Supreme Court of the ACT|2010-07-01

Saga v Reid and Collett [2010] ACTSC 59 (1 July 2010)

ROBERT JILDO SAGA v JARROD REID AND TRISTAN ALLAN COLLETT

[2010] ACTSC 59 (1 July 2010)

APPEAL - Consideration of fresh evidence not before Sentencing Magistrate - Different circumstances of the offender at the time of sentencing and at the time of the appeal.

APPEAL - Sentencing principles - Offender sentenced to rising of the court - Order of sentences - Consideration of plea of guilty

Bartels L "The use of suspended sentences in Australia: Unsheathing the Sword of Damocles" (2007) 31 Crim LJ 113

Edwards v Buck (1991) 14 MVR 179

Nevard v Harley (1980) 31 ACTR 13

Barac v Thexton [2008] ACTSC 137

Spatolisano v Hyde [2009] ACTSC 161

Pope v Ewendt (1977) 17 SASR 45

R v Nguyen [2006] VSCA 184

Campbell v Fortey (1987) 85 FLR 462

R v Babic [1998] 2 VR 79

House v The King [1936] HCA 40; (1936) 55 CLR 499

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

Ly v The Queen [2007] NSWCCA 28

Ledson v Taylor & Ors [2010] ACTSC 42

White v Brown [2003] NTSC 51

Taylor v Bowden [2009] ACTSC 13

Director of Public Prosecutions (NSW) v Cooke and Anor (2007) 168 A Crim R 379

R v Marston (1993) 60 SASR 320

Thompson v Young [2008] ACTSC 11

R v Cooke [2007] NSWCCA 184

Harper v Low & Wood [2009] ACTSC 136

R v Phay [2009] ACTSC 130

Arman v Wall [2008] ACTSC 61

Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The sentences of the Magistrates Court imposed on 15 October 2009 be set aside.

3. Robert Jildo Saga appear before the ACT Supreme Court at 9.30 am on 22 February 2011 to be sentenced.

(a) he to appear before the ACT Supreme Court at 9.30 am on 27 October 2010 to assess his progress;

(b) he accept the supervision of an officer of ACT Corrective Services delegated by the Chief Executive to supervise him and that he obey all reasonable directions of that officer except as to alcohol and drug counselling;

(c) he continue participation in the methadone maintenance program of ACT Health and with counselling at the Alcohol and Drug Program of ACT Health and Directions ACT;

(d) he accept supervision by the Court Alcohol and Drug Assessment Service (CADAS) and obey all reasonable directions as to alcohol and drug counselling by the staff of that agency directed to supervise him;

(e) where any direction of the officer of ACT Corrective Services is inconsistent with a direction of the staff of CADAS, the direction of the officer of ACT Corrective Services shall prevail.

5. The Chief Executive be directed to prepare a Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) limited to Mr Saga's compliance with the deferred sentence order and bail conditions for both the appearances on 27 October 2010 and on 22 February 2011 and also, for the latter date, his then suitability for a community service condition of a good behaviour order and periodic detention.

6. CADAS be requested to prepare a report on Mr Saga's alcohol and drug treatment and counselling for both the appearances on 27 October 2010 and on 22 February 2011.

7. Robert Jildo Saga be granted bail to appear on 27 October 2010 and on 22 February 2011 on the following conditions:

(c) that he report forthwith to ACT Corrective Services at Eclipse House, London Circuit, Canberra City for the purpose of arranging supervision under the deferred sentence order;

(d) he report thereafter and, in any event, within 24 hours to CADAS at the ACT Magistrates Court or the Alcohol and Drug Program, ACT Health Building, Moore Street, Canberra City for the purposes of arranging supervision under the deferred sentence order.

1. When fresh evidence is adduced on an appeal, it can give quite a different complexion to the case so that while a decision was justified on the facts and circumstances known to the lower court, that decision can no longer be justified. This is the situation with this appeal.

2. The appellant, Robert Jildo Saga, pleaded guilty to three charges of dishonesty (one of theft and two of possession of property reasonably suspected of being stolen), one charge of possessing cannabis and to breaching a suspended sentence. He had a long history of offences of mid-range seriousness, such as unlawful possession of stolen property, driving whilst disqualified, theft and drug possession. It would appear that much of his offending was drug-related.

3. On 15 October 2009, the learned Sentencing Magistrate sentenced him to a total of eight months imprisonment. One day less than four weeks later, he appealed to this Court against the severity of the sentence. Fourteen days later he was released on bail pending the hearing of the appeal.

5. The four offences which brought Mr Saga before the court and to which he pleaded guilty occurred as follows.

6. On 1 May 2009, police received an anonymous letter advising them that Mr Saga had a stolen vehicle on his premises. Police attended at his premises three days later and found a vehicle at the back of his premises. A check of registration information showed that it had been stolen between 10.00 pm on 18 April 2009 and 7.00 am on 19 April 2009.

7. Later that day (though curiously, the Statement of Facts says one month earlier, presumably a typographical error), police attended at Mr Saga's home again. They confirmed that the stolen car was still there and found another stolen car also there. That other car was missing the front guards, bonnet, front grill, headlights and interior. They searched the house and found a small foil package containing cannabis. Mr Saga admitted that it was his cannabis.

8. Mr Saga was arrested and interviewed. He said that he had found the first car in a storm drain at the end of his street. He pushed it back towards his house and then started it with a screwdriver but ran alongside it, steering it from the outside "so as not to drive it ... because he was a suspended driver".

9. Despite his apparent sensitivity to his new-found need to respect the driving laws, Mr Saga was presumably not aware of decisions such as Edwards v Buck (1991) 14 MVR 179 where (at 184) White AJ followed English authority in holding that a person who "had been walking beside [a car] as it ran down a slight incline, and had steered it by placing his hand on the wheel" was driving the vehicle because he was "in a substantial sense controlling the movement and direction of the car".

10. When interviewed by police, Mr Saga said that he thought the car may have been stolen but made no inquiries. He intended to keep the car. He also said he knew what he had done was not the right thing to do.

11. As to the other car, he said to police that he had bought it for $500. He had not removed the various items from it but said he intended to buy another car of the same model in a similar condition and make one out of the two.

12. The police have made attempts to speak to the registered owner of the motor vehicle that was in the street to obtain a statement as to ownership, but he has refused to speak to them.

13. Mr Saga was charged under s 324(1) of the Criminal Code 2002 (ACT) (ACT Criminal Code) with two offences (one for each car) of having possession of property reasonably suspected of being stolen or otherwise unlawfully obtained.

14. In relation to the possession of cannabis, Mr Saga was issued with a Simple Cannabis Offence Notice (see s 171A of the Drugs of Dependence Act 1989 (ACT)) but failed to pay the specified prescribed penalty and a summons was issued for possession of cannabis.

15. On 30 July 2009, Mr Saga entered a supermarket in a southern Canberra suburb, pushing a trolley in which was a small boy. He picked up a small box from the front counter, placed it in the trolley, took off his jacket and covered the box with it.

16. A short time later, he returned to the counter, picked up another box and also covered it with his jacket. He then left the supermarket. All this was recorded on the store surveillance video system.

17. One of the supermarket's employees noticed that the two boxes were gone and reported the matter. Police attended, viewed the video and recognised Mr Saga. They later attended his home and found one of the boxes and some of the videos that had been in it. Mr Saga was arrested and charged with the theft of the contents of the two boxes, namely 17 DVDs and two mobile phones. The charge was laid under s 321 of the ACT Criminal Code_._

18. The earlier offence for which a suspended sentence had been imposed occurred in 2008 and was a driving offence. Mr Saga had been charged with and convicted of driving whilst disqualified. He had been observed by police driving outside his home on 2 February 2008. He was convicted and sentenced to eight months imprisonment which was suspended and a good behaviour order for 18 months was imposed.

19. It was not entirely clear from the papers in the Appeal Book what the course of the proceedings were. It is clear that Mr Saga appeared on the theft charge in the Magistrates Court on 11 August 2009. The matter was adjourned to 1 September 2009. It was, on that day, adjourned to 3 September 2009 and a plea of guilty was entered. A Pre-Sentence Report (under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act)) was ordered and the matter listed for sentence on 15 October 2009. Mr Saga was on bail for all this period.

20. The two charges involving unlawful possession of the motor vehicles were listed for mention on 20 August 2009. On that day they were adjourned to 3 September 2009 when, on his plea of guilty, they were, with the other matters, set for sentence on 15 October 2009.

21. The drug matter was commenced by summons returnable on 15 October 2009.

22. At the hearing, the plea of guilty to all charges was maintained, even though the police did not appear to have ownership statements for the vehicles.

23. The transcript in the Appeal Book does not record that the facts were read but, it appears that the Statements of Facts for each matter were already on the court file. It must, I think, be assumed that the learned Sentencing Magistrate had read them, but there is no actual record of that.

24. As noted, a Pre-Sentence Report was prepared. Again, it must be assumed that this was tendered and read, but the transcript in the Appeal Book does not disclose its reception or that the learned Sentencing Magistrate had read it. Her Honour, however, referred to it in the sentencing remarks.

25. Mr Saga's counsel then made a plea in mitigation. It was acknowledged that Mr Saga had made a number of attempts to address his drug addiction which was said to be the motivation for the offences. It was said that, at 36 years old, he was now more committed and ready to change his life. He was employed and living with his parents. He had been accepted into rehabilitation facilities, though a bed was not then available. Curiously, Mr Saga's counsel did not have any written confirmation of this, a matter that ordinarily a court would reasonably require and defence counsel have usually taken the care to provide. Counsel submitted that a deferred sentence order should be made to allow time for Mr Saga to show that this was a genuine commitment.

26. That approach was opposed by the prosecution. The prosecution pointed to Mr Saga's criminal history and his previous attempts to address his criminal behaviour and drug taking and that, as noted in the Pre-Sentence Report, they had been largely unsuccessful.

27. Her Honour took about 40 minutes to consider her decision. It is not always easy to make sentencing decisions immediately and, even in a busy Magistrates Court, time can sometimes be necessary to gather the necessary thoughts to decide on an appropriate penalty and to prepare reasons necessary to comply with the obligations that sentencing entails.

28. Her Honour recited the facts briefly. She noted the finding of guilt on the charge which was pleaded to constitute the breach of the suspended sentence. She noted the early plea of guilty and said to Mr Saga that, because of it, "you're entitled to the maximum ... discount on the penalty that might otherwise be imposed". She did not, however, state then or later what discount she had actually given.

29. Her Honour acknowledged that Mr Saga had been frank with the author of the Pre-Sentence Report and had admitted the drug addiction which drove his criminal behaviour. She noted his struggle to manage his addiction over the years and the attempts at residential rehabilitation.

30. Her Honour referred to the purposes of sentencing set out in s 7 of the Sentencing Act and that none necessarily take priority over another.

31. Her Honour rejected the proposal for a deferred sentence order under s 27 of the Sentencing Act.

32. Her Honour noted that, because of his addiction, Mr Saga was unsuitable for community service or periodic detention.

33. The learned Sentencing Magistrate then said that on "all the material before [her]", she had "come to the view unfortunately that the only just and appropriate sentence I can impose today is one of full-time imprisonment".

34. The learned Sentencing Magistrate then proceeded to impose sentence. She first dealt with the breach of the suspended sentence.

35. Given that her Honour had already acknowledged the finding of guilt on the relevant possession of stolen property charge, that was not inappropriate (see below at [97]-[115]). She did not in terms, however, cancel the good behaviour order (see s 110(2) of the Crimes (Sentence Administration) Act 2005 (ACT)) but did proceed to re-sentence Mr Saga. Her Honour rather curiously said that she had to decide "how much of that particular eight months' sentence you should in fact serve". She imposed a sentence of two months imprisonment to start from the date of sentencing.

36. On the first charge of possession of stolen property she imposed a fully consecutive term of four months imprisonment and on the second of those charges imposed a fully concurrent term of four months imprisonment.

37. On the cannabis charge, her Honour sentenced Mr Saga to the rising of the court and, on the theft charge, imposed a sentence of four months imprisonment, two months of which was to be consecutive with the sentences imposed on the first charge of possession of stolen property. She noted that the total sentence was eight months imprisonment.

38. A Notice of Appeal was filed on 11 November 2009. It sought to appeal against the whole of the sentences imposed on the ground that they were manifestly excessive in all the circumstances.

39. The orders sought were that the appeal be allowed and the sentences be quashed. The Notice of Appeal sought that Mr Saga be re-sentenced by the appeal court.

40. As happens at the hearing of an appeal, the grounds were significantly altered when oral argument occurred. I directed that an Amended Notice of Appeal be filed. It was and identified the amended grounds as follows:

(i) That the sentences imposed by the ACT Magistrates Court were manifestly excessive in all of the circumstances. (ii) That Her Honour attached undue significance to the appellant's criminal history. (iii) That Her Honour failed to attach any or any sufficient importance to the promotion of the appellant's rehabilitation as a purpose of sentencing as prescribed by Section 7 of the Crimes (Sentencing) Act 2005. (iv) That Her Honour failed to impose a sentence, or structure the sentence which she did impose in a way that would promote the appellant's rehabilitation, for example, by setting a non-parole period. (v) That Her Honour failed to have any or any sufficient regard to the mental illness or disorders from which the appellant suffers in determining an appropriate sentence. (vi) That Her Honour failure to state the penalty that would otherwise have been imposed but for the pleas of guilty, as required by the provisions of Section 37 of the Crimes (Sentencing) Act 2005.

41. The lodging of the Notice of Appeal stayed the enforcement or execution of the sentence: s 216(1) of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Mr Saga applied for bail and bail was granted on 25 November 2009. He had thus spent three weeks and six days in custody serving his sentence and a further two weeks in custody after lodgement of the Notice of Appeal and the consequent stay.

42. An appeal is entirely a creature of statute: Nevard v Harley (1980) 31 ACTR 13 (at 15). Appeals from the Magistrates Court are provided for in Pt 3.10 of the Magistrates Court Act. This appeal is brought under s 208(1)(e)(i) of that Part of that Act which gives this Court power to hear and determine appeals against sentences or imprisonment imposed under Pt 3.2 of the Sentencing Act which is the sentence imposed on Mr Saga.

43. As noted above (at [41]), s 216 of the Magistrates Court Act provides that the lodging of a Notice of Appeal has the effect of staying the execution of the sentence. Thus, even were the appeal to be dismissed, any period of custody served by Mr Saga between the lodgement of the Notice of Appeal and the decision of the Court on the appeal would ordinarily have to be taken into account in accordance with the principles ordinarily applied under s 63 of the Sentencing Act.

44. The principles on which such appeals are to be conducted seem, on the basis of the authorities, to be as follows:

1. The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.

2. In finding the facts, the appellate court is in as good a position as the lower court, to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge's findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.

3. The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.

4. A legal, factual or discretionary error may be found where the Lower Court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.

5. The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.

6. Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.

45. Mr R Davies, who appeared for Mr Saga, sought to adduce some evidence that had not been before the learned Sentencing Magistrate. The material consisted of a letter from the Alcohol and Drug Program of ACT Health and also some oral evidence given by Mr Saga.

46. Rule 5193 of the Court Procedures Rules 2006 (ACT) requires an application to be made for the reception of such evidence, such application to be supported by an affidavit setting out, inter alia, the evidence that the applicant (presumably either appellant or respondent) wishes the court to receive. I set out in Barac v Thexton [2008] ACTSC 137 the rationale for this requirement, where I said (at [26]):

The reasons for such a provision are clear. It gives the other party a proper opportunity to consider its attitude to the adducing of that evidence and prepare for any argument if it seeks to oppose it, knowing what the evidence will be. It also permits the other party an opportunity to make any necessary inquiries that may be required in respect of that evidence. Finally, it allows the other party the opportunity to have prepared its submissions knowing the full extent of the evidence that will be before the appeal court.

47. There was, in this case, no such formal application nor any affidavit. There was a reference in the Notice of Appeal to the application but was in very general terms, referring to:

It is anticipated that this evidence will relate to the appellant's father's illness.

48. In fact, neither the letter nor the oral evidence related to the appellant's father at all.

49. Such evidence is admissible under s 214(3) or (4) of the Magistrates Court Act. In Spatolisano v Hyde [2009] ACTSC 161, I set out (at [36]-[40]) what I understood to be the law with respect to those provisions.

50. Nevertheless, under s 214(3)(b), the court "must ... receive evidence with the consent of the parties to the appeal".

51. In this case, Mr D Sahu Khan, who appeared for the respondents, did not object to the reception of either item of evidence. Although it would have been preferable if I had expressly confirmed that the express absence of objection amounted to consent for the purposes of the section, I am of the view that this amounted in the circumstances and for the purposes of the section to be a consent. I am fortified in this view by the approach taken to a similar issue where absence of objection to a private view by the court was held to be an implicit consent in Pope v Ewendt (1977) 17 SASR 45 (at 50).

52. Accordingly the further evidence was admitted in this case.

53. Most of the material about the subjective circumstances of Mr Saga came from the Pre-Sentence Report (see Pt 4.2 of the Sentencing Act).

54. Mr Saga was the only child of his parents. He was born in Canberra 36 years ago and had a supportive and secure family environment in which he was brought up, though his father was, to him, "very strict" at times. He continues to have a close relationship with his parents, though they do not condone his drug use.

55. He received a good education with average grades though he left before he completed Year 12 to join the workforce. He completed an apprenticeship as a locksmith. Despite this, he has been employed in construction, in roof tiling and in painting as well as having employment as a courier. He has also experienced significant periods of unemployment.

56. At the time of his sentencing, he was employed as an arborist. In his oral evidence before me, he said he was then employed packing and storing fruit and vegetables at a Canberra market, with occasional work as a spruiker for his employer's stall.

57. He explained that he had worked for the two major firms of locksmiths in Canberra but did not find work there to be sufficiently energetic and moved to other areas. He would be interested in returning to the business of locksmithing, but in his own business, which needs capital. He said that his uncle might be prepared to assist with that proposal.

58. The main cause of Mr Saga's criminal behaviour is his drug and alcohol abuse. His unenviable record started in 1991 when he was cautioned for stealing. Since then, he has accumulated a number of mid-range offences. That is, he has convictions for 37 offences of dishonesty (including 19 offences of minor theft and a number for using misleading number plates), 7 drug offences, 25 traffic offences, including 5 counts of the relatively serious offence of driving whilst disqualified, offences relating to breaches of court orders and one conviction for each of trespass and assault. His most serious dishonesty offences are burglary, receiving and forging and uttering. He has spent time in prison for these offences.

59. Mr Saga's history with drugs began with cannabis use when he was 17 years old. By age 22, he was using heroin and misusing benzodiazepines. He has attempted residential rehabilitation on a number of occasions. The longest period of such rehabilitation seems to have been about two months. He has also progressed through the Naltrexone Rapid Detoxification Program.

60. He abstained from drugs for about three months after his release from gaol in November 2002. Later in November 2007, he entered another Naltrexone Rapid Detoxification Program and remained abstinent for three or four months.

61. Prior to his appearance in the ACT Magistrates Court he had been using heroin daily but a week before the appearance he began home detoxification with the assistance of Directions ACT, a leading drug rehabilitation agency in the ACT. He expressed to the author of the Pre-Sentence Report a wish to enter a residential rehabilitation program.

62. He was also under the care of a psychologist for depression and attention deficit hyperactivity disorder for which he has been prescribed some medication.

63. Importantly, the author of the Pre-Sentence Report noted that while Mr Saga's response to supervision in the past had been less than satisfactory, his response to supervision during the current bail period has been satisfactory, he attended all appointments, presented as polite and co-operative and being frank in his admissions. He appeared motivated, though the author of the Pre-Sentence Report commented "it is noted that previous attempts at rehabilitation have general been short lived."

64. Mr Saga was assessed as not suitable for a community service order nor for periodic detention, in both cases because of his recent substance abuse issues.

65. He is, however, now undertaking a program of methadone maintenance at the Opiate Treatment Service of the Alcohol and Drug Program of ACT Health. His participation only started, however, on 12 May 2010, a day less than a fortnight prior to the hearing of this appeal.

66. In his oral evidence, he described his current job (referred to above at [56]) and his interest in resuming work as a locksmith. He acknowledged having gone to gaol and acknowledged that it did not solve his problem.

67. He noted that, as well as his participation in the methadone program, he was receiving counselling from Directions ACT. He found the methadone program was helping to reduce the craving of addiction. He said:

HIS HONOUR: Is it [the methadone] actually helping the craving? ... At first, I didn't think it was going to help, but after - even the first two, or three days, when I woke up in the morning, I felt completely different, like something I haven't felt for a long time. And that really surprised me. So, yes. Usually I've gone on the past on the methadone for one day, two days, but I haven't gave [sic] it a good go, but now I have, and I can see I should have done that a long time ago, a very, very long time ago.

68. Another significant factor he referred to in his oral evidence was the motivation that came from his parental responsibility. He said:

Last time I went to jail, like, I didn't have a young little boy and that and things are different this time because as he's getting older he needs a suitable father. [MR DAVIES] Is that though strong enough to stop you thieving ... Yes it is.

69. While a court is entitled to view such evidence with a healthy scepticism, it cannot be entirely disregarded.

70. In cross-examination, Mr Saga frankly conceded that he had had opportunities for rehabilitation before, that he was not able to complete these programs and that he was committing offences whilst gainfully employed.

71. Some of this material was before the learned Sentencing Magistrate. The only reference to drug rehabilitation, however, was that he had applied to two residential rehabilitation facilities, that he did so only shortly before the sentencing hearing and that neither had a bed immediately available. Reference was made to his son, but no material was adduced about the motivation that that might have given him. Emphasis was put, rightly, on his frankness with the author of the Pre-Sentence Report.

72. Nevertheless, there was little immediate history of motivation or incipient success at drug rehabilitation and the submissions of Mr Saga's counsel were very much what might be in the future. There was not even a letter from his drug counsellor or the drug rehabilitation agencies.

73. I had now significant additional evidence, including both facts and acts that had occurred since sentence, but also in Mr Saga's own words his intentions and experiences, and this put what had been submitted before the Learned Sentencing Magistrate in a new light.

74. When considering an appeal where further evidence has been adduced, it seems to me that the court must review the sentence in the light of that further evidence taken together with the evidence before the original sentencing court.

75. Although the statutory provisions of s 214 of the Magistrates Court Act make further evidence more readily admissible than in an appeal to a court of criminal appeal setting on appeal against sentence for an offence charged on indictment, the approach taken in those circumstances, it seems to me, is the correct approach once that evidence is admitted. This approach was helpfully summed up in R v Nguyen [2006] VSCA 184 as follows (at [36]), namely

... (v) upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and (vii) the question is, on all the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice. (footnotes omitted).

76. As was said by Crockett J in Eliasen (1991) 53 A Crim R 391 (at 396):

... once the evidence is admitted the question no longer is one as to whether the sentencing judge erred in the exercise of his sentencing discretion. The question then which is for [the appellate] Court to determine is whether on the material then before it a different and, if so, what sentence should be substituted for that passed by the sentencing judge. It is for this reason that I think this Court is relieved from the task of having to examine the various allegations made as to error on the part of the judge when selecting the sentence he thought appropriate in the circumstances.

77. I shall, however, leave for another day, the question of whether there is some modification of these principles. Modification may be required because in this situation, evidence appears, as I have noted above (at [75]), to be more easily admitted than before a court of criminal appeal where these principles have been enunciated: see Campbell v Fortey (1987) 85 FLR 462 (at 465). In addition, modification may be required because it appears from cases such as R v Babic [1998] 2 VR 79 (at 80, 82), R v McLachlan [2004] VSCA 87; (2004) 8 VR 403 (at [10]) and Goodwin (1990) 51 A Crim R 328 (at 330) (though see to the contrary Eliasen (at 394)), that evidence will not be admitted in appeals to a court of criminal appeal if it relates only to events which have occurred after the date of sentencing whereas this does not apply in these circumstances: Campbell v Fortey (at 466)

78. I do note, however, the important caution expressed by Miles CJ in Campbell v Fortey and, with respect, I adopt and emphasise it. His Honour said (at 467):

I will say that I do not regard this case as a precedent whereby a person charged before a magistrate may consider that it is a permissible course to refrain from giving or calling evidence so that in the event of an unfavourable result he may seek to rely on appeal to this Court on the evidence so withheld. Furthermore, I would think that the power of this Court to admit further evidence on the appeal is the more likely to be exercised if the appellant has set out in proper affidavit form the nature of the evidence to be tendered and the reason or reasons why it was not called in the court below, and further, has served a copy of that affidavit upon the respondent or his representative prior to the hearing of the appeal. Those are, in fact, the procedural requirements of the law in the Northern Territory but not in this Territory at the present time.

79. Thus, the task for me is to determine whether, on all the facts and circumstances as I now have them before me, any different sentence should be substituted to avoid a miscarriage of justice and, if so, what sentence to be imposed. In deciding whether a different sentence should be imposed, it seems to me that I should still exercise the sort of restraint mentioned in House v The King [1936] HCA 40; (1936) 55 CLR 499 (at 504-5), namely that "[i]t is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course".

80. In my view, the answer in this case is that another sentence should be substituted. There is no doubt that the charges are for offences which constitute a serious interference with the community and its members. Shoplifting hurts all in the community for it inevitably leads to an increase in the price of goods and undermines the trust in shoppers that shopkeepers should desirably enjoy. Similarly, possession of property reasonably suspected of being stolen is akin to receiving of which Cantley J said in Battams [2007] EWCA Crim 1108; (1979) 1 Cr App R (S) 15 (at 16):

It is often said, and rightly said, that there would not be so many thieves if there were no receivers. Professional thieves do not steal goods merely for their own consumption; they steal them for disposal and it is essential to the success of the criminality that there should be receivers, big receivers and small receivers, like this appellant, who will dispose of their goods unobtrusively in various markets.

81. Mr Saga has, also a poor record. It is not a record of more serious offences, but they are bad enough. It is, of course, important that, as noted by the High Court in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 (at 477), he is not to be twice punished for those offences, but it does disentitle him to the leniency that might otherwise be extended to him. In this case, it means that his wish for rehabilitation must be viewed with some reserve, since it has not been effective to date so that specific deterrence must play a more significant part in the sentence.

82. For these offences, too, general deterrence is a significant factor which needs to be given weight.

83. Nevertheless, the Sentencing Act provides in s 10(2) that imprisonment may only be imposed "if the court is satisfied, having considered possible alternatives, that no other penalty is appropriate." This, as Gleeson CJ and Hayne J said in Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 (at 327 [11]) means that "a court may not impose a term of imprisonment unless satisfied that it is not appropriate to use any of the other sentencing options given in the Act".

84. This is not, of course, an objective matter and it is not always easy to come to that decision. As Adams J observed in Ly v The Queen [2007] NSWCCA 28 (at [21]):

To my mind it is important to impose sentences that are the minimum required to satisfy all the purposes of criminal justice, accepting as I do that different minds might quite reasonably differ on what sentence in particular circumstances satisfies those requirements.

85. Clearly, when the learned Sentencing Magistrate was considering her sentence, she recognised that Mr Saga had a history of failure to attend rehabilitation or persevere with it. That meant that her Honour could the more readily accept that rehabilitation was a purpose of lesser significance since it was, on his history, less likely to be achieved. A purpose for which sentencing may be imposed under s 7 of the Sentencing Act should not be part of the purpose for which a particular sentence is imposed where, on the material before the Sentencing Court, that purpose cannot reasonably be achieved.

86. The situation before me is somewhat different. Mr Saga has, no doubt motivated by his imprisonment and the prospect of further imprisonment, taken steps to enter the methadone maintenance program and has continued counselling with Directions ACT (though, regrettably, I did not have a report about that) and started with the alcohol and Drug Program of ACT Health (to which the letter admitted in evidence referred).

87. In addition, he gave evidence about the motivation that his son now provides for him to change. He also gave evidence which is confirmed by the experience of the criminal justice system. He said on these matters:

MR DAVIES: When are you going to grow out of your drug addiction? Well, there's a - I spoke to a few people, counsellors, and there's statistics that when you turn 35, going on to 36, that things change with drug addiction and so on, and it's not ... How old are you now? I'm 35. It's not going to come to me. I've seen ... It doesn't happen automatically? That's right. I've got to - I've seen - in the past, I've wanted it, like, I've thought it would come to me. Now I know I've got to chase it, more than - it's not going to come to me, I know, on a silver platter. How important is your little boy to you? - How important? I'd give my life for him.

88. In addition, he gave evidence that he has a good relationship with his current partner, the mother of his son. She is not involved with drugs or his dishonesty. He has friends and associates outside the drug scene and he stated that he had not used drugs to steal in the last six months.

89. All these statements must be approached with caution. They do, however, provide a basis for finding that there may be an opportunity to combine his age and his motivation in his current circumstances with a chance that rehabilitation might reasonably be likely to be more successful this time. In my view, it can be accepted that drug addiction is such that it can take a number of failed attempts at rehabilitation before it is successful. It is hard work and there is no short cut or quick fix. It can take some time, and some failures, before an offender addict manages to break through the barriers to achieve a more effective rehabilitation. The courts cannot, of course, sit back and allow attempts to be made without end. By the same token, past failures do not automatically deny an offender the opportunity for a further attempt. Ordinarily, there would have to be some rational basis for permitting it. That may be merely the nature of the offence. For example, sentencing on a drug offence may allow further attempts to be made, whereas, in the absence of some other factors, continuing burglaries or robberies would make a sentencing court much more hesitant about further attempts after multiple failures.

90. Here, the circumstances of the efforts he has made, the rationale for his motivation and his circumstances must be said to justify some opportunity. This is the value of the deferred sentence order under s 27 of the Sentencing Act. It provides an opportunity for the court, where there are real signs of change, but which are still far too tentative to justify a rehabilitative sentence, to give an offender the chance to show whether the fragile rehabilitative shoots that can be discerned will actually take root and develop into genuine rehabilitation.

91. If that is so, then a sentence which emphasises rehabilitation will be appropriate whereas, if not, a sentence which emphasises deterrence and retribution is, in the circumstances, appropriate.

92. Before finalising this appeal, however, there are three matters which should briefly be addressed.

93. The learned Sentencing Magistrate sentenced Mr Saga to the rising of the court for the charge of possessing cannabis. That charge under s 171 of the Drugs of Dependence Act 1989 (ACT), attracts a maximum penalty of one penalty unit ($100 fine as at the date of the offence, but, since 21 October 2009, $110: s 133 Legislation Act 2001 (ACT)) unless the mass of the cannabis exceeds 25grams when the maximum penalty is fifty penalty units ($5,000 fine) or imprisonment for two years or both.

94. Although there was no weight of the cannabis given in the Statement of Facts for the offence, it is noted that a Simple Cannabis Offence Notice was given for the offence. Such a notice, under s 171A of the Drugs of Dependence Act 1989 (ACT), is only available in respect of what is defined in that section as a Simple Cannabis Offence. Where the offence is one under s 171(1) of that Act, such an offence must be one that relates to possession of not more than 25g of cannabis. It can thus be accepted that the charge related to possession of not more than 25g of cannabis and that the penalty was a maximum of a fine of one penalty unit.

95. I dealt with a sentence of imprisonment "to the rising of the court" in Ledson v Taylor & Ors [2010] ACTSC 42 (at [56]-[60]). I do not need to add to what I said there. It is clear from what was said there that the sentence is a sentence of imprisonment: White v Brown [2003] NTSC 51 (at [19]). It was, thus, not available on this charge. If a nominal penalty is to be imposed, as the learned Sentencing Magistrate clearly contemplated, it needs to be a modest fine, if the circumstances do not justify the court in proceeding under s 17 of the Sentencing Act.

96. Thus, this sentence has, in any event, to be set aside as beyond jurisdiction.

97. The learned Sentencing Magistrate dealt first with the breach of the suspended sentence. Although her Honour did not, as required under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), cancel the good behaviour order, she proceeded under s 110(2)(b) to re-sentence Mr Saga.

98. Of course, action cannot be taken until "a court is satisfied the offender has breached any of the offender's good behaviour obligations": s 110(1)(b). One such obligation is that the offender "must not commit - (1) an offence against a territory law": s 86(1)(a)(i). A court could ordinarily only be satisfied that the offender had breached such an obligation when there was a finding of guilt or a conviction. Here, as noted above (at [28]), the learned Sentencing Magistrate did refer to "the findings of guilt that must inevitably flow from the above charges", referring to the two charges of unlawful possession, the charge of theft and the charge of possession of cannabis. This seems to me sufficient to permit her Honour then to proceed to deal with the breach of the suspended sentence.

99. This Territory and Tasmania are the only two jurisdictions where there is not a statutory presumption in favour of activation of the term of imprisonment suspended. See Bartels L "The use of suspended sentences in Australia: Unsheathing the Sword of Damocles" (2007) 31 Crim LJ 113 (at 128-131). Nevertheless, in Taylor v Bowden [2009] ACTSC 13, Gray J cited with approval what Howie JA (with whom Sully and Price JJA agreed) said in Director of Public Prosecutions (NSW) v Cooke and Anor (2007) 168 A Crim R 379, where his Honour, relying on what had been said by King CJ and, separately, by Perry J in R v Marston (1993) 60 SASR 320 (at 322, 323), said (at 386-7 [23]):

There is nothing more likely to bring suspended sentences into disrepute than the failure of courts to act where there has been a clear breach of the conditions of the bond by which the offender avoided being sent to prison. Notwithstanding what has been stated about the reality of the punishment involved in a suspended sentence, if offenders do not treat the obligations imposed upon them by the bond seriously and if courts are not rigorous in revoking the bond upon breach in the usual case, both offenders and the public in general will treat them as being nothing more than a legal fiction designed to allow an offender to escape the punishment that he or she rightly deserved.

In general, those comments are applicable to the approach to be taken to the cancellation of good behaviour orders made consequent upon a suspended sentence order under the Sentencing Act.

101. I respectfully adopt what was said in both cases. Thus, although there is no "default" requirement to activate the imprisonment that has been suspended there are important policy reasons for doing so.

102. The option of re-sentencing, however, is also important. It was, as the example to s 110(4) of the Crimes (Sentence Administration) Act 2005 (ACT) shows, a necessary option because if the term of imprisonment should be served by way of periodic detention, that would require re-sentencing. Similarly, as noted by Gray J in Taylor v Bowden (at [37]) where the suspended term was of one year or longer, s 65 of the Sentencing Act requires a non-parole period to be set which, quite properly, would not have been set when the suspended sentence was imposed.

103. As Gray J noted in Thompson v Young [2008] ACTSC 11 (at [10]):

However, even if imprisonment had been appropriate, there would still need to have been a consideration of aspects of suspension, periodic detention and community service. Those matters are still as appropriate on re-sentencing as on the original sentencing.

104. It has, of course, to be noted that community service would only arise if suspension was again considered by the re-sentencing court. It may well be then appropriate so that a good behaviour order, with a community service condition, (that is, a good behaviour order: s 13(6) of the Sentencing Act) was then imposed.

105. Gray J also noted in Taylor v Bowden (at [34]) that re-sentencing required, as his Honour had already observed in Thompson v Young (at [7]), that the provisions of the Sentencing Act apply to the re-sentencing of the offender (see s 110(4) of the Crimes (Sentence Administration) Act 2005 (ACT)) and that, accordingly, there must be a proper evaluation of the objective circumstances of the offence as well as taking into account the subjective circumstances of the offender. It will, therefore, ordinarily require a copy of the Statement of Facts of the original offence to be tendered, as happened here. No doubt, any Pre-Sentence Report for the subsequent offences will summarise adequately the subjective circumstances of the offender with any additional material that the offender's lawyer wishes to tender.

106. In those circumstances, it is odd that the learned Sentencing Magistrate imposed a two month sentence when the original offence had, according to the learned Magistrate that imposed the original sentence that had been suspended, come to the view that eight months imprisonment was the proper sentence, especially as the subjective circumstances of Mr Saga has not improved apparently, and certainly not significantly.

107. The implication was that the learned Sentencing Magistrate had not accepted the necessary inference that had to be drawn from the requirement for the imposition of the suspended sentence to comply with the procedure that had been set out by Kirby J (with whom Gaudron and Gummow JJ agreed in separate judgments) in Dinsdale v The Queen where his Honour said (at 346):

The starting point ... is the need to recognise that two distinct steps are involved. The first is the primary determination that a sentence of imprisonment, and not some lesser sentence, is called for. The second is the determination that such term of imprisonment should be suspended for a period set by the court. The two steps should not be elided. Unless the first is taken, the second does not arise. It follows that imposition of a suspended term of imprisonment should not be imposed as a 'soft option' when the court with the responsibility of sentencing is 'not quite certain what to do'.

108. Thus, the original sentence necessarily meant that the objective circumstances of the offence and the subjective circumstances of Mr Saga had justified a sentence of eight months imprisonment for that offence. There was no question of "how much of that should be served", but what was to be imposed on re-sentencing that properly should have reflected those same objective and subjective circumstances as altered by the present circumstances. Of course, questions of totality may mean that concurrency could result in the total sentence ultimately imposed adding a lesser period, perhaps two months, to the total period to be served, but it was important for that approach to be followed in order that there be compliance with the legislation and policy and principles of sentencing.

109. Once that is accepted, the question arises as to the order in which the sentences should be imposed. There is much to be said for a chronological imposition of sentences. Thus, it might be said that activation of the term of imprisonment that had been suspended, or re-sentencing for the original offence should, so long as a finding of guilt or conviction had first been recorded, proceed to be first imposed. That was the approach suggested by Gray J in Taylor v Bowden (at [47]) that "the better course" is to sentence (whether by activation or re-sentencing) on the cancellation of the good behaviour order before proceeding to deal with the offences that occasioned the breach.

110. It has been suggested that I differed from his Honour's approach in what I said in Ledson v Taylor & Ors (at [53]). While the words may so imply, I was there referring, in context, not so much to the order of sentences as to the requirement to find the breach proved before proceeding to re-sentence or activate the suspended period of imprisonment. Indeed, there is much to be said for his Honour's view that chronological sentencing is appropriate.

111. That certainly was the express view of the proper approach taken by the NSW Court of Criminal Appeal in R v Cooke [2007] NSWCCA 184 (at [18]). The Court there emphasised the need to revoke the bond (in the ACT, cancel the good behaviour order) before determining what, if any, further order should be made consequent upon the revocation but also expressly held that "[s]entencing for the breach first also allows for the principle of totality to operate in the event that both the breach and the conduct giving rise to it are punished by a term of imprisonment."

112. There is much to commend this approach and I was not intending to take a different view, so long as the occasion for action on the breach had first occurred.

113. The matter is, however, not entirely free from controversy. In the UK, the Court of Appeal (Criminal Division) has taken a different view. In Salmon (1973) 57 Cr App R 953, Ashworth J speaking for the Court, first emphasised the point I have made above, when his Honour said (at 955):

But what is fundamental is that there can be no activation of the suspended sentence until the person involved has been convicted for a subsequent offence.

But the cases that have been before this Court have shown that there can be circumstances in which the nature of the subsequent offence, its character, gravity and so on, are such that it would be wrong and wrong in principle to bring into operation the suspended sentence.

Clearly this implies that court would have first to determine the sentence on the subsequent offences before considering the suspended sentence.

114. There is clearly force in this, as there is in the principle enunciated many times by the Victorian Court of Appeal (and Full Court before it) that when imposing multiple sentences, any cumulation should be upon the sentence for the most serious offence. As Warren CJ put it most recently in R v JG [2005] VSCA 74 (at [22]):

I cannot leave this case without making the observation that his Honour's mode of cumulating the sentences plainly disregards the directions that have been given by this court on this issue on numerous occasions. It has been made plain that, in the case of imposing multiple sentences, any cumulation should be upon the most serious count because otherwise, as Batt, J.A. explained in R v MDB a distortion may be created 'whereby the less serious offence takes [or appears to take] an undeserved primacy, whilst the most serious offence ... [is or appears to be] diminished'. It seems to me that this is a straightforward and commonsense principle that can be easily applied, yet a significant number of cases come before this Court where the cumulation orders seem to disregard this principle. (footnotes omitted)

115. The resolution of these issues may await further consideration, but it seems to me that the better approach is to find the offender guilty of the offence which constitutes the breach (or convict him or her of that offence), cancel the good behaviour order, impose the imprisonment which was suspended or re-sentence, this is unless the subsequent offence or offences (or one or some of them) are more serious, when the sentence for it or them should be imposed first and then sentence for the balance of the offences, and then make the sentence cumulative or concurrent (wholly or partially) as required by the usual principle of totality for sentencing for multiple offences.

116. Mr Saga, through his counsel, also complained that the learned Sentencing Magistrate did not specify, as required by s 37 of the Sentencing Act, the amount of the discount given for the plea of guilty.

117. I held in Cotter v Corvisy (2008) 1 ACTLR 299 (at 311 [57]) that a failure to articulate the amount of the discount under s 37 was unlikely to render a sentence invalid. I do not resile from that. I have not changed my mind.

118. It was suggested, however, by Mr Davies, counsel for Mr Saga by reference to Harper v Low & Wood [2009] ACTSC 136 that such a failure amounted to an appellable error. I do not read that decision as saying that. There was no reference in that decision to s 37. What it did hold, however, was that the failure to mention the plea of guilty "either in sentencing remarks, or during the sentencing hearing" raised the possibility that it was not taken into account. That, of course, would be an appellable error.

119. The obligation imposed by the section has been strongly criticised by Rares J in R v Phay [2009] ACTSC 130 (at [25])-[26]) as requiring an artificial judgment to be made.

120. On the other hand, Penfold J seems to suggest in Arman v Wall [2008] ACTSC 61 (at [26]) that a failure to comply with the obligations under s 37 of the Sentencing Act may amount to appellable error, though it was not entirely clear whether the error was the failure both to take the plea of guilty into account and to give reasons for the discount or whether just the latter was sufficient to constitute an appellable error.

121. Certainly, s 37 is an obligation on a sentencer and sentencers should discharge the obligation. If the failure does not invalidate the sentence, it is hard to see how it could be an appellable error, but I do not have to decide that.

Saga v Reid and Collett [2010] ACTSC 59

At a glance

Court

Decision date

Source

Judgment (229 paragraphs)

Saga v Reid and Collett [2010] ACTSC 59 (1 July 2010)

Parties

Legislation Cited (5)

Cases Cited (11)