Love v R [2012] ACTCA 8

Court of Appeal (ACT)|2012-02-09|Before: North JJ, Nield AJ, Higgins CJ, Penfold J

1. Mark Love has appealed against a sentence of five years imprisonment with a non-parole period of three and a half years imposed by Nield AJ in June 2011.

2. That sentence was imposed by reference to 16 offences. Ten were earlier offences for which the appellant had previously been sentenced by Higgins CJ to a term of imprisonment involving six months and nine days time served, with the remainder suspended subject to a good behaviour order that had been breached. Six of the offences were new offences, four of which had been committed during the same period as the earlier offences, and two of which, which I will refer to as the "last offences", had been committed shortly before the appellant's sentencing by Nield AJ.

4. The grounds of appeal were manifest excess, from which error can be inferred, and three specific errors on the part of the sentencing judge, being:

(a) first, a failure to apply the totality principle properly;

(b) secondly, a failure to give weight, or sufficient weight, to the personal circumstances of the appellant and his prospects of rehabilitation; and

(c) finally, an error described as re-sentencing the appellant after the breach of the good behaviour order without having regard to the facts of the original offences.

5. The last ground of appeal was effectively conceded by the respondent. The complaint made by the appellant was that, in re-sentencing him after the breach of his good behaviour order constituted by the last offences, Nield AJ had imposed sentences identical to those imposed by the Chief Justice, but without backdating them to take account of the six months in time served and rehabilitation before the original sentences were suspended, effectively increasing the total sentence by six months but without giving any reasons, by reference to the statement of facts or otherwise, for that increase.

6. Counsel for the respondent agreed, however, that the effectively increased sentence appeared to reflect not an intention by Nield AJ to extend the sentence but a mistake in fixing the backdating date. She further agreed that if that mistake was corrected it would be appropriate to re-set the starting dates, not only for all the other re-sentenced offences, but also for the new sentences that Nield AJ had imposed on top of those earlier sentences. That adjustment would have left the total sentence at five years, and the total non-parole period at three and a half years, but on the basis that an extra six months of those terms had already been served.

Weight given to personal circumstances and rehabilitation opportunity

7. The second last ground of appeal related generally to an asserted failure by Nield AJ to give proper weight to the appellant's personal circumstances and prospects of rehabilitation, but specifically to his Honour's approach to the co-existence of two facts, being:

(a) first that the appellant is an Indigenous man who has clearly suffered serious disadvantages as a result of his aboriginality, at least some of which may have contributed to his offending behaviour; and

(b) secondly that, according to evidence before Nield AJ, there was a rehabilitation opportunity available to him that was specifically available to Indigenous offenders.

8. We are not convinced that the connection between the appellant's aboriginality and the availability of this rehabilitation program only to Indigenous offenders, as such, required any different treatment from the treatment that would be appropriate for evidence that any offender whose early disadvantages had apparently contributed to his offending behaviour had a particular rehabilitation program open to him. Because of the conclusions we have reached about the other grounds of appeal, we do not need to canvass any further the question whether the relevant evidence was properly accounted for in Nield AJ's decision.

9. We are satisfied that the sentence imposed on the appellant was manifestly excessive. Although, as noted earlier, this allows an inference of error rather than requiring specific error to be identified, it seems likely that in this case the source of the manifest excess was an erroneous approach on his Honour's part to the application of the totality principle.

10. With the exception of the last offences, all the offences for which the appellant was sentenced in the Magistrates Court by the Chief Justice and by Nield AJ were committed during the period starting in January 2008, shortly before he turned 20, and December 2009. All except two offences were burglaries or thefts. The two exceptions are escape offences committed shortly before the appellant was sentenced in December 2009.

11. Before he came before Nield AJ, the appellant had been sentenced in the Magistrates Court and by the Chief Justice (for a total of 10 burglaries, one being an aggravated burglary, and nine associated thefts, as well as the two escape offences) to a total of four years and eight months in prison, of which about 18 months was intended to be served in full-time custody. The individual sentences imposed by the Chief Justice were two years for the aggravated burglary and 12 months for each other burglary, with concurrent but shorter sentences for the associated thefts, to be served so that each ordinary burglary added three months to the total sentence, and the aggravated burglary added nine months to that total. The sentences imposed in the Magistrates Court appear to have had a roughly comparable effect.

12. In sentencing for the six new offences, Nield AJ imposed the following sentences, again with shorter theft sentences running concurrently with the associated burglary sentences: for the first and second burglaries, 18 months each, and for the last burglary, 27 months. His Honour accumulated sentences for the first and second burglaries so that, as for the Chief Justice's sentences that he had re-imposed, they added six months in total to the total sentence, but he accumulated the last burglary sentence so that it added two years to the total sentence.

13. A table of cases was put before us showing sentences imposed for burglaries in the ACT Supreme Court. That indicated that sentences of around 18 months could be said to be within range for the ordinary course of domestic burglaries, but that higher sentences would be justified in particular circumstances. We note that the sentence imposed for the last burglary and theft could appropriately have been higher than the earlier sentences and could also have justified a greater accumulation, given that it was committed so soon after the appellant was released on parole.

14. On the other hand, we note that there was evidence before Nield AJ to the effect that the appellant had not sought to be released on parole, had wanted to stay in prison for another three months, and had committed the offences because he felt that he had not been ready to be released and was feeling anxious. This is, of course, not a justification for offending, but it means that his Honour was not obliged to treat the last offences as proof that the appellant was in need only of more serious deterrence. His Honour could reasonably have identified that the appellant was in need of more structured rehabilitation opportunities, but rehabilitation, despite the age of the offender, received scant attention in his Honour's remarks.

15. The effect of his Honour's re-sentencing and sentencing was that for a total of 13 burglaries and 12 associated thefts, all but one of each committed during a single course of conduct over roughly 22 months before the appellant turned 22, he had become liable to sentences totalling about six and a half years, of which all but 18 months would be served in full-time custody. That six and a half years takes account of the 12 months that the appellant had served on the Magistrates Court sentences before committing the last offences, and the six months time served taken into account in the Chief Justice's sentences, but not accounted for by Nield AJ in resentencing for those offences.

16. We are satisfied that the overall effect of his Honour's approach to the sentencing was to impose a total sentence that was manifestly excessive, having regard to the circumstances of the offences and the circumstances of the appellant that were in evidence before him, and a non-parole period that was also manifestly excessive by reference to the appellant's youth and his obvious need for supervised rehabilitation opportunities.

17. The appeal will be upheld and the appellant must accordingly be re-sentenced. While recognising that a re-sentencing on a successful appeal is not limited to simply correcting identified errors, we consider that the new sentences in this case require only fairly minor adjustment to produce an appropriate sentence. I will go through the sentences and the new start dates and then at the end formally impose the new total sentence on the appellant; I will go through them by reference to the dates of the offences.

(a) For the first burglary and theft, which was committed on 12 January 2008, the sentences will be 12 months for the burglary and 6 months concurrent for the theft, to start on 19 August 2010 and to end on 18 August 2011.

(b) For the burglary and theft committed on 21 January 2008, again, 12 months for the burglary and 6 months for the theft concurrent, starting on 19 November 2010 and finishing on 18 November 2011.

(c) For the burglary and theft committed on 8 September 2008, 12 months for burglary and 9 months concurrent for theft to start on 19 February 2011 and finish on 18 February 2012. So five of those six sentences, in effect, have now been served and the last burglary sentence will be finished later this month.

(d) For the burglary and theft committed on 19 September 2008, 12 months and 6 months concurrent, starting on 19 May 2011 and finishing on 18 May 2012.

(e) For the aggravated burglary and theft on 8 December 2008, 2 years for the burglary and 9 months concurrent for the theft, the sentence to start on 19 February 2011 and end on 18 February 2013.

(f) For the burglary and theft committed on 21 October 2009, 18 months and 9 months concurrent for the theft, the burglary sentence to start on 19 November 2011, and end on 18 May 2013.

(g) For the burglary and theft committed on 19 November 2009, 18 months and nine months concurrent, to start on 19 February 2012 and finish on 18 August 2013.

(h) For the burglary and theft committed on 28 February 2011, 2 years for the burglary and 1 year for the theft, concurrent, to start on 19 August 2012 and finish on 18 August 2014.

18. That gives a total sentence of 4 years, and there will be a non-parole period of 2 years and 3 months. That sentence will be backdated to 19 August 2010, and so it will run until 18 August 2014. The non-parole period of 2 years and 3 months, which also started running on 19 August 2010, will therefore expire on 18 November this year, 2012.

22. You are sentenced, on the 16 offences that I've just read out which will be shown in the sentencing order, to imprisonment for the periods that I've already read out, which total a period of four years of imprisonment. That sentence will be backdated to 19 August 2010, and so it will run until 18 August 2014. There will be a non-parole period of 2 years and 3 months, which also started running on 19 August 2010 and will therefore expire on 18 November this year, 2012.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Solicitor for the Appellant: Legal Aid ACT

Solicitor for the Respondent: ACT Director of Public Prosecutions

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