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[2015] ACTSC 53
Supreme Court of the ACT
2015-03-05
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
The appeal is upheld to the extent necessary to re-sentence the appellant:
(a) to specify that the non-parole period set by the Magistrate does not apply to the federal sentence; and
(b) to ensure that the period the appellant has spent in custody since lodging his appeal is set against the sentences imposed in the Magistrates Court.
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - general principles - whether Magistrate had regard to facts of earlier offence before imposing suspended sentence on breach of good behaviour order - whether sentence was manifestly excessive - establishing manifest excess does not depend on identifying errors by sentencer - apparent setting of single non-parole period for territory and federal offences - specific error found in relation to non-parole period - need to correct setting of non-parole period - no other sentence warranted - sentence not manifestly excessive - offender to be re-sentenced only to correct technical error in relation to non-parole period and to ensure that time in custody while sentence stayed counted against sentence.
Crimes Act 1914 (Cth), ss 19, 19(3)(d), 19AC, 19AJ
Magistrates Court Act 1930 (ACT), s 216
AB v The Queen [1999] HCA 46; (1999) 198 CLR 111
Barbaro v R; Zirilli v R [2014] HCA 2; (2014) 305 ALR 323
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Edwin v The Queen [2014] ACTCA 47
House v The King [1936] HCA 40; (1936) 55 CLR 499
Kien v The Queen [2012] ACTCA 25
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357
The Queen v Ang [2014] ACTCA 17
The Queen v Williams [2014] ACTCA 30
Court File Numbers: CC2014/3992; CC2014/4267; CC2014/4269
1. On 19 September 2014, Milan Roncevic was sentenced in the Magistrates Court for three offences, and re-sentenced for a fourth offence. The total sentence was 16 months imprisonment, and a non-parole period of 12 months was set. The appellant has appealed against two of the sentences.
2. The three new offences were committed in April 2014. The sentences imposed were as follows:
(a) for stalking with intent to harass - 16 months imprisonment, reduced from 19 months for his guilty pleas;
(b) for using a carriage service to harass - 6 months imprisonment reduced from 8 months;
(c) for driving while disqualified as a repeat offender - 6 months imprisonment reduced from 7 months.
3. For an earlier offence of driving while disqualified in 2012, the appellant had been sentenced in September 2012 to 6 months imprisonment, 3 months of which was served in full-time custody and the remainder suspended subject to a 2-year good behaviour order. The new offences breached the good behaviour order, and the Magistrate cancelled the good behaviour order and imposed the sentence, requiring the appellant to serve the remaining 3 months in full-time custody.
4. The stalking sentence was backdated to 17 April 2014 to take account of pre-sentence custody, and would expire on 16 August 2015.
5. All the other sentences were served concurrently with the stalking sentence, as follows:
(a) for using a carriage service to harass, and for the 2014 offence of driving while disqualified - from 6 May 2014 to 5 November 2014; and
(b) for the 2012 offence of driving while disqualified - the outstanding 3 months was to be served from 6 November 2014 to 5 February 2015.
6. After specifying the sentences on each of the four offences and setting out the dates for which they would run, the Magistrate specified a 12-month non-parole period, from 17 April 2014 to 16 April 2015, which her Honour said was set "in relation to these matters".
7. By the time the appeal was heard on 5 February 2015, the appellant had spent time in custody equivalent to having served all three of the shorter sentences. The stalking sentence had roughly six and half months to run, and two and a half months of the non-parole period remained to be served.
8. Much of the background to this matter is contained in several statements of facts, a criminal history, a victim impact statement and two pre-sentence reports.
9. The circumstances of the three new offences were set out in a statement of facts which had been revised and expanded since the original police statement of facts was prepared. That revised statement was exhibited, and read onto the record in the Magistrates Court. The transcript of the prosecutor's reading of the statement indicates that certain parts of the statement were either paraphrased by the prosecutor or incorrectly transcribed, and that certain other parts were not read aloud, but the material set out below consists of the relevant parts of the exhibited document which was in fact before the Magistrate:
In September 2002 [the victim] began [a] relationship with [the appellant]. In October of the same year [she] fell pregnant to the [appellant]. In November of the same year [they] moved in together at the [appellant's] residence.
[The victim] and [the appellant] lived together on and off between November 2002 and March 2014. During this time they had four daughters together. There were ongoing relationship issues between [the victim] and [the appellant] and she left him on 5 occasions.
In early March 2014 [the victim] and [the appellant] separated. [The victim] asked [the appellant] to leave the family home ... in the ACT. [The victim] is the [lessee] and pays the mortgage on the property. [The appellant] left three days later.
In March 2014, after the separation, [the victim] began a friendship with a work colleague, [G], while they were both working at the Australian Federal Police headquarters.
At about 8:00pm on Saturday, 5 April 2014 [the victim] drove to [G]'s residence .... She stayed there with [G] till after midnight. During this time [she] received numerous phone calls and text messages. She accidentally answered one of the calls by hitting the answer button, she didn't realise the telephone was on for some time.
Upon leaving [G]'s property she received a telephone call from [the appellant] and he said to her words to the effect "I heard you, next time you wanna be with your boyfriend make sure you hang up your phone".
Upon returning home, she saw that [the appellant] was out the front of her house in the driveway. He immediately began asking her who she was with. She told him it was none of his business. He again told her that she had accidentally answered her phone and that he had heard another man. He proceeded to interrogate her about this until about 2.30am in the morning**.**
On Monday 7 April 2014 she sought advice from a family law solicitor. She gave [the appellant] an arrangement letter relating to dealing with their children, financial issues and means of contacting her.
On Friday 11 April 2014 [the victim] and [the appellant] went to a mediation session with [the appellant]'s counsellor in Phillip. During this session [the appellant] became aggressive and verbally abusive towards [the victim].
On the afternoon of Saturday 12 April 2014 [the appellant] contacted [the victim] via telephone and asked if she was going out that evening. [The victim] told him it was none of his concern.
About 9:00pm the same day [the victim] left her residence and went to [G]'s residence. [The victim] stayed at [G]'s residence with him till about 1:00am before returning home. During that time they had sex in [G]'s bedroom approximately three times over the course of a few hours. Afterwards, [G] said he was feeling quite ill and walked over to the kitchen to get a glass of water. [The victim] put her hand on his back and felt his skin was cold. In a lowered voice she said "Why did you open the door, your body is freezing" and he said "I must be getting sick". [The appellant] was outside [G]'s home and heard this conversation**.**
About 7:00am on Sunday 13 April 2014 [the appellant] went to [the victim]'s residence for the purpose of giving her maintenance money for their children. [The appellant] refused to give [the victim] the money unless she let him enter the residence, so she did.
[The appellant] argued with [the victim] about her whereabouts the previous evening.
[The appellant] said: "You're a fucking liar. You didn't even go to the movies. You're a slut. Does [G's address] ring a bell?"
[The victim] said: "How did you find that out?"
[The appellant] said: "Don't worry how I found out. I know. I know all about him."
[The appellant] left the residence after this argument.
About 4:00pm on the same day [G], previously alerted by [the victim] to [the appellant]'s behaviour, returned home and noticed fresh foot-prints in the dirt next to his front door, front window, kitchen sliding door and window and in front of the main bedroom window.
About 7:00pm [the victim] went to [the appellant]'s house to collect the maintenance money. [The appellant] began arguing with [the victim] about maintenance money.
[The appellant] said: "You fucked him and I heard it."
[The victim] said: "No I didn't, I'm allowed to have friends."
[The appellant] told [the victim] he had recorded her having sex with [G] and that he had videos and photographs of them together. He also knew that [G]'s daughter went to school with their daughters.
[The appellant] also said "You're a fucking slut, you're a filthy slut. I've paid someone to follow you ... I've paid my worker to follow you. I hired a small shitbox car and he followed you three. It's a new house, he's got money hasn't he?". She said "It's not that big, he doesn't have much money, he's as broke as I am".
At that time [G]'s house was newly built.
[The appellant] said "You were in there for hours. You had sex for hours" She said "How the fuck did you know that". [The appellant] said "I heard the whole thing ... You put on an act with him, you talk to him like you're a princess. I know you have feelings for him, you're in love with him". The [victim] said "You don't know what you're talking about". The appellant] said "I heard you speak to him in your soft angel voice "oh you poor thing, you're cold". The [victim] said "I said that so quietly, you must have been so close to hear that". This was a reference to the evening of 12 April 2014 during which time [the victim] was at [G's] house.
[The victim] eventually collected the maintenance money and left.
About 7:38pm the same day [the appellant] sent the following text message to [the victim]:
"I heard how u spoke to him your soft angel voice and i heard u having sex that made me sick and i xan go 9na".
[The victim] attended Gungahlin Police Station later that day to report the matter to Police.
About 7:20am on Tuesday 15 April 2014 [the appellant] sent the following text messages to [the victim]:
"U were at [name's] house at [address] till 2 in the morning and you were there the previous 2 satardays u expected me to believe that u r just friends and you haven't slept with him lier."
"And no one else was there exept u to."
"On the phone with [name] he cant give u advice anymore the evidence will out weigh everything and he thinks he is a detective."
About 7:44am on the same day [the appellant] sent the following text message to [the victim]:
"Everyting I have done is legal."
On the same day Police Forensics attended [G]'s residence and obtained shoe-print samples from the dirt outside.
About 4:00pm the same day [the victim] attended Gungahlin Police Station and provided a statement in relation to the matter. While at the police station [the victim] received four separate telephone calls from [the appellant] wherein he was offensive and harassing in his language towards her. [The appellant] said, amongst other things, the following words "I know what you're doing.. You've told them I'm driving and you're sending me to jail aren't you ... Well why did you go to the police station then?". At some point the complainant said "Can you just leave me alone and stop calling me" and he said "I reckon you're lying. You're with your boyfriend". The [victim] also said "Howe[sic] do you know that I sleep with him? How do you know he's my boyfriend. How do you know that?" He said "How do I know? How do I know? How do I know? Well, weren't you at his house, like, every Saturday all night? Isn't that enough information".
Police recorded these telephone conversations using a hand-held digital recorder that was not attached to [the victim]'s telephone.
About 7:42pm the same [day,] [the appellant] drove a white Ford Transit van bearing ACT registration [xxxxxx], registered to [the victim], into the carpark outside Cellarbrations bottle-shop located on Ernest Cavanagh street in Gungahlin ACT. This was captured on closed circuit television outside the bottle-shop.
About 7:55pm the same day Police attended the Cellerbrations bottle-shop and arrested and cautioned [the appellant] before conveying him to Gungahlin Police Station.
Police confirmed [the appellant]'s identity by asking and obtaining personal particulars from him and confirming them against Police indices. Police were satisfied the image on Police indices matched the appearance of [the appellant]. Police also found in [the appellant]'s possession an ACT Proof of Age Card in his name.
Subsequent checks of Police indices indicate [the appellant]'s driving licence was disqualified by the ACT Magistrate's Court on 29 March 2012 until such time as the court orders otherwise. Enquiries are continuing to establish whether or not [the appellant] was a disqualified driver at the time and date of his driving**.**
About 8:33pm the same day Police interviewed [the appellant] in relation to the matter. [The appellant] sought legal aid during the course of the interview.
[The appellant] made the following admissions:
- His mobile telephone number was: [xxxx xxx xxx].
- This was his only telephone number.
- No other person had access to his mobile telephone.
[The appellant] declined to answer any other questions in relation to the matter.
Police subsequently seized [the appellant]'s mobile telephone and shoes for forensic analysis.
About 10:30pm on Wednesday 16 April 2014 Police attended [the appellant's address] for the purpose of conducting a bail compliance check on [the appellant]. [The appellant] presented himself to Police and made a spontaneous utterance.
[The appellant] said: "Ok I put a GPS tracker in her car. That's how I know where she's been going. You'll find it on my phone anyway." [The appellant] had on 9 April 2014 purchased and installed a tracker in her vehicle for the purpose of surveillance of [the victim].
Police located and seized a GPS tracker from [the victim]'s vehicle.
Forensic analysis of [the appellant]'s telephone indicated that he would receive a text message every time he sought out [the victim]'s location. There were over one hundred text messages located on [the appellant]'s phone indicating [the victim]'s location between 11 April 2014 and 16 April 2014.
10. The circumstances of the earlier offence were set out in the police statement of facts as follows:
About 9.35am Monday 4 June 2012, Police were on mobile patrol travelling north on Springvale Drive, Hawker, Australian Capital Territory, when Police saw a white Ford Transit Van turn right into Murranji Street Hawker, ACT, bearing ACT registration [xxxxxx]. Police turned left [into] Murranji Street Hawker and activated Police emergency lights stopping the vehicle.
Senior Constable Stephen COLES approached the male driver and asked for his drivers licence. The male driver advised Senior Constable COLES his licence was at home and produced his ACT Proof of Age Card number [xxxx] in the name of [the appellant], date of birth [xxxxxx].
Senior Constable COLES was satisfied that the person depicted on the ACT Proof of Age Card matched the appearance of the [appellant].
Senior Constable COLES conducted checks of Police indices which indicated the [appellant] was a disqualified driver.
Senior Constable COLES advised the [appellant] he was under arrest and was cautioned. Senior Constable COLES arrested the [appellant] as he is currently serving Periodic Detention for Driving while Disqualified and has another two previous convictions of Driving while Disqualified to prevent the repetition or continuation of the Driving while Disqualified.
The [appellant] told Police he was driving because he got into a fight with his driver who pulled over and walked off. He further stated he had to drive to get to work look after his family of 5 kids and one child is unwell.
The [appellant] was conveyed to the ACT Watch House.
On Thursday 29 March 2012 in the ACT Magistrates Court the [appellant] was convicted of Disqualified Driver by Chief Magistrate WALKER, thereby making the [appellant] a repeat offender under the provisions of the ACT Road Transport (Driver Licensing) Act 1999.
The [appellant] is ... not a holder of an ACT Drivers Licence and was disqualified from holding or obtaining a licence until the court orders otherwise by Chief Magistrate WALKER, on Thursday 29 March 2012.
11. The appellant has a reasonably long criminal history stretching back for many years. Most of his offending has involved traffic matters, including ACT convictions for three drive while disqualified offences committed in February 2012 and July 2010, as well as for a drive while suspended offence committed in January 2009. There was also one drive while disqualified offence in NSW in December 2009. In March 2012 the appellant's licence was cancelled indefinitely. As well, there were three contraventions of protection orders or domestic violence orders in 1999 and 2000 for which no convictions were recorded, and a burglary and associated theft in 1996. I understand that the protection order contraventions related to the appellant's attempts to see a child of a previous relationship against the mother's wishes.
12. The victim impact statement described serious impacts on the victim of the stalking offence, and on her four daughters. She described having anxiety attacks and nightmares, frequently becoming emotional and teary, and finding herself constantly shaking. While the stalking was taking place, she said, she feared for her own life and that of her daughters. She felt humiliated by having to explain events to the police, and to her mother, and also felt guilty to be upsetting her mother. She struggled to perform her work, especially since she was relying largely on coffee and cigarettes and not eating properly. She felt that she had failed her children in various ways. A particular difficulty was that the children missed the appellant, and the victim found it difficult to explain to them what he had done and why it was wrong. Despite months of appointments with psychologists, the victim said she still struggled not to feel worthless.
13. Two pre-sentence reports from 2012, but not the 2014 short-form pre-sentence report referred to in the 2014 hearing, were before me. The older pre-sentence reports record that the appellant had a childhood marred by violence by his father against the appellant, that he is estranged from his parents and siblings, that he has an older daughter born to a previous domestic relationship which was marred by the mental illness of his partner, and that he rarely sees that oldest daughter despite his efforts. They also showed that the appellant had a good history of employment, and in 2012 had been self-employed, running his own painting business, for some 10 years. In the absence of the 2014 report, it is appropriate to quote from the 2012 pre-sentence reports.
[29 March 2012]
Mr Roncevic is a 37 year old man with a history of drive disqualified and drink driving offences. He reported having a poor relationship with his parents and siblings, which has resulted in numerous protection orders being taken out against him. As a consequence of his behaviour towards his parents he claimed to have little contact with his eldest daughter, which he stated is a great source of anxiety to him. Mr Roncevic reported having stable well paying employment. He has his own family with a supportive partner who is both disappointed and concerned by his offending behaviour.
Mr Roncevic showed little insight or remorse into his offending behaviour. The emphasis he placed on the low level alcohol reading minimised his behaviour and ignored the bigger issue of driving disqualified. He was unable to identify the risks that his actions posed to the community. The remorse that Mr Roncevic did express was in relation to the negative effect a custodial sentence would have on his family, particularly due to the financial burden placed upon them.
Mr Roncevic clearly showed a lack of consequential thinking in his decision making process in regards to these offences. This poor decision making appears to have a negative effect on many areas of his life, including his family and finances. Mr Roncevic advised he would not drive a vehicle again as a result of these offences. However, his plan to employ an apprentice to drive him around appears no different from the current situation, which continues to place him at risk of re-offending.
With Mr Roncevic minimising his alcohol intake, but later stating he has an alcohol dependency, it is difficult to assess his level of motivation in addressing this issue. However, it is positive that Mr Roncevic has agreed to undertake counselling and this Service would make such an intervention an integral part of his case management.
[4 September 2012]
Mr Roncevic has been accessing the services of a clinical psychologist in the ACT since 16 June 2012. His psychologist reported the diagnosis of two personality disorder types, specifically Antisocial Personality Disorder and Borderline Personality Disorder. In a further report from Mr Roncevic's psychologist, dated 12 July 2012, his psychologist reported Mr Roncevic's attendance at scheduled therapy sessions.
Mr Roncevic's psychologist further reported the offender will ideally commit to 40 sessions of Dialectical Behavioural Therapy (DBT) spread over two years to address the dual diagnosis.
On 28 August 2012, Mr Roncevic's psychologist stated that Mr Roncevic has been "making good therapeutic progress in relation to the personality disorder diagnosis". The offender's psychologist identified Dialectical Behavioural Therapy (DBT) as the preferred treatment option for Mr Roncevic. DBT focuses on the repair of the patient's self image and self esteem in relation to past trauma. This therapy works to minimise negativity, assist the patient with stress tolerance and enables the patient to tolerate negative thought. Mr Roncevic's psychologist reported the treatment process will take time, however during the past weeks, the psychologist has observed improvement in Mr Roncevic's cognitive ability. He further stated that Mr Roncevic has displayed acceptance for the treatment and a commitment to behavioural change.
...
The offender's commitment to ongoing treatment in the community remains to be seen however, early reports from his treating psychologist indicate some positive results in relation to his treatment.
14. The sentences appealed against were the stalking sentence and the sentence for the 2012 drive while disqualified offence.
15. The amended grounds of appeal (dated 29 January 2015) were as follows:
(a) Her Honour erred in that she failed to advert to the nature and circumstances of the offence for which she was imposing the suspended sentence and as such, her Honour has miscarried the exercise of her discretion pursuant to section 110(1)(2) of the Crimes (Sentence Administration) Act 2005 (ACT).
(b) Further and in the alternative, the Learned Magistrate erred in imposing a fixed single non-parole period in respect to each of the offences, in contravention of section 19AJ of the Crimes Act 1914 (Cth), in circumstances where the appellant was being sentenced for both federal and territory offences;
(c) Further and in the alternative, the sentence imposed by the Learned Magistrate was manifestly excessive.
16. It will be convenient to consider those appeal grounds out of order.
17. Before dealing with the appeal grounds individually, it is useful in this case to set out the basic approach to be taken to an appeal against sentence imposed by a Magistrate.
18. First, the sentence imposed by the Magistrate is not to be overturned simply because the appeal court might have imposed a different sentence in the first instance (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at 671-672).
19. 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 (Dinsdale) at 324-325 (Gleeson CJ); Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 (Markarian) at 371 (Gleeson CJ, Gummow, Hayne and Callinan JJ); Bugmy v The Queen (2013) 302 ALR 192 (Bugmy) at [22] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) and [51] (Gageler J)).
20. If the exercise of the Magistrate's sentencing discretion was affected by a specific error, the original sentence may be replaced, 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). See AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 (AB) in which Hayne J said at 160:
In the [case of specific error], once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.
21. However, an appeal court should not re-sentence if the court would be merely "tinkering" with the original sentence (Dinsdale at 341, Kirby J).
22. Re-sentencing after a finding of specific error does not require a finding that the sentence is manifestly excessive or inadequate.
23. A finding of error does not confine an appeal court to correcting the identified error, but may re-open the sentencing discretion as a whole (AB at [106] and [107], Kirby J, and see [20] above).
24. Even if no specific error can be identified, the original sentence may be replaced if the sentence is (in the context of an appeal by the offender) found to be manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, by definition a different sentence is appropriate, and error may be inferred, given the finding that the sentence is excessive, unreasonable or unjust (Dinsdale at 340, Kirby J), although the error may simply be that a sentence that is manifestly too long or too short "is a sentence which has not been imposed 'according to rules of reasons and justice'." (Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; (2014) 305 ALR 323 (Barbaro) at [61], Gageler J).
Appeal ground (a): failure to consider facts of earlier offence before re-sentencing
25. Having noted that the 2014 offences breached the good behaviour order made in connection with suspending part of the prison sentence for the 2012 offence, the Magistrate imposed the suspended part of the sentence, thus requiring the appellant to serve that outstanding three months. The appellant says that the transcript suggests that her Honour made that decision without considering, or even having available to her, the statement of facts or other material relevant to the original sentencing for that offence.
26. The material available to me does not make it easy to work out what material was actually before the Magistrate when she made her decision.
27. In accordance with the usual practice, the Magistrates Court provided a bundle of documents to the Supreme Court for the purposes of the appeal, certified by the Deputy Registrar as follows:
I, Anne Barr being an officer having the custody of the records of the Magistrates Court, hereby certify the foregoing list of exhibits/documents to be the list of exhibits/documents before the Supreme Court in the above matter.
28. This is a curious certification in several ways, but most notable for present purposes is that it does not certify that the documents described in the list:
(a) are or include the documents, and all the documents, that were before the Magistrates Court as evidence in the 2014 sentencing; or
(b) reflect the proceedings in the Magistrates Court (bench sheets, warrants and other orders) in the 2014 sentencing.
29. In particular, there is no basis in the certificate itself for assuming that all the evidence included in the bundle was before her Honour in the 2014 sentencing (although clearly it has been on a Magistrates Court file at some point).
30. The Magistrates Court bundle contained the following material:
(a) the Magistrates Court bench sheets for the four offences dealt with in the 2014 sentencing;
(b) the warrants for imprisonment of the appellant entered on 19 September 2014 in respect of the four offences dealt with in the 2014 sentencing;
(c) the licence disqualification order made in respect of the 2014 drive while disqualified offence;
(d) a document described as a fine order made on 4 September 2012 which, however, appears to record only the appellant's obligation to pay court costs and a $50 levy under the Victims of Crimes (Financial Assistance) Act 1983 (ACT);
(e) a police statement of facts prepared for court on 16 April 2014 in relation to the stalking offence and the carriage service offence, and which also contains some of the information that apparently resulted in the laying of the 2014 charge of driving while disqualified;
(f) an unattributed statement of facts in relation to the stalking offence, the carriage service offence and the 2014 drive while disqualified offence (undated, but apparently prepared after the statement of facts referred to at (e) above);
(g) a police statement of facts prepared for court on 4 June 2012 in relation to the 2012 drive while disqualified offence;
(h) the appellant's criminal history for the ACT dated 16 April 2014, his NSW Police Force "Criminal History - Bail Report" created on 16 April 2014 and a NSW Traffic Record Report bearing the same date;
(i) a victim impact statement prepared by the victim of the stalking offence;
(j) the court order for the preparation of a pre-sentence report for court on 19 August 2014;
(k) an updated pre-sentence report prepared for court on 4 September 2012 and attaching a pre-sentence report prepared for court on 29 March 2012;
(l) four letters in support of the appellant, all of which related to the 2012 drive while disqualified offence; three supported the appellant's claim that he had only driven disqualified on the day on which he was caught, and the fourth was from a clinical psychologist he had consulted shortly after the offence who reported that he showed symptoms of depression**;**
(m) the original notice of appeal to the Supreme Court.
31. The Magistrates Court transcript for the 2014 sentencing records the admission of exhibits identified as 1, 2, 3 and A, being respectively:
(a) the statement of facts for the 2014 offences;
(b) a pre-sentence report for court on 19 September 2014;
(c) the victim impact statement; and
(d) a letter from the Society of St Vincent de Paul stating that support would be provided to the appellant on his release from custody.
32. Neither the 2014 pre-sentence report nor the letter from the Society exhibited in the 2014 sentencing is included in the Magistrates Court bundle. The appellant's criminal history was discussed in the 2014 hearing and is included in the Magistrates Court bundle, but it does not appear to have been exhibited.
33. The 2012 statement of facts was not exhibited in the 2014 sentencing, and there is no discussion recorded in the transcript about the facts of the 2012 offence, except as follows:
MS McFARLAND: And the defendant will be in breach of the drive whilst disqualified, CC 2012 5144, sentenced on 14/9/2012.
HER HONOUR: Yes, I see that. So there is a period of three months' imprisonment that was - so six months was the sentence, three months full-time custody and the remaining three months was suspended on a good behaviour order - - -
MS McFARLAND: Yes.
HER HONOUR: - - - for a period of two years, and that has been breached once there is a finding of guilty in relation to these matters. Thank you.
34. The only submissions made to the Magistrate by counsel for the appellant about the breach of the suspended sentence were as follows:
In relation to breach of the good behaviour order, your Honour, I would ask that it be taken into account [that it] was a long order, being 24 months in duration and the reoffending occurred quite close to the end of that term.
35. If counsel believed that there was information in the earlier material that would be helpful to the appellant but that the material had not been put before her Honour, the time when those submissions were made (at the latest) would have been the time to say so.
36. In general terms, a failure to have regard to information about the circumstances leading to the imposition of a sentence of imprisonment and the suspending of that sentence would in my view amount to an error of failing to have regard to a relevant consideration.
37. It is not clear from the material before me whether or not the Magistrate considered the facts of the 2012 offence before her Honour imposed the sentence that had been suspended in 2012. However, having regard to what discussion there was about the suspended sentence (quoted at [33] and [34] above), and noting that the earlier sentence had been handed down by the same Magistrate, it seems likely that her Honour was aware at least in general terms of the circumstances of the offence. Importantly, her Honour would have been aware from the appellant's criminal history that he was a repeat offender in that respect, and that previous sentences did not appear to have deterred him from further incidents of driving while disqualified.
38. The appellant has raised a doubt about whether the Magistrate failed to consider the material about the 2012 offence before imposing the remaining three months of the suspended sentence, but has not established that claim, and accordingly this appeal ground must fail.
39. In discussion at the hearing of the appeal, counsel conceded that this was a curious ground for the appellant to rely on, in that the outcome of her Honour's approach to the good behaviour order breach was in practical terms the best outcome the appellant could have hoped for. That is, he was able to serve the outstanding three months of the earlier sentence and complete it concurrently with other sentences; a re-sentence that involved, for instance, again suspending the sentence subject to a new good behaviour order would have left the appellant at risk of breaching the new good behaviour order and possibly serving some or all of the outstanding three months at a point when he would otherwise have been at liberty. Counsel advised that this appeal ground was not pressed, except to the extent if any that it was relevant to the manifest excess ground.
40. The third ground of appeal is that "the sentence ... was manifestly excessive". Although the appeal is technically brought against only the stalking and the 2012 drive while disqualified sentences, I consider that dealing with this appeal ground will also require a consideration of the other sentences imposed and the total sentence resulting from that. However, in general terms, what the appellant says is that the sentence of a total of 16 months imprisonment with a non-parole period of 12 months, for the offence of stalking and the 2012 offence of driving while disqualified as a repeat offender, is too high, and manifestly so.
41. Courts of Appeal in this jurisdiction regularly summarise the law about appeal grounds claiming manifest excess or manifest inadequacy (see for instance Kien v The Queen [2012] ACTCA 25; R v Ang [2014] ACTCA 17 (Ang); The Queen v Williams [2014] ACTCA 30 (Williams)). I do not see any need to repeat these comments, and confine myself to noting:
(a) that the question to be answered by the appeal court was succinctly described by Gageler J in Bugmy at [52] as whether the sentence "was outside the range of available sentences in all the circumstances of the case"; and
(b) the comments of the plurality in Barbaro at [27]:
The conclusion that a sentence passed at first instance should be set aside as manifestly excessive or manifestly inadequate says no more or less than that some "substantial wrong has in fact occurred" in fixing that sentence. For the reasons which follow, the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
42. The ACT Court of Appeal also regularly points out that a finding of manifest excess or inadequacy does not depend on identifying where the sentencing judge went wrong but on identifying those aspects of the sentencing exercise that can be said to indicate that, whatever the sentencing judge did, the sentence itself is simply wrong (see, for instance, Ang and Williams).
43. In relation to two matters, counsel for the appellant fell into the trap of trying to point out where her Honour had gone wrong, but otherwise made a coherent (albeit ultimately unsuccessful) attempt at drawing out the circumstances that she said should lead me to the conclusion that the sentence was manifestly excessive. It is convenient to dispose of the asserted errors first.
44. Counsel said that her Honour, although specifying that the stalking offence was "so serious that only a term of imprisonment is warranted", did not make any explicit assessment of the objective seriousness of the offence or "where it fell on a spectrum so as to be properly satisfied only a term of 16 months full-time imprisonment was the appropriate penalty in all the circumstances".
45. It is not uncommon for sentencers to identify an offence as being a high, middle or low range example of the offence charged, and this is often helpful as part of assembling all the relevant material into a manageable set of factors from which the appropriate sentence will emerge by the "instinctive synthesis" process described in Markarian (at 373-375 (Gleeson CJ, Gummow, Hayne and Callinan JJ) and 383-390 (McHugh J)).
46. I am not, however, convinced that it is useful or even legitimate to further divide those categories, for instance, by adding lower-middle and upper-middle and, possibly an infinite range of further categories or, more transparently, by attempting to locate each offence on a 10-or even 100-point scale. Unless a sentencer rejects the instinctive synthesis approach and secretly uses some kind of mental (or even actual) calculator that spits out a sentence after scores are fed in for each relevant factor, it is hard to see how such a superficially but unsustainably specific assessment could be useful. Furthermore, the instinctive synthesis required of a sentencer, and the variety of matters that are to be considered in that process, must mean that there could never be a direct correlation between an apparently precise assessment of the objective seriousness of an offence and the exact length of the sentence determined for that offence. See, for instance AB at [115] (Hayne J); Barbaro at [34] (French CJ, Hayne, Kiefel and Bell JJ)).
47. Thus, the submission that her Honour did not assess the objective seriousness of the stalking offence explicitly enough "to be properly satisfied [that] only a term of 16 months full-time imprisonment was the appropriate penalty" must be rejected as based on a misunderstanding of the sentencing process.
Suitability for community service and periodic detention
48. The material before me seems to indicate that during a period of about five months ending on 24 August 2012 the appellant completed three months of periodic detention imposed for a drive while disqualified offence.
49. Counsel for the appellant articulated an argument arising out of the assessment of the appellant as suitable for both community service and periodic detention in 2014. Under s 10 of the Crimes (Sentencing) Act 2005 (ACT), counsel said, the Magistrate should not have required the appellant to serve a term of full-time imprisonment without being satisfied that no penalty other than full-time imprisonment was appropriate, and this required her Honour to explain why, in the circumstances, she did not consider that periodic detention, or indeed community service, would have been adequate.
50. This submission is based on a misreading of s 10, which is relevantly as follows:
(1) This section applies if a court is sentencing an offender convicted of an offence punishable by imprisonment.
(2) The court may, by order, sentence the offender to imprisonment, for all or part of the term of the sentence, if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate.
(3) If the court sentences the offender to imprisonment, the sentence must be served by full-time detention at a correctional centre, unless -
(b) the offender is released from full-time detention under this Act or another territory law.
51. The section requires, as a prerequisite for imposing a term of imprisonment, that no other penalty is appropriate. As noted by counsel, s 10(3) makes it clear that the default position is that the sentence is served in full-time custody, and the court should not impose such a sentence unless it is considers that it would be appropriate for the whole sentence to be served in full-time custody (see Dinsdale at 345-346). It is this sentence that the court must consider the only appropriate penalty, not the sentence of imprisonment to be served in a particular way.
52. Having reached the view that a sentence of imprisonment is the only appropriate penalty, the court should then consider whether, as at the time of sentencing, any or all of that term of imprisonment needs to be served in immediate full-time custody to satisfy any of the principles of sentencing. Then, to the extent that it determines that full-time custody may not be required, the court must determine how else that sentence is to be completed. At that stage periodic detention and community service, as well as non-parole periods and suspension of the sentence, are available for consideration.
53. Of course, as counsel noted, whatever initial orders are made permitting a sentence of imprisonment to be served otherwise than in full-time custody, the offender remains at risk of serving that sentence in full-time custody until he has successfully completed a parole period, periodic detention or a good behaviour order attached to a suspended sentence.
54. Thus, the s 10(2) determination is not whether an immediate full-time custodial term is required, but whether a sentence of imprisonment is required. The Magistrate was not required to eliminate the option of periodic detention before finding that a sentence of imprisonment was the only appropriate penalty.
55. Counsel for the appellant conceded that a sentence of imprisonment was in all the circumstances appropriate, but submitted that since the appellant had previously successfully completed periodic detention orders, her Honour ought to have explained why this was not a suitable sentence on this occasion.
56. I am not aware of any principle to the effect that an offender who has shown, for instance, that he or she is capable of completing periodic detention is therefore entitled to serve future terms of imprisonment in that way irrespective of the other considerations applying in the particular sentencing.
57. It is however the case that s 78(6) of the Crimes (Sentencing) Act:
(a) not only requires a court to record reasons for ordering periodic detention if the pre-sentence report recommends that the offender is not suitable;
(b) but also requires it to record reasons for not ordering periodic detention if the pre-sentence report recommends that the offender is suitable.
58. Thus, an argument could have been, but was not, articulated that the failure to explain why periodic detention was not ordered was a specific error in the sentencing process such as to permit the re-sentencing of the appellant. I make no comment at this stage about whether such an argument would have been successful.
59. A failure to explain the decision to order full-time custody instead of periodic detention does not help in establishing manifest excess, although this does not mean that the appellant's suitability for periodic detention was not a relevant factor in the sentencing and could not be a relevant factor in determining whether the sentence was manifestly excessive.
60. I note in passing that the requirement to record a reason every time a person who is assessed as suitable for periodic detention is not so sentenced is not only burdensome on courts but essentially pointless. That is because the pre-sentence report assessment is not an assessment that periodic detention would be an appropriate sentence for the offence (which is not a task for the pre-sentence report author anyway) but only that it would be a sentence that could be implemented in relation to the offender having regard to his or her characteristics and circumstances, in particular the indicators of unsuitability set out in Table 79 in the Crimes (Sentencing) Act.
61. I shall return to the possibility that a failure to address the periodic detention recommendation was a specific sentencing error (see [95] below).
(a) that the offence had been committed while the appellant was on conditional liberty, and in the context of a domestic relationship; and
(b) that the victim impact statement made it clear that the offence had a significant emotional impact upon the complainant.
63. However, she then pointed to other circumstances said to indicate that the sentence was excessively severe. These included:
(a) that the appellant had a good work ethic and employment history, that he had good prospects of continued employment upon release, that he had engaged with the St Vincent de Paul Society for assistance on his release from custody, and that at the time of sentencing he had already served five months in pre-sentence custody;
(b) that the offending did not involve violence, or threats of violence, against the victim or her children; and
(c) that the appellant had conceded that the offences were wrong and that he would react differently in the future, but had claimed that he was provoked by the victim;
(d) that although the appellant had a poor criminal history, it did not justify the severity of the penalty for the stalking offence.
64. Both the matters mentioned in [63](a) and (b) above, and the appellant's claim that he had recognised that his behaviour was wrong, would have been in the appellant's favour in the sentencing process. The claim that the appellant had been provoked, on the other hand, might have justified the Magistrate in considerable scepticism about the real level of his insight into the offending.
65. In relation to the appellant's criminal history, counsel accepted that her Honour was justified in referring to the appellant as a "contumacious offender" in relation to driving offences, and that the appellant had previously been convicted of contravention of protection orders, but pointed out that he had no matters of violence in his criminal history.
66. Certainly the absence of violent offending would have weighed in the appellant's favour, but the specifics of the appellant's criminal history did not entitle him to any particular leniency, and positively disentitled him to leniency in relation to the drive while disqualified offences (when sentenced originally for the 2012 offence, he already had three drive while disqualified convictions and one drive while suspended conviction recorded since 2009). The absence of violent offending in the criminal history might have left the appellant with a claim to some minor residual leniency in relation to the stalking offence, but certainly not to any to any particular, let alone quantifiable, benefit or discount in sentencing. Furthermore, although her Honour began her sentencing remarks with a reference to the appellant's history of driving while disqualified, the rest of her Honour's remarks make it clear that the criminal history was only one of the factors in the Magistrate's decision about the stalking sentence; the question is not whether that history of itself justified the penalty for the stalking offence but whether the penalty for the stalking offence was manifestly excessive having regard to the criminal history and all the other relevant factors.
67. Counsel for the appellant also submitted drew my attention to information gathered from the ACT and New South Wales sentencing databases which indicated, in general terms, that the sentence imposed on the appellant was at the high end of the relevant sentencing ranges.
68. It is unsurprising that this is one of the highest sentences recorded in the ACT for the stalking offence, given that the ACT offence (unlike the New South Wales offence) carries a maximum penalty of two years imprisonment, and therefore, in applying a starting sentence of 19 months before the plea of guilty reduction, her Honour had clearly concluded that this was a serious example of the relevant offence. The fact that most of the other ACT sentences are lower suggests that the judicial officers who imposed those other sentences considered that the offences they were dealing with were relatively less serious or that the offender's subjective circumstances provided more compelling grounds for leniency, or any combination of those two possibilities. It does not, however, mean that the challenged sentence is excessive.
69. Counsel also submitted, noting that the appellant had already spent five months in pre-sentence custody, that "a period of full-time imprisonment, in combination with a periodic detention and/or suspension order would have appropriately served the relevant principles of sentencing, in particular punishment in relation to the objective seriousness of the offence, but also accounting for the subjective circumstances of the appellant". This submission may be correct, but it is quite clear that the fact that a different court might have considered that a shorter sentence, or a sentence structured differently, would have been adequate in a particular case does not render the sentence under challenge manifestly excessive, and nor does it reveal any particular sentencing error.
70. There are, of course, other aspects of the offence that were not raised in the submissions made by counsel for the appellant. The stalking went on over about 10 days in the context of the recent separation of the appellant and the victim after an 11-year relationship that produced four children, and the victim's attempts to resolve matters relating to their financial arrangements and the children. While there was no actual or threatened violence involved in the stalking as such, there had been aggression and verbal abuse during a mediation session with the appellant's counsellor. The stalking involved among other things the appellant's installation of a tracking device in the victim's car so that he could monitor all her movements. The appellant's determination to keep track of the victim's movements, up to and including listening in on her encounters with her new sexual partner, must have been not only humiliating but also quite disturbing. The appellant's apparent obsession with the victim, coupled with his demonstrated capacity to keep track of her movements, would have justified the victim in feeling considerable fear for her own safety.
71. As already noted, in determining under this ground of appeal whether "the sentence imposed by the learned Magistrate was manifestly excessive", I propose to consider not just the two sentences specifically appealed against but all the sentences imposed in the 2014 sentencing.
72. In this case, because of her Honour's order that the three shorter sentences were to be served concurrently with the stalking sentence, it is the stalking sentence that has determined the length of the total sentence.
73. The carriage service offence was part of the same series of events as the stalking and the two sentences were in my view appropriately entirely concurrent. However, the two drive while disqualified offences were entirely unrelated to the stalking, except to the extent that the 2014 offence was detected by police looking for the appellant in connection with the stalking offence. In those circumstances, it would have been legitimate for there to have been some accumulation between the stalking sentence and either or both of the drive while disqualified sentences, rather than all the sentences being served entirely concurrently. If a shorter sentence had been imposed for the stalking offence, which was an available option, it would also have been an available option to accumulate that sentence to some extent on the drive while disqualified sentences (and also to accumulate the second drive while disqualified sentence on the first one).
74. In considering whether the sentence was manifestly excessive I have noted the matters focussed on by counsel for the appellant, which I have already commented on, but also the following matters:
(a) the offender's repeated disregard of the driver licensing laws and his previous disregard of protection orders, albeit apparently in less significant ways;
(b) the humiliating, frightening and controlling nature of the stalking offence and the carriage service offence;
(c) the effect of those offences on the victim;
(d) the offender's apparent lack of insight into his own behaviour and how that impinged on the victim's right to choose her own relationships and her domestic position more generally;
(e) that although the appellant had a troubled childhood and adolescence which may well have contributed to the Anti-Social Personality Disorder and the Borderline Personality Disorder that were diagnosed in 2012, he was at that time offered psychological therapy, intended to run for two years, to "repair [his] self-image and self-esteem in relation to past trauma", and to "minimise negativity, assist [him] with stress tolerance and [enable him] to tolerate negative thought";
(f) that despite the help offered in 2012, the appellant had in 2014 engaged in serious offences that appear to reflect the same sort of psychological problems as were identified in 2012; and
(g) that there were no submissions made in the 2014 sentencing to the effect that the appellant was still suffering the disabling effects of the disorders diagnosed in 2012 despite having undergone the two years of psychological therapy recommended in 2012.
75. I am satisfied, having regard to all the circumstances of the offending and the offender:
(a) that the sentence imposed on the appellant for stalking was towards the high end of what seems to me to be an appropriate range but was not manifestly excessive;
(b) that the imposition of the outstanding portion of the 2012 drive while disqualified sentence, to be served entirely concurrently with the stalking sentence, was not manifestly excessive; and
(c) the total sentence for the four offences was not manifestly excessive.
Appeal ground (b): breach of Commonwealth sentencing requirements
76. The second ground of appeal was that the single non-parole period for the territory and federal offences was set in error and that the appellant should accordingly be re-sentenced.
Application of non-parole period to federal sentence?
77. The error identified in the notice of appeal related to an asserted breach of s 19AJ of the Crimes Act 1914 (Cth), which is as follows:
19AJ Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment
This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment.
78. The appellant says that her Honour breached this provision by specifying that the non-parole period was "in relation to these matters".
79. I accept that, if her Honour intended to apply the 12 month non-parole period to the federal sentence, she made an error of law.
80. Counsel for the appellant argued, in reliance on the decision of the ACTCA in Edwin v The Queen [2014] ACTCA 47 (Edwin), that because of that error, all the sentences imposed on the appellant "were not authorised by law".
81. In that case, the Court of Appeal was dealing with a sentencing exercise that, it found, had been infected by various errors. Not only had a single non-parole period been set for territory and federal sentences (in breach of s 19AJ) but also the federal sentences had, in breach of s 19(3)(d) of the Crimes Act, been set down to commence more than a year after the end of that specified non-parole period. As well, it seemed that the sentencing judge had been mistaken about the maximum penalties for three of the offences. At [86] of Edwin, the Court of Appeal said:
The Appellant was sentenced without having regard to the fact that two distinct sentencing regimes applied. The sentences imposed upon the Appellant were not authorised by law. Those sentences must be recast in any event. There were three material misstatements of the maximum penalties applicable to the offences to which the Appellant was found guilty. The trial judge, in having regard to the principle of totality, must have applied it against a mistaken statutory background.
82. It is unsurprising that the Court of Appeal formed the view, having regard to the multiple errors mentioned, that the entire sentencing exercise needed to be re-done.
83. However, I do not read the Court of Appeal as intending to say, specifically, that if a single non-parole period is set for territory and federal offences, none of those sentences is authorised by law. If that were the court's intention, I would respectfully feel obliged to disagree.
84. Section 19AJ says that a single non-parole period expressed to apply to both territory and federal offences is not authorised. The obvious consequence of this Commonwealth provision is that such a purported non-parole period would not be effective in relation to a federal offence. This is clearly an error that would need to be corrected. It is not so clear that a breach of s 19AJ would mean that even the individual federal sentences concerned are unauthorised. There is even less basis again, as far as I can see, for reading s 19AJ as intended to provide also that the territory sentences concerned are unauthorised, as a result of an error in relation to the non-parole period for any federal sentences imposed on the same day.
85. This does not mean that an error constituted by setting an unauthorised non-parole period for a federal sentence might not require some correcting of the territory sentences imposed at the same time, but this would be a consequence of any need to set a separate non-parole period for the federal sentences, not a consequence of any direct error affecting the territory sentences.
86. Counsel also drew attention to s 19 of the Commonwealth Crimes Act. The relevant part of that section is as follows:
(a) a person is convicted of a federal offence ... and ...Territory ... offences, at the same sitting; and
(b) the person is sentenced to imprisonment for more than one of the offences;
the court must, by order, direct when each federal sentence commences but so that:
(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and
(d) if a non-parole period applies in respect of any State or Territory sentences--the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period.
87. The effect in the current case was to require her Honour to direct when the federal sentence commenced, and the federal sentence was not to commence later than the end of the other sentences imposed at the same time. In this case, the federal sentence was specified to commence on 6 May 2014, while the last of the other sentences was specified to be completed on 16 August 2015.
88. That is, the federal sentence commenced some months earlier than the end of the Territory offences; it did not commence later than the end of those sentences, so there was no breach of s 19(3)(c), and it did not commence later than the end of the nonparole period set by her Honour (possibly only set in relation to the territory offences, but certainly only effective in relation to the territory sentences) so there was no breach of s 19(3)(d) in relation to the setting of the various sentences.
Need to set non-parole period for federal offence?
89. Nor was there any obligation, or indeed any power, to set a separate non-parole period for the federal sentence. Section 19AC of the Crimes Act is relevantly as follows:
19AC When court must fix a recognizance release order
(a) a person is convicted of a federal offence, ... and
(b) the court imposes on the person a federal sentence that does not exceed ... 3 years; and
(c) at the time the sentence [is] imposed the person is not already serving or subject to a federal sentence;
the court must make a recognizance release order in respect of that sentence ... and must not fix a non-parole period.
(a) the federal sentence ... referred to in paragraph (1)(b); or
[does] not exceed 6 months, the court is not required to make a recognizance release order.
90. That is, the court must not set a non-parole period for a federal sentence of three years or less. For such a sentence, the court must make a recognizance release order, except that it is not required to make such an order if the sentence is for six months or less. Thus, the court was not empowered to set a non-parole period for the federal sentence, and was not required to make a recognizance release order in relation to that sentence.
91. In any case, the effect of her Honour's orders was that the sentence for the federal offence would be served in full before the non-parole period order took effect.
92. If her Honour's words when she set the non-parole period are interpreted as intended to apply the non-parole period to the federal sentence (however unnecessarily) as well as to the territory sentences, then it was erroneous in two respects, being that her Honour should not have purported to set a non-parole period for the federal sentence at all and should not have purported to set it for the federal and territory sentences together.
93. As already indicated, my view is that an erroneous attempt to set a non-parole period for the federal sentence contrary to the Crimes Act (if such an attempt were made) probably only affected the non-parole period as it applied to the federal sentence and at most affected the federal sentence itself (but not the territory sentences). However, this would not necessarily be the end of the matter, although the position is complicated in this case by the fact that there is no appeal against the federal sentence as such.
94. As noted at [23] above, such an error, if found, could permit the reopening of the sentencing discretion if I were otherwise of the view that another sentence were appropriate. Whether it would permit the re-opening of the sentencing discretion only in relation to a sentence not the subject of appeal is not a question on which submissions were made (presumably because the appellant sought a finding that the error had rendered all the sentences unauthorised and in need of reconsideration (at [80] above)). I do not propose to determine that question, but what I shall do is to re-open the sentencing, to the extent that it involved the setting of the non-parole period, to correct any error by specifying that the non-parole period set by her Honour applies only to the territory sentences.
95. The question whether an appeal court that has found specific error is of the view that another sentence is appropriate differs from the question whether the sentence is manifestly excessive (at [20] and [22] above). My conclusion that the sentence is not manifestly excessive would not in this case preclude me from concluding that another sentence is appropriate and that, having regard to:
96. However, having regard to the matters already discussed in the context of manifest excess, and the obligation not to engage in tinkering (at [21] above), I am not satisfied that in this case the finding of error (and the possibility of arguable error) justifies any re-sentencing except to correct the non-parole period.
97. As this judgment was being finalised, a request to the parties to confirm a list of the material that had been put before me resulted in the provision of two further documents, being:
(a) the transcript of a hearing in the Magistrates Court on 15 August 2014 in which the appellant entered the pleas of guilty and a statement of facts was tendered; and
(b) the pre-sentence report prepared for court on 19 September 2014 (mistakenly marked as for court on19 August 2014).
98. These were both documents that could or should have been before me for the hearing of the appeal, so I invited the parties to make further submissions. Neither counsel took up that invitation, unsurprisingly since they had made their initial submissions on the assumption that I had received that material (in the first case from the appellant's former solicitors and in the second case from the Magistrates Court).
99. It is appropriate to record that I considered whether anything in that material required me to revise the conclusions I had already reached, but was satisfied that it did not. In particular I note that the 2014 pre-sentence report did not contain any mention of the 2012 diagnoses of Antisocial Personality Disorder and Borderline Personality Disorder, of the two year therapy proposed for the appellant at that time, or of the outcome of the appellant's apparent commitment in 2012 to the treatment and to behavioural change (at [13] and [74] above).
100. As noted, the appeal must be upheld to the extent necessary to correct her Honour's apparent inclusion of the federal sentence in the non-parole period she set.
101. There is also another reason for re-sentencing the appellant. Since he lodged his appeal in October 2014, the appellant's sentence has been stayed by s 216 of the Magistrates Court Act 1930 (ACT), but he has remained in custody as a remand prisoner. Accordingly, the re-sentencing of the appellant will also be framed so as to ensure that the time he has spent in custody since then counts against his sentence.
I certify that the preceding one hundred and one [101] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Roncevic
Boxx [2015] ACTSC 53
(1999) 198 CLR 111
(2014) 305 ALR 323
(2013) 302 ALR 192
(2000) 202 CLR 321
(1936) 55 CLR 499
(1999) 195 CLR 665
(2006) 228 CLR 357