Mcdonald v Vandervalk and Wong

2. Following numerous adjournments in the Magistrates Court, on 7 August 2013, the learned sentencing Magistrate imposed a sentence of 4 months' imprisonment on the charge of obtaining property by deception and 1 month's imprisonment on the failure to appear charge. His Honour further made a reparation order in the sum of $100 made payable to the appellant's mother.

3. As a result of recording convictions in respect of those offences, the appellant was in breach of Good Behaviour Orders imposed in the Magistrates Court on 1 September 2011. The learned sentencing Magistrate cancelled the Good Behaviour Orders, but took no further action with respect to two of them. For the third, the learned Magistrate resentenced the appellant to 3 months' imprisonment to be served consecutively to the sentence imposed in respect of the obtain property by deception charge.

4. The appellant appealed from the orders of the learned Magistrate to this Court by Notice of Appeal dated 21 August 2013. The Notice of Appeal appealed from the sentences imposed for the charges of obtain property by deception and failure to appear.

5. On 13 February 2014, the appeal came before me for hearing. In the course of the hearing, I allowed counsel for the appellant to amend the Notice of Appeal to incorporate an appeal against the sentence of three months' imprisonment imposed by the Magistrate on the breach matter. At the conclusion of the submissions I indicated that I would allow the appeal and that the sentences appealed from were set aside. At the time, I said I would publish short reasons for my decision in due course. These are those reasons.

6. The grounds of appeal as set out in the appellant's Notice of Appeal were:

a. His Honour did not indicate any discount for early entry of guilty pleas.

b. His Honour did not take into account the issues raised by a psychiatric report indicating that the appellant had serious mental health problems.

c. His Honour did not adequately take account of the appellant's progress whilst on bail.

d. In all the circumstances, the sentence was crushing for the appellant and denied any realistic rehabilitation through community based orders.

7. At the hearing counsel for the appellant, Mr Doig, did not argue grounds (b), (c) or (d) on the Notice. However, the appellant did make a submission in relation to the manner in which the sentence of imprisonment imposed by the Magistrate was to be served, especially in relation to supposed error in his Honour's rejection of periodic detention as a sentencing option. I will begin by addressing appeal ground (a).

8. As the appellant entered a plea of guilty, the learned Magistrate had discretion to reduce the sentence he believed the appellant's offending behaviour warranted under s 35 Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act); subsection (3) of which provides relevantly: "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."

9. Section 35(2)(b) of the Sentencing Act requires that a guilty plea be taken into account. The learned sentencing Magistrate when sentencing the appellant made the following comments in relation to her plea of guilty:

The plea of guilty and admission of guilt is a matter of value to the administration of the courts, and also indicates a degree of remorse on the part of the defendant, and I will take that circumstance into account in dealing with each of the matters.

10. Counsel for the appellant submitted before me that the learned Magistrate was in error in failing to expressly indicate what discount he had allowed in taking the appellant's plea of guilty into account. The appellant referred to the case of R v Thomson (2000) 49 NSWLR 383 in support of her argument. Spigelman CJ in Thomson said at [160]:

(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.

(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.

(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.

(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount.

1. In the later decision of R v Lawrence [2005] NSWCCA 91, Spigelman CJ considered at [15] the need to address the discount, even in a busy court:

This court is, of course, aware of the pressures under which District Court Judges have to deliver their sentences and that it is easy not to state a fact that everybody knows is required to be taken into account. Nevertheless, the reasons given in Thomson for issuing a guideline included the need to ensure that participants in the New South Wales criminal justice system had no reason to be sceptical about whether or not the benefits of a guilty plea were in fact made available to accused.

This Court is not bound by the decisions of the New South Wales Court of Criminal Appeal; however the above decisions are strongly persuasive authority and should not be departed from unless I consider them plainly wrong. With respect, I consider them to be plainly correct.

12. The appellant submitted at the hearing before me that the sentencing remarks of the learned Magistrate revealed error as his Honour mentions only that he has taken the pleas into account. The appellant submitted that failure to quantify a discount received for her plea of guilty was an error on the part of the Magistrate as the appellant was unable to determine whether she was in fact allowed any discount for her plea.

13. The concern the appellant has in not knowing what discount she has received for her plea of guilty is a perfectly legitimate one. However, the failure to indicate the discount does not render meaningless the statement that the learned Magistrate has taken a plea into account. That being said, failure to indicate the discount is apt to mask error.

14. This jurisdiction is subject to a statutory sentencing regime. The parties at the hearing submitted that s 37 of the Sentencing Act was relevant. Section 37 applies if a court imposes a lesser penalty under s 35. In such a case s 37(2)(a) requires the court to state the penalty "it would otherwise have imposed". The learned Magistrate failed to comply with this section when he did not indicate the discount he allowed for the appellant's plea of guilty.

15. Section 37 remains silent as to the consequences for a sentence imposed in the context of a failure to comply with its provisions. To understand the consequences under the legislation one needs to know what type of sentence was imposed. The learned sentencing Magistrate imposed a sentence of imprisonment, which means s 10 of the Sentencing Act applies to the sentence. Section 10(4) reads:

If the court sentences the offender to imprisonment, the court must record the reasons for its decision.

1. Section 37 and s 10(4) must be read together. Section 37 imposes a requirement for specific reasons within the reasons a court must otherwise record under s 10(4). In not indicating the discount he allowed for the appellant's plea of guilty, the learned sentencing Magistrate has failed to comply with the Act both in respect of s 10(4) and s 37.
2. The question remains as to the consequences of such a failure to comply. Section 10(5) of the Sentencing Act reads:

Failure to comply with subsection (4) does not invalidate the sentence of imprisonment.

In Cotter v Corvisy [2008] ACTSC 64, Refshauge J said (at [57]) "[my] impression is that failure to comply with s 37 would not invalidate a sentence". With respect, I agree with Refshauge J; section 10(5) should be read to apply to a failure to comply with s 37, such that there can be no suggestion that a failure to record reasons for a discount invalidates a sentence of itself.

1. A sentencing Magistrate's omission to record reasons in respect of a discount allowed for a plea of guilty is not, however, irrelevant to an appeal. Section 138 of the Sentencing Act reads:

A failure to comply with this Act may be considered by an appeal court in any appeal against sentence even if this Act declares that the failure to comply does not invalidate the sentence.

I may, therefore, consider the failure to have recorded or indicated a discount for the appellant's plea of guilty in the context of the other grounds of appeal.

1. I agree with counsel for the respondent that the natural inference drawn from the comments of the sentencing Magistrate is that his Honour did take the plea into account in a "positive way" for the appellant when structuring his sentence. Indeed, very recently in the case of Barbaro v The Queen [2014] HCA 2, on appeal from the Supreme Court of Victoria, the High Court (French CJ, Hayne, Kiefel, and Bell JJ) emphasised (at [34]) the common law position that the sentencing exercise should not be a two-step process:

Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts.

1. However, in the ACT we are subject to a legislative sentencing regime. In my opinion, the Sentencing Act modifies the common law to the extent that a discount must be indicated such that an inference will be insufficient to discharge the obligation a sentencing judge or Magistrate has under s 37.
2. A failure to comply with s 37 will not invalidate a sentence, that is render it void making it necessary of itself that the appellant be resentenced; but such a failure will constitute an error of law. In Pettit v Dunkley [1971] 1 NSWLR 376, the NSW Court of Appeal considered that the entering of a verdict without giving reasons was an error of law. Moffitt JA (with whom Manning JA agreed) said at 388:

If it can be established that a judge failed or declined to give any reasons for his decision in circumstances where there was a judicial duty express or otherwise to do so, then, as with other errors in the judicial process, I think he has erred in law.

1. Failure to record reasons is undesirable as it may mask error of a different kind. As the Court of Appeal in Pettit said (per Moffitt JA at 388) it may constitute error by limiting the exercise of a party's right to appeal as they cannot determine if error has in fact been made; the trial at first instance "does not exhaust the rights which parties may have". Moffitt JA continued in Pettit at 389:

An error of law in giving no reasons for judgment differs from an error of law in coming to a verdict, for the latter directly vitiates the verdict either in the sense that the verdict is based on an error in the legal process so that a new trial is attracted. The error under consideration does not establish that the verdict itself involved some error, but serves to make it difficult or perhaps impossible to determine whether or not the verdict itself was based on an error of law.

1. In McKellar v Woolcock [2013] ACTSC 225 I dealt with a Magistrate failing to state reasons for imposing a non-conviction order, and at [23] of my judgment I said:

In my opinion, it is incumbent upon a Court when applying the provisions of s 17 to make it clear what matters the Court has taken into account in determining that a disposition under s 17 is appropriate. To simply hear submissions and then deliver judgment that the matter will be disposed of pursuant to s 17 of the Crimes (Sentencing) Act 2005 is apt to conceal error on the part of the sentencing officer. It must be made clear upon what basis the s 17 order is made.

1. I considered failure in McKellar by the Magistrate to give reasons and to consider the matters listed in s 17 of the Sentencing Act to be an error of law which called for the appeal to be upheld. This error reopened the sentencing discretion. In that case, I considered the imposition of a non-conviction order to have been manifestly inadequate and I upheld the appeal, set aside the sentences imposed in the court below, and resentenced the appellant.
2. In the matter of Carpenter v Purcell [2008] ACTSC 34, Penfold J held that a Magistrate had fallen into error in failing to mention the plea of guilty in sentencing the appellant. Despite this finding, her Honour declined to uphold the appeal as the sentences imposed by the Magistrate appeared appropriate.
3. Failure to quantify the discount for a plea of guilty in imposing sentence will be sufficient to demonstrate legal error which will call upon an appeal court to consider the appropriateness of the sentence imposed in the court below. Failure to record the discount as required under the Territory's sentencing regime will leave the parties without the knowledge of whether and how the plea of guilty affected the sentence imposed. This error is of a type which allows an appeal court to set aside the sentence imposed, and re-sentence exercising its own sentencing discretion; but that discretion should only be brought to bear to substitute the original sentence if there is something about the sentence which in the view of the appeal court, considering all the circumstances of the appellant, makes the sentence inappropriate. If the sentence is appropriate, the proper course is that which was adopted by Penfold J in Carpenter and the Court should dismiss the appeal.
4. Therefore, in order to determine if I should uphold the appeal on the grounds that the learned Magistrate failed to record a discount for the plea of guilty, I must examine the appropriateness of the sentences imposed. An examination of the second submission of the appellant usefully serves that purpose.

The sentencing Magistrate failed to make his own assessment for periodic detention

28. The appellant argued in written and oral submissions that the sentencing Magistrate erred in not making his own assessment of the appellant's suitability for periodic detention, instead relying on the finding of unsuitability contained in the Pre-Sentence Report prepared for the sentence hearing.

29. In the course of arriving at his sentence, the learned Magistrate made the following comments:

I have already referred to s 10 of the Crimes (Sentencing) Act and its requirement that I consider alternatives to a term of imprisonment in relation to these offences. I note from the Pre-Sentence Report that the author says that [the appellant] would not be able to pay a fine, a deferred sentence would not appear beneficial and, in terms of a Good Behaviour Order, the author says the offender has been assessed as not having the capacity to complete such an order. Community service, she has been found unsuitable for that and unsuitable for periodic detention.

It seems to me that, having regard to those matters and also the gravity of the offences that, in relations to the first and the second offence, the first offence of obtaining property by deception, and the second offence of failing to appear after a bail undertaking, there is indeed no alternative to a sentence of imprisonment in relation to [the appellant].

30. Section 78 of the Sentencing Act deals with periodic detention. That section reads:

(1) The court must not set a periodic detention period for the offender unless a pre-sentence report is given to the court about the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention.

(2) In deciding whether to set a periodic detention period for the offender, the court must consider the following:

(b) any medical report about the offender given to the court;

(c) any evidence given by the person who prepared the pre-sentence report;

(d) any evidence given by a corrections officer about the offender.

(3) Subsection (2) does not limit the matters that the court may consider.

(4) In considering the pre-sentence report, the court must consider any indicators of unsuitability mentioned in table 79, column 3 that are stated in the report to apply to the offender.

(5) The court may set, or decline to set, a periodic detention period for the offender despite -

(a) any recommendation in the pre-sentence report about the offender's suitability to serve a sentence (or a part of a sentence) by periodic detention; or

(b) any evidence given by the person who prepared the pre-sentence report or a corrections officer.

(6) The court must record reasons for its decision to set, or decline to set, a periodic detention period for the offender if -

(a) the pre-sentence report recommends that the offender is suitable but the court decides not to set a periodic detention period for the offender; or

(b) the pre-sentence report recommends that the offender is not suitable but the court decides to set a periodic detention period for the offender.

(7) Failure to comply with subsection (6) does not invalidate the periodic detention order.

31. The Court, when sentencing an offender, is required to consider, by s 78(4), the matters listed in the table in s 79 which I have reproduced here:

Table 79 Assessment of suitability - periodic detention

degree of dependence on alcohol or a controlled drug

potential unfitness to report for periodic detention

potential impracticability of regular reporting for periodic detention

32. It seem to me, with respect, that the learned sentencing Magistrate misinterpreted the requirements of s 78. Section 78 prevents a court from imposing a sentence of imprisonment to be served by periodic detention unless a Pre-Sentence Report (PSR) has been provided to the court in relation to the offender's suitability for that sentencing option. The section does not give the power for determination of final suitability to the author of the report. It is clear from the section that the court may make a determination altogether different from the assessment made by the PSR author.

33. The person who prepares the PSR and who considers the question of periodic detention as required by s 78 may make a recommendation about the offender's suitability to serve a sentence by way of periodic detention. The court may then set or decline to set a periodic detention period for the offender. The PSR author may make a recommendation of unsuitability with reference to the table of indicators of unsuitability contained in s 79. By the operation of s 78(4), the court must then consider any such indicators mentioned in the PSR, but it is ultimately for the court to determine whether the offender is unsuitable by virtue of a major problem with alcohol or a controlled drug, or another reason contained in the table in s 79.

34. The recommendations contained in the PSR are useful to a sentencing court as they inform a sentencing judge or Magistrate of the attitude towards certain sentencing options of Corrective Services staff who will be given the ultimate management of an offender's sentence. It is useful that a court be made aware of these attitudes as there may well be logistical or operational reasons why offenders with certain characteristics are deemed suitable or unsuitable. Indeed a consideration of the indicators in the table in s 79 shows that they are directed towards the ability of the offender to comply with an order, not towards the suitability of periodic detention with respect to certain types of offending or offenders.

35. It is the role of the sentencing judge or Magistrate to consider whether within the context of the particular offender and offence before them, that a sentence be appropriately served by way of periodic detention. It is no part of the role of a person preparing a PSR to offer an assessment of suitability for periodic detention based upon factors beyond operational concerns of the type contained in the table in s 79. The assessment of suitability for periodic detention is a task for the sentencing judge or Magistrate and it is, in my opinion, an error to simply make reference to a finding of unsuitability in a PSR as a reason for declining to order periodic detention. The author of a PSR will ordinarily not have been privy to the material tendered on sentence at the time that they prepared the report. In many cases the PSR author's recommendation of suitability will coincide with the sentencing court's assessment, but that frequency should never lead a court to rely upon a recommendation in place of their own assessment.

36. The comments made by the learned Magistrate in sentencing the appellant leads to the inevitable inference that his Honour did not turn his mind to his own assessment of the appellant's suitability for periodic detention. His Honour simply mentions that the appellant was found unsuitable and proceeds to say "It seems to me that, having regard to those matters and also the gravity of the offences that... there is indeed no alternative to a sentence of imprisonment in relation to [the appellant]". In my opinion, there is no demonstration that the learned Magistrate turned his mind to the circumstances as set out in all the material before him to determine whether it was appropriate to make an order that the appellant serve a sentence by way of periodic detention. The comments made by his Honour are, in my opinion, inadequate in the context of the evidence before him to demonstrate that any assessment of suitability was made independently by the Court.

37. In that regard, the PSR in which the appellant was found unsuitable for periodic detention was dated 30 April 2013, made following a single appointment (the appellant having failed to attend other scheduled appointments) and made using, in part, information from a PSR prepared in 2011. The PSR was therefore about three and a half months old by the time the learned sentencing Magistrate came to sentence the appellant. The appellant's counsel both before his Honour and before me suggested that the appellant had made positive steps in her rehabilitation since the date of the report. The age of the PSR and the possibility of a change in the appellant's circumstances made it even more important that his Honour turn his mind to his own assessment of the appellant's suitability for periodic detention within the context of the material before him, rather than relying on the recommendation of the author as adequate answer to the question of suitability. Had he turned his mind to it, his Honour may have considered he was not in a position to make an assessment due to an inadequacy of information before him. Although it is always preferable to avoid delay, his Honour may then have been alerted to the desirability of an adjournment to another date to allow a more up-to-date PSR be prepared and for further material to be presented on sentence to facilitate the assessment required of the court.

38. I am satisfied in all the circumstances that the learned sentencing Magistrate fell into error in two ways. Firstly, in failing to record the discount he allowed for the appellant's plea of guilty, and; secondly, in failing to make his own assessment of the appellant's suitability for periodic detention. I considered the second of these errors was sufficient for me to uphold the appeal.

39. Although it is not necessary, I will indicate that I would have upheld the appeal on the basis of the first error also. Upon considering the appropriateness of the sentences, I would have found that periodic detention would have been an appropriate sentencing option which, in my opinion, could not have been disregarded on the evidence before his Honour. I would have proceeded on the same basis upon which I did in upholding the appeal on the second ground.

40. On 13 February, I allowed the appeal and set a new date for sentence at the conclusion of the hearing of the appeal. I considered I was not in a position to structure an appropriate sentence for the appellant in the absence of further information, therefore, at that time I also ordered a new Pre-Sentence Report to deal specifically with the appellant's suitability for periodic detention. The appellant was re-sentenced by me on 11 April 2014 (see McDonald v Vandervalk (No 2) [2014] ACTSC 76) at which time I imposed the following sentences:

a. a sentence of two months' imprisonment on the charge of obtaining property by deception, backdated top commence on 6 March 2014 to allow for time in custody before bail was granted;

b. One month imprisonment on the charge of failing to appear, commencing 5 April 2014; and

c. Three months' imprisonment on the breach matter, commencing 6 May 2014.

The Aggregate sentence was to be served by full-time imprisonment from 6 March 2014 to 10 April 2014, with the balance suspended and a Good Behaviour Order for 18 months from 11 April 2014 was imposed.

I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the Appellant: Darryl Perkins Solicitors

Solicitor for the Respondent: ACT Director of Public Prosecutions