ACTACTSC
Okwechime v Sindel [2009] ACTSC 162
[2009] ACTSC 162
Supreme Court of the ACT|2009-12-08
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Supreme Court of the ACT
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2009-12-08
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[2009] ACTSC 162
Supreme Court of the ACT
2009-12-08
Original judgment source is linked above.
APPEAL - refusal to set non-parole period for sentence of 13 months imprisonment - whether reasons for refusal required - whether annotation on bench sheet amounted to reasons - requirement that sentencing reasons be published orally - whether annotation reciting the statutory considerations for refusal amounted to reasons - whether failure to give reasons was a sentencing error - suggestion of inconsistent reasons for refusal highlights error in failing to give reasons.
APPEAL - sentence imposed by Magistrate on Ngambra Circle Sentencing Court recommendation - whether good behaviour order condition had been breached - whether another Magistrate had jurisdiction to re-sentence following a breach - operation of Ngambra Circle Sentencing Court under Practice Direction.
SENTENCING - purposes of non-parole periods - whether ss 10(4) and (5), Crimes (Sentencing) Act 2005 (ACT) apply to requirement to set non-parole period - sentences for offences arising out of same incident appropriately served concurrently.
Road Transport (Driver Licensing) Act 1999 (ACT), paras 32(2)(a), 32(1)(a)
Magistrates Court Act 1930 (ACT), s 214
Criminal Appeal Act 1912 (NSW), subs 6(3)
Explanatory Statement, Crimes (Sentencing) Bill 2005 (ACT)
Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284
Curtis v The Queen [2007] NSWCCA 11
De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553
Devereux v Kehl [2005] ACTSC 131
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Harper v Low and Wood [2009] ACTSC 136
House v The King [1936] HCA 40; (1936) 55 CLR 499
Leach v The Queen [2005] NTCCA 18; (2005) 16 NTLR 117
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Pettitt v Dunkley [1971] 1 NSWLR 376
R v Shrestha [1991] HCA 26; (1991) 173 CLR 48
Scott Paul Matheson v The Queen (2007) 176 A Crim R 466
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
(a) The appeal is upheld, and Mr Okwechime will be re-sentenced.
(b) I shall hear the parties before the re-sentencing.
1. Chidi Chike Okwechime has appealed from three sentences imposed in the Magistrates Court on 14 April 2008 by Magistrate Lalor. These relate to:
(a) one offence of driving recklessly, under s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (CC 2007/11722);
(b) one offence of driving while suspended, under paragraph 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC 2007/11726); and
(c) one offence of driving while disqualified, under paragraph 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) (CC2007/490).
2. At the same hearing, Magistrate Lalor sentenced Mr Okwechime to an 18-month good behaviour order and a number of fines, but these are not covered by the appeal.
3. The penalty for driving recklessly includes imprisonment for up to one year, and for the other driving offences the maximum term of imprisonment for a first offender is 6 months. Mr Okwechime was to be treated as a first offender for both driving offences because he had not been convicted of the earlier offence before committing the later one.
4. The events leading up to the imposition of sentences can be summarised as follows:
16 December 2006: Drive while disqualified offence (the 2006 offence) committed
30 March 20007: Mr Okwechime referred to the Circle Sentencing Program
28 November 2007: Drive while suspended and drive recklessly offences (the 2007 offences) committed
29 November 2007: Warrant issued in relation to 2007 offences
12 December 2007: Magistrate Madden sentences Mr Okwechime for 2006 offence to 6 months imprisonment fully suspended on entering residential drug program for minimum of 10 months
3 January 2008: Mr Okwechime enters Canberra Recovery Service
13 January 2008: Mr Okwechime leaves Canberra Recovery Service
19 January 2008: Mr Okwechime arrested and remanded in custody
14 April 2008: Magistrate Lalor re-sentences Mr Okwechime for 2006 offence and sentences him for 2007 offences
25 July 2008: Mr Okwechime released on bail pending finalisation of appeal
5. More detail about some of these events is provided below.
6. On 16 December 2006, Mr Okwechime was stopped by police after being recorded driving at 140 kph in an 80 kph zone. He was charged with a number of offences, including one offence of driving while disqualified (a total 9-month disqualification had been imposed on 6 July 2006 as a result of prescribed concentration of alcohol offences).
7. On 28 November 2007, police attempted a traffic stop on a Nissan Skyline being driven in Kingston by a person they had previously identified as the appellant. Instead of stopping, the driver accelerated along Canberra Avenue with police following. A police pursuit continued through Narrabundah, onto the Monaro Highway, and into NSW near Hume. When the car was finally found in Jerrabomberra the driver had disappeared. During the police pursuit the car was driven at speeds in excess of the speed limit, through roundabouts without giving way to other vehicles as required, through bicycle lanes and on the wrong side of the road. As a result of this incident the appellant was charged with reckless driving and driving while licence suspended (the appellant's licence had been suspended on 18 July 2006 as a result of unpaid fines, and the suspension had apparently remained in force after the end of the disqualification period mentioned in [6] above).
8. On 30 March 2007 Mr Okwechime, who is of indigenous descent, was referred for assessment as to his acceptability for inclusion in the Ngambra Circle Sentencing Program for indigenous offenders. This referral was made in relation to the 2006 drive while disqualified offence. At the appeal hearing, counsel for Mr Okwechime indicated that he had participated in the Circle Sentencing process, but no transcript of those proceedings was made available.
9. On 29 November 2007, a warrant was issued for Mr Okwechime in relation to a number of offences committed the previous day. These included the two offences of driving while suspended and driving recklessly. The appellant was arrested in relation to these offences on 3 December 2007.
10. On 12 December 2007, in reliance on a series of recommendations from the Circle Sentencing program, Magistrate Madden sentenced the appellant to 6 months imprisonment for driving while disqualified, suspended subject to a 12-month good behaviour order. That order included a condition that Mr Okwechime "enter and remain in a residential drug programme as directed for a minimum period of 10 months" and another condition specifying the Canberra Recovery Services (CRS) rehabilitation program. He entered the CRS program on 3 January 2008, but left after 10 days. He was later arrested, and was remanded in custody on 19 January 2008.
11. Mr Okwechime initially pleaded not guilty to the 2007 offences, but changed his plea to guilty on 7 March 2008.
12. On 14 April 2008, Magistrate Lalor re-sentenced Mr Okwechime in respect of the 2006 offence that had initially been dealt with through the Circle Sentencing program, and sentenced Mr Okwechime for the 2007 offences. The sentence imposed by Magistrate Lalor was for a total term of 13 months imprisonment, comprising three terms to be served entirely consecutively:
(a) 2 months imprisonment for driving while disqualified (CC 2007/490);
(b) 9 months imprisonment for driving recklessly (CC 2007/11722);
(c) 2 months imprisonment for driving while suspended (CC 2007/11726).
13. The first term of imprisonment was effectively backdated to 12 December 2007 to take account of time already spent in custody.
14. Mr Okwechime began his period of full-time imprisonment immediately on being sentenced. He lodged an appeal against sentence on 15 April 2008, but remained in custody until granted bail by the Supreme Court on 25 July 2008.
15. The notice of appeal identified a sentence of 13 months full-time imprisonment from 12 December 2007 as the order appealed against.
16. The initial grounds of appeal were as follows:
(a) That the sentence was manifestly excessive in all respects.
(b) The sentencing Magistrate did not convert the sentence of full time imprisonment into a partly or wholly community based sentence.
(c) The sentencing Magistrate did not properly consider alternative sentencing options, other than a sentence of imprisonment.
(d) No non-parole period was set.
(e) No proper allowance for time spent in custody prior to sentencing occurred.
17. When the hearing began on 14 October 2008, counsel for Mr Okwechime said that grounds (b), (c) and (d) were abandoned and replaced with an additional ground, namely that "the sentencing Magistrate embarked upon resentencing the appellant in respect of orders made by Magistrate Madden on 12 December 2007 without jurisdiction". However, counsel may have intended to withdraw appeal ground (e), which was covered in written submissions but not subsequently argued, rather than ground (d), which was argued when the hearing resumed on 1 December 2008. Counsel for Mr Okwechime also embarked at one point on arguments about sentences that were not subject to the appeal, but then seemed to abandon those arguments; with one minor exception (see [89] and [90] below) I have not attempted to deal with those arguments.
18. In determining this appeal, I have applied s 214 of the Magistrates Court Act 1930 (ACT) in conjunction with principles that can be summarised as follows:
(a) First, the sentence imposed by the learned Magistrate is not to be overturned simply because I might have imposed a different sentence in the first instance (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672).
(b) Secondly, the original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error, but only if the appeal court, in re-exercising the sentencing discretion, considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence (in some jurisdictions this approach is expressly provided for - see for instance subs 6(3) of the Criminal Appeal Act 1912 (NSW), considered in Baxter v The Queen [2007] NSWCCA 237; (2007) 173 A Crim R 284). Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 371).
(c) Thirdly, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). Furthermore, implicit also in such a finding is the conclusion that a different sentence is appropriate.
Manifest excess and failure to set a non-parole period
19. Appeal grounds (a) and (d), that the sentence was manifestly excessive and that no non-parole period was set, were argued together and are conveniently dealt with together.
20. Mr Okwechime did not challenge any of the three sentences individually but argued that the full accumulation of all the sentences and the failure to set a non-parole period rendered the head sentence manifestly excessive. As explained at [18(c)] above, it is not necessary to show specific error if the appeal ground is that a sentence is manifestly excessive. However in this case the specific matters identified as leading to manifest excess may amount to sentencing errors; certainly counsel for Mr Okwechime made submissions about specific errors in the sentencing process rather than about manifest excess in the sentencing outcome.
21. The sentencing Magistrate gave brief explanations for imposing each of the three prison sentences. In directing that the sentences be fully accumulated, his Honour said:
In doing so I'm mindful of the case of Pearce v Queen, 1998, 194 CLR, which states that a sentencing judge must fix an appropriate sentence for each offence and then consider the question of accumulation or concurrence as well as questions of totality.
22. Having imposed a total sentence of 13 months, his Honour then said "I don't set a parole [sic] period".
23. Section 65 of the Crimes (Sentencing) Act 2005 (the Sentencing Act) is as follows:
65 Nonparole periods - court to set
(1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.
(2) The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.
Note If the offender is released on parole, the sentence is not discharged unless the parole is completed without the parole order being cancelled (see Crimes (Sentence Administration) Act 2005, s 140 and s 160).
(3) When the court sets the nonparole period, the court must state when the nonparole period starts and ends.
Note A sentence may be backdated to account for time already held in custody (see s 63).
(4) However, the court may decline to set a nonparole period in sentencing the offender if the court considers that it would be inappropriate to set a nonparole period having regard to the nature of the offence or offences and the offender's antecedents.
(5) If the offender is subject to a sentence of life imprisonment, the court must not set a nonparole period for any sentence of imprisonment that is imposed on the offender.
(6) If the sentence of imprisonment is partly suspended, the period for which it is suspended must be disregarded for this section.
24. Once a term of imprisonment of one year or more is set, the court must set a non-parole period unless s 65(4) or (5) applies. Section 65(5) is not relevant in this case, so the sentencing Magistrate could only have declined to set a non-parole period on the grounds set out in s 65(4), namely that "it would be inappropriate to set a non parole period having regard to the nature of the offence or offences and the offender's antecedents".
25. His Honour did not purport to explain what it was about the appellant's offences or his antecedents that justified not setting a non-parole period.
26. In R v Shrestha [1991] HCA 26; (1991) 173 CLR 48, Deane, Dawson and Toohey JJ said at [67]:
The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.
27. This explanation was referred to in the Explanatory Statement to the Crimes (Sentencing) Bill 2005 (ACT).
28. More recently, in Leach v The Queen [2005] NTCCA 18; (2005) 16 NTLR 117, Southwood J, as a member of the Northern Territory Court of Criminal Appeal hearing an appeal from a refusal to set a non-parole period for a person convicted of two murders, made more extensive comments at [83] to [86] about the purposes of parole:
Parole is a form of conditional release of offenders who have been sentenced to imprisonment by a court. After serving an initial minimum period of detention in custody and only on an order of the Parole Board the prisoner is permitted to be at large for the unexpired portion of the sentence of imprisonment. While on parole a prisoner is still subject to his original sentence of imprisonment. The prisoner's liberty depends upon satisfactory compliance with conditions imposed by the Parole Board. These usually include some form of supervision by the Department of Correctional Services. If a prisoner does not comply with the conditions of his parole or the terms of his supervision his parole may be cancelled and he may be returned to prison for the remaining period of his sentence of imprisonment.
The Sentencing Act enables a court to fix non-parole periods. A court that sentences an offender to prison may prevent the possibility of parole for part or the whole of a sentence of imprisonment. This is done by the court fixing a non-parole period at the time of sentence or by declining to do so. The non-parole period fixed by a court serves to specify the minimum time that a prisoner must spend in custody.
...
The purpose of a non-parole period is to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom, when appropriate, once the prisoner has served the minimum term of imprisonment that justice requires he must serve having regard to all of the circumstances of the case.
The non-parole period fixed by a court when sentencing an offender to serve a term of imprisonment should be the minimum term of imprisonment that justice requires an offender must serve having had regard to all of the circumstances of the case. When fixing the non-parole period the sentencing judge should determine the minimum period for which in his judgment, according to the accepted principles of sentencing, the prisoner should be imprisoned. A purpose but not the only purpose in fixing a non-parole period is to assist the prisoner's rehabilitation through conditional freedom. However, the non-parole period also has a punitive aspect. In a true sense the non-parole period is a minimum period of imprisonment to be served because the sentencing judge considers that the crime committed calls for such punishment. [references omitted]
29. Setting a non-parole period signifies both the minimum period that the offender must spend in custody in respect of his or her offence, and the court's hope or expectation of the offender's ability and willingness to pursue rehabilitation. Punishment of the particular offence, and both general and personal deterrence, are vitally important in the sentencing process but, especially for a young offender, the possibility of rehabilitation must be taken very seriously, because rehabilitation at this point may be the difference for the offender between a future as a law-abiding and productive member of the community and a future as a career criminal. Even if it appears to the sentencing court that an offender has set a criminal course very early in life, it may be desirable to give him or her some real opportunities to make a change, if only to protect later sentencing courts from claims that the offender has "never had a chance".
30. Argument at the appeal hearing raised the following questions in relation to Magistrate Lalor's sentencing approach:
(a) Did his Honour give any reasons for refusing to set a non-parole period?
(b) If so, do those reasons reveal that his Honour fell into error in so refusing?
(c) If not, was that failure to give reasons a sentencing error in itself such as to justify an appeal court in setting aside the sentence and re-sentencing the offender?
31. Counsel for the Director of Public Prosecutions (DPP) says that reasons were given by Magistrate Lalor on the bench sheet, where his Honour recorded:
I decline to set a non parole period having regard to the nature of the series of offences for which I have sentenced the defendant and their number having taken into account his antecedents.
32. That note was incorporated (with "having" mis-transcribed as "calling") in the Official Notice of Sentence to Imprisonment, but it seems to have been added after the initial recording of the sentence and, judging by the transcript of the sentencing proceeding, was not pronounced during that proceeding. Because of that, even if the note did amount to adequate reasons, it might have fallen foul of the requirement for sentencing reasons to be published orally (Curtis v The Queen [2007] NSWCCA 11 at [30]- [31]).
33. Counsel for the DPP also identified as reasons for the failure to set a non-parole period Magistrate Lalor's more general comments (made in the context of his Honour concluding that full-time imprisonment was the only appropriate penalty) about the circumstances of the offences, Mr Okwechime's failure to take advantage of the support and rehabilitation services offered, and his apparent lack of commitment to rehabilitation.
34. The purported reasons for declining to set a non-parole period do not seem to me to be adequate. Subsection 65(4) of the Sentencing Act says that a non-parole period can only be found inappropriate having regard to "the nature of the offence" and the offender's antecedents. In response to this restriction, his Honour indicates that he has had regard to the "nature of the series of offences" for which Mr Okwechime was being sentenced "and their number", and has taken his antecedents into account. This is no more than an assertion that he has had regard to the matters to which he is required to have regard. With the possible exception of the reference to multiple offences (by noting the "series" of offences and "their number"), it gives no explanation at all about the characteristics of the particular offences involved, or the details of Mr Okwechime's antecedents, that Magistrate Lalor considered justified him in refusing to set a non-parole period. As explained by Southwood J (see [28] above), a non-parole period represents the minimum part of the sentence that justice requires the offender to spend in custody in respect of the offence concerned. Whatever it was about Mr Okwechime's offences and his antecedents that persuaded Magistrate Lalor that the maximum appropriate time in custody was also the minimum period that should be served does not become apparent from his note.
35. Nor is it sufficient to point to the comments made by his Honour in determining that a prison sentence was the only appropriate sentence. Counsel for the DPP said that his Honour "did consider all those specific factors before declining to set a non-parole period" (emphasis added); however, the fact that in the sentencing remarks, declining to set a non-parole period comes later in time than commenting on particular matters does not of itself prove a causal relationship between the court's decision about the non-parole period and the matters commented on.
36. Of course, the same set of facts and circumstances might well be relevant both in deciding that a prison sentence is necessary and in deciding how much, if any, of that sentence needs to be served in full-time custody. However, I consider that the legislative expectation that a non-parole period will be set unless there are particular reasons for not doing so requires a further articulation of why the prison sentence found to be necessary has also been found necessary to be served in its entirety in full-time custody - even if that articulation in fact consists of pointing to the same matters as initially led to the conclusion that a prison sentence was necessary. In Devereux v Kehl [2005] ACTSC 131 (Devereux), Higgins CJ indicated at [12] to [15] that since a non-parole order was different in important respects from an order for conditional release after a specified period had been served, the sentencing Magistrate should not, in refusing to set a non-parole period, simply have relied on the matters she mentioned in refusing to order conditional release.
37. Finally in this context I note that in Pettitt v Dunkley [1971] 1 NSWLR 376, Asprey JA quoted with approval the observations of Monahan J in De Iacovo v Lacanale [1957] VicRp 78; [1957] VR 553 at 557-559, as follows:
... for a magistrate to content himself with saying 'I have reached my decision after having considered all of the matters which the statute requires me to consider' is not a proper fulfilment of the obligation which rests upon him as a judicial officer to see that his reasons are 'explicitly stated', to use the language of Sir Frederick Jordon, or 'concise', to use the language of Langton J.
38. If the sentencing Magistrate's stated "reasons" for refusing to set a non-parole period could be accepted as adequate reasons, it would then be appropriate to ask whether those reasons reveal error. Since my view is that his Honour's annotation on the bench sheet does not constitute reasons for his decision, this is a fairly arid hypothetical exercise. However, it was argued that adequate reasons were given, and examining those "reasons" may provide useful insights about this sentencing process more generally. To the extent that the content of the sentencing Magistrate's reasons can be inferred from the annotation and its relationship with s 65(4), one might conclude:
(a) that his Honour considered that the offences he was dealing with were both particularly serious offences and particularly serious examples of the relevant offences; and
(b) that Mr Okwechime's antecedents suggested that there was no good reason to give him any opportunity to pursue rehabilitation in the relatively controlled and supported environment of release on parole.
39. It is possible to imagine less obvious explanations of a refusal to set a non-parole period, but in the absence of any hint of any such explanation in the sentencing court's "reasons" for so refusing, there is no basis for inferring anything other than the obvious reasons for refusing.
40. In the circumstances, none of those inferred justifications would seem to support his Honour's conclusions. It is true that reckless driving can have very serious consequences, and for that reason should be actively discouraged, but the penalty for the offence includes a maximum term of imprisonment of only one year, and driving while licence suspended and driving while disqualified each carried in this case a maximum term of imprisonment of only 6 months; none of these offences would seem to fall into the worst categories of offences, or even into a category of offences of medium seriousness. The reckless driving offence may have been a relatively serious example of the offence, but as far as I can see there was nothing exceptional about the two unlicensed driving offences.
41. Certainly Mr Okwechime's antecedents are not impressive. Mr Okwechime was just 20 years old when sentenced by Magistrate Lalor. He had two drink driving convictions and several convictions for property offences all committed as a juvenile, and as well as the offences for which Magistrate Lalor sentenced or re-sentenced him, he had a handful of other adult convictions for traffic, property and minor drug offences, all of which had been dealt with by good behaviour orders except for the fully-suspended 6-month sentence imposed by Magistrate Madden for driving while disqualified. It appears, however, that even at the time he committed the latest offences dealt with by Magistrate Lalor, Mr Okwechime had spent no time in full-time custody. Of course, at some point a repeat offender, even one who commits relatively minor offences, must expect to face a prison term - but for offences of that kind, there is generally no need for that first experience of full-time custody to be very lengthy and especially no need for there to be no scope for supervised conditional release. For many offenders, especially young ones, the shock of full-time custody for a few months or even weeks will be enough to inspire a genuine attempt at rehabilitation in a way that less dramatic punishments have not.
42. It is also true that Mr Okwechime had not by April 2008 had any notable success in rehabilitating himself; as well as leaving the CRS program after only 10 days, he had apparently failed to engage properly with other rehabilitation opportunities including counselling from Relationships Australia, and from the alcohol and other drug workers who work with remandees. On the other hand, the Pre-Sentence Report author assessed him at only "medium" risk of re-offending, and there was some suggestion in the Pre-Sentence Report that Mr Okwechime had made progress in reducing his drug use.
43. However, the possibility that only an experience of full-time custody is likely to be an effective deterrent to further offending, and a possible lack of immediate commitment to rehabilitation, even taken together, do not seem to be an adequate basis on which to conclude that a 20-year-old man with a clearly troubled upbringing as described in the Pre-Sentence Report would gain nothing from the rehabilitation opportunities provided by release on parole, and therefore needs to serve his first custodial sentence, being for more than a year, entirely in full-time custody.
44. If his Honour's reasons for refusing to set a non-parole period were those that might be inferred from his Honour's annotation on the bench sheet (see [38] above), they would raise the possibility of a sentencing error in the application of s 65(4) of the Sentencing Act.
Was any failure to give reasons a sentencing error?
45. In Harper v Low and Wood [2009] ACTSC 136 (Harper) at [9] to [41] I considered some of the authorities on whether a failure to give reasons is itself an appellable error in a sentencing process, and noted (although it was in that case unnecessary to reach a final conclusion) that the failure to give any reasons for imposing a sentence of imprisonment "may have concealed other sentencing errors, and was probably also an error in itself" (at [41]).
46. In Scott Paul Matheson v The Queen (2007) 176 A Crim R 466 (Matheson), the NSW Court of Appeal (Hodgson JA, with whom Hislop and Latham JJ agreed) said that a sentencing court's failure to comply with the statutory requirement to record its reasons for declining to set a non-parole period was an error; the Court declined to intervene on that ground, however, because the reason for not setting a non-parole period was that other sentences were accumulated on the affected sentence and so setting the omitted non-parole period would have been superfluous and could be "productive of confusion" (at [16]).
47. Section 45 of the Crimes (Sentencing Procedure) Act 1999 (NSW) can be contrasted with the ACT's non-parole provision (s 65 of the Sentencing Act), which applies to the total sentence imposed rather than any individual sentence included in the total sentence, and therefore does not require the setting of non-parole periods that will be inoperative because a further custodial sentence will apply during the non-parole period set for the earlier sentence. The Court of Appeal in Matheson (at [16]) found that not giving reasons was a sentencing error even though the failure to set a non-parole period was in the nature of a technical oversight (in that any non-parole period set for the sentence concerned would have been rendered ineffective by the longer custodial sentences imposed at the same time).
48. As well, the court noted the existence of a validation provision relating to a failure to record reasons for not setting a non-parole period (s 45(4)), but did not suggest that this removed such a failure from the class of sentencing errors; as mentioned above, it found that this was a sentencing error even though it had no practical consequences and any impact on the sentence would have been addressed by the validation provision.
49. Devereux (at [36] above) was a case in which a Magistrate imposed a sentence of nearly 2 years imprisonment and simply said "I decline to set a non-parole period". Higgins CJ held (see [15] and [16]) that the sentencing Magistrate had erred in failing to explain her view that (in Higgins CJ's words):
in the next two years, there are not likely to be any circumstances in which this offender might change his attitude or prospects so that he could not reasonably have been made the subject of a parole release order.
50. Higgins CJ at [20] confirmed the sentence but amended it to set a non-parole period of 12 months. He did not apparently see any need to re-impose the sentence.
51. Counsel for the DPP argued that setting a non-parole period is equivalent to, or part of, setting a term of imprisonment and is therefore covered by s 10(4) of the Crimes (Sentencing) Act (requiring reasons to be recorded) and also by s 10(5) which ensures that a failure to record reasons does not invalidate a sentence. I do not consider that ss 10(4) and (5) apply to the setting of a non-parole period (see [52] to [58] below), but in any case I do not consider that s 10(5) protects a sentence from review on appeal (see Harper at [14] to [17] and Matheson mentioned in [48] above), so even if I am wrong about the application of ss 10(4) and (5) to s 65, there is no barrier to an appeal court reviewing the sentencing Magistrate's refusal to set a non-parole period or failure to give reasons for so refusing.
Do ss 10(4) and (5) of the Sentencing Act apply to refusal to set a non-parole period?
52. Subsections 10(4) and (5) are intended to ensure, respectively:
(a) that proper reasons are articulated and recorded for any decision that results in a person being liable to serve a term of imprisonment; and
(b) that this requirement does not create a risk that an affected sentence could be invalidated (resulting in unlawful imprisonment) by a court's failure to do so.
53. There is no particular reason to assume that the ss 10(4) and (5) requirements should also be read into a provision permitting the sentencing court not to ameliorate the sentence of imprisonment by allowing release on parole before the end of the sentence; there are several good reasons to assume that those requirements were not intended to be read into s 65.
54. First, it would have been very easy for the ss 10(4) and (5) requirements or equivalent provisions to have been applied to s 65 if that had been the intention. Several other provisions in the Sentencing Act do have specific requirements for certain matters to be recorded, combined with validation provisions applicable where there is a failure to make the required records (see for instance ss 75 and 78).
55. Secondly, s 68 of the Sentencing Act makes separate provision for the court, on application by any of several people or authorities, to set a non-parole period in a case in which a non-parole period was not set or was not set properly. If such a failure in relation to setting a non-parole period raises issues of the validity of the sentence or of the court's decision, this section is the place in which to address those issues, not by implication from s 10.
56. Thirdly, given that there are explicit criteria for refusing to set a non-parole period, the legislature could legitimately have expected that the exercise of the judicial discretion to refuse to set a non-parole period would be covered by the general requirement for reasons to be given for the exercise of judicial discretions (see the authorities cited in Harper at [10] to [26]). A failure to give those reasons might be an appellable error, but this is only relevant if the decision is appealed. It is hard to see how failing to give reasons for exercising the discretion not to set a non-parole period could invalidate the actual sentence if the sentence itself had been properly imposed, and accordingly hard to see a basis for implying a provision equivalent to s 10(5) into s 65. Furthermore, if there were a risk of unlawful imprisonment arising from a failure to give reasons for exercising the discretion under s 65(4), it would be inappropriate for the legislature to rely on that risk being addressed by the implied application of a separate validation provision. That said, I note that the NSW equivalent of s 65, namely s 45 of the Crimes (Sentencing Procedure) Act 1999 (discussed in Matheson) contains both a requirement to record reasons for not setting a non-parole period and a provision (s 45(4)) confirming the validity of the sentence even if reasons are not recorded. It is probably true that an express requirement to record reasons raises a bigger risk of invalidity where the requirement is not complied with, and gives more reason to validate the sentence out of abundant caution, but I maintain the view that in general an error in relation to a non-parole period is highly unlikely to invalidate the head sentence directly.
57. My conclusions about the effect of s 65 on a sentence for which a non-parole period has not been set are supported by the approach taken by Higgins CJ in Devereux (at [50] above). Having decided that the original sentence was appropriate but that a non-parole period should have been set, he simply added the required non-parole period - clearly, despite having found that a non-parole period should have been set, he saw no need to validate the sentence as such by re-imposing it.
58. Thus, I am satisfied that there is no basis on which to find that the legislature intended to impose, in relation to s 65, anything more than the usual requirement to give reasons for the exercise of a judicial discretion, no basis on which to find that a failure to give reasons might have invalidated any aspect of the sentence, and accordingly no basis for implying into s 65 provisions equivalent to ss 10(4) and (5).
Other possible reasons for failure to set non-parole period
59. Counsel for the DPP suggested two other possible explanations for the failure to set a non-parole period. First, she said that setting a non-parole period for Mr Okwechime might have been "setting him up to fail". There is no particular basis for this submission that I can see - apart from anything else, setting a non-parole period, unlike suspending a sentence in whole or in part, ensures not only that a person will have supervision and support during his or her conditional release but that conditional release will not even be granted until there is a specific assessment by the Sentence Administration Board that the person is ready for such conditional release. An assessment that any conditional release is inviting failure is effectively equivalent to ruling out any prospect of timely rehabilitation. In any case, if his Honour's concern had been with the risk of setting Mr Okwechime up for failure, he could and should have mentioned and explained this view.
60. Secondly, counsel for the DPP submitted that his Honour's failure to set a non-parole period might have reflected the fact that he had already reduced the three sentences to take account of Mr Okwechime's rehabilitation prospects, and that therefore the further potential reduction represented by setting a non-parole period was not required. This is an odd submission in several respects. Sentences of 2 months imprisonment for offences carrying maximum prison terms of 6 months might be seen as having been discounted below what would otherwise have been appropriate, but it is hard to make the same argument in relation to a 9-month term for an offence whose maximum penalty includes 12 months imprisonment, and to which the offender pleaded guilty. On this argument, the sentencing Magistrate would have had to start with the view that Mr Okwechime's offence fell into the worst category of reckless driving offences, and would then have had to give only a 25% discount to cover both the plea of guilty and the rehabilitation prospects; since the plea of guilty alone might have attracted close to a 25% discount, this would suggest a rehabilitation discount ranging from small to non-existent.
61. There is another problem with counsel's suggestions. In proposing two inconsistent explanations for the refusal to set a non-parole period (rehabilitation opportunity would have been damaging to offender/rehabilitation opportunity was already built into the sentence), counsel effectively demonstrates both that there has been a failure to give meaningful reasons for the refusal, and that the failure has substantive consequences in making it difficult for an appeal court to make sense of the refusal and to review it effectively.
62. Mr Okwechime does not challenge the individual sentences subject to appeal, even though as indicated above the sentence of 9 months imprisonment is certainly at the high end of the range for the offence concerned. He does say, however, that the sentences should not have been fully accumulated. In imposing sentence Magistrate Lalor referred to the requirement to set an appropriate sentence for each offence and then to consider accumulation, concurrence, and totality (see [21] above). In the circumstances of this case, involving two traffic offences of relatively low gravity, and two traffic offences (not the same two) arising out of the same conduct, the principle of totality would seem to require some concurrency at least in relation to the two offences arising from the same conduct. On the other hand, given that Magistrate Lalor had, in re-sentencing for the earlier offence, reduced the sentence from 6 months to 2 months in prison, it is hard to argue that the new lower sentence should also have been made concurrent with the sentences for the two later offences.
63. I have found that there was error in his Honour's approach to a non-parole period in this case. I have also indicated that two of the three terms of imprisonment should have been at least partly concurrent. Without needing to find manifest excess as such, I am satisfied that the combination of fully accumulating the three sentences and failing to set a non-parole period means that a different sentence is appropriate. Having found a sentencing error and that a different sentence is appropriate, it is available to me to re-sentence Mr Okwechime. However, it is necessary first to deal with two other appeal grounds, each of which could affect that re-sentencing.
64. Counsel for Mr Okwechime made written submissions that in general terms identified some apparent irregularities in the backdating of the sentences imposed, but without explaining exactly what period in custody might have been overlooked by his Honour or what the correct backdating date should have been. Nor was I able to work out a correct date by reference to the written submissions of counsel for the DPP (which I note, in fairness to her, had to be prepared before the appellant's submissions were available).
65. However, after the hearing counsel for the parties agreed that Mr Okwechime should be taken to have served a total of 235 days in custody, which my calculation suggests might have included the 10 days he spent at the CRS. I have in sentencing sometimes given credit for time spent in residential rehabilitation programs, but only where that time appears to have been productive of genuine rehabilitation and not where an offender simply gives up after a brief stay. However, in this case, rather than delaying the matter further, I am willing to apply the period agreed between counsel in the re-sentencing that will be required as a result of my findings recorded at [63] above.
66. The claim that the sentencing Magistrate acted without jurisdiction in re-sentencing the appellant, on the drive while disqualified charge, on the basis of a breach of the good behaviour order depends on the operation of the Circle Sentencing Court. That court is the subject of a practice direction (intriguingly described as a "Final Interim Practice Direction") apparently issued by the Magistrates Court on 20 April 2004 and expressed to commence on 21 April 2004 (it can be found on the Magistrates Court website at http//www.courts.act.gov.au/magistrates/index.html).
67. The Practice Direction explains its purpose as "to establish procedures for the Magistrates Court of the Australian Capital Territory when it sits with the Ngambra Sentencing Circle when it shall be known as the Ngambra Circle Sentencing Court". The aims of establishing the Circle Sentencing Court appear to be, generally, to improve both the sentencing processes for indigenous offenders and the relationship between the courts and indigenous communities by involving Aboriginal and Torres Strait Islander communities in the sentencing process, and to provide more appropriate and more constructive sentencing outcomes for indigenous offenders; the position of victims of crime is also of concern.
68. Circle sentencing involves the sentencing Magistrate chairing the Sentencing Circle in discussions about an appropriate sentence for an offender who has been assessed as acceptable for Circle sentencing. As well as the sentencing Magistrate, the Circle must involve the offender, the prosecutor, four members of the Community Panel (which consists of members of the Aboriginal and Torres Strait Islander community appointed by the Aboriginal Justice Advisory Committee), and the Circle Sentencing Court Coordinator. Other people, being a family member or other support person for the offender, the offender's legal representative, the victim and one or more support persons, or a victim's representative, and people who have been asked to provide reports to the Circle, may also participate. Following discussion in the Circle, the Circle may recommend "any sentence they see fit". If the offender consents to the recommended sentence, he or she is then remanded for sentence in the Magistrates Court, and if on the remand date the offender again consents to that sentence, the Magistrate is to impose that sentence. If Circle participants cannot agree on a recommendation that complies with the Practice Direction, or the offender does not attend the Circle or does not consent to the recommended sentence, the charges will be referred back to the Magistrates Court to be dealt with in the usual way.
69. Paragraph 64 deals with the imposition of sentence following a Circle recommendation. Subparagraph (5) is as follows:
(5) This paragraph is not intended to remove or limit the Magistrate's discretion and the Magistrate:
(i) may accept or reject the recommendation made by the Circle; and
(ii) shall only impose a lawful sentence which complies with the relevant legislation including Part 15 of the Crimes Act 1900.
70. I assume that the reference to Part 15 of the Crimes Act should now be read as a reference to the Sentencing Act.
71. Paragraph 68 of the Practice Direction deals with breaches of sentences imposed under the Practice Direction:
68. On the hearing of any breach of a sentence imposed under the procedure set out in this Practice Direction, the Ngambra Circle Sentencing Court Magistrate, if satisfied that the offender has breached the sentence:
(i) may decide to take no action with respect to the breach;
(ii) may take such other action as may be available in law to be taken; or
(iii) may direct that the Circle be reconvened for the purpose of reconsidering the offender's behaviour.
72. Paragraph 4 of the Practice Direction is also important; it is as follows:
Nothing in this Practice Direction is to be taken to remove or limit the judicial discretion of a Magistrate to impose a lawful sentence that is considered just and appropriate.
Sentencing following Sentencing Circle recommendation
73. Following consideration by the Sentencing Circle, the Circle Sentencing Magistrate sentenced Mr Okwechime to imprisonment for 6 months. The sentence was to be fully suspended, and Mr Okwechime was to enter a good behaviour order under s 13 of the Sentencing Act on conditions that included the following:
74. Mr Okwechime entered the CRS program on 3 January 2008, but remained for only 10 days before leaving, apparently on his own initiative; in the ACT Corrective Services Statement of Facts for an alleged breach of bail Mr Okwechime is described as having "absconded". He was subsequently arrested and remanded in custody on 19 January 2008.
75. In the course of sentencing Mr Okwechime for the 2007 offences, Magistrate Lalor said that, by absenting himself from the CRS program covered by the Circle Sentencing good behaviour order, Mr Okwechime had breached that good behaviour order, and he proceeded to re-sentence Mr Okwechime for the relevant offence.
76. The sentencing Magistrate was critical of the form of the original good behaviour order. He pointed out that the effect of the order that "the defendant is to remain in custody until a bed is available at the Canberra Recovery Services" could have been that the defendant was required to remain in custody for the rest of his life, for instance if the CRS had "folded" or if a bed had never become available. Neither his Honour's comments, nor his intention to re-sentence Mr Okwechime by reference to the "breach" of the good behaviour order, was challenged at that stage by counsel appearing for Mr Okwechime.
77. Counsel for Mr Okwechime now challenges the Magistrate's jurisdiction to re-sentence the appellant on the Circle Sentencing sentence. His argument appears to be that a good behaviour order condition that Mr Okwechime remains in a residential drug program for a specified period, and that if discharged before the end of that period Mr Okwechime "is to submit to the jurisdiction of the court", was not imposed with the intention that it was liable to be breached. Rather, counsel argues, the reference to Mr Okwechime submitting to the jurisdiction of the court was an attempt by Magistrate Madden to enliven paragraph 68 of the Practice Direction so that a failure by Mr Okwechime to remain in the rehabilitation program for 10 months would give the Circle Sentencing Court jurisdiction to review his sentence.
78. On this argument, a failure to complete rehabilitation would not breach the good behaviour order in any respect but, as counsel for Mr Okwechime conceded, a failure by his client to submit to the jurisdiction of the Circle Sentencing court after leaving the CRS program would have been a breach of the good behaviour order. Therefore, counsel argues, in purporting to re-sentence Mr Okwechime by reference to an alleged breach of the good behaviour order constituted by failing to remain in the CRS program, Magistrate Lalor was acting without jurisdiction. Counsel did not comment on whether Magistrate Madden's attempt to enliven para 68 of the Practice Direction was intended, or effective, to ensure that only the Circle Sentencing Court could then take further action in respect of the sentence, or whether a failure to submit to the jurisdiction of the court would have been a breach sufficient to found jurisdiction in another Magistrate to re-sentence for the original offence. I note in this context that para 68 only purports to empower a Magistrate to deal with a breach by referring it back to the Sentencing Circle; it does not purport to limit the scope for other Magistrates to deal with breaches.
79. I cannot see that Magistrate Lalor was in error in re-sentencing Mr Okwechime for a breach of the good behaviour order imposed by Magistrate Madden following the Circle Sentencing process.
80. In reaching this conclusion I am, first, attracted to the argument put by counsel for the DPP about the requirement that Mr Okwechime, "if discharged" from the CRS program, submit to the jurisdiction of the court. Counsel says that the use of "is discharged" was not intended to address every possible way in which Mr Okwechime might have left the program, but only those forms of departure properly described as being discharged (and not including discharging oneself), namely those that involved the program administrators formally sending him away, for instance because his presence was either unacceptable to them or ineffective for him. Only in those cases, counsel says, was Mr Okwechime being given the chance to avoid any kind of breach proceedings by returning to the court and inviting it to hear his explanation and reconsider his sentence. In this case, however, counsel says, since Mr Okwechime had absconded from the program, he had breached the basic condition of remaining in the program for 10 months without enlivening the requirement to submit to the court's jurisdiction; accordingly there is no basis for arguing that there had been no breach.
81. Although I am attracted to this argument, I do not consider that, alone, it would be an adequate basis for finding a breach of a good behaviour order in circumstances of this kind. This is because I do not consider that it would be reasonable to accept either that Magistrate Madden intended the condition to have such a sophisticated operation, or that if he did, Mr Okwechime could be assumed to have recognised that he was only required to submit to the jurisdiction of the court if the CRS program organisers had discharged him from the program and that, in any other circumstances, leaving the program put him immediately in breach of his good behaviour order.
Operation of Ngambra Circle Sentencing Court under Practice Direction
82. However, I consider that there is a better basis on which to find that Magistrate Lalor had jurisdiction to re-sentence Mr Okwechime.
83. The Practice Direction that establishes the Ngambra Circle Sentencing Court does not purport to, and nor could it, establish a court with an identity and jurisdiction separate from that of the Magistrates Court. The fact that by Practice Direction the Magistrates Court sitting with the Ngambra Sentencing Circle calls itself the Ngambra Circle Sentencing Court does not change the fact that it remains the ACT Magistrates Court established under the Magistrates Court Act 1930.
84. In fact, the Practice Direction sets up an arrangement by which the sentencing Magistrate receives advice from a group of people with various kinds of involvement either in the offence concerned or in the broader community. If the deliberations of that group produce a sentence recommendation that the offender consents to, the offender will be sentenced in the Magistrates Court, and there is a clear expectation reflected in the Practice Direction that in such circumstances the recommended sentence will be imposed. However, there are explicit statements that the requirement to impose the recommended sentence does not restrict the Magistrate's sentencing discretion, that the Magistrate is not required to accept the Circle recommendation, and that he or she may only impose a sentence that complies with all relevant legislation.
85. I do not mean to suggest that the Ngambra Circle Sentencing Court is not a significant contributor to the criminal justice system in the ACT. I imagine that Magistrates who find themselves sentencing indigenous offenders would find the Circle Sentencing process of enormous assistance in determining sentences that will most effectively further all the purposes of sentencing as set out in the Sentencing Act in the interests of both the community and the offender, and I can readily imagine cases in which such help would be useful in this Court too. It also seems likely that the existence and operations of the Sentencing Circle have positive effects within both the indigenous community and the broader community that go beyond their impact in relation to any particular offence or offender.
86. However, the significance and value of the Circle Sentencing arrangements does not change the fact that the jurisdiction being exercised in conjunction with the Circle's recommendations is still ordinary Magistrates Court jurisdiction being exercised by Magistrates in their capacity as Magistrates. I cannot see that any Magistrate has the power to impose a good behaviour order condition that can only be enforced by him or her - while it may be sensible to list breach proceedings before the sentencing judicial officer where possible, it cannot be the case that if a judicial officer dies, resigns or goes on holidays, good behaviour orders imposed by him or her become unenforceable. Nor can I see that a sentencing Magistrate can set a good behaviour order condition that can only be enforced by a Magistrate operating in a way permitted but not even required by a Practice Direction.
(a) that if the condition imposed by Magistrate Madden was intended to exclude a breach of the good behaviour order being dealt with by a Magistrate otherwise than through the Circle Sentencing process, it was beyond power and ineffective, and in particular did not operate to prevent Magistrate Lalor dealing with the breach;
(b) that at least in the absence of any suggestion that Mr Okwechime had sought to "submit to the jurisdiction of the court" (whatever the reference to "the court" was intended to cover), Magistrate Lalor was entitled to find that Mr Okwechime had breached the intent of the condition imposed by Magistrate Madden by absconding from the CRS program; and
(c) that therefore, despite the curious wording of the original good behaviour order conditions, Magistrate Lalor did not lack jurisdiction in re-sentencing Mr Okwechime for the offence to which the good behaviour order had been attached.
88. These findings in turn mean that I consider that I also have jurisdiction to re-sentence Mr Okwechime for the drive while disqualified offence as part of the re-sentencing arising from this appeal.
89. Counsel for Mr Okwechime also submitted that other penalties imposed by Magistrate Madden may have been imposed in error. Counsel's argument was that in recording the sentencing outcome for other offences as "convicted. See order on CC 2007/490", and noting a driving disqualification concurrent with that imposed on charge CC 2007/490 (the drive while disqualified offence), the sentencing Magistrate fell into error either in attempting to attach to those convictions the good behaviour order imposed in relation to charge CC 2007/490 or in failing to impose a separate penalty (specifically a separate good behaviour order) in respect of the other offences.
90. I agree with counsel's submission to the effect that s 13 of the Sentencing Act appears to require a separate good behaviour order for each offence in respect of which it is sought to impose good behaviour order obligations. Counsel may also be correct that there is no power in the ACT for a Magistrate to record a conviction for an offence but not impose any specific penalty in respect of the offence (that opportunity is available under s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW) but there does not seem to be an equivalent provision in the ACT legislation). However, it is not clear to me that I need to consider this particular argument further, since the offences on which his Honour may have fallen into error by purporting to link a conviction for one offence with a good behaviour order imposed for another offence are not currently the subject of appeal to this court.
91. None of the grounds of appeal have been upheld in the terms specified. However, I have found that Magistrate Lalor fell into error in relation to his refusal to set a non-parole period, and that another sentence is appropriate, and I will therefore allow the appeal and re-sentence Mr Okwechime. Having regard to the period that has elapsed since the original sentence and, unfortunately, since the hearing of this appeal, I shall hear the parties before finalising that sentence.
92. It is appropriate to indicate at this stage that since the individual sentences were not challenged I would be inclined to re-impose them as set by Magistrate Lalor (two prison terms of 2 months and one of 9 months). However, I consider that the two sentences relating to the driving incident on 28 November 2007 should be served concurrently with each other and consecutively on the sentence for the 2006 offence. This would give a total sentence of 11 months, which in turn would mean that there is no requirement for a non-parole period to be set. However, since I have also referred to the benefits of conditional release in furthering an offender's rehabilitation prospects, I would be inclined to provide for that, not by setting a non-parole period at this stage but by suspending the remaining 3 months or so of the new sentence, subject to a good behaviour order for 12 months. It will also be necessary to ensure that any outstanding licence disqualifications or suspensions are dealt with as needed in the re-sentencing. Of course, whether that approach to re-sentencing would be appropriate will depend on Mr Okwechime's current status and circumstances.
(a) The appeal is upheld, and Mr Okwechime will be re-sentenced.
(b) I shall hear the parties before the re-sentencing.
I certify that the preceding ninety-three (93) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Solicitor for the applicant: Darryl Perkins, Perkins and Saunders Barristers & Solicitors
Solicitor for the respondent: ACT Director of Public Prosecutions
# Okwechime
Sindel \[2009\] ACTSC 162
(2000) 202 CLR 321
(1936) 55 CLR 499
(2005) 16 NTLR 117
(1999) 195 CLR 665
(2005) 228 CLR 357
(1998) 194 CLR 610
(1991) 173 CLR 48