Moutrage v Haines [2008] ACTSC 36

1. This is an appeal from three sentences of imprisonment imposed in the Magistrates Court. These relate to:

(a) one offence of driving while disqualified contrary to par 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 of the ACT (referred to in these reasons as the new driving offence);

(b) one offence of minor theft under s 321 of the Criminal Code 2002 of the ACT; and

(c) a breach of a good behaviour order in connection with a suspended sentence imposed on 23 January 2007 for the offence of driving while unlicensed contrary to subs 31(2) of the Road Transport (Driver Licensing) Act 1999 (referred to in these reasons as the earlier driving offence).

2. At the same hearing, the appellant was convicted and fined in respect of three additional charges, but these are not covered by the appeal.

3. The earlier driving offence was committed in October 2006. The appellant attended an ACT Police Station to report in accordance with bail conditions relating to unpaid fines and costs. It became apparent to police officers that the appellant had driven to the police station from his workplace in another part of Canberra. Police records also indicated that the appellant had never held a driver's licence in any Australian State or Territory, and he was charged with driving while unlicensed.

4. On 23 January 2007 the appellant was sentenced to 4 months imprisonment, fully suspended on his entering into a good behaviour order for 24 months. The breach of that order was constituted by a failure to comply with the directions of an authorised officer, but the learned Magistrate mentioned the new driving offence as also amounting to a breach.

5. The new driving offence was committed on 21 March 2007. The appellant was observed by ACT police to drive a vehicle out of a housing complex driveway into a public street and then to turn back into another driveway in the same housing complex. The appellant's explanation was that he was moving the vehicle, which had previously broken down, from one side of the road to the other because the vehicle was blocking an entrance. The appellant, who had been disqualified in January 2007 from holding or obtaining a licence for a total period of 9 years, was charged with driving while disqualified.

6. Finally, on 22 April 2007, the appellant was interviewed by police after having been observed removing two bottles of fragrance from a David Jones store without paying for the items. This offence was committed while he was on bail in respect of the new driving offence. He was proceeded against by summons for an offence of minor theft.

7. On 31 August 2007, the appellant was sentenced for the two 2007 offences, and for a breach of the good behaviour order made in connection with the earlier driving offence, to a total term of seven months imprisonment. This comprised:

(c) 3 months by way of a re-sentence on the breach of the suspended sentence for the earlier driving offence.

8. The term of imprisonment was to commence on 28 August 2007 to take account of several days already spent in custody.

9. The appellant began his period of full-time imprisonment immediately on being sentenced. He lodged an appeal against sentence out of time, but leave to appeal out of time was granted on 9 November 2007. The appellant remained in custody until Gray J granted him bail on 14 December 2007, pending the determination of the appeal.

10. Although the sole ground of appeal is expressed to be that the sentences were manifestly excessive in all of the circumstances, the submissions made by counsel for the appellant, both in writing and orally, ranged from general comments about the facts of the case and the applicable penalties to implicit claims of specific error and at least one explicit claim of specific error. I have found it necessary to deal specifically with each topic raised on behalf of the appellant to ensure that the appellant's claims are properly considered.

11. For the purposes of an inquiry into the appropriateness of the appellant's sentence, it is first necessary to establish what would have been the maximum sentences available.

12. The appellant's criminal history does not disclose any previous offence of driving while disqualified, so he was to be sentenced as a first offender in relation to the new driving offence. For the offence of driving while unlicensed, he was a repeat offender. On this basis, the penalties for the driving offences are in each case 50 penalty units, imprisonment for 6 months, or both. The maximum penalty for the offence of minor theft is also 50 penalty units or imprisonment for 6 months, or both.

13. Counsel for the appellant drew attention to the circumstances of the two driving offences, and in particular the motivation for each offence, while conceding that those circumstances provided only explanations and not excuses for the offences. In relation to the theft offence, he agreed that there was really no explanation.

14. Counsel for the appellant, and counsel for the respondent in due course, devoted some time and energy to submissions about the objective seriousness of the two driving offences, in the sense of whether driving while unlicensed or disqualified is a serious offence, rather than whether the appellant's actions were serious examples of those kinds of offences.

15. It is the objective seriousness of the offences actually committed by the appellant, not the relative seriousness of those offences within what was described in argument as the "criminal calendar", that must go to determining the appropriate sentence within the sentencing range provided by the legislation.

16. Thus, for the purposes of this appeal, the explanations offered for the appellant's offences, and the fact that the new driving offence involved moving the vehicle only a very short distance, may be relevant to assessing whether the sentences imposed were excessive. Equally, the maximum penalties for the offences concerned are relevant to that inquiry. However, whether the offence of driving while disqualified is regarded as serious, or as more or less serious than other offences in the "criminal calendar", does not seem to be useful to that inquiry.

17. Both the driving offences have different maximum penalties for first offenders and repeat offenders. Therefore, and given that the appellant was far from a first offender in general terms, the fact that he was a first offender in respect of one of the driving offences does not entitle him to any particular leniency beyond that inherent in the lower maximum penalty specified for first offenders.

18. In relation to the new driving offence, the learned Magistrate was aware of the appellant's explanation for the commission of the offence, but also appears to have taken account of the broader circumstances of the incident as reflected in several other charges being dealt with at the same time.

19. In relation to the earlier driving offence, the learned Magistrate noted that it would be inappropriate to do other than impose the penalty that the previous sentencing magistrate had imposed but suspended, and that the new offences for which he was sentencing the appellant were also breaches of the good behaviour order. However, he imposed only 3 months imprisonment in respect of the breach, in contrast to the 4 months imprisonment originally imposed and suspended.

20. Counsel for the appellant suggested that the objective seriousness of the offences did not warrant custodial sentences, but did not articulate any particular error that the learned Magistrate might have fallen into in his consideration of the objective seriousness of the offence. Nor have I been able to identify one. Nor has an examination of this element of the sentencing process, by itself, established that any of the sentences imposed on the appellant were excessive.

21. Counsel for the appellant submitted that the learned Magistrate did not take into account the appellant's early pleas of guilty, as required by s 35 of the Crimes (Sentencing) Act 2005 (ACT).

22. It is true that the learned Magistrate did not specify any sentencing discount in respect of the appellant's guilty pleas. He did, however, refer to the timing of the guilty pleas, and to other aspects of the appellant's dealings with the authorities in relation to these matters, including a breach of bail and a failure to cooperate in the preparation of the pre-sentence report. He commented that, as at 28 August 2007, the appellant "had thereby effectively thwarted the sentencing process since May 2007".

23. Implicit in the learned Magistrate's comments was his view that the appellant's conduct after entering the pleas, including in particular "effectively thwarting" the sentencing process for 3 months, meant that the appellant was not entitled to any identifiable sentencing discount arising from the pleas.

24. Counsel for the appellant referred me to the NSW Court of Criminal Appeal's Guideline Judgment in R v Thomson; R v Houlton [2000] NSWCCA 309 in which Spigelman CJ said at paragraph [52]:

The absence of any reference to actual consideration of the guilty plea in the course of the sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight.

25. However, noting that in this case the learned Magistrate did in fact refer expressly to the guilty pleas, and to other matters relevant to the utility of the appellant's guilty plea, and that s 35 permits, rather than requires, a sentencing court to reduce a sentence having regard to a plea of guilty, I conclude that the learned Magistrate did not fall into error in his dealing with the appellant's pleas of guilty.

26. Counsel for the appellant submitted that the learned Magistrate failed to consider, or failed to attach any weight to, the appellant's subjective circumstances. In particular, it was submitted, the appellant's mental health issues should have reduced the significance of general deterrence as a factor in sentencing.

27. It is clear from the transcript of proceedings in the Magistrates Court that the learned Magistrate was aware of the appellant's mental health issues, which were set out in the pre-sentence report and also drawn to his attention during the hearing by counsel for the appellant. Indeed, his Honour specifically inquired, when the matter was raised, whether the appellant had sought treatment for his mental illness in recent times, and was told that he had not.

28. Furthermore, there is no reference in the learned Magistrate's sentencing remarks to general deterrence. Rather, there are several references to the appellant's repeat offending and his failure to take rehabilitation and other opportunities offered to him. It is apparent that the learned Magistrate focussed almost exclusively on specific deterrence in his sentencing.

29. Accordingly, I find that there was no error on the part of the learned Magistrate in relation to his treatment of the appellant's mental health problems, or his application of principles of general and specific deterrence.

30. Counsel for the appellant submitted that the learned Magistrate failed to give any weight to the appellant's rehabilitation prospects.

31. It is true that the learned Magistrate formed a negative view of the appellant's prospects of rehabilitation. However, this view was explicitly based on evidence before him that he referred to in his sentencing remarks.

32. It is also true, as was pointed out in submissions, that the pre-sentence report suggests that the appellant may benefit from completing the ACT Corrective Services Cognitive Self-Change Program. However, that suggestion does no more than identify a possible match between the appellant's needs and the contents of the program. There is no assessment that the appellant is committed to engage in, or to succeed at, this or any other rehabilitation activity.

33. Accordingly, I can see no basis for finding that the learned Magistrate erred in reaching his negative conclusion about the appellant's prospects of rehabilitation.

34. Counsel for the appellant submitted that, even if the learned Magistrate considered there was no alternative to custodial sentences, he ought to have considered either suspending the sentences or ordering that they be served by way of periodic detention. In fact, his Honour did consider both a suspended sentence and periodic detention, and expressly rejected both of them, when he said:

It's my view that no other order is likely to be effective than a term of imprisonment for the offence of driving whilst disqualified. The defendant's been given the opportunity of mending his ways through the assistance of Corrective Services, with the threat of a suspended sentence hanging over his head, and he's not availed himself of that opportunity.

To further suspend a sentence or to give a good behaviour order or to order community service, noting that he's not considered a suitable candidate for such an order, or that periodic detention would not be effective. The defendant's attitude and history to court orders either by way of bail or otherwise is testament to this.

35. Again, no error on the part of the learned Magistrate is shown.

36. The final argument advanced on behalf of the appellant concerned the learned Magistrate's failure to take into account the principle of totality when he simply accumulated the three sentences rather than allowing any part of them to be served concurrently. These principles were explained by the High Court in Mill v R ((1988) 166 CLR 59 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, as follows:

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'.

37. The respondent submitted that the learned Magistrate`s references to the appellant having "an effective 7-month jail term" indicated that he had applied the principle of totality.

38. There is no doubt that the learned Magistrate was aware of the total period of imprisonment being imposed.

39. Given that the three sentences were imposed in respect of three quite separate incidents, it is not unreasonable that they should be accumulated in some way. However, the fully accumulated period of seven months imprisonment seems high for the combination of three offences, each of which was at the less serious end of the spectrum of behaviour covered by the offence provision concerned, and for an offender who, as his counsel pointed out, had not previously served a sentence of imprisonment.

40. The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend. However, that fact may appropriately lead a court to decide that the first custodial sentence imposed should be a relatively short custodial sentence, at least where the offences concerned are relatively less serious. This approach may be founded on a hope that a short custodial sentence might be sufficient to persuade the offender to change his ways, without exposing him for too long to those aspects of prison life that could have a negative rather than a positive effect on his long-term rehabilitation.

41. On this basis, accepting that the learned Magistrate was aware of the total period of imprisonment being imposed, but in the absence of any indication in the transcript that the learned Magistrate did "take a last look at the total just to see whether it looks wrong", I find that the learned Magistrate did fall into error in failing to apply the principle of totality in determining how to provide for the serving of the three terms of imprisonment imposed. This finding (in contrast to some findings of error) implies also a finding that another sentence than the one imposed is appropriate.

42. Accordingly, the appellant must be re-sentenced.

43. Having regard to the material available to the learned Magistrate and the submissions of counsel in this court, and in particular the appellant's criminal record and history of not taking opportunities previously offered to him to adopt a more law-abiding lifestyle, I consider that sentences of imprisonment for 3 months, 3 months and one month (for the two driving offences and the theft offence respectively) are appropriate. However, the terms of imprisonment for the two later offences should be served as follows:

(a) for the new driving offence, the term of 3 months is to start one month after the term for the earlier driving offence; and

(b) for the minor theft offence, the term of one month is to start 15 days before the end of the term for the new driving offence.

44. The total period of imprisonment to be served is therefore 4½ months. Counsel at the hearing agreed that the appellant had been in custody for 109 days. The new sentence means that the appellant will serve a further period in custody of around 26 days.

45. It may be generally undesirable, and it is certainly inconvenient, including for the corrections authorities, to send a person back to prison for such a short period.

46. However, there is no compelling reason in this case to set the appellant's terms of imprisonment solely by reference to time already served. Nor is there any basis (having regard to his previous reaction to suspended sentences) to suspend the outstanding portion of the term of imprisonment. On the contrary, another period of imprisonment, albeit short, might contribute to specific deterrence by reinforcing the message of the previous period of time served, namely that if the appellant wants a future outside the prison system, his offending behaviour must stop.

(c) the appellant is sentenced to imprisonment for a total period of 4½ months (including time already served), made up as follows:

(i) 3 months in respect of the breach of the good behaviour order imposed in respect of the 2006 offence of driving while unlicensed, backdated to 20 January 2008;

(ii) 3 months in respect of the 2007 offence of driving while disqualified, concurrent with the first sentence as to 2 months and consecutive as to one month, and therefore backdated to 20 February 2008; and

(iii) one month in respect of the offence of minor theft, concurrent with the second sentence as to 15 days and consecutive as to the remainder of the month, and therefore backdated to 5 May 2008, expiring on 4 June 2008.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: ACT Director of Public Prosecutions