Parker v Shaw [2017] TASSC 25

1. With respect to the learned magistrate, her decision to activate only seven months of the 14 month custodial part of the sentence was not justified either by the extent of the respondent's compliance with the terms of the order or any other mitigating factor. On 4 November 2016 her Honour made passing reference to a decision of Wood J. It must have been a reference to either Ferguson or Larner. Neither decision supports the allowance the learned magistrate extended to the respondent for the level of his "compliance". Wood J made clear that the weight to be given to compliance depends on the facts of each case. Counsel for the applicant submitted that some allowance for the respondent's compliance with the order was justified, but much less than the allowance made by the magistrate. That submission should be accepted. Over the course of the 11 months or so during which the respondent was subject to drug treatment order conditions, either as conditions of bail or the order, he attended case management appointments and urinalysis appointments. He appeared in court when required on most occasions. However, beyond the mere fact of attendance, the respondent did little to comply. He continued to use illicit drugs. He showed little willingness to actively participate in the program and to change. He resisted residential treatment. He left Serenity House after only a week of a two-week program and quickly relapsed to drug use. He resumed drug use immediately after having completed the period of custody ordered for non-compliance. The effect of the order as a sanction or punishment had been minimal. As the learned magistrate correctly pointed out, the strongest factor in his favour was that he had not re-offended, at least during the currency of the order. However his continued drug use meant that the incentive for resort to criminal activity had not been reduced: s 27C(c). None of the aims of the order had been achieved.
2. There was little else to be said in mitigation. The magistrate was well aware of the poor state of the respondent's health when she made the original sentencing order. Counsel for the respondent on this motion made submissions about the apparent deterioration in the respondent's health during the currency of the order but there was little or no evidence before the learned magistrate to support the submission. I do not think it carries mitigation in any event. There was no reason for the magistrate to conclude that the respondent would not receive the treatment he required while in prison.
3. For those reasons I am satisfied that error asserted in the motion to review is established. The result of the sentencing order made was that the sentence imposed on the respondent following cancellation of the order was unreasonable and plainly unjust: House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. Even taking into account the higher threshold for error in Crown appeals, and the magistrate's broad sentencing discretion, the sentence was so inadequate as to be indicative of error or departure from principle: Griffiths v The Queen (1977) 137 CLR 293 at 310. The error is implicit in the excessive leniency of the sentence imposed: Visser v Smart [1998] TASSC 151.

1. The powers of this Court on review of the decision of a magistrate are set out in the Justices Act 1959, s 110(2). On hearing the review the Court "may do all or any" of the following things:

(ab) in a case where the court considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant, dismiss the motion;

(b) confirm, vary, amend, rescind, set aside, or quash the order reviewed;

(c) remit the cause or matter to the justices by whom it was dealt with, either with or without any direction in law;

(d) order that the cause or matter be re-tried by a magistrate;

(e) prohibit the justices concerned, or any other person, from proceeding or further proceeding in respect of the order;

(f) amend or cause to be amended, on such terms as are just, any defect or error in any proceedings before the justices;

(g) make all such orders and cause all such proceedings to be had and taken as the court thinks necessary to secure a final determination of the cause or matter on the merits;

(h) exercise, in addition to any other powers conferred by this section, any power which the court might exercise upon habeas corpus or an order of review under the Judicial Review Act 2000;

(i) exercise any power that might have been exercised by the justices in relation to whose order the motion to review is made."

1. Subsections (2AA) and (2AB) of s 110 are relevant to the determination of this motion. They provide:

"(2AA) The court, on hearing a motion to review in relation to an order imposing a sentence on a person in relation to a matter, may, whether the person who filed the notice of review in respect of the order was the person or the prosecutor, take into account any matter, relevant to sentencing, that has occurred between when the justices who made the order dealt with the person in relation to the matter and when the court hears the motion to review.

(2AB) Despite subsection (2AA), the court, in exercising in relation to an order a power under subsection (2), the effect of the exercise of which is that the person to whom the order relates is being sentenced again for an offence, must not take into account any element of double jeopardy involved in the person being sentenced again so as to impose a less severe sentence than the court would otherwise consider appropriate."

1. In this motion the applicant accepts that the terms of s 110(2AB) apply only when a person is being re-sentenced, and do not displace the residual discretion to dismiss a prosecution appeal despite being satisfied of error. That is, the court may in its discretion dismiss the motion, notwithstanding that the sentence is erroneously lenient on the basis of the principles outlined in CMB v Attorney General for New South Wales [2015] HCA 9, 256 CLR 346 at 351 [6] (French CJ and Gageler J); 366-370 [56]-[66] (Kiefel J (as she then was), Bell and Keane JJ). As to the application of those principles to motions to review the decision of a magistrate in this State see also Cannell v Hughes [2014] TASSC 41; Lyons v Bakes [2015] TASSC 37; Parker v Hall [2015] TASSC 60; Wilkie v Cohen [2016] TASSC 14, and Merrigan v Oakley [2016] TASSC 58. I am not precluded by s 110(2AB) from taking double jeopardy considerations into account in deciding whether to exercise the residual discretion.
2. In this case I have decided that the motion should be dismissed even though I am satisfied that error is clearly established. That is so for a number of reasons, some arising from considerations of double jeopardy but some not, which operate individually and in combination:
   • An important purpose of Crown appeals is to enable this Court to provide governance and guidance to sentencing courts and to maintain public confidence in the proper administration of criminal justice in the sentencing of offenders. In this case, those purposes can be adequately served by resort to the matters of principle set out in these reasons and without descending to the correction of the error in the individual sentence imposed upon the respondent.
   • The applicant accepts that it would have been within the proper exercise of the magistrate's sentencing discretion to make some small allowance for the extent of the respondent's compliance with the drug treatment order. If I were re-sentencing the respondent I would have activated at least 12 months of the custodial part of the sentence. However, even if all of the 14-month custodial part of the sentence had been activated by the sentencing magistrate it would have been necessary for her Honour to consider fixing a non-parole period: the Act s 27Q(5). There is every reason to conclude that the shortest possible non-parole period would have been ordered. It is the order I would make if I were to re-sentence the respondent. He had not served a term of imprisonment before. He was given a short suspended sentence in 2002 for a driving offence and did not breach it. In the respondent's case, assuming activation of the entire custodial part, the likely order would therefore have been that he not be eligible for parole until having served seven months of the 14-month sentence: the Act, s 17(3). The respondent has already served the seven-month sentence the magistrate ordered. He was released from prison, presumably after allowance for remissions, on 6 March 2017. In my view, the effect of activation of a greater term will be to send the respondent back to prison only to apply for parole. According to the information I have, and my experience of such things, parole would likely be granted. He has been deprived of the opportunity to make a timely application. The likely practical effect of allowing the motion is limited to removing a period of no more than seven months (and possibly less) during which the respondent would be in the community on parole, in contrast to in the community having completed the sentence. The respondent would of course still be subject to the risk of revocation of parole, but the period of actual custody would not alter except in the event of revocation.
   • In deciding whether to intervene I may take into account matters relevant to sentence which have occurred since the sentence was imposed: the Justices Act, 110(2AA). I may take into account the anxiety that the respondent has no doubt felt arising from the risk of re-imprisonment after release. While in prison he was treated for chronic airways disease, dilated cardiac cardiomyopathy complicated by the onset of atrial fibrillation, for hepatitis C and for cirrhosis. There is no evidence that prison caused his conditions to deteriorate. I think, given enforced abstinence from drugs and alcohol and the availability of treatment, the converse is likely. However, since his release from prison the respondent has been re-admitted to hospital. He was admitted to the Launceston General Hospital on 5 April 2017 and remained an inpatient when the hearing of the motion was concluded on 12 April 2017. Those factors suggest that the prospect of arrest and re-imprisonment would be more stressful for the respondent than would usually be the case.

1. I am satisfied that the sentencing magistrate, when cancelling the drug treatment order to which the respondent was subject, erred by ordering a sentence which was manifestly inadequate. Despite being satisfied of error I would, for the reasons I have expressed, dismiss the motion.