Sentence for damage property confirmed. For drive while disqualified confirmed, resentenced to 4 months and 2 weeks' imprisonment. Disqualification period of 2 years confirmed. For assault resentenced to 7 months and 2 weeks' imprisonment. Unserved sentences suspended upon offender entering into a good behaviour order for 18 months.

CRIMINAL LAW - Appeal from decision of a Magistrate - severity of sentence - discount for plea of guilty - procedure - error of law

Crimes (Sentencing) Act 2005 (ACT) ss 35, 37, 61

Cotter v Corvisy [2008] ACTSC 64

House v The King [1936] HCA 40; (1936) 55 CLR 499

Nicole Jane Watkins and Nathan Daniel Macklin (Respondents)

Court File Number(s): CC 10918 of 2013; CC 4566 of 2014; CC 5461 of 2014

1. The appellant appeals sentences imposed in the Magistrates Court on 3 July 2014. The offences, sentences imposed and maximum available penalties were as follows:

Sentenced to two months' imprisonment from 5 June to 4 August 2014.

Maximum available penalty: two years' imprisonment.

(2) 3 May 2014, drive while disqualified as a repeat offender.

Sentenced to five months' imprisonment from 5 August 2014 to 4 January 2015 and disqualified from driving for two years.

Sentenced to nine months' imprisonment from 5 January 2015 to 4 October 2015.

Maximum available penalty: two years' imprisonment.

2. The sentences were made entirely cumulative. The Magistrates Court ordered that the appellant serve ten months. The remaining six months (which attached to the sentence for the assault) was to be suspended from 4 April 2014 on the appellant entering into a two year good behaviour order.

3. The notice of appeal raised only one ground, being that the sentences were manifestly excessive in all the circumstances. Without objection, the appellant amended the notice of appeal to argue further grounds that raised specific error, and the grounds that were argued were as follows:

(a) The proceedings before the Magistrate miscarried due to uncertainty in relation to the appellant's criminal record.

(b) The sentence imposed for the offence of damage property was manifestly excessive.

(c) In imposing the sentence for drive while disqualified the Magistrate failed to take into account the appellant's plea of guilty.

(d) In imposing the sentence for assault the Magistrate failed to take into account the appellant's plea of guilty.

(e) The sentence imposed for assault was manifestly excessive.

(f) In totality the sentences were manifestly excessive.

4. The nature of an appeal from the Magistrates Court to this Court has been accepted to be an appeal of the nature discussed in House v The King [1936] HCA 40; (1936) 55 CLR 499, i.e. an appeal where it is necessary to identify an error of fact or law. Error can be either express or implied. Error will be implied if a Magistrate has imposed a sentence that is outside the available range.

5. The Magistrate provided detailed reasons for her decision. In those reasons she set out the facts giving rise to each of the offences. There is no dispute that she correctly stated the facts and referred appropriately to associated aggravating features. The facts of the three offences are briefly summarised in the respondents' submissions as follows.

6. On 6 November 2013 the appellant was at the house of his expartner's parents. The appellant was carrying a pole and arguing with his ex-partner. The ex-partner went inside with the couple's two year old son. The appellant spent 15 minutes yelling and swearing towards the house. He then stood on the boot of his ex-partner's car and jumped onto the roof, landing on his buttocks. This incident caused damage to the car roof of approximately $200. The appellant paid compensation of $200 to his ex-partner. On 27 November 2013 the appellant was charged with that offence and released on bail.

7. On 3 May 2014 police sighted the appellant driving in Griffith. At that stage he was disqualified from driving for the period 18 May 2012 to 17 May 2014. The appellant attempted to elude police, who later found him hiding in his parked vehicle. No aggravating conduct was associated with the driving. The appellant had no passengers in the vehicle and was not driving dangerously. I note that the offence occurred two weeks prior to the expiry of the disqualification period. On 5 May 2014 the appellant was charged with the offence of driving while disqualified and released on bail.

8. On 20 May 2014 the appellant was at the home of his ex-partner. He was subject to bail. It was a condition of bail that he not attend at her residence and not approach within 50 metres of her. It was a further bail condition that he not assault or threaten her. The appellant's ex-partner had at least agreed to him minding the couple's two to three year old son while she worked. The appellant's ex-partner arrived home and an argument ensured between the appellant and his ex-partner. He demanded that she give him money. When she tried to walk down the back stairs, he grabbed her from behind. He says that he intended to pull her back into the unit so that the argument could continue in private. The grabbing action caused the appellant's ex-partner to fall on the steps. She felt pain in her lower back and later observed a tear to her shirt and a small graze on her lower back. The appellant followed his ex-partner from her unit. He was carrying a golf club. He continued to demand money from her. Eventually she gave him $10. He threatened to destroy her house if she was not there when he got home. It was the action of pulling backwards occasioning the fall that was relied upon as the assault. The other features placed that assault into its context. Part of the incident occurred in the presence of the couple's young son.

9. In relation to the first and third incidents, the Magistrate correctly viewed them as incidents of domestic violence. As I have mentioned, in reasonably comprehensive reasons, the Magistrate referred appropriately to relevant aggravating features.

10. The Magistrate considered the criminal history of the appellant. She was aware of a difficulty with the criminal history; the court registry had failed to correctly process an order that she had made on 2 March 2012. Consequently, the sentences were called up under s 61 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) before a different magistrate. The sentences were opened on 15 May 2014 and the appellant was purportedly resentenced so as to give effect to the original sentences imposed by the Magistrate on 2 March 2012.

11. There was debate about the validity of the reopening. It is not necessary to resolve this issue as the Magistrate was well aware of the controversy when she sentenced the appellant on 3 July 2014. She did not place reliance on any matter which, if erroneous, would have caused her to fall into error. At the foot of page 14 of the transcript of reasons, commencing at line 40, her Honour said:

The offence was committed, the assault that is, was committed by him five days after he was resentenced by the court on 15 May and placed on suspended sentences and good behaviour orders, therefore potentially, if they are valid orders he is in breach of those good behaviour orders. It was also committed by him whilst he was on bail on conditions imposed on the damaged property charge -

12. In making this comment the Magistrate acknowledged that the resentencing orders made on 15 May 2014 may not have been valid. Moreover she was making the point that the assault on 20 May 2014 occurred only five days after the appellant had been brought before a court. Whether or not he should have been brought before a court is irrelevant. When he came before the court, he must have been reminded of the need to comply with the law.

13. The Magistrate was not impressed with the appellant's continuing breach of court requirements. There were numerous breaches of good behaviour orders on his criminal history. He was a repeat offender insofar as driving whilst disqualified was concerned. He was someone who had been before the court on several occasions in relation to domestic violence matters.

14. Her Honour considered his risk of reoffending. She noted that the appellant had been assessed as being at medium risk of reoffending, but she regarded him as being at high risk of reoffending. She stated her reasons for that finding.

15. She was well aware that the appellant had pleaded guilty and referred to that fact at several points in her reasons. On page 16 of the transcript, at line 17, her Honour said:

I note that he has pleaded guilty to the offences and therefore he is eligible for some discount but that is the only factor in his favour, the fact that he has pleaded guilty.

16. Her Honour referred to the purposes of sentencing in an appropriate way. She noted that, in this case, general and personal deterrence and punishment were significant considerations. Denunciation was also a significant consideration, particularly in relation to domestic violence offences. Her Honour said:

[In relation to the damage property charge] You will be convicted to two months' imprisonment. It would have been three months if you had not pleaded guilty. On the charge of drive while disqualified, given that you have three prior drive disqualified offences, you will be convicted and sentenced to five months' imprisonment. That five months is cumulative upon [the destroy property sentence] and you will be disqualified from driving for two years. On the assault you will be convicted and sentenced to nine months' imprisonment. That is cumulative upon [the drive while disqualified sentence]. The total sentence is therefore 16 months. Of that 16 months you are to serve ten months.

17. She dated the sentences from 5 June 2014; the date when the appellant had entered custody. She suspended six months of the overall sentence, with the appellant to enter a good behaviour order for two years. As a condition of the good behaviour order he was to be subject to supervision for a period of 18 months or such lesser period as Corrective Services deemed appropriate.

18. The first appeal ground concerned whether the proceedings miscarried due to uncertainty in relation to the appellant's criminal record. The proceedings did not miscarry for that reason.

19. There was an issue about the validity of the resentencing exercise in which another magistrate engaged on 15 May 2014. But in sentencing the appellant on 3 July 2014 the Magistrate was well aware of that uncertainty and did not take the outcome of that resentencing exercise into account, either for or against the appellant, except in one respect. She did note that he had attended court on 15 May 2014 for the purpose of the resentencing exercise but went on to commit the assault on 20 May 2014. The Magistrate appropriately observed that the appellant was undeterred by his appearance on 15 May in committing a significant offence only five days later.

21. The second ground of appeal concerned the sentence for the offence of damage property. It was asserted that the sentence was manifestly excessive. The sentence was reduced from a starting point of three months to two months to take into account the plea of guilty. The maximum available penalty was two years' imprisonment.

22. The appellant relied upon the fact that the value of the damage was only $200.

23. The value of property damage is a relevant consideration to be taken into account when assessing the objective seriousness of such an offence. However, the Magistrate was also entitled to take into account (as she did) the context in which the offence was committed, a context of domestic violence. It is true that she was not sentencing him for the context in which the offence was being committed, but she was sentencing him in that context. I accept, as I am sure her Honour did, that a sentence of imprisonment is one of last resort. The starting point of three months and the actual sentence of two months' were within the available sentencing range given the context in which the offence occurred. This ground is not made out.

24. The next three grounds can be considered together. These grounds concern the alleged failure of the Magistrate to take into account the appellant's pleas of guilty in relation to the offences of drive while disqualified and assault, and the claim that the sentence imposed for assault was manifestly excessive.

25. The Magistrate was well aware that the appellant had entered an early plea of guilty. She expressly took that into account in relation to the offence of damage property and it resulted in a one-third reduction of sentence. That does not necessarily mean that her Honour felt that one-third was precisely the correct amount by which the notional starting point of the sentence should be discounted. It may reflect a rounding up and the fact that it is more convenient to deduct one month than to calculate and deduct 25 per cent from a starting point of three months.

26. Under s 35(2) of the Sentencing Act, in deciding how an offender should be sentenced, a court must consider certain matters. These include the fact that an offender has pleaded guilty and the timing of such a plea. Subsection 35(3) provides:

The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.

27. Section 37 applies where a court imposes a lesser penalty for an offence pursuant to s 35. Section 37(2) provides:

(a) the penalty (including any shorter nonparole period) it would otherwise have imposed.

28. In relation to the sentences imposed for drive while disqualified and assault offences, the Magistrate did not expressly indicate that the sentences were discounted for the pleas of guilty. That may be for one of two reasons. First, having considered the relevant factors under s 35, the Magistrate may have decided that, despite the early pleas of guilty, she would not allow a discount. That was an avenue or a line of reasoning that was open to the Magistrate. On the other hand, her Honour may have originally decided that it was appropriate to discount the sentences for a plea of guilty but then forgotten to do so. That is an available explanation.

29. Whatever her reasoning, her Honour did not follow the prescribed s 37 (2) procedure for applying a discount, which required her to state the notional starting point for the sentences.

30. Her Honour may have decided that the sentences should not be discounted. A sentence of five months, for example, does not of itself suggest a higher starting point. There may have been a starting point of six months, but on the other hand there may not.

31. The same observation applies in relation to the sentence imposed for the assault. If the starting point was 12 months, then that would have been a high starting point. However it was not necessarily a starting point that was outside the available range. That supports an argument that her Honour did not allow any discount in arriving at a sentence of nine months' imprisonment. Overall, her Honour's reasoning in relation to whether the s 35 discount should or should not have been applied and the extent of that discount is unknown.

32. In Cotter v Corvisy [2008] ACTSC 64 at [54] Refshauge J referred to the following passage in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 395:

As part of the duty of sentencing judges to give reasons for their decisions, express reference to the fact that consideration has been given to [a plea of guilty] ought to be included in reasons on sentence.

33. The failure to give reasons concerning whether and why a plea of guilty has resulted in a s 35 discount in relation to the drive while disqualified and the assault matters, and the associated failure to refer to any notional starting sentence is a specific error. I will resentence the appellant for those offences.

34. I received certificates which demonstrate that, while in custody, the appellant was not idle. He undertook several useful courses. When he is released from custody he intends to leave the ACT and return to Sydney to reside with his family. He intends to make a complete break from the relationship with which so much of his criminal history is associated. That is a very wise move that will be no doubt welcomed by all concerned.

35. In relation to the offence of damage property, I confirm the sentence. The appellant is sentenced to two months' imprisonment from 5 June 2014 to 4 August 2014.

36. In relation to the offence of drive while disqualified as a repeat offender, I confirm the conviction. I set aside the sentence. In lieu, from a starting point of six months, I deduct one and a half months for the plea of guilty to arrive at a sentence of four months and two weeks' imprisonment. The sentence will run from 5 July 2014 to 19 November 2014. I confirm the disqualification period of two years.

37. In relation to the offence of assault, I confirm the conviction. I set aside the sentence of nine months' imprisonment. In lieu, from a starting point of ten months' imprisonment, I deduct two and a half months for the plea of guilty to arrive at a sentence of seven months and two weeks' imprisonment. The sentence will run from 5 August 2014 to 19 March 2015.

38. The total effective sentence is nine months and two weeks' imprisonment. The offender has served the period from 5 June 2014 to 17 December 2014, by way of full time imprisonment. The remainder of the sentence, being a period of three months and two days, will be suspended forthwith on the appellant entering into an 18 month good behaviour bond. Apart from the usual core conditions, the bond will be subject to the following conditions:

(a) The appellant is to report to ACT Corrective Services at Eclipse House on 23 December 2014 by 4 pm. He is to report in person unless ACT Corrective Services agrees to accept another form of reporting.

(b) He is to submit to the supervision of Corrective Service, including undertaking such counselling programs or treatment as is recommended.

(c) He is to reside at 6 Stevenson Street, Wetherill Park NSW 2164 unless otherwise directed by Corrective Services.

I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.