Rogers v Green & Ors [2008] ACTSC 78

(b) one offence of minor theft under section 321 of the Criminal Code; and

(c) a breach of a good behaviour order imposed in connection with a suspended sentence imposed on 28 July 2006.

2. On 15 October 2006, the appellant and his partner, who were known to police, were seen leaving a vehicle matching the description of one that had been reported stolen several days earlier. A short time later police located the appellant's partner, who confirmed that the appellant had been driving the vehicle but denied knowing it had been stolen.

3. On 31 October 2006, police were conducting inquiries in a Canberra suburb when they saw the appellant and his partner driving in a vehicle matching the description of one that had been reported stolen several days earlier. Police followed the vehicle to where it had been stopped and spoke to the appellant, who claimed he borrowed the car from a friend, but could not provide the friend's name or any other details. Police arrested the appellant and charged him later that day.

4. On 10 April 2007, the appellant was observed in the liquor aisle of a Woden supermarket removing three cans of bourbon and cola from their packaging and concealing them within his clothing. He then proceeded through the checkout without paying for the liquor.

5. Police were contacted, and the appellant was taken to Woden Police Station. Later that day he was released from custody, and in due course proceedings were begun against him by summons issued on 2 May 2007.

6. On 28 July 2006, the appellant had appeared in the Magistrates Court charged with unlawful possession of stolen property. He was released without sentence upon entering into a 6-month good behaviour order. The 15 October 2006 offence of driving a motor vehicle without consent was a breach of the good behaviour order.

7. By 17 August 2007, the appellant had pleaded guilty to the three new charges, and at the Magistrates Court hearing on that day he pleaded guilty to the breach of the good behaviour order. He was then sentenced on all four offences. The sentence was for a total term of 21 months imprisonment, with a non-parole period of 15 months, to be served as follows:

(a) for the 15 October offence - 6 months imprisonment, commencing on 30 July 2007;

(b) for the 31 October offence- 12 months imprisonment, to be served consecutively on the 6-month term;

(c) for the minor theft - 3 months imprisonment, also to be served consecutively on the previous term; and

(d) for the breach of the good behaviour order - 3 months imprisonment for the original offence, to be served concurrently with the minor theft sentence.

8. The first term of imprisonment was backdated to 30 July 2007 to take account of time already spent in custody.

9. The appellant began his period of full-time imprisonment immediately on being sentenced. He lodged an appeal on sentence on 23 August 2007. The appellant remained in custody until he was granted bail on 14 December 2007, pending the determination of the appeal.

10. The grounds of appeal as at the hearing date were as follows:

(b) the learned Magistrate gave insufficient weight to the opinion of the author of the pre-sentence report (PSR);

(c) the learned Magistrate gave excessive weight to the seriousness of the offences;

(d) the learned Magistrate erred in wholly accumulating the sentences on the three new charges (CC 2006/9768, CC 2006/9733 and CC 2007/335);

(e) the learned Magistrate erred in the exercise of her discretion by failing to grant an adjournment to obtain legal representation;

(f) the learned Magistrate erred in the exercise of her discretion by failing to order a CADAS report.

11. At the hearing, counsel for the appellant sought to adduce further evidence, mainly about the effect of incarceration on the appellant's health but also in relation to his attempts to rehabilitate himself in the period since he was sentenced in the Magistrates Court. The admission of this evidence was opposed by the respondent and, in the event, the evidence has not been necessary to my conclusions, and accordingly the application to adduce it is refused.

12. On an appeal against sentence, an original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error. 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; (2006) 228 CLR 357 at 371).

13. As well, 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 (supra) at 340). That is, no specific error need be shown to justify a finding that the sentence is "manifestly excessive", and if specific error is shown, then there is no need to claim manifest excess.

14. Even if specific error is shown, an appeal should not be allowed and a new sentence imposed unless the appeal court also considers that a different sentence would be appropriate, so to this extent the level of the sentence will need to be argued even in an appeal based on specific errors.

15. In this case, the appellant has raised both examples of specific errors (grounds (b) to (f)), and a claim of manifest excess from which error may be inferred (ground (a)). It is convenient to deal with the claims of specific error first.

16. Counsel for the appellant submitted that the learned Magistrate erred by giving insufficient weight to the opinion of the pre-sentence report (PSR) author. In her submissions she asserted that:

The effect of the PSR was that the appellant had made significant changes in his life and offending behaviour. Further changes were required and, with assistance, may be achieved in time.

The PSR contained an opinion that the appellant's pattern of offending was significantly reduced in the two years leading up to sentence. There was no evidence before the learned Magistrate, and no submissions made by the DPP, to controvert that opinion.

Nevertheless, Her Honour rejected that opinion.

17. Counsel drew my attention to the following paragraphs from the PSR:

The offender has been incarcerated several times during his adult life, the most recent being a total of 9 months for offences including Convey Article into Remand Centre, attempt supply of prohibited substance, heroin, and attempt to sell cannabis and burglary. It is noted that since serving this term of custody commencing in 2004 Mr Rogers has been convicted of possession of stolen property and driving offences in 2006, which represents a significant reduction in his criminal activity.

...

Mr Rogers is a 46 year old man with an extensive history of substance abuse and criminality. Despite his lengthy criminal history, the offender's criminal history displays a reduction in criminal activity since his incarceration in 2004. It is considered that Mr Rogers is attempting to make the significant changes to his life to remain offence free, however a lack of pro social problem solving skills has led him to again fall foul of the law.

The offender may benefit from assessment for, and if found suitable, completion of the ACT Corrective Services Cognitive Self Change Program to address his cognitive deficiencies.

18. The learned Magistrate, however, was not convinced by the PSR author's views, saying:

Now, I don't accept that assessment at all because quite frankly you have been committing offences and you've been continuing to commit offences since 1975. In fact, the criminal history shows a pattern of offending and being before the courts almost every year for the past 32 years. You've been coming before the courts, Mr Rogers, almost every year for the past 32 years. So, I think that's quite an extraordinary comment for the author of the Pre-Sentence Report to make that you've somehow changed your ways given that I'm sentencing you here on four offences, including the breach of recognizance and there are others waiting in the wings and I make no comment about those.

You have served sentences of periodic detention, which you've breached, you've served sentences of imprisonment, you've been ordered to perform community service and you've been placed on numerous recognizances and some of those recognizances you've breached. You're not deterred at all by whatever sentence the courts impose it makes no difference to you, to your lifestyle or to your thinking, absolutely no difference because quite frankly you are now set in your criminal ways and in your criminal behaviour and any prospects of rehabilitation in my view are extremely poor, if not non-existent.

19. In particular, the learned Magistrate rejected the PSR author's assessment that the appellant "is attempting to make the significant changes in his life to remain offence free".

20. On the hearing of the appeal, counsel for the appellant was unable to point to any evidence, from the PSR or otherwise, to support the PSR author's optimistic view. She nevertheless argued valiantly that the PSR was an expert report and that the learned Magistrate was not entitled to reject it without contradictory evidence, as follows:

HER HONOUR: So it's your submission that the Magistrate cannot simply say, "I'm not" - even if she gives reasons as she did to some extent in this case - "I'm not convinced by this particular statement in the pre-sentence report", that once it's in the pre-sentence report she needs a particular specified reason to reject it and to choose not to act on it?

MS WARWICK: Yes, your Honour, that's my submission. That she can't simply say, "I'm not convinced,". What she has is evidence before the court and she can't simply say I'm not convinced by that evidence, she has to be weighing other evidence, that that's the role that she had and there was no evidence to contradict that report or that opinion.

21. The main problem with this submission is that the PSR does not seem to be a true "expert report". Certainly the standard PSRs provided to this court do not satisfy the requirements of Part 2.12 and Schedule 1 of the Court Procedures Rules 2006 (ACT). They do not specify the author's qualifications (Schedule 1, 1.1(1)(a)) or indeed even the author's claimed area of expertise. Nor does the author give the certification of an agreement to be bound by the code of conduct in Schedule 1 before giving evidence based on the report (as would be required by rule 1202 for an expert witness).

22. Part 4.3 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), which deals with the preparation and use of pre-sentence reports, does not expressly oblige a court to accept any opinions expressed in such a report. With several specific exceptions (see, for instance, s 89 of the Sentencing Act relating to reasons for acting inconsistently with a PSR recommendation in the context of deciding whether to impose a community service obligation), the court is not even specifically required to give reasons for not accepting such opinions.

23. The only fact referred to by the PSR author to support his view that the appellant was attempting to make the significant changes to his life to remain offence-free was the appellant's criminal history since his incarceration in 2004. However, an examination of the criminal history indicates that, of itself, it does not suggest any more than that the appellant's criminal behaviour since that time has not escalated.

24. The offences that saw the appellant serve 12 months imprisonment in 2004 were committed in September 2003, and included Attempt Supply Prohibited Substance (Heroin) and Burglary. In the three years before that he was convicted (as well as of various minor offences dealt with in conjunction with the offences listed below) of:

• Possess Stolen Property and Possess Prohibited Substance (Cannabis) (committed March 2000);

• Possess Prohibited Substance (Heroin) and Possess Prohibited Substance (Cannabis) (committed April 2001);

• Goods in Personal Custody Reasonably Suspected Stolen (committed February 2002); and

• offences relating to keeping a dangerous dog (also committed February 2002).

25. In the three years after his release from prison, apparently in January 2005, he has been convicted of:

• Unlawful Possession of Stolen Property (committed January/February 2006);

• offences related to the use of an unregistered motor vehicle and numberplates issued for another vehicle (committed February 2006);

• two offences of driving a motor vehicle without consent (both committed October 2006); and

26. While it is certainly to the appellant's credit that he has not been convicted of drug-related offences since his 2004 prison term, and while this suggests that his prospects of avoiding further criminal behaviour have increased, it is by no means clear from this record that there has been a substantial reduction in his criminal behaviour since 2004. In particular I note that the offence of driving a motor vehicle without consent is, in effect, car theft - while it does appear that the appellant took the cars to satisfy his immediate transport needs rather than for monetary gain, these thefts are regarded as far more serious than, for instance, the theft of a few cans of mixed drinks, or the possession of cannabis, at least as indicated by the respective maximum penalties.

27. It is of course possible that the PSR author's belief in the appellant's wish to change his life was based more generally on the author's discussions with the appellant, and it is certainly to be hoped that the PSR author's optimism is justified. However, no such basis for the PSR author's belief was provided. Indeed, the next paragraph of the PSR, after those quoted in [17] above, read "Due to his extensive criminal history the offender is assessed as a high risk of re offending".

28. I find that the learned Magistrate was justified in refusing to accept unquestioningly the PSR author's statement that "It is considered that Mr Rogers is attempting to make the significant changes to his life to remain offence free", and I reach that conclusion having regard to:

(a) my findings that the PSR cannot be accepted as a true expert report and that there is no legislative basis for requiring such a report to be accepted in the absence of contradictory evidence; and

(b) the inadequacies of this particular PSR as evidence for the assertion made by counsel for the appellant that he "had made significant changes in his life and offending behaviour".

29. It might be thought that the PSR author's diagnosis of a lack of pro-social problem solving skills, and the suggestion that the appellant might benefit from completing a program to address his cognitive difficulties, deserved more attention than they received from her Honour, but I do not consider that this, or any other aspect of her Honour's dealing with the PSR, constituted an error by the learned Magistrate.

Ground (c): The learned Magistrate gave excessive weight to the seriousness of the offences

30. Counsel for the appellant referred in passing to the seriousness of the offences, but did not make any submissions about the learned Magistrate's approach to the seriousness of the offence. Accordingly, I have not identified any error that would support this appeal ground.

31. I note, however, counsel's suggestion that two of the offences under consideration are "motor vehicle offences", and as such are less serious than property offences, drug offences and robberies. It is true that the two offences concerned are described as "dishonestly and without consent taking a motor vehicle", but as already mentioned, they are clearly property offences, as indicated by their location in a part of the Criminal Code called "Theft and related offences", not traffic offences of any sort. Their seriousness must be judged by reference to their maximum penalties rather than their use of words that also happen to be associated with traffic offences.

Ground (d): The learned Magistrate erred in accumulating three of the sentences

32. Counsel for the appellant submitted that the learned Magistrate erred by failing to take into account the principle of totality when she fully accumulated three of the four sentences rather than allowing any part of them to be served concurrently.

33. The totality principle was explained by the High Court in the case of Mill v R (1988) 166 CLR 59 at 62-63 as follows:

The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing_, as follows:_

The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.

34. This approach is, of course, followed in the ACT, and counsel referred me in particular to the ACT case of R v Seckold [2005] ACTSC 34 (22 February 2005), in which Crispin J said (at [32)]:

A further consideration is what is referred to as the "totality principle". That principle provides that whilst the penalty that may be appropriate for any one of a large number of offences may give rise to a consequence that if those sentences were to be added together they would result in a very substantial period of imprisonment, it may nonetheless be appropriate to look at the overall effect of the sentences and to scale them back, so that the totality of the punishment involved will be reasonably commensurate with the overall course of the criminal conduct.

35. Given that the four sentences were imposed in respect of four separate incidents, it is reasonable that they should have been accumulated in some way. However, the fully accumulated period of 21 months imprisonment seems high for the combination of these four offences, each of which seems to have been at the less serious end of the spectrum of behaviour covered by the offence provision. This is particularly noticeable in relation to the imposition of periods of 3 months imprisonment for the minor theft and possession of stolen property offences, each of which carries a maximum penalty of only 6 months imprisonment.

36. In the absence of any indication in the transcript that her Honour did "take a last look at the total just to see whether it looks wrong", I find that the learned Magistrate did fall into error in failing to apply the principle of totality in determining that three of the four terms of imprisonment should be served entirely consecutively. This finding (in contrast to some findings of error) implies also a finding that another sentence than the one imposed is appropriate.

Ground (e): The failure to grant an adjournment for legal representation

37. The appellant was sentenced on 17 August 2007, after the matter was adjourned on 15 August. At the beginning of the 15 August hearing, the appellant's solicitor sought leave to withdraw because the appellant had indicated that he proposed to represent himself. Leave was granted and the learned Magistrate proceeded to deal with certain "housekeeping" matters related to replacement charges, a plea of guilty to the minor theft charge, the appellant's explanations for certain failures to appear at earlier hearings, and the PSR.

38. Her Honour then indicated that she would adjourn the matter and sentence the appellant the next day. The appellant asked for time to get further legal advice, which was refused by her Honour in relation to the matters for sentencing on the basis that he had "been represented all the way through on those matters and I'm not going to give you any more time". In subsequent discussion, the learned Magistrate proposed an adjournment for two days, to 17 August, at which point the appellant said:

Your Honour, the thing that concerns me about this is if you sentence me tomorrow, it will be very hard for me to get legal representation for the hearing matters if I'm sentenced and gone to a New South Wales institution.

39. Thus, it seems that the appellant's real concern was the difficulties that might be caused for him in arranging legal representation for certain other charges (referred to by him as "the hearing matters") to which he had pleaded not guilty.

40. I cannot see how a refusal to facilitate legal representation on separate charges can amount to an error infecting the sentences that are currently under appeal.

41. Counsel for the appellant suggested, in the context of her application to tender further evidence in the appeal hearing, that some of the evidence would have been put before the learned Magistrate for the purposes of sentencing if the appellant had been legally represented at that point.

42. The main difficulty I have with this submission is that all of the documents she sought to tender came into existence some time after the sentencing hearing, and all of them concerned developments since the sentencing date. As well, it seems likely that if any equivalent documents could usefully have been produced for the sentencing, the appellant's legal representative would have advised the appellant, well before the appellant dispensed with her services, about the need to obtain them. If such documents had been in existence, or were being sought, by 15 August when Ms Cory was dismissed, I have no reason to doubt that the appellant would have drawn that matter to her Honour's attention, whether in the sentencing process or as another basis for a longer adjournment before sentencing.

43. Thus, even if the appellant's real concern was about a lack of legal representation on the day of sentence, I cannot see that he was disadvantaged in the way suggested by his counsel, given that he had been represented until almost the end of the sentencing process.

44. On 15 August 2007, the learned Magistrate referred to the PSR and confirmed that the appellant had received a copy. The appellant said that he also wanted to ask for a CADAS report, but her Honour replied that she had the PSR and "That's all I need". Counsel for the appellant submitted that the learned Magistrate's refusal to order a CADAS report was an error, given the appellant's "long drug history". However, she was unable to identify any basis, except the appellant's request, for her submission that such a report should have been ordered, and she conceded that the report could have been requested on various earlier occasions, in particular when the PSR was ordered. I note also that:

(a) the particular offences for which the appellant was being sentenced did not have any direct connection with the appellant's substance abuse (the fact that one of the car thefts was allegedly committed, among other things, to enable the appellant to get to the methadone clinic does not seem to me to provide a relevant connection); and

45. In these circumstances, I cannot see that the refusal to order a CADAS report as requested was an error by the learned Magistrate.

46. Having found that her Honour erred in failing to apply the principle of totality, there is no need for me to consider appeal ground (a), that the sentence was manifestly excessive. The appellant must be re-sentenced. In the light of events affecting the appellant since this appeal was heard, I shall hear further argument on re-sentencing.

(a) the application to adduce further evidence is refused;

(c) the appellant is to be re-sentenced after further submissions.

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

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: Director of Public Prosecutions (ACT)