were serious, noting that they were family violence offences and that much of the offending occurred in the presence of an infant. He described the offences as “gross breaches of trust in that family sense” and found that no sentence other than imprisonment was appropriate. However, he considered that the parole system was “largely working for Mr Grech” and that rehabilitation should take precedence over other purposes of sentencing.

29. As to the sentencing options available, his Honour acknowledged that the decision in Gordon was the subject of a Crown appeal. His Honour noted that the appeal concerned the provisions that govern offences committed whilst in custody and said, “[t]he spirit of his Honour’s approach is not lost in that regard”.

30. Turning to address the structure of the sentences to be imposed, the Magistrate said that Mr Grech was serving “a complicated sentence that comprises two court sentences and revised sentences fixed by the [Sentence Administration Board]”. With respect, that reflected a fundamental misconception as to the role and function of the Sentence Administration Board. As already explained, the imposition of a sentence of imprisonment is an exercise of judicial power. The role of the Sentence Administration Board is administrative, not judicial. The Board does not revise sentences or fix revised sentences; it administers sentences. At the time the Magistrate sentenced Mr Grech, the only sentences he was serving were those imposed by Walmsley AJ and Magistrate Campbell, which had a total effective term of seven and a half years. The only task for the Magistrate was to sentence Mr Grech for the further offences and, if that involved sentences of imprisonment, to set a non-parole period “as if” he had sentenced Mr Grech to imprisonment for a term equal to the total of the terms of the existing sentence and the new sentence.

31. The sentences his Honour imposed were as follows: (1) For forcible confinement (CC2021/4136) – 5 months imprisonment. (2) For assault occasioning actual bodily harm (CC2021/4139) – 2 months and 15 days imprisonment, cumulative as to 2 months on CC2021/4136. (3) For driving a motor vehicle without consent (CC2021/4140) – 2 months and 15 days imprisonment, cumulative as to 2 months on CC2021/4139. (4) For reckless driving (CC2021/4141) – 2 months and 15 days imprisonment, cumulative as to 1 month with CC2021/4140, with a disqualification period of 3 months.

32. Those sentences gave an effective further term of imprisonment of 10 months. The Magistrate said: This means a total head sentence of 10 months is imposed, I make that cumulative on his current head sentence so that the overall sentence imposed is 2 years, 10 months and 14 days. Back dated to commence on – it will need to be seven days prior to 16 November…to take account of that time in custody. So that will be the 9th and expiring on 22 September 2023.

33. The Magistrate then repeated the concern he had expressed during the hearing that to set a non-parole period to commence on 9 November 2021 using “the usual 50 to 70 per cent ratios” would risk “an unduly harsh sentence”.

34. The reference to a commencement date of 9 November 2021 for the non-parole period reflected a misapprehension of the task imposed by the statute. As already explained, the Magistrate was obliged to set a non-parole period “as if” he had sentenced Mr Grech for all three series of offences. In other words, the new non-parole period was to be reckoned by reference to the new total effective sentence. The 10 months imposed by his Honour was to be added to the previous total effective sentence of 7 years and 6 months, not to the balance of those sentences that remained to be served upon the revocation of parole. At the risk of repetition, the Sentence Administration Board does not sentence people. Its role is confined to administering sentences imposed by courts, including by deciding whether persons eligible for parole should be released on parole or not. When parole is revoked, the Board is required to order that the offender be placed in custody for the remainder of the original sentence: s 161 of the Crimes (Sentence Administration) Act. For that purpose, the Board is required to issue a warrant of imprisonment under s 12 of the Act. However, that is not an exercise of judicial power or the judicial function of imposing a sentence.

35. In any event, it is apparent that the Magistrate determined instead to structure a sentence modelled on the approach in Gordon. Furthermore, it is clear that, in doing so, his Honour intended to suspend the existing sentences (those imposed by Walmsley AJ and Magistrate Campbell). His Honour said: I have fashioned a sentence so that Mr Grech does serve, in effect, 60 per cent of the term of imprisonment that I have imposed and is able to be released on a lengthy suspended sentence, rather than roughly the same period on parole. (Emphasis added.)

36. The difficulty is that, unlike Elkaim J, the Magistrate was required to set a non-parole period. Instead, his Honour backdated the sentence to 9 November 2021 and purported to suspend it after six months, which he said meant “a release date of 8 May 22 is imposed”. In other words, as submitted by the prosecution in written submissions on the appeal, his Honour effectively resentenced Mr Grech in relation to the existing sentences by partially suspending the aggregate sentence.

Errors in the sentences imposed

37. The sentences imposed thus entailed several fundamental errors. First, his Honour had no power to reopen the sentences imposed by Walmsley AJ and Magistrate Campbell. If authority is necessary for that proposition, it may be found in Jovanovic v The Queen [1999] FCA 1008; 92 FLR 580 at [15] (Wilcox, Miles and Weinberg JJ). There are statutory exceptions to that principle but none applied here. None of the provisions in ch 5 of the Crimes (Sentencing) Act authorised the course of suspending existing sentences.

38. Secondly, the decision in Gordon did not authorise the approach his Honour took. As already explained, that decision turned on the different provisions that apply to offences committed whilst in custody.

39. Thirdly, the Magistrate failed to comply with the requirement of s 65(2) (read in combination with s 66(2)) to set a non-parole period. The Magistrate appears to have been aware of the application of s 66. In his reasons for sentence, he said: There is no current non-parole period so I am not, in effect, reducing one by making a partially suspended sentence order. In any event, the effect of increasing the head sentence would have cancelled any existing non-parole period, see section 66 of the Crimes Sentencing Act.

40. But s 66 also required the Magistrate to set a non-parole period.

41. The Magistrate’s task was to sentence Mr Grech for the new offences. If he was sentenced to a further term of imprisonment, the existing non-parole period was automatically cancelled and the Magistrate was then required to set a new non-parole period reckoned by reference to the total effective sentence, including the new sentence. In Mr Grech’s case, as he had been in custody almost continuously since March 2015, it was well open to the Magistrate to set a non-parole period that had already expired. Indeed, a non-parole period that expired in the future may well have been excessive.

42. In practice, that meant that it was not for the Magistrate to determine when Mr Grech would be released. Mr Grech came before the Magistrate as an offender who was eligible for parole and who arguably should remain eligible for parole. What the Magistrate overlooked was that, the offender being eligible for parole, the date on which he should be released on parole was properly a matter for the Sentence Administration Board.

43. For those reasons, at the conclusion of the hearing, I made the following orders: (1) Allow the appeal. (2) Set aside the sentences imposed by Magistrate Stewart on 14 April 2022 as amended on 26 May 2022. (3) Impose the following sentences instead: (a) For the offence of forcible confinement (CC2021/4136), the respondent is convicted and sentenced to a term of imprisonment for 5 months commencing on 23 November 2023 and expiring on 22 April 2024. (b) For the offence of assault occasioning actual bodily harm (CC2021/4139), the respondent is convicted and sentenced to a term of imprisonment for 2 months and 15 days commencing on 8 April 2024 and expiring on 22 June 2024. (c) For the offence of driving a motor vehicle without consent (CC2021/4140), the respondent is convicted and sentenced to a term of imprisonment for 2 months and 15 days commencing on 8 June 2024 and expiring on 22 August 2024. (d) For the offence of reckless driving (CC2021/4141), the respondent is convicted and sentenced to a term of imprisonment for 2 months and 15 days commencing on 8 July 2024 and expiring on 22 September 2024. (e) In respect of charge CC2021/4141, the respondent is disqualified from holding a driver’s licence for a period of 3 months commencing on 23 June 2022 and expiring on 22 September 2022. (4) Note that, pursuant to s 66(3) of the Crimes (Sentencing) Act 2005 (ACT), the effect of these sentences is to cancel the non-parole period for the existing sentence set by Magistrate Campbell on 16 January 2020 to expire on 16 November 2020. (5) Set a non-parole period during which the offender is not eligible to be released on parole of 6 years commencing on 14 March 2015 and expiring on 13 March 2021. (6) Note that the appeal did not involve any challenge by the Crown to the sentences imposed by the Magistrate with a view to seeing the defendant released from custody on 8 May 2022, save for the contention that the sentences were not imposed according to law.

44. Although it was implicit in the orders made that day, I omitted at that time to grant leave to bring the appeal out of time. A grant of leave was appropriate in circumstances where the delay was adequately explained and the appeal involved a sentence that was contrary to law in a number of fundamental respects. I make that additional order with retrospective effect. I certify that the preceding forty-four [44] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 29 November 2023