Supreme Court of the ACT|2015-02-16|Before: Refshauge J

R v Elphick (No 2) [2015] ACTSC 23 (16 February 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. Todd Elphick be convicted of threatening, between 31 December 2012 and 25 June 2013, to damage, by fire, a motor vehicle belonging to another person, intending to cause, or being reckless about causing, another person to fear that the threat would be carried out.

2. That he be sentenced to eighteen months imprisonment to commence on 10 December 2013, to be concurrent as to approximately five months on the sentence imposed in the Magistrates Court on 21 October 2013.

3. Todd Elphick be convicted of stalking between 20 June and 11 July 2013.

4. That he be sentenced to twelve months imprisonment to commence on 10 December 2014, to be cumulative as to six months on the charge of threatening to cause damage by fire.

5. Todd Elphick be convicted of breaching a Domestic Violence Order on 11 June 2013.

6. That he be sentenced to four months imprisonment to commence on 10 October 2015, to be cumulative to two months on the sentence for stalking.

7. Todd Elphick be convicted of breaching a Domestic Violence Order on 30 June 2013.

8. For that offence, I sentence you to five months imprisonment to commence on 10 December 2015, to be cumulative as to two months on the sentence for the first charge of breaching a Domestic Violence Order.

9. The total sentence of two years and four months is suspended from 16 February 2015 for a period of two years.

10. Todd Elphick sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following conditions:

(a) That he be subject to the supervision of the Director-General or her delegate for two years, or such lesser period as the person supervising him considers appropriate, and obey all reasonable directions of the person supervising him, especially as to counselling or treatment for abuse of drugs, anger management and mental health issues;

(b) That he not contact, directly or indirectly, including by any electronic means, Natasha Smith, Wayne Smith, Champika Smith, Melissa Smith and Jennifer Smith except, if required, through lawyers and that he not approach within 100 metres of them except at Court or as authorised by any court;

(c) That he report by 4pm on 16 February 2015 to ACT Corrective Services, Eclipse House, London Circuit, to arrange supervision.

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Sentencing - Threat to commit arson - Stalking - Breach of Personal Protection Order - Offending whilst on Conditional Liberty

CRIMINAL LAW - SENTENCING - Concurrency - Culmination - Totality - Backdating of sentence - Consideration of pre-sentence incarceration

Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP

Crimes (Sentencing) Act 2005 (ACT), ss 7, 40A, 63

Domestic Violence and Protection Orders Act 2008 (ACT), s 90

Auld v The Queen [2013] ACTCA 21

Azzopardi v The Queen (2011) 25 VR 43

Cooper v The Queen [2013] VSCA 153

Islam v The Queen [2014] ACTCA 2

Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59

Niehus v Police [2012] SASC 56

Okwechime v Sindel [2009] ACTSC 162; (2009) 235 FLR 299

Quinn (Unreported, Court of Criminal Appeal, WA, Wallace, Pidgeon and Rowland JJ, Library No: 8361, 11 July 1990)

Roberts v Smorhun [2013] ACTSC 218

R v Elphick [2014] ACTSC 372

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Wilson v The Queen [2012] VSCA 40

Wronski v Raue [2012] ACTSC 87

1. On 24 November 2014, Todd William Elphick stood trial on an indictment dated 24 November 2013 containing two counts, being one count of causing damage to a building by fire, namely arson, and one count of threatening to damage a building by fire, which building belonged to another person, namely a threat of arson.

2. On 11 December 2014, the jury acquitted Mr Elphick of both counts on the indictment. For the purposes of the sentencing proceedings in which I am engaged, it is important that I state that I take no account of the fact that Mr Elphick has been charged with these offences and acquitted of them, for his acquittal means that he continues to enjoy the presumption of innocence, namely that he is not guilty of the charges.

3. On 23 June 2014, however, Mr Elphick pleaded guilty to four counts contained on an indictment dated that day, 23 June 2014, namely threatening to damage, by fire, a vehicle belonging to another person, intending to cause or being reckless about causing another person to fear the threat would be carried out, that is an offence of threat to commit arson; a count of stalking; and two counts of breaching a Personal Protection Order being a Domestic Violence Order to which he was subject.

4. Making a threat of arson is an offence against s 404(2) of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 700 penalty units (that is, at the time, a fine of $77,000) and imprisonment for seven years.

5. Stalking is an offence contrary to s 35 of the Crimes Act 1900 (ACT) and, except in circumstances of aggravation, attracts a maximum penalty of imprisonment for two years. Where, however, the offence involves a contravention of an injunction or other order by a court, the maximum penalty is five years imprisonment.

6. Engaging in conduct that contravenes a Personal Protection Order is an offence prohibited by s 90 of the Domestic Violence and Protection Orders Act 2008 (ACT) and attracts a maximum penalty of 500 penalty units (that is a fine, at the time, of $55,000) and imprisonment for five years.

7. These offences arose out of the breakdown of a relationship between Mr Elphick and his former partner who was the victim of the offence of stalking; they had been partners since about April 2005. A child was born to them on 21 May 2011.

8. On 22 December 2012, however, Mr Elphick and his partner ended their relationship. The ending of the relationship was fractious, particularly over the care and access arrangements to the child of the relationship.

9. Initially, Mr Elphick and his former partner had an equal arrangement for care of the child but those arrangements did not always work well.

10. On 11 April 2013, Mr Elphick's former partner applied for, and was granted, an interim Domestic Violence Order against him but on 22 April 2013 she withdrew that order.

11. On 20 May 2013, however, she applied for and was granted a further interim Domestic Violence Order against Mr Elphick. Her parents also applied that day for, and were granted, an interim Personal Protection Order.

12. On a day between 31 December 2012 and 25 June 2013, Mr Elphick and his former partner had an argument over the telephone about the care and access arrangements for their daughter. His former partner was then living at her parents' home in Monash. Mr Elphick's former partner was there at the time, as was her parents and her child.

13. Mr Elphick said that he was going to come over and he arrived a short time later. His former partner and her father went outside to speak to Mr Elphick. Mr Elphick was angry, shouting and swearing and his former partner tried to reason with him while her father went back inside. Mr Elphick then shouted, "If you don't let me in, I am going to burn your mum's car". He then walked over to a black Honda CR-V belonging to his ex-partner's mother and which was parked in the driveway. He lay on the ground under the car and held a lighted cigarette lighter to the underside of the car. His former partner then told him that he could take their daughter and he got off the ground. These are the facts of the offence of threatening arson.

14. Mr Elphick said that the threat occurred in a somewhat different way. Mr Elphick said that his former partner's parents arrived at his house, where he and his former partner were then living, saying that she was coming over for "a big fight". As they did not want the child to be exposed to that, they suggested that they should take her to their house, to which Mr Elphick agreed as a good idea.

15. After they had left, Mr Elphick's former partner arrived and, when he told her that her parents had taken their daughter, she became angry and drove off. She then messaged him asking him to come over to her parents house, which he did, adding "They're not giving [their daughter] back".

16. Mr Elphick went straight over and tried to get inside to get his daughter but the door was locked. He then threatened to call the police if his daughter was not returned, but nothing happened. He said he did call the police who told him that there was nothing they could do. He told this to his former partner who told him "Get our daughter back". It was then that he made the threat to burn his former partner's mother's car. He then went to the blind side of the vehicle but, when he did so, his former partner's mother came outside with his daughter.

17. This version was not put to his former partner nor to her parents in cross-examination. That makes it very difficult to determine its truth.

18. It may not be necessary to do so, however, for the elements of the offence and its seriousness are the same on both versions: a threat to burn the vehicle, intending his former partner's mother to believe he would carry it out and to do so for the sake of forcing her to do something that would otherwise not happen.

19. The only difference is that, on the Crown case, he produced a cigarette lighter. In his evidence, Mr Elphick did not say he did not have a cigarette lighter in his hand. Both Mr Elphick's former partner and her father said he did. Indeed, it was put to his former partner in cross-examination that he did produce a lighter. This seems to me to be a feature of aggravation and, in the circumstances, I am satisfied beyond reasonable doubt that Mr Elphick did produce a cigarette lighter when he went apparently to carry out the threat he had made to burn the car.

20. As I have noted above (at [11]) Mr Elphick's former partner and her parents all applied for and were granted interim Personal Protection Orders on 20 May 2013. Mr Elphick was present when the orders were made and the orders were served on him on 21 May 2013. On 11 June 2013, final orders were made against Mr Elphick in relation to his ex-partner's parents for a period of twelve months. The interim Domestic Violence Order granted to his ex-partner was continued and the hearing adjourned to 6 September 2013.

21. All these orders prohibited Mr Elphick, amongst other things, from being within 100 metres of or contacting, harassing, threatening or intimidating Mr Elphick's former partner and her parents.

22. On 11 June 2013, Mr Elphick's former partner's father received three telephone calls from Mr Elphick, a seventeen second call at 12.36 pm and two five second calls at 12.38 pm. Nothing was said by Mr Elphick in these calls. These are the facts relating to the first of the counts of engaging conduct which contravenes a Personal Protection Order.

23. On 30 June 2013, Mr Elphick's former partner's mother received four telephone calls from Mr Elphick, namely at 1.43 am for five seconds, at 6.01 am for four seconds, at 6.02 am for twelve seconds and at 6.30 am for two seconds. Again, nothing was said by Mr Elphick in these calls. These are the facts relating to the second count of contravening a personal protection order.

24. Between 20 June 2013 and 11 July 2013, Mr Elphick's former partner received twenty-five telephone calls from Mr Elphick, who said nothing in any of the calls relevant to these proceedings, though in one he did say some things which the jury's finding meant was not a threat. Most were for relatively short periods, though some were made for sixty-four, sixty-five, sixty-six or eighty-three seconds. They were made at varying times of the day but a number were made at early hours of the morning, between 1.00 and 5.00 am on some occasions.

25. These are the facts relating to the count of stalking.

26. Section 35(2) of the Crimes Act, provides that:

A person stalks someone else if, on at least two occasions, the person telephones, sends electronic messages to or otherwise contacts the other person with an intent to cause apprehension or fear of harm in the other person or to harass that other person.

27. By his plea of guilty to the charge, Mr Elphick accepts that his intention in making the telephone calls was to cause his ex-partner fear or to harass her. I am satisfied, having regard to the number, nature and timing of the telephone calls, that they had the capacity to achieve that effect.

28. I had a detailed Pre-Sentence Report. Mr Elphick also gave evidence before me.

29. Mr Elphick was born in 1986, some twenty-eight years ago.

30. He has a good relationship with his mother, who has re-partnered, and with his maternal grandmother. As noted in R v Elphick [2014] ACTSC 372 at [17], he intends to relocate to his mother's home at Banora Point, New South Wales, when released. Oddly, after referring to this, the Pre-Sentence Report states that, upon his release, Mr Elphick will be of no fixed address and will reside with family and friends in the ACT. This, it became clear, referred only to the situation if, on release, there is some sentencing limitation on his relocation to New South Wales where, for example, he could not undertake to serve a term of imprisonment by periodic detention.

31. Despite requesting a Pre-Sentence Report that addressed each of the Pre-Sentence Report matters set out in s 40A of the Crimes (Sentencing) Act 2005 (ACT), where s 40A(d) is the offender's educational background, it contained no information about Mr Elphick's educational background. His counsel informed me that he had completed Year 12 at school.

32. Nevertheless, Mr Elphick is a roofing plumber by trade. He has a relevant certification based on his experience. He and his former partner formed and conducted a company providing residential and commercial roofing. His ex-partner was Managing Director but he handled all the day-to-day operations and supervised the work sites.

33. After he and his former partner ended their relationship, he established another company under which he operated his business as a roofing plumber.

34. That business, however, has been liquidated as a consequence of his incarceration and owes substantial debts. On release from prison, he will be dependent initially on unemployment benefits until he is able to start employment again. He told me, in connection with the bail application, that his tools were with his mother so that he could seek work there.

35. Mr Elphick started drinking alcohol when he was thirteen and smoking cannabis when he was fifteen. He had used cannabis daily, until he was remanded in custody.

36. He attended a Drug Residential Rehabilitation facility when he was sixteen but his participation was terminated when he was found intoxicated.

37. He uses cannabis, methylamphetamines, heroin and amphetamines. He returned a urinalysis positive to cannabis whilst in custody on 13 December 2014. He told the author of the Pre-Sentence Report that it was a one-off incident. He told me in evidence that he intended to cease using illicit drugs and has inquired about becoming involved with Narcotics Anonymous. He has completed a course in Harm Minimisation.

38. He is currently enrolled in a methadone program, though it had been suspended in November 2014 when he failed to collect his doses. It was recommenced on 29 January 2015.

39. Mr Elphick said he has no mental health concerns, though he has been prescribed anti-psychotic and anti-depressant medication for three years. A mental health report, however, showed that he had been diagnosed with Moderate Depressive Episode without Somatic Syndrome and a psychotic illness associated with substance abuse. He has had fairly constant contact with Mental Health Services since August 2010. There is no special relevance to his culpability or the manner of serving any sentence in his mental health situation. He has no physical health concerns, save as noted below (at [49]).

40. Mr Elphick has a criminal history, though it is not as extensive as many that come before the courts.

41. He has been convicted of thirty-one offences but, of them, twenty-two are traffic offences. They are, of course, criminal offences, but of a different kind to the offences to which he has pleaded guilty. They do include, however, a number of offences which have an element of dishonesty, being offences of driving vehicles whose registration details are issued for another vehicle.

42. He has six other offences of dishonesty and two drug offences on his record and on 30 July 2013 he was convicted of being an accessory after the fact of an offence by Kai Yuen when he assisted Mr Yuen to leave the scene of an offence and dispose of a shotgun, believing Mr Yuen had committed an offence of intentionally and unlawfully using an offensive weapon against another person likely to endanger human life. He was sentenced to seven and a half months imprisonment for that offence.

43. His criminal history, of course, reduces the extent to which he can be afforded leniency, as explained by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477.

44. The author of the Pre-Sentence Report stated that he has received four disciplinary actions whilst in custody, being for diverting medication, contraband excess medication, recklessly engaging in conduct which endangers the health and safety of others and the urinalysis positive for cannabis.

45. The author of the Pre-Sentence Report assesses him at a medium risk of re-offending, primarily due to his prior criminal history, illicit substance issues, financial challenges and the risk that there is a mental health issue.

46. On the other hand, he was reported to be motivated to attend programs in custody, though there are limits on access to such programs for those who are not yet sentenced.

47. It is said that he would benefit from programs that would address his drug use, anti-social thought processes and mental health issues. These would reduce the risk of re-offending. It seems to me that he also needs to address anger management.

48. I note that Mr Elphick has strong family support from both his mother and his step-father, as well as his maternal grandmother.

49. He proposes to seek work, though I note that he has an injury (a rotator cuff injury) which may complicate that. If he does not find work or is unable to perform it, this must increase his risk of re-offending.

50. He wishes to start a new life in New South Wales. The Court is entitled to be somewhat sceptical. See R v Govinden [1999] NSWCCA 118; (1999) 106 A Crim R 314 at 319; [35]. Nevertheless, it would appear desirable that he move away from Canberra to minimise the volatile interaction with his former partner.

51. I also note that he has completed some programs whilst he was in custody in the Alexander Maconochie Centre. He appears to have been exited from the Smart Recovery Program, though he denied that. I am not able to make a finding on this issue, though I am inclined to accept the evidence of the author of the Pre-Sentence Report.

52. Arson is a serious offence. The maximum penalty attests to that. In S (a child) (1992) 60 A Crim R 121 at 134, Malcolm CJ, with whom Seaman and Ipp JJ agreed, quoted with approval what Wallace J, with whom Pidgeon and Rowland JJ agreed, had said in Quinn (Unreported, Court of Criminal Appeal, WA, Wallace, Pidgeon and Rowland JJ, Library No: 8361, 11 July 1990):

The courts have frequently said that the crime of arson usually calls for a substantial period of imprisonment. In James (1981) 27 SASR 348 at 356, the deterrent aspect of sentencing therefore is expressed of the utmost importance and should reflect the community's sense of outrage. In Hall (1979) 28 ALR 107, per Gallop J at 117 expressed [sic] the opinion that a sentencing judge was entitled to take the substantial damage bill into account. In Wilcock [1988] Crim LR 472 the courts have emphasised that the real gravity of the offence lies in the intent with which it is committed: Storey (1984) 6 Cr App R(S) 104.

53. Making a threat of arson is not so serious an offence, judged by the maximum penalty, but much of the comment of their Honours about arson still applies.

54. In this case, of course, there was no actual damage as there was no actual fire, although the attempt by Mr Elphick was, it would appear, a serious attempt with a risk to property. He produced a cigarette lighter which was an aggravating factor.

55. It was also a threat with an intent to achieve an objective to which he may otherwise not have been entitled. This makes it a more serious version of the offence. It was also committed at the home of the victim where she was entitled to feel safe.

56. Stalking, especially in an aggravated form, as this was because of the interim Domestic Violence Order which Mr Elphick's action breached, is also a serious offence. It is often associated with domestic violence and the breakdown of relationships. It can be, as accepted in R v Ryan [2012] SASCFC 136 at [48], a sexual offence.

57. At the more serious end, stalking can be constituted by threats of physical harm. This did not happen here. At the very least, it is a significant invasion of privacy and often more. Again, stalking is often associated with the offender's obsession with the person stalked. See, for example, Niehus v Police [2012] SASC 56.

58. In this case, the stalking was more serious because of the circumstance of aggravation, making Mr Elphick liable to the higher penalty. In my view, the method Mr Elphick used makes it more serious than, for example, stalking constituted by posting photographs linked to pornographic sites, as happened in Wilson v The Queen [2012] VSCA 40 or sending embarrassing material with a view to blackmail as in Cooper v The Queen [2013] VSCA 153. It was a serious course of conduct. That there was no actual violence does not mean that it was not a crime of domestic violence. See R v Hamid [2006] NSWCCA 302; (2006) 164 A Crim R 179 at 193; [77].

59. Breaches of Personal Protection Orders are also serious, because they involve a disregard of a court order, but also because such orders are specifically designed to protect those for whom they have been granted. A court has made a decision that an appropriate level of protection is required and this needs to be respected. Further, such orders are normally made in the context of family violence and, as I pointed out in Roberts v Smorhun [2013] ACTSC 218 at [120]- [122], this is a serious problem which the integrity of the Domestic Violence Order system can help to address.

60. In this case, the breaches of the orders were not as serious as many that the courts see, given that there was no physical confrontation, there was no direct personal contact or threat, though there were three occasions of contact in one, and four in the other case.

61. Mr Elphick was reported by the author of the Pre-Sentence Report as minimising his actions; he said he intended the victims no harm, but only meant to irritate them. He acknowledged, as he had to me in evidence, that the behaviour was immature and foolish.

62. The intention is part of the offence but the effect on the victims is also relevant. They would not have known that his intention was less serious, especially in the light of the serious issues of aggression, though perhaps not violence, they had experienced. As is clear from the Victim Impact Statements, they perceived his actions as intimidating and that caused distress.

63. Though the number of contacts with the parents of Mr Elphick's former partner were limited, and, as I have noted, less serious, they were still of concern to the victims and they still constituted a deliberate and intentional breach of the court's order, to achieve an objective which the orders were intended to avoid.

64. Thus, the reasons for committing the offences were relevant but did not significantly reduce, if at all, the seriousness of the offences.

65. It was also relevant that he deliberately hid his telephone number when making the calls related to all these offences so that the victims could not be certain who was calling.

66. Finally, it was relevant, and a seriously aggravating feature, that he was on bail for the offence of being an accessory after the fact of Mr Yuen's offence, that is, on conditional liberty, when he committed the offences. See Auld v The Queen [2013] ACTCA 21 at [9].

67. I had Victim Impact Statements from the three victims of Mr Elphick's offences.

68. The Victim Impact Statement of Mr Elphick's former partner recorded her fear of Mr Elphick and the psychological harm she suffered, leading her to be distrustful of people, even her family. She reported nightmares and anxiety and that she had sought, and was receiving, treatment from a psychologist.

69. It is, of course, difficult to separate the effect that the volatile and often aggressive relationship, on both sides, had on Mr Elphick's former partner from the effect of the offences involving her and her family. I accept that the offences did not cause all of her problems but no doubt exacerbated, and perhaps entrenched, them.

70. Her parents showed disappointment at the treatment Mr Elphick afforded them despite them taking him into their family and trying to treat him fairly. They attested to the distress the harassment caused them. They also confirmed that they perceived his actions as making them fearful of physical harm.

71. I take into account the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act. In the circumstances, specific deterrence and vindication of the victims seem to me to be important purposes.

72. I take into account Mr Elphick's plea of guilty. Although it was a late plea, at the first day of the first trial, after the jury had been empanelled, it still had some benefit to the administration of justice and, of course, to the victims of the offences.

73. In the end, the victims were required to give evidence in respect of the charges to which Mr Elphick had pleaded not guilty but, of course, he was acquitted of those charges and, in those circumstances, it does seem to me that I should proceed as though, in respect of the charges for which I now must sentence him, he has saved the victims the ordeal of giving evidence about them.

74. I take into account his subjective circumstances as set out above. He has been in custody now since 10 July 2013. His behaviour in prison is of some concern, since he appears to still have a problem with drugs, though in the case of the disciplinary matters it included possession of prescription medication, though he wished, it appears, to abuse it.

75. I take into account the seriousness of the offences as I have described them and the circumstances under which they were committed.

76. I note that Mr Elphick has been assessed as suitable for a community service condition to a good behaviour order and this can be transferred to New South Wales where, if he resides with his mother, there is work available.

77. He has been assessed as suitable to serve a period of imprisonment by periodic detention, though this cannot be transferred to New South Wales.

78. The offences, however, are sufficiently serious enough to warrant a term of imprisonment and in my view, no other sentence is appropriate.

79. As there are multiple offences, it is important that I consider the length of each sentence and the elements of each offence that they punish to ensure that, where there are overlapping elements, Mr Elphick is not punished twice. I must also consider whether the sentence should be wholly or partly concurrent because, for example, they are part of the same enterprise. This does not seem to be the case here.

80. I have reviewed the length of the total term of imprisonment arrived at to ensure that the principle of totality is respected and that the total sentence is adequate to reflect the criminality of the offences committed, but not more than that, and that the total sentence is not crushing and leaves open the realistic prospect of reform and the hope that Mr Elphick has for the achievement of his goals when he returns to the community. Where necessary to achieve this, I have adjusted the cumulation and concurrency of the individual sentence.

81. There is an important matter in respect of totality. Although Mr Elphick has been in custody since 10 July 2013, he was, during that time, sentenced on 1 October 2013 to imprisonment for some traffic offences and a dishonesty offence.

(a) making off with petrol on 11 February 2013 without paying for it;

(b) six offences of driving a motor vehicle on 7 (twice), 15 and 17 January 2013 and on 11 and 14 February 2013 with number plates for another vehicle;

(c) seven offences of driving a motor vehicle on 7 (twice), 15, 17 and 26 January 2013 and on 11 and 14 February 2013 as a repeat offender when his licence was suspended;

(d) two offences of driving an unregistered vehicle on 24 May 2013; and

83. He was fined for twelve of the offences, payable forthwith, so that under s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT) the time he was in custody would reduce the amount of the fines at the rate of $300 per day. The fines, totalling $5,650 would be fully paid after eighteen days in custody.

84. On the other offences, he was sentenced to five separate sentences of three months imprisonment, partially concurrent and partially cumulative, to constitute a total period of ten months.

85. It was submitted by Mr R Livingston, Counsel for Mr Elphick, that I should make part of the current sentences concurrent with those earlier sentences to take into account the principle of totality. He, therefore, did not submit that I should give credit for the whole of the nineteen months that he had spent in custody, but that I had to take it into account. That included recognition of the principle of totality while accepting that the whole of the period could not be included in the back-dating of the sentence.

86. In this, he submitted, I should follow the approach of Penfold J in Wronski v Raue [2012] ACTSC 87 at [11] where her Honour considered the approach to be taken to s 63 of the Crimes (Sentencing) Act 2005 (ACT) (which provides for the backdating of sentences). Her Honour said:

My own formulation of the effect of s 63(1) is:

(a) that it provides a genuine discretionary power to backdate for good reason;

(b) that if there is applicable pre-sentence custody as described in s 63(2), there should be appropriate backdating unless there is a good reason not to do so; and

(c) that, at least, explicit reasons should be given for backdating not reflecting pre-sentence custody, and for not backdating in respect of any relevant pre-sentence custody as described in s 63(3) to (5).

87. Her Honour's reference to "[m]y own formulation" was that she had expressed some difference to my conclusion in Hawkins v Hawkins (2009) 3 ACTLR at 228; [85], where I held in respect of s 63 of the Crimes (Sentencing) Act:

Accordingly, it seems to me that while there is a discretion not to backdate a sentence such a discretion should be very sparingly used and only where it would offend justice and proper sentencing principles to do otherwise.

88. Her Honour considered that this was too generous an approach because s 63(1) of the Crimes (Sentencing) Act does not limit backdating to periods of pre-sentence incarceration on remand, but includes matters such as residential rehabilitation (Okwechime v Sindel [2009] ACTSC 162; (2009) 235 FLR 299 at 313; [65]) and, perhaps, immigration detention (see, for example, Islam v The Queen [2014] ACTCA 2 at [22], [31]).

89. While my formulation may not have the elegance of her Honour's formulation, I do not see any real difference since justice and proper sentencing principles seem to me to amount to "good reason". Thus, proper sentencing principles certainly do not necessarily equate to residential rehabilitation nor, more arguably, immigration detention, as custody for the purposes of s 63(2) of the Crimes (Sentencing) Act, but would allow them, in appropriate cases, to be taken into account. In my view, s 63(2) of that Act refers to incarceration in a prison as on remand. This is reinforced, it seems to me, by the reference to "arrest" in s 63(5).

90. I agree with her Honour that to take the pre-sentence custody into account does not require a full "accounting" of the period, but only a requirement to take it into account, that is, to the extent that it is, in all the circumstances, fair. It would very rarely be fair (and so in accordance with justice and proper sentencing procedures) not to take fully into account the whole of a period of pre-sentence remand custody wholly attributable to the instant offences.

91. Where, as here, some part of the pre-sentence custody is referrable to imprisonment for other offences, then a different principle applies, namely the principle of totality as referred to by the High Court in Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59. This may also be informed by the principle on the non-linearity of sentences explained in R v Clinch (1994) 72 A Crim R 301 at 306 and followed by R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at 164; [16]; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 at 130; [16]; and Azzopardi v The Queen (2011) 25 VR 43 at 61; [62].

92. Thus, I must consider the extent to which the current sentences should be partly concurrent and partly cumulative with the Magistrates Court sentences imposed while Mr Elphick was in custody to respect that principle. In my view, the sentence should be concurrent as to five months.

93. I considered also whether to set a non-parole period or to suspend the sentence partially. While the supervision on parole has significant benefits from the perspective of control and support, I am aware that it will take some time to have an application for parole heard by the Sentence Administration Board.

94. While I do not have a detailed pre-parole assessment, I did hear much about the circumstances under which Mr Elphick would live if he relocated to live with his mother, when I was hearing the bail application and I have had a Pre-Sentence Report, though it is not as detailed as I would have liked or as I expect the Sentence Administration Board would receive.

95. I recognise that, as Mr Elphick is going, it appears, to be residing in New South Wales, the monitoring and enforcement of a good behaviour order which I must make if I suspend the sentence rather than set a non-parole period, may be somewhat more complicated. I am not convinced of this, but I recognise that it may be so.

96. Nevertheless, I consider that to delay Mr Elphick's release would not be appropriate and so I will suspend the sentence from today.

1. I convict you of threatening, between 31 December 2012 and 25 June 2013, to damage, by fire, a motor vehicle belonging to another person, intending to cause, or being reckless about causing, another person to fear that the threat would be carried out.

2. For that offence, I sentence you to eighteen months imprisonment to commence on 10 December 2013 to take into account pre-sentence custody, and to be concurrent as to approximately five months on the sentence imposed in the Magistrates Court on 21 October 2013. Had you not pleaded guilty, I would have sentenced you to twenty months imprisonment.

3. I convict you of stalking between 20 June and 11 July 2013.

4. For that offence, I sentence you to twelve months imprisonment to commence on 10 December 2014, that is to be cumulative as to six months on the charge of threatening to cause damage by fire. Had you not pleaded guilty, I would have sentenced you to fifteen months imprisonment.

5. I convict you of breaching a Personal Protection Order on 11 June 2013.

6. For that offence, I sentence you to four months imprisonment to commence on 10 October 2015, that is to be cumulative to two months on the sentence for stalking. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.

7. I convict you of breaching a Personal Protection Order on 30 June 2013.

8. For that offence, I sentence you to five months imprisonment to commence on 10 November 2015, that is to be cumulative as to two months on the sentence for the first charge of breaching a Domestic Violence Order. Had you not pleaded guilty, I would have sentenced you to six months imprisonment.

9. That is a total sentence of two years and four months.

10. I suspend that sentence today for a period of two years.

11. I require you to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years from today with the following conditions:

(a) a probation condition that you be subject to the supervision of the Director-General or her delegate for two years, or such lesser period as the person supervising you considers appropriate, and obey all reasonable directions of the person supervising you, especially as to counselling or treatment for abuse of drugs, anger management and mental health issues;

(b) that you not contact, directly or indirectly, including by any electronic means, [his ex partner, her parents and her sisters] except, if required, through lawyers and that you not approach within 100 metres of them except at Court or as authorised by any court;

I certify that the preceding ninety-seven [97] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Refshauge.

18 October 2017 Paragraph 2 of the order of the Court be amended as follows:

omitting "cumulative as to" in the second line and substituting "concurrent as to approximately"; and

omitting "1 October" in the fourth line and substituting "21 October".

The same amendments to be made to paragraph [97] of the reasons for sentence.

Crimes (Sentence Administration) Act 2005(ACT)

Crimes Act 1900(ACT)

Domestic Violence and Protection Orders Act 2008(ACT)

Crimes (Sentencing) Act 2005(ACT)

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Violence and Protection Orders Act 2008

Crimes (Sentence Administration) Act 2005(ACT)

Crimes Act 1900(ACT)

Domestic Violence and Protection Orders Act 2008(ACT)

Crimes (Sentencing) Act 2005(ACT)

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Violence and Protection Orders Act 2008

R v Elphick

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (164 paragraphs)

R v Elphick (No 2) [2015] ACTSC 23 (16 February 2015)

Parties

Legislation Cited (14)

Cases Cited (7)