Criminal Law - Sentence - Sentencing orders - Commencement - Offender held in custody before sentence - Failure to backdate sentence affected operation of non-parole period and detracted from the integrity of the sentencing record.

Sentencing Act 1997 (Tas), s 16.

Geale v Tasmania [2009] TASSC 28, 18 Tas R 338, applied.

Criminal Law - Appeal and new trial - Appeal against sentence - Grounds for interference - Sentence manifestly excessive or inadequate - Violent home invasion - No error in effective head sentence of three years' imprisonment but long non-parole period made sentence manifestly excessive.

Judgment Number: [2018] TASCCA 2

1. Sentence of two years and six months' imprisonment with parole ineligibility period of 20 months imposed on 26 September 2017 quashed.

1. Appellant sentenced to three years' imprisonment, backdated to 26 March 2017.

4 Appellant not eligible for parole until he has served 18 months of that sentence.

1. The appellant, Travis Anthony Mortyn, appeals against a sentence imposed upon him by Slicer AJ on 26 September 2017.
2. His Honour convicted the appellant of crimes of aggravated burglary, attempted robbery, demanding property with menaces and assault, contrary to the Criminal Code, ss 245, 240(1), 299, 242 and 184, and sentenced him to imprisonment for two years and six months to commence on 26 September 2017 and ordered that the appellant not be eligible for parole until he had served 20 months of the term of imprisonment imposed.
3. The appellant, by his amended notice of appeal, asserts that the learned sentencing judge erred in imposing a non-parole period that made the sentence manifestly excessive in all the circumstances, erred in that he did not take into account the appellant's remorse in his reasons for passing sentence or at all, and erred in that he failed to state reasons for the imposition of a 20 month non-parole period.

1. The frequently stated legal principles applicable to appeals against sentence on the ground of manifest excess or inadequacy are clear and well settled. They can be found succinctly stated in Braslin and Cowen v Tasmania [2010] TASCCA 1 at [31]-[34], per Porter J, and in Director of Public Prosecutions (Acting) v Pearce [2015] TASCCA 1 at [8], per Pearce J. That a non-parole period can render a head sentence manifestly excessive is also clear from such cases as Johnstone v Tasmania [2011] TASCCA 9; Pickrell v Tasmania [2011] TASCCA 13, Richman v Tasmania [2011] TASCCA 18 and Groenewege v Tasmania [2013] TASCCA 7
2. The requirement for a sentencing judge to give reasons was discussed by Crawford CJ in Trueman v Tasmania [2009] TASSC 29, 18 Tas R 435 at [29]. His Honour, with whom Slicer and Tennent JJ agreed, said:

"It has been held in a number of cases that a failure to give adequate reasons for a sentence does not amount to an appealable error. R v Jackson [1996] 1 WLR 528 at 530; Tame v Fingleton (1974) 8 SASR 507 at 510; Shrubsole v Rodriguez (1978) 18 SASR 233 at 236; Leech v McCall (1986) 41 SASR 96 at 100; R v Capalbo [2005] SASC 47 at par98; Massey v Muir unreported A37/1976 at 3; Bastick v Cochrane unreported 77/1997 ([1997] TASSC 79) at 4. There are two South Australian authorities to the contrary, but their validity is questionable. In Cross v Police [2001] SASC 47 at par26, Olsson J held that a failure to give adequate reasons for a sentence was an error of law, citing the Full Court in Papps v Police (2000) 209 LSJS 407 as authority for that. However, it was only authority for the proposition that a failure by a magistrate to give adequate reasons for finding a charge proved was an error of law. It was not a sentencing case. What was said by Olsson J was simply adopted by way of obiter dicta by Debelle J on an appeal from a magistrate in Moore v Police [2005] SASC 436 at par6. It is difficult to find appellate cases in this country in which a sentence was set aside or quashed only because of a failure to provide adequate reasons for the sentence."

1. As to the necessity to refer to particular matters in making comments on passing sentence Crawford CJ said at [16]:

"Counsel for the appellant pointed to the failure of the learned judge to specifically refer in his comments to the submissions that the appellant's actions amounted to an isolated lapse of judgment, that he came from a good family with strong family support and that he had demonstrated remorse by his plea of guilty at the earliest possible opportunity. There is no rule of law that a sentencing judge must repeat everything said by defence counsel in mitigation or say that everything that has been said has been taken into account. There is no reason to think that the learned judge failed to take into account or give any weight to any of the mitigating factors. That is particularly so if the sentence was a correct one, which is the view I take of it."

1. There is of course a requirement imposed upon a sentencing judge by the Sentencing Act 1997, s 17(7), to give reasons for making an order that an offender is not eligible for parole in respect of a sentence or an order that he or she is not eligible for parole in respect of a sentence before the expiration of such period as is specified in the order.

1. The learned sentencing judge made the following comments on passing sentence, which comments, in my view, set out sufficiently for the purposes of this appeal the facts of the appellant's offending:

"The crimes were committed on 23 August 2016. The home was occupied by Mr and Mrs Franke and their daughter, A, aged 16 years.

The victims were known to their assailant and there is a suggestion that the defendant had some grievance about a form of relationship between his father and A. The defendant in his youth used to attend, with his family, the same church as the complainants.

On 23 August, the three complainants were at their home. Mr Franke, who suffered from a terminal affliction of cancer, was in bed.

At about 9.15pm, the defendant knocked on the door of their home. As Mrs Franke unlocked the door it was flung open, as if kicked from the outside. The defendant burst open the door, causing Mrs Franke to stumble backwards. He entered uninvited and demanded the two women to sit down, but both remained standing. The defendant was agitated and began to verbally abuse A, and accused her of ruining his family.

The defendant continued to yell and demanded their phones and money. Both asked that he leave. He then demanded to know where Mr Franke was, and was told he was in bed unwell. The prosecution's statement of facts describes what then happened:

'8 As Mr Franke approached the lounge room the accused moved towards him and said "Jimmy, give me your money!" Mr Franke replied that he didn't have any money at which time the accused said 'Give me your mobile phone'. Mr Franke responded "No, get out Travis" at which stage the accused lunged towards him and punched him once to the stomach. The punch struck the scar from Mr Franke's surgery and caused him to fall backwards, hitting his head on a cabinet and falling down in considerable pain.

1. Mrs Franke was standing near the front door and yelled for the accused not to punch Mr Franke. The accused turned towards the front door and as he passed Mrs Franke he punched her once to the left eye, causing her to stumble backwards. He yelled, if they didn't have $500 for him next week he would come back and slice their throats.
2. The accused left the house and [A] locked the front door after him.'

Mr Franke suffers from liver and bowel cancer. He had a stomach operation in May 2016 and the punch to the stomach caused further harm.

Police were called and later located the defendant nearby. He initially resisted arrest and struggled with them until he was handcuffed. Both Mr and Mrs Franke were taken to hospital. A CT scan showed that Mrs Franke had suffered an infra orbital fracture to her left eye which required subsequent surgery. Mr Franke suffered pain to the stomach."

1. The learned sentencing judge made the following comments on passing sentence as to the impact of the appellant's crimes on Mr and Mrs Franke:

"The victim impact statements show that the impact on the family was significant and long lasting. The daughter, A, suffers ongoing trauma, fears further attacks, is afraid of the dark and is concerned for the wellbeing of her father. Mrs Franke suffered ongoing pain and is frightened of any further attack. She continues to be afraid of the night, has heart palpitations at any sudden noise, and continues to suffer from sleep disorder and deprivation.

The statement of Mr Franke is poignant. He has terminal cancer and knows that he has little time to live. He relives the events and is anxious about his capacity to protect his family. He remains traumatised, feels 'like our family home has been totally traumatised; our safe place'. He has terminal cancer and has been declared as totally blind. The stress of the home invasion has exacerbated his condition. He became more fearful when the defendant was released from custody. As a man of religious faith he fears that he has lost the ability to protect his family."

1. The learned sentencing judge made the following observations as to the appellant's personal circumstances:

"The defendant is aged 22. He states that he lived at home until, at the age of 14, he was evicted by his father. Since then he has led an unsettled life, left school but kept in contact with his mother. He has held brief employment and lived from day-to-day. He has an appalling record for anti-social conduct. He was first convicted for a driving offence which occurred in November 2012. Since then he has amassed a lengthy record of driving offences, including driving whilst disqualified, injury to or destruction of property, unlawful possession of property, burglary and stealing, disturbing the peace, and the like. He has breached the terms of probation orders and of a suspended sentence. The Court accepts his claim that these crimes were not committed as a result of alcohol or drug use. He is entitled to the benefit of his plea of guilty entered shortly before trial. He is not entitled to the benefit of an early plea. He will be afforded the credit of six months' imprisonment already served whilst awaiting the outcome of these proceedings."

1. Counsel for the appellant, Mr Scott, first submitted that the learned sentencing judge made no comment on the appellant's remorse which was not doubted by the respondent on the sentencing hearing, that it was incumbent upon his Honour to consider and decide the weight to be attached to that remorse and that his failure to do so was an error resulting in a substantial miscarriage of justice.
2. I can deal with that submission at once by reference to what was said by Crawford CJ in Trueman in the passages from his Honour's judgment I have set out above. There is no rule of law that a sentencing judge must repeat everything said by defence counsel in mitigation or say that everything that has been said has been taken into account. That ground of appeal, which is the second ground in the amended notice of appeal, has no merit and in my view must fail.
3. The second submission by counsel for the appellant was that the learned sentencing judge erred by failing to state any reasons for imposing a non-parole period greater than one half of the appellant's sentence as required by the Sentencing Act, s 17(7), and that such an error constitutes a substantial miscarriage of justice.
4. As Crawford CJ observed in Trueman (above) at [16], there is no reason to think that a judge fails to take into account or give any weight to any of the mitigating factors and that is particularly so if the particular sentence is considered a correct one on appeal. The same can be said of a non-parole period. It is sufficient in my view if the sentencing judge's reasons for imposing a non-parole period of greater than half of an offender's sentence or for making no order for parole is apparent from the judge's comments on passing sentence which are invariably published and publicly available. That view is consistent with those expressed in Wright v Tasmania [2010] TASCCA 7 by Tennent J at [41]-[44] and Porter J at [47]-[52].
5. In the present case, given that the appellant had never before served an actual term of imprisonment and was a young man with no prior record for offences involving personal violence, it is clear beyond doubt that the only valid reason for imposing a non-parole period of greater than half of the sentence was that the appellant's crimes were serious, involving as they did, home invasion and violent attacks on defenceless people.
6. It follows that in my view the submission made as to this ground is also without merit. There is, to my mind, nothing in the Sentencing Act, s 17(7), that imposes upon a sentencing judge an obligation to provide reasons for imposing a particular non-parole period which reasons are separate from and additional to the comments made by the judge on passing sentence.
7. Even were it otherwise, an appeal to this Court based on an assertion of manifest excess in the length of, or by virtue of the absence of, a non-parole period, would not be assisted by an assertion of error in failing to give reasons. If the non-parole period was regarded by the Court as manifestly excessive it would be adjusted irrespective of the absence of reasons for its imposition. On the other hand, if the non-parole period was regarded as not manifestly excessive it would be appropriate to apply the proviso in s 402(2) of the Code as, notwithstanding that the Court might be of the opinion that the point raised by the appellant should succeed, no substantial miscarriage of justice could actually have occurred as a result of a failure by the sentencing judge to give the required reasons.
8. It follows in my view that the appellant's second submission which relates to the third ground of appeal is without substance and the ground must fail.
9. The appellant's third submission, which relates to the first ground of appeal, was that in the circumstances of the case the non-parole period of 20 months was manifestly excessive. I agree.
10. While the learned sentencing regarded the appellant's crimes as a serious case of home invasion, the sentence nonetheless needed to reflect competing factors. On the one hand, all four crimes were serious crimes and the victims suffered harm, making the need for general deterrence a prominent consideration. On the other hand, the sentence must reflect the fact that the appellant, at 22 years of age, was still a relatively young man and he had pleaded guilty to the crimes for which he was indicted and had expressed remorse on the day of the sentencing hearing after reading the victim impact statements on the previous day. His record of prior convictions and breaches of court orders also needed to be balanced against the fact he had not previously served a sentence of imprisonment.
11. It is also relevant that, albeit this was a home invasion, Mr Franke had known the appellant for about 10 years as a result of attending the same church, and Mrs Franke had known him since he was about seven or eight years old. The appellant entered the house, albeit forcefully, after knocking on the door and it being opened. The attempt to steal and the demand for money were somewhat bizarre, as I apprehend it, and although Mr Franke was a sick and defenceless man, the appellant punched him once only to the abdomen. In my view the totality of the offending was at the lower end to the middle of the range of offending for the crimes for which the appellant was convicted.
12. I thus regard the non-parole period of 20 months ordered in respect of a head sentence of 30 months to be unreasonable and unjust in itself. The relevant considerations in my view would not justify the imposition of a non-parole period of greater than half of the appellant's sentence. However, the injustice in this case was to my mind compounded by the course the learned sentencing judge took in discounting the head sentence to take account of the appellant's time spent in custody rather than backdating the sentence.
13. In his comments on passing sentence his Honour said that the "appropriate sentence is one of three years' imprisonment, reduced to two years and six months for time already served". He then ordered a non-parole period of 20 months.
14. The significance of the length of any non-parole period is self-evident. In Gill v The Queen A34/1990, Crawford J (as he then was) observed at [25]:

"The making of an order by a sentencing judge extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by the sentencing judges before making an order extending the non-parole period."

1. Thus sentencing judges will, as a rule, consider the impact of particular sentencing modalities on the question of parole. In Geale v Tasmania [2009] TASSC 28, 18 Tas R 338 [56] Evans J noted that when it is necessary to pay regard to a period of presentence time in custody when imposing a sentence, backdating the sentence can avoid a variety of problems that arise from adopting other means of taking account of that time in custody. His Honour set out the following passage from Doyle v The Queen (1998) 105 A Crim R 199 at 211, per Crawford J:

"Whether a sentence is backdated to take into account pre-trial custody or whether instead the period of pre-trial custody is simply deducted from the proposed term which then commences on the day the sentence is imposed, may have significant consequences. I will give some examples. If a person is sentenced to three years' imprisonment but the sentence is expressed to commence one year earlier, when custody with respect to the offence in fact commenced, then the prisoner will be eligible for parole six months after the imposition of the sentence and eighteen months after the commencement of the imprisonment. If however, the one year period of pre-trial custody is first deducted and the sentence is expressed as one of two years' imprisonment commencing on the day the sentence is passed, the prisoner will not be eligible for parole until twelve months after the imposition of the sentence and two years after the imprisonment commenced. That is because the Corrections Act 1997, s68(1), expresses the non-parole period applicable to a sentence of imprisonment as a period equal to one half of the period of the sentence. It would plainly be unjust if a prisoner who had spent time in custody prior to sentence should have a longer period of parole ineligibility than a prisoner who had spent no such time in custody. Injustices could also arise with respect to remissions for good behaviour under the Corrections Regulations 1998 (Tas), reg23."

1. Evans J in Geale (above) also set out the following remarks of the New South Wales Court of Appeal in R v McHugh (1985) 1 NSWLR 588 at 590-591 directed to the desirability of backdating sentences to take account of time served rather that discounting them:

"The desirable practice will promote the accuracy of the record, preventing there being a hidden factor affecting the length of the custody involved in consequence of the sentencing order. In addition, this practice will remove inequalities and unfairnesses as between prisoners arising from delays prior to sentencing, in particular in relation to remission or reduction entitlements; recognition of this does not infringe the principle in R v O'Brien [1984] 2 NSWLR 449 that remissions and reductions are to be disregarded when determining the length of sentences, non-parole and non-probation periods. A judge departing from this practice could be expected to indicate his reason for so doing."

1. In the present case the discounting by the learned trial judge of the otherwise appropriate sentence of three years' imprisonment meant that when his Honour ordered a non-parole period of 20 months on the discounted sentence of 30 months he was in effect espousing the proposition that the minimum time that justice required the appellant to serve in prison for his crimes was 26 months. Put another way, the imposition of a non-parole period of 20 months was against the background that the appellant had already spent six months in custody in respect of his crimes. So regarded, the non-parole period was manifestly excessive in my view.
2. In contrast, had his Honour imposed the sentence of three years' imprisonment that he considered appropriate and backdated it to 26 March 2017 to take account of the six months the appellant had already spent in custody, and had he then imposed a non-parole period of 20 months, the appellant would only have been required to serve 14 more months before being eligible for parole and not 20 months. Had his Honour taken that course and imposed the non-parole period which I regard as appropriate, namely 18 months, then the appellant would have had only 12 more months to serve from 26 September 2017. In my view, with respect, that is the course that his Honour ought to have taken.
3. The course the learned sentencing judge took in discounting the appellant's sentence is in general apt to create a disconnect, or at the least an obscurity, with respect to the statutory obligation pursuant to the Sentencing Act, s 16(1), to take into account in sentencing, any period of time during which an offender was held in custody in relation to his or her offence, as between consideration of a head sentence on the one hand, and consideration of a fair non-parole period on the other.

1. Having regard to the foregoing matters, I am persuaded that the appellant has established that, by reason of its severity, the sentence imposed on him is "unreasonable or plainly unjust" as by virtue of the imposition of a non-parole period of 20 months.
2. I would allow the appeal, quash the sentencing order and substitute a sentence of three years' imprisonment, backdated to 26 March 2017 with a non-parole period of 18 months.