Nicholls v The Queen [2016] VSCA 154

CRIMINAL LAW - Appeal - Sentence - Contravention of Community Correction Order - Offender resentenced - Trespass x 3 - Total effective sentence 13 months' imprisonment, non-parole period 6 months - Maximum term of imprisonment imposed on one count - Whether excessive cumulation of sentences on unrelated trespass - Principle of totality breached - Sentence manifestly excessive - Appeal allowed - Resentenced to 6 months' imprisonment.

1 I would invite Whelan JA to deliver the first judgment in this matter.

2 The applicant seeks leave to appeal a sentence imposed upon him by a judge in the County Court on 4 March 2016.

3 The matter came before the judge in the County Court on 4 March 2016 in the following way.

4 By a charge sheet and summons dated 12 January 2016, filed pursuant to s 83AG of the Sentencing Act 1991, a proceeding was instituted against the applicant for an offence under s 83AD of the Sentencing Act. Section 83AD of the Sentencing Act relevantly provides:

(1) An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse.

Penalty: 3 months imprisonment.

5 The charge sheet and summons alleged contravention of a Community Correction Order ('CCO') made in the County Court on 16 June 2014. That order had been made on an appeal to the County Court pursuant to Part 6.1 of the Criminal Procedure Act 2009 from a sentence of an aggregate term of six months' imprisonment and a fine of $300 imposed in the Magistrates' Court on one count of use of amphetamine and three counts of trespass.

6 Pursuant to s 83AI of the Sentencing Act the summons was initially returnable in the Magistrates' Court and pursuant to s 83AJ of the Sentencing Act the Registrar of the Magistrates' Court transferred the proceeding to the County Court. Pursuant to s 83AJ(4) the proceeding as so transferred was to be heard and determined in the County Court without a jury in accordance with Chapter 3 of the Criminal Procedure Act 2009.

7 The alleged contravention of the CCO specified in the charge sheet and summons was the applicant's failure, without reasonable excuse, to comply with directions; perform unpaid community work; undergo treatment and rehabilitation; be supervised, monitored and managed as directed; and remain in a specified place between specified hours.

8 There had also been further offending and counsel on this application told us that an oral application had been made to add the further offending as a further ground of contravention.

9 When the matter came before the County Court on 4 March 2016, although it seems the applicant was not formally arraigned, he accepted that there had been contravention of the order, and a contravention was found to have occurred.

10 Section 83AS of the Sentencing Act relevantly provides:

(1) If a court finds a person guilty of an offence under section 83AD (in addition to sentencing the offender for the offence) the court must-

(a) vary the order in any manner set out [in specified subsections]; or

(b) confirm the order originally made; or

(c) cancel the order (if it is still in force) and, whether or not it is still in force, subject to subsection (2), deal with the offender for the offence with respect to which the order was made in any manner in which the court could deal with the offender as if it had just found him or her guilty of that offence; or

(d) cancel the order and make no further order with respect to the offence with respect to which the order was originally made.

(2) A court, in determining how to deal with an offender under subsection (1), must take into account the extent to which the offender has complied with the order.

11 The relevant transcript records the County Court judge dealing with the matter on 4 March 2016 in the following manner:

1. In relation to the charge of breaching a Community Correction Order the appellant is convicted and sentenced to a term of imprisonment of one month.
2. In relation to Charge 2, I am using the numbers from the appeal here, the charge of trespass, the appellant is convicted and sentenced to be imprisoned for six months.
3. In relation to Charge 4 of trespass the appellant is convicted and sentenced to be imprisoned for three months.
4. In relation to Charge 8 of trespass the appellant is convicted and sentenced to be imprisoned for three months.
5. I order the sentence imposed on the charges of the breaching of the Community Correction Order and Charge 4 and Charge 8, the two charges of trespass, be served cumulatively on each other and cumulatively on Charge 2, the charge of trespass. That makes for a total effective term imprisonment of 13 months.
6. I direct that the appellant serve six months before becoming eligible for release on parole.
7. In relation to the charge of use amphetamine the appellant is convicted and fined the sum of $250.

1. HIS HONOUR: And if I need to make the order, the CCO is cancelled.

12 The sentencing judge did not publish reasons. The judge made reference to 'the numbers from the appeal'. What he was referring to was the appeal under Part 6.1 of the Criminal Procedure Act from the sentence which had been imposed in the Magistrates' Court. The judge had imposed the CCO, which had then been contravened, on 16 June 2014 in disposition of that appeal.

13 The applicant seeks leave to appeal from the sentence imposed on 4 March 2016 on the following grounds:

1. The individual sentences and the non-parole period breach the principle of proportionality, in particular when measured against the maximum penalty for the offence and the objective seriousness of the offending.
2. The learned Sentencing Judge erred in failing to have regard to the principle of totality in relation to the prison sentence the Applicant was undergoing at the time of the plea and by ordering full cumulation on each of the individual charges.
3. The individual sentences, the total sentence resulting from the orders of cumulation, along with the non-parole period imposed on the Applicant are each manifestly excessive having regard to:

(a) the individual trespass sentences reflect on over-weighting of the objective seriousness of the offending, particularly when having regard to the maximum penalty

(b) the principle of totality both in light of the sentence of imprisonment the Applicant was undergoing at the time of sentencing and the cumulation on the individual sentences making up the total effective sentence

(c) the Applicant's plea of guilty and other factors in mitigation.

14 An initial issue arises as to whether this Court has jurisdiction to deal with this application.

15 Section 278 of the Criminal Procedure Act provides:

A person sentenced for an offence by an originating court may appeal to the Court of Appeal against the sentence imposed if the Court of Appeal gives the person leave to appeal.

16 Section 3 of the Criminal Procedure Act defines 'originating court' as 'the County Court in its original jurisdiction or the Trial Division of the Supreme Court in its original jurisdiction'.

17 The expression 'original jurisdiction' is defined as including:

(a) a proceeding for an indictable offence; and

(b) a proceeding for a related summary offence heard under s 242; and

(c) a proceeding for an unrelated summary offence heard under s 243; and

(d) a proceeding for contempt of court; and

(e) a proceeding for variation or contravention of a sentencing order under the Sentencing Act 1991.

18 Appeals under Part 6.1 of the Criminal Procedure Act do not fall within the original jurisdiction of the County Court. The right of appeal to the Court of Appeal in relation to those matters is governed by s 283 which relevantly provides:

A person sentenced to a term of imprisonment by the County Court under sections 256, 259 or 262 may appeal to the Court of Appeal against the sentence if -

(a) in the proceeding that is the subject of the appeal, the Magistrates' Court had not ordered that the person be imprisoned; and

(b) the Court of Appeal gives the person leave to appeal.

19 In written submissions filed in relation to the application, the respondent made the following submission as to jurisdiction:

The offence of contravention of a CCO falls within the definition of original jurisdiction therefore the sentence imposed in relation to that charge may be the subject of an application for appeal to the Court of Appeal pursuant to s 278.

The sentences imposed for the original offences however arguably do not enable an appeal to this Court as the County Court is sentencing the applicant in the exercise of its appellate jurisdiction. Although, as the power to re-sentence the applicant only arises from the contravention of the CCO charge, the re-sentencing of the applicant may be considered part of the proceeding for a contravention of that sentencing order and fall within the definition of original jurisdiction.

20 In oral submissions before us, counsel on behalf of the respondent altered the respondent's position. Before us the respondent accepted the submissions made on behalf of the applicant that this Court did have jurisdiction to deal with the matter.

21 On behalf of the applicant it was submitted that the orders sought to be appealed were made in the exercise of the County Court's original jurisdiction as they were made in a proceeding for contravention of a sentencing other under the Sentencing Act.

22 The proceeding which was before the County Court on 4 March 2016 was the proceeding which had been instituted by the charge sheet and summons under s 83AG of the Sentencing Act. That proceeding alleged contravention of a sentencing order made under the Sentencing Act, namely the CCO made in the County Court on 16 June 2014 on the hearing of the applicant's appeal brought under Part 6.1 of the Criminal Procedure Act. The contravention which was the subject of the proceeding was itself an offence under s 83AD of the Sentencing Act. Pursuant to s 83AS of the Sentencing Act, upon a finding of guilt of an offence under s 83AD, the court was required to take one of a number specified further steps. One of those specified further steps was to cancel the order and deal with the offender for the offences with respect to which the order was made in any manner in which the court could deal with the offender 'as if' it had just found him or her guilty of that offence. That is the alternative the County Court adopted in this case.

23 On 4 March 2016 the County Court was not exercising jurisdiction under Part 6.1 of the Criminal Procedure Act. It was exercising its original jurisdiction in a proceeding for contravention of a sentencing order. Accordingly, the relevant right of appeal is governed by s 278 of the Criminal Procedure Act not s 283. We accordingly have, in my view, jurisdiction to deal with the application made.

24 The effect of the orders made on 4 March 2016 was as follows:

Without authority/excuse enter private place [s 9(1)(e) of the Summary Offences Act 1966]

25 penalty units or 6 months imprisonment [s 9(1) of the Summary Offences Act 1966]

Without authority/excuse enter private place [s 9(1)(e) of the Summary Offences Act 1966]

25 penalty units or 6 months imprisonment [s 9(1) of the Summary Offences Act 1966]

Use amphetamine [s 75 of the Drugs, Poisons and Controlled Substances Act 1981]

30 penalty units or to 1 year imprisonment or to both [s 75(b) of the Drugs, Poisons and Controlled Substances Act 1981]

Without authority/excuse enter private place [s 9(1)(e) of the Summary Offences Act 1966]

25 penalty units or 6 months imprisonment [s 9(1) of the Summary Offences Act 1966]

Contravene Community Correction order [s 83AD(1) of the Sentencing Act 1991]

3 months' imprisonment [s 83AD(1) of the Sentencing Act 1991]

Pre-Sentence declaration pursuant to s 18(1) of the Sentencing Act 1991:

25 The sentence imposed on what is referred to as charge 2 was the maximum sentence for that offence. All of the terms of imprisonment imposed were cumulative on each other so as to produce the total effective sentence of one year one month.

26 There are two matters of importance which need to be referred to at this point.

27 First, the sentencing judge did not publish reasons for his sentence and, after imposing the sentence, he brought the parties back before him on three further occasions because of concerns he had that he may have imposed a disproportionate sentence, that he may not have had proper regard to totality, and that he may have exercised his appellate jurisdiction to increase the sentence without giving the applicant an appropriate warning.

28 Second, whilst the respondent contends that the maximum sentence imposed on charge 2 was within the range in the particular circumstances of this case, the respondent concedes there was failure to properly reflect the nature of the offending in charges 4 and 8 in the sentences imposed, that the cumulation ordered was excessive and breached the principle of totality, and that the total effective sentence was manifestly excessive.

29 This is clearly a case where leave to appeal must be granted. The parties were advised accordingly and the hearing proceeded on the basis that the appeal itself should also be determined.

30 At the time of the relevant offending the applicant was, to adopt the words of the respondent's submission, 'struggling with dependence issues and most likely mental health issues'. The two trespass offences referred to as charges 2 and 4 both concern the applicant's presence while naked on private property in a position where two different female occupants were able to observe him. The trespass, which was the subject of charge 8 was quite different. That concerned the applicant's return to a room in a shared house from which he had been evicted. All of the offences were committed whilst the applicant was under the influence of drugs or alcohol. The two offences involving his naked presence on private property were committed within 12 hours of each other and the second was in fact committed after he had been arrested for the first.

31 The applicant has relevant prior convictions for thefts, breaches of intervention orders, criminal damage, going equipped to steal and driving offences. He also has a prior conviction for intentionally causing serious injury in relation to which a term of imprisonment of 2 years 6 months with a non-parole period of 1 year 8 months was imposed in the County Court on 4 October 2002.

32 Whilst the charge sheet and summons allege contravention of a CCO on the basis of non-compliance, the applicant had also committed further offences. On 3 September 2015 he was sentenced in the Magistrates' Court on charges of theft of a motor vehicle, going equipped to steal, theft, and dealing with property the suspected proceeds of crime. He was sentenced to 160 days' imprisonment. The pre-sentence detention was 168 days. On 15 December 2015 he was convicted in the Magistrates' Court on two charges of trespass, theft, dishonestly receiving stolen goods, and possession of a controlled weapon without excuse. He was sentenced to 180 days' imprisonment with pre-sentence detention of 43 days. But for the sentence imposed upon him on 4 March 2016 he would have been released on that sentence at the end of April 2016.

33 In the course of the hearing before us we were told that the applicant is now aged 40 years. He has not received any treatment for any mental health issues. He has had a serious drug problem. We were told that much of his prior offending related to his relationship with his former domestic partner and that he had not seen her since 2001. He has three children with her. He no longer sees them. We were told that he has no close family ties. We were told something of this work history. He has worked as a truck driver and has had other employment.

34 The applicant has now spent 7 months and 21 days in custody. Of that period of time in custody, 3 months and 22 days is in relation to the sentence now under consideration. Counsel for the applicant made it clear to us that the applicant does not wish to have a disposition imposed on him that would require further supervision and that his own preference is to receive what is colloquially known as a 'straight sentence', even if that might mean a sentence which would have an end date beyond the date of his present earliest eligibility for parole. We were told on the plea that his present earliest eligibility date is 28 August 2016 and his present end date is 1 April 2017.

36 The sentence imposed on charge 2 was the maximum sentence for that offence. The appellant had pleaded guilty and was entitled to some discount for that factor alone. The offending could not properly be described as being in the worst category. It seems to me that, in the circumstances, the sentence was manifestly excessive.

37 I accept the respondent's concession that the sentences imposed on charges 4 and 8 do not reflect the different nature of the trespasses and the circumstances in which they were committed.

38 I also agree with the Crown's concession that the orders for cumulation were excessive and breached the principle of totality and that the total effective sentence was manifestly excessive.

39 I do not consider that the sentence imposed for contravention of the CCO was excessive. In my view that was an appropriate sentence The appeal should be allowed. The orders made whereby the contravention of the CCO was found proven, whereby the appellant was convicted and sentenced to one month's imprisonment for that contravention and whereby the CCO, made 16 June 2014, was cancelled, should be confirmed.

40 As to the offences with respect to which the CCO was made, the appellant should be resentenced to an aggregate term of six months' imprisonment. That term should be wholly cumulative on the term imposed for contravention of the CCO, making a total effective term of imprisonment of seven months.