Michael McCurley v Yves Naspe and Anor [2013] ACTSC 256

On each charge sentenced to 2 months imprisonment to be served concurrently with CC 2013/1316

2. In total the appellant was sentenced to an aggregate term of 2 years imprisonment commencing 4 November 2015 and expiring 3 November 2017. The delayed commencement date for these sentences was based upon the fact the appellant was already serving a term of imprisonment previously imposed by Nield AJ for other offences at the time he was sentenced by the learned Magistrate. As required by the Crimes (Sentencing) Act 2005 (ACT) the Magistrate reset the existing non-parole period imposed by Nield AJ at 3 years 6 months commencing 4 January 2013 and expiring 3 July 2016.

3. The appellant has appealed from the sentences imposed by the learned Magistrate on the following grounds:

(a) The sentences imposed by Her Honour were manifestly excessive in all of the circumstances.

(b) Her Honour failed to have any or any significant regard to principles of totality in accumulating the sentences in the way that she did.

(c) Her Honour failed to appropriately deal with and give sufficient weight to the appellant's evidence as to the hardship suffered by him in the Alexander Maconochie Centre.

(d) In relation to the hardship suffered by the appellant while in custody, Her Honour indicated that she would adopt the approach taken by Penfold J in The Queen v Fleet (SCC 74 of 2012 11 December 2012) but then failed to do so.

4. This Court's jurisdiction in hearing appeals from the Magistrates Court was described by Refshauge J in Hawkins v Hawkins [2009] ACTSC 148 (at [4]-[6]):

Section 207 of the Magistrates Court Act 1930 (ACT) gives this Court jurisdiction to hear the appeals from decisions of the Magistrates Court specified, inter alia, in s 208 of that Act. These include appeals from orders of the Magistrates Court under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). Part 3.2 of the Sentencing Act provides for sentences of imprisonment, which is the sentence imposed on Mr Hawkins.

In Kennewell v Rand [2006] ACTCA 10, the Court of Appeal said (at [29]) of an appeal against a decision of a Judge of the Supreme Court refusing to uphold an appeal from the sentence of a Magistrate:

The circumstances in which an appeal court may interfere with the exercise of the discretion reposing in the sentencing judge are well known and do not need repeating: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Lowndes v R [1999] HCA 29; (1999) 195 CLR 665; and Dinsdale v R [2000] HCA 54; (2000) 202 CLR 321.

Those principles were set out in a passage from the decision of the Court of Appeal of Victoria in R v Clarke [1996] VICSC 30; [1996] 2 VR 520 (per Charles JA, Winneke P and Hayne JA agreeing), expressly approved by the High Court in Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 (and 671). His Honour said (at 522):

1. A court of criminal appeal dealing with any appeal against sentence, including by a prisoner, is not a court hearing the matter anew, and is not entitled to substitute its own opinion for that of the sentencing judge merely because it considers the sentence inadequate or excessive. It may only interfere it there is manifest inadequacy [or excess] or it is shown that the sentencing judge fell into material error of law or fact (Allpass [(1993) 72 A Crim R 561] at 562-3).

5. Refshauge J discussed the principles relevant to this ground of appeal in Hawkins v Hawkins, at [39] to [47]:

39. This very common ground of appeal (and the "mirror image", namely that the sentence is manifestly inadequate in the case of a Crown appeal) has its genesis in statements in the High Court, such as the following by Dixon, Evatt and McTiernan JJ in Cranssen v The King [1936] HCA 42; (1936) 55 CLR 509 (at 520):

But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court's authority.

40. This requires the appellate court to give careful consideration to the circumstances of the case. As Jordan CJ said in R v Geddes [1936] NSWStRp 35; (1936) 36 SR (NSW) 554 (at 556):

[A] Court of Criminal Appeal should intervene if the sentence appears to it to be out of reasonable proportion to the circumstances of the crime, having regard to the facts proved in evidence at the trial; but before the Court is satisfied that such an absence of due proportion exists, it should make the fullest allowance for the consideration that the trial judge has had an advantage denied to it, namely, that he has seen the witnesses, and, therefore, that he has had an opportunity of forming impressions which no perusal of cold print can afford. Unless some error in principle, or some such unreasonable disproportion, appears, I think that a case is not made out for revision of the sentence.

41. Of course, in many cases, especially in the Magistrates Court, no witnesses are called on sentence and even the offender is unlikely to give evidence so the advantage of the sentencer may not be significant.

42. The exercise confronting an appellate court when considering such a ground, however, is one which requires some elaboration and argument. As Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 325-6):

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion. A Court of Criminal Appeal is not obliged to employ any particular verbal formula so long as the substance of its conclusions and its reasons is made plain. The degree of elaboration that is appropriate or possible will vary from case to case.

43. As Hunt CJ at CL said in Ellis (1993) 68 A Crim R 449 (at 461):

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.

44. See also Oliver v State of Tasmania [2006] TASSC 95 (at [13]-[16]).

45. In order to make out the ground, it is necessary to show that the sentence is excessive and manifestly so, not merely arguably so. As was said by Jacobs J in Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293 (at 327):

The trial judge is given a wide discretion from the circumstance that a Court on appeal will not lightly conclude that another sentence should have been passed. The incorrectness of the sentence must be manifest.

46. The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder[1983] 3 NSWLR 245 per Street CJ (at 254).

47. Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

6. In his written submissions the appellant concedes that these offences and the circumstances of their commission must be viewed as objectively serious. The maximum penalties for the various offences are as follows:

1. failing to appear (s 49(1) Bail Act 1992 (ACT)) - 2 years imprisonment;
2. burglary (s 311 Criminal Code 2002 (ACT)) - 14 years imprisonment;

1. theft (s 308 Criminal Code 2002) - 10 years imprisonment;

1. unlawful possession of stolen property (s 324(1) Criminal Code 2002) - imprisonment for 6 months; and
2. obtain property by deception (s 326 Criminal Code 2002) - 10 years imprisonment.

7. The importance of maximum penalties in assessing the objective seriousness of criminal offences was referred to in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 where Gleeson CJ, Gummow, Hayne and Collinan J said at [31]:

[C]areful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick".

8. The Statement of Facts submitted in the Magistrates Court for the first offence of Failure to Appear (CC 2012/9158) reveals that the appellant was arrested at premises at Amaroo on 20 October 2012 after failing to appear in this Court. The Statement of Facts for the second charge of Failure to Appear (CC 2013/364) state that the appellant was released on bail undertaking on 22 October 2012, 2 days after being arrested on CC 2012/9158, to appear in the Magistrates Court on 5 November 2012. He failed to appear on that date and a warrant was issued for his arrest. He was subsequently located and arrested by police on 3 January 2013. He also failed to appear in this Court on 1 November 2012 (CC 2013/366). No explanation for these failures to comply with his bail undertakings were placed before the Magistrate. These offences displayed complete contempt by the appellant for his obligations under the Bail Act. In Ursino v Read [2005] ACTSC 106, Crispin J said (at [12]) regarding such offences:

As his Honour observed, offences of failing to appear in answer to a bail undertaking are prevalent, and the commission of offences of that character put the community to the expense and inconvenience of having to locate and arrest the absconding defendant and bring him or her back to court. Furthermore, if alleged offenders were permitted, without significant penalty, to delay trials or sentencing proceedings by failing to answer their bail, confidence in the whole process could suffer and other alleged offenders might be encouraged to adopt a similar course. Hence, in the absence of any significant mitigating factor, custodial sentences should be expected for offences of this kind.

9. The appellant also has previous convictions for failing to appear, and has served terms of imprisonment for such offences.

10. The burglary (CC 2013/1316) occurred on 3 October 2012 during daylight hours. The appellant was identified as the offender by DNA taken from the premises by AFP forensic officers. Entry was obtained by breaking a window, and the house was ransacked. The offence of theft (CC 2013/1421), consisted of the appellant stealing computer items, jewellery and a small amount of money from those premises.

11. On 29 October 2012, the appellant attended Cash Converters at Woden and sold an Apple Mac laptop computer, which had previously been stolen in the course of a burglary on 26 October 2012. The appellant signed a receipt saying he was the owner of the property before the received $150 from Cash Converters. These facts were the basis of the charges of unlawful possession (CC 2013/1317) and obtaining property by deception (CC 2013/1318).

12. It was conceded by the appellant that most, if not all, of these offences occurred while he was on conditional liberty or while he was unlawfully at large.

13. The appellant pleaded guilty to all offences, and was given appropriate discounts on sentence by the learned Magistrate to reflect his pleas. The appellant also participated in a police interview during which he made relevant admissions. The appellant does not cavil with the way these issues were addressed by the learned Magistrate.

14. A Pre-Sentence Report and a CADAS report were place before the Magistrate on the sentence hearing. The appellant is 35 years old and has a lengthy history of alcohol and drug abuse. This abuse commenced at an early age, such that he is not to be held as responsible for his commencement of alcohol and drug abuse as he would if it had commenced as an adult: R v Henry [1999] NSWCCA 111; (1999) 106 A Crim R 149 at 197. The appellant's substantial criminal history is causally connected with his history of drug and alcohol abuse. He was apparently inebriated at the time he committed these offences.

15. The sentences imposed by the learned Magistrate for the offences of failing to appear were approximately 17% of the maximum provided for that offence. Considering the facts as outlined above I consider those sentences to be lenient. The sentence imposed on the burglary charge was approximately 14% of the maximum. Considering the facts and the appellant's prior criminal history for similar offences, I also consider this to have been a lenient sentence. The sentence imposed for the offence of theft was just over 8% of the maximum, again a very lenient sentence. The sentence imposed on the offence of unlawful possession was approximately 33% of the maximum, which was appropriate bearing in mind the facts and the appellant's history. Finally, the sentence imposed for the offence of obtaining property by deception was less than 2% of the maximum penalty, which was a very lenient sentence in the circumstances.

16. It cannot be said that any of the individual sentences were manifestly excessive. I will consider the question of the structure of the aggregate sentence in addressing the appellant's other grounds of appeal.

GROUND 2 - Failure to have sufficient regard to the principle of totality in accumulating the sentences

17. It is quite clear that the learned Magistrate had regard to totality in structuring the aggregate sentence. In her sentencing remarks she said:

I have also had regard to the principle of totality. In respect to the failed to appears, it seemed to me that while they are all distinct offences, they were part of a series of offending over a short period in relation to one set of court proceedings.

In respect to the other matters that follow, they are quite distinct both in time and in nature. Nonetheless as I said, having regard to both the principle of totality and the concern that you have expressed about the impact on you, particularly of the sentence, I am going to afford some concurrency there.

18. The ground of appeal that the learned Magistrate failed to have sufficient regard to the principle of totality in arriving at the aggregate sentence is really a particular of the complaint that the sentence is manifestly excessive: see Balthazaar v The Queen [2012] ACTCA 26 at [64]. It is, however, convenient under this ground to consider the appellant's complaint that the aggregate term of imprisonment imposed by her Honour, or the non-parole period imposed, was manifestly excessive.

19. In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59, the High Court considered the principles relevant to totality, and said at 62-63:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp 56-57, as follows (omitting references):

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong [']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences' ".

See also Ruby, Sentencing, 3rd ed. (1987), pp. 38-41. Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

20. There is no evidence that the learned Magistrate failed to understand the totality principle, or failed to apply it appropriately to the sentences she imposed upon the appellant. It was open to her Honour to have accumulated, to a significant extent, the sentences she imposed for the offences of failing to appear. Instead, she ordered that all of those sentences be served concurrently. Similarly, it was open to her Honour to make the sentence imposed for the offence of theft at least partially cumulative upon the sentence for burglary. She could also, without error, have made the sentences imposed for the offences of unlawful possession and obtaining property by deception at least partially cumulative. In structuring the sentences imposed upon the appellant in the way in which she did, the learned Magistrate applied the totality principle, and I can discern no error in the way in which she did. This ground of appeal must also fail.

21. The appellant complains that the non-parole period imposed by the Magistrate was approximately 72% of the head sentence, whereas the non-parole period imposed by Nield AJ was 60% of the head sentence. In my opinion, no error is demonstrated by this fact. It is to be expected that where an accused person who is already serving a term of imprisonment is sentenced for further offences, the ratio between the head sentence and the non-parole period may vary. That is particularly so where, as here, the further offences were committed when the accused was on conditional liberty or unlawfully at large. The variation of the ratio between the head sentence and the non-parole period made by the Magistrate is not so significant as to suggest error, and is explicable by reason of the circumstances surrounding the further offences.

GROUND 3 - Failure to appropriately deal with and give sufficient weight as to the hardship suffered by the appellant in the AMC

22. The learned Magistrate heard evidence from the appellant about two assaults that had been committed on him while an inmate at the AMC. The appellant gave evidence that he did not want to be on protection because of what that would imply to other inmates, but that because of what had occurred he was obliged to leave the Smart Recovery program and was not able to access the full benefits of his classification as a minimum-security prisoner. He stated he was in fear of further assaults in the AMC. It is clear that the Magistrate took this evidence into account when sentencing the appellant. In the course of her sentencing remarks the learned Magistrate said:

You gave oral evidence about the risk to you in custody. I can take some things from that, but they are limited. I am satisfied that it is a relevant consideration on the sentence, both at common law and having regard to section 33(r)[sic] of the Crimes (Sentencing) Act, that there might be a particular hardship to you in any sentence. There is un-contradicted oral evidence from you that you have been the subject of two assaults whilst you were in custody in two different areas, as the result of or at the instigation of another inmate's concerns. There is no evidence before me when that person is due to leave AMC. For all I know, and what is before me, it could be tomorrow; it could be in 10 years. So I do not know how long that thread is likely to continue.

23. There is no complaint that what the learned Magistrate said is factually incorrect. There was limited evidence placed before her for her Honour to determine how long any threat to the appellant in custody was likely to continue. In any event, her Honour expressly took into account the particular hardship which a sentence of imprisonment may impose upon the appellant. I can discern no error in the way in which her Honour approached this issue. This ground of appeal must also fail.

GROUND 4 - In relation to the hardship suffered by the appellant in custody, Her Honour indicated that she would adopt the approach taken by Penfold J in R v Fleet, but then failed to do so

24. This ground is misconceived for a number of reasons. First, there can be no error in a judicial officer indicating that they propose adopting a particular approach to sentencing, and then adopting a different approach, so long as no issue of procedural fairness arises. Secondly, I am satisfied that the Magistrate did sentence the appellant in the way in which she indicated she would. In R v Fleet (unreported, ACT Supreme Court, Penfold J, 11 December 2012) Penfold J sentenced an offender who was already serving terms of imprisonment to a further term of imprisonment for a further offence. Her Honour indicated that she would address totality by making part of the sentence that she was to impose concurrent with the sentences that the offender was already serving. Thus, Penfold J addressed totality by making sentences at least partially concurrent. That is what the learned Magistrate did in sentencing the appellant. In saying that she proposed adopting the approach taken by Penfold J in the R v Fleet the learned Magistrate should not be taken to have said that she intended to make one or more of the sentences that she was imposing concurrent with the sentences the appellant was already serving. Rather, her Honour was indicating that she proposed to deal with the issue of totality by concurrency. In making many of the sentences that she imposed upon the appellant concurrent with each other she did exactly that. This ground of appeal must also fail.

25. I can discern no error on the part of the learned Magistrate in the sentences she imposed upon the appellant. The sentences are not manifestly excessive, either individually or in aggregate and the non-parole period imposed is not manifestly excessive. The appeal will be dismissed.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the Appellant: Legal Aid ACT

Solicitor for the Respondent: ACT Director of Public Prosecutions