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[2016] ACTSC 327
Supreme Court of the ACT
2016-11-22
Refshauge J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - CRIMINAL LAW - Appeal from the Magistrates Court - appeal against sentence - error in sentencing process - manifestly excessive - non parole period incorrectly set -
pre-sentence custody not taken into account - totality - appeal upheld
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - burglary - theft - dishonestly taking someone else's motor vehicle without consent - dishonestly driving someone else's motor vehicle without consent - re-sentencing - subjective circumstances - extensive criminal record - Aboriginal man - disadvantaged childhood - concurrency between sentences - new non parole period set - recommendation to require appellant to undergo residential drug and alcohol rehabilitation when granted parole
Legislation Act 2001 (ACT), s 146(2)
Magistrates Court Act 1930 (ACT), s 216, Div 3.10.2, Pt 3.10
Criminal Code 2002 (ACT), ss 308, 311, 318(1), 318(2),
Balthazaar v The Queen [2012] ACTCA 26
Boney v The Queen [2015] NSWCCA 291
Boulton v The Queen (2014) 46 VR 308
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Bugmy v The Queen (2013) 249 CLR 571
Clarkson v The Queen (2011) 32 VR 361
Cooper v Corvisy (No 2) [2010] ACTSC 166; (2010) 5 ACTLR 151
Crawford v Laverty [2008] ACTSC 107
Dalton v The Queen [2015] ACTCA 48
Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178
Greatorex v The Queen [2016] VSCA 136
Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 690, 698
Hall v CL [2015] ACTSC 286
Hanks v The Queen [2011] VSCA 7
House v The King [1936] HCA 40; (1936) 55 CLR 499
Jovanovic v The Queen [2015] ACTCA 29
Law v Ilievski [2016] ACTSC 291
Miles v The Queen [2016] ACTCA 54
Millard v The Queen [2016] ACTCA 14
Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; 244 CLR 120
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Rees v The Queen [2012] ACTCA 6
R v Abbott [2007] VSCA 32; 170 A Crim R 306
R v Elphick (No 2) [2015] ACTSC 23
R v Hawkins [2015] ACTSC 333
R v Hutchinson [2014] ACTCA 29
R v JM [2014] ACTSC 380
R v Massey [2016] ACTSC 278
R v McGrail [2016] ACTSC 142
R v McMahon [2014] ACTSC 280
R v Meyboom [2012] ACTCA 48
R v Peake [2002] SASC 303; (2002) 37 MVR 354
R v Sampson [2014] ACTSC 210
R v Shrestha [1991] HCA 26; (1991) 173 CLR 48
R v TW [2011] ACTCA 25; (2011) 6 ACTLR 18
Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306
Simonds v The Queen [2013] ACTCA 13
Slater v The Queen [2014] ACTCA 33
Wickey v The Queen [2012] ACTCA 38
Wronski v Raue [2012] ACTSC 87
C Maxwell, "The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness" (Paper presented at ANU Public Law Weekend, Canberra, 28 October 2016)
D A Thomas, Principles of Sentencing (Heinemann London, 2nd ed, 1979)
1. In November 2015, Ricky Lee Sampson, the appellant, smashed a window in the door of a residence at Wanniassa, ACT, and entered the premises, from which he stole from the three residents of the house a considerable amount of personal effects and property, valued in total at approximately $19 869.
2. He then stole a motor vehicle, which was at the property and owned by one of the residents. He later abandoned it and it was eventually recovered by police.
3. On 4 January 2016, Mr Sampson took a motor vehicle from commercial work premises in Hume and drove it away without the owner's consent.
4. That vehicle was later recovered on 8 January 2016 from the gravel car park at the rear of a hotel in Narrabundah.
5. Mr Sampson was arrested on 8 January 2016 and charged with the burglary of the premises of Wanniassa, with three offences of theft of property from each of the three residents of those premises, with dishonestly taking someone else's motor vehicle without consent on 26 November 2015, and with dishonestly driving someone else's motor vehicle without consent on 4 January 2016.
6. He first appeared in the ACT Magistrates Court on 9 January 2016 and the proceedings were adjourned. He pleaded guilty to all of the offences on 12 February 2016 and, on 25 May 2016, was sentenced to four years imprisonment to commence on 20 May 2018, to be wholly cumulative on a sentence of imprisonment that he was serving at the time these sentences were imposed.
7. Burglary is an offence against s 311 of the Criminal Code 2002 (ACT) and attracts a maximum penalty of 1400 penalty units (that is a fine of $210 000) and imprisonment for 14 years.
8. Theft is an offence prohibited by s 308 of the Criminal Code and attracts a maximum penalty of 1000 penalty units (that is a fine of $150 000) and imprisonment for 10 years.
9. Dishonestly taking someone else's motor vehicle without consent is an offence contrary to s 318(1) of the Criminal Code and attracts a maximum penalty of 500 penalty units (that is a fine of $75 000) and imprisonment for five years.
10. Dishonestly driving someone else's motor vehicle without consent is an offence under s 318(2) of the Criminal Code and attracts a maximum penalty of 500 penalty units (that is a fine of $75 000) and imprisonment for five years.
11. Mr Sampson has now appealed against the sentence on the expressed ground that the sentence was manifestly excessive.
12. This Court is given jurisdiction to hear appeals from the Magistrates Court under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Appeals against sentence are dealt with under Div 3.10.2 of that Act.
13. I have described in Cooper v Corvisy (No 2) [2010] ACTSC 166; (2010) 5 ACTLR 151 the principles applicable to appeals against sentences imposed in the Magistrates Court. They may be summarised as follows.
14. Sentences imposed in the Magistrates Court may be set aside if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by error but only if I, in re-exercising the sentence in discretion, consider that a different sentence is appropriate. Sentences are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence.
15. An error may be a specific error. Specific errors are errors of law, errors of fact, taking in account of irrelevant or extraneous considerations, or failing to take account of relevant or material consideration. If I find a specific error, but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence.
16. Even if I cannot identify specific error, however, I may uphold the appeal and substitute another sentence for the original sentence if I find the original sentence manifestly excessive, unreasonable, plainly unjust or plainly wrong.
18. Under s 216 of the Magistrates Court Act 1930, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty subject of the appeal. That often has to be addressed at the conclusion of the appeal.
19. The Notice of Appeal was filed on 20 June 2016, from which date the sentence was stayed. Mr Sampson was not, however, granted bail pending the appeal. Thus, he has been in custody pending the hearing of the appeal. That custody, however, appears to be also partly in respect of a sentence imposed on 22 July 2013. I shall refer to that below.
20. As noted above (at [11]) there was only one ground of appeal, namely that the sentences were manifestly harsh and excessive.
21. No application was made to adduce further evidence on the appeal.
22. In Dalton v The Queen [2015] ACTCA 48 at [18], the Court of Appeal said:
23. A number of recent decisions of the Court of Appeal have referred to what Maxwell P said in R v Abbott [2007] VSCA 32; 170 A Crim R 306 at 309; [14], namely that:
the ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.
24. Thus, this has been quoted with apparent approval in Balthazaar v The Queen [2012] ACTCA 26 at [61], Jovanovic v The Queen [2015] ACTCA 29 at [41], and Miles v The Queen [2016] ACTCA 54 at [61].
25. I have explained in Law v Ilievski [2016] ACTSC 291 at [23]- [26] why, in my respectful view, that formulation is wrong and is inconsistent with what the High Court has consistently said ever since House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505. I respectfully adopt what Penfold J said in dissent on this issue in Miles v The Queen at [2]-[5].
26. I note, too, that Maxwell P, who wrote the decision in Abbott, has recognised that the formulation in R v Abbott should no longer be used. See C Maxwell, "The Statutory Implication of Reasonableness and the Scope of Wednesbury Unreasonableness" (Paper presented at ANU Public Law Weekend, Canberra, 28 October 2016) at 8. It is not now the law in Victoria as can be seen from Clarkson v The Queen (2011) 32 VR 361 at 384; [89]; Boulton v The Queen (2014) 46 VR 308 at 333; [102], and Greatorex v The Queen [2016] VSCA 136 at [38]. See also R v Peake [2002] SASC 303; (2002) 37 MVR 354 at 357; [28].
27. As to the task confronting an appellant who wishes to make out this ground, the Court of Appeal said in R v TW [2011] ACTCA 25; (2011) 6 ACTLR 18 at 37-8; [60]- [61]:
32. In Hawkins v Hawkins [2009] ACTSC 148; (2009) 3 ACTLR 210, Refshauge J said (at 219 [46] to [47]):
See also R v Thorn [2010] ACTCA 10 (at [33]).
What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.
To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.
28. It is also worth noting that the excess of the sentence must be manifestly excessive and not merely arguably excessive: Hanks v The Queen [2011] VSCA 7 at [22].
29. Sometime between 2pm and 4:45pm on 26 November 2015, Mr Sampson smashed the lower glass sidelight adjacent to the front door of residential premises in Wanniassa and opened the front door. He entered the residence and opened a number of drawers in the kitchen and the lounge, spreading the contents across the floor. He also searched cupboards in the bedrooms, kitchen, dining room and lounge room. He tossed the items from those cupboards across the floor. He took numerous items including cash, jewellery, electronic items, keys, bags and passports, belonging to the husband and wife owners of the residence and their son. The total value of the stolen property was approximately $19 869.
30. He then entered a Toyota Land Cruiser utility parked in the driveway of the house and left the premises. It belonged to the son of the owners of the premises.
31. He left his blood on a rag on the floor, presumably from a cut when he smashed the windows. Police, who attended the premises, took possession of the rag and conducted a DNA analysis of the blood, which determined that the DNA matched that of Mr Sampson.
32. The Toyota Land Cruiser was later found abandoned in the car park at Wanniassa shops.
33. On 4 January 2016, a black Holden Commodore utility was taken from the driveway next to certain business premises at Hume. The owner saw the vehicle being driven away and called the police. While driving a spare vehicle, the owner saw the Commodore parked nearby in Hume and drew alongside it, looking at the driver, whom he was later able to describe to police. The driver of the black Commodore, however, pulled away at high speed almost immediately after the owner drew alongside him and, although the owner was able to follow for a short period, he eventually lost sight of the Commodore because of the speed at which it was travelling.
34. On 6 January 2016, the owner saw his black Commodore being filled with petrol at a service station by a male whom the driver was able to describe as the same person he saw driving the Commodore shortly after it was stolen.
35. On 8 January 2016, police arrested Mr Sampson at the Ibis Hotel in Narrabundah. When they searched Mr Sampson, they found a Holden car key and found the black Commodore in a gravel car park at the rear of the hotel. The key found on Mr Sampson was able to unlock and start the Commodore. In an interview with the female also in the hotel with Mr Sampson when police arrested him, the female stated that she had been a passenger in the Commodore the day before when Mr Sampson was driving it.
36. Mr Sampson was arrested and taken to the City Watch House. He was offered an opportunity to participate in an interview, but he refused. He was charged with the offences to which he later pleaded guilty.
37. Mr Sampson appeared in Court on 9 January 2016 and was remanded in custody. After several adjournments, he entered a plea of guilty on 12 February 2016 to all the offences. Reports were ordered and, on 25 May 2016, he was sentenced as noted above.
38. Burglary is a serious offence. It is, as I have described it before, a blight on our community. This is clear from the maximum penalty provided by the legislature, but also for the impact on the community. I have summarised the effects in R v Hawkins [2015] ACTSC 333 at [48]- [51] as follows:
48. ... People work hard for the property that they acquire and which, sometimes, has more than monetary value to them. Though it seems unlikely in this case, many stolen items have sentimental value which cannot be replaced just by purchasing similar, or even identical, items.
49. ... Inevitably, the loss of property also causes inconvenience, even if only the need to make claims on insurance or to replace them. ...
50. Often the items are insured against theft and the payment by insurance companies inevitably means that the premiums may rise, affecting the rest of the community.
51. The intrusion into homes in a burglary is particularly disturbing as victims feel violated and unsafe...
39. It has been accepted that burglaries of residential premises are more serious than those of commercial premises. See Simonds v The Queen [2013] ACTCA 13 at [54]. This is clearly the source of the learned Magistrates' comment to that effect in her Honour's sentencing remarks to which I refer below (at [92]).
40. In this case, the damage occasioned to the premises by the entry into the Wanniassa premises and the disturbance caused by the scattering of the contents of cupboards and drawers on the floor are also aggravating features.
41. The thefts were of items, many of which were of sentimental value, including much jewellery. Some was irreplaceable. The cash which was stolen would be highly unlikely to be recoverable. Taking passports has sinister overtones with the suspicion that they may be misused, but they also certainly cause significant disruption to those from who they are stolen having to replace them.
42. The value of property stolen is always a significant indicator of the seriousness of theft offences: Rees v The Queen [2012] ACTCA 6. In this case, the property stolen was in total of quite significant monetary value.
43. Taking someone else's motor vehicle or driving it without consent is a serious offence. Motor vehicles are expensive items and their theft deprives people of an item that, after their home, may be the most expensive item they will purchase. The fact that both vehicles were recovered does moderate the harm done to the victims. Nevertheless, in a city such as Canberra, where residents are very dependent on cars for transport, the taking of somebody else's motor vehicle leads not only temporarily, or, worse permanently, deprives the owner of the use of that significant property, but serious disruption to the life of the owner and possibly others.
44. Victim Impact Statements were provided by the three victims of the offences committed at the Wanniassa premises on 26 November 2015.
45. The male owner of the house was, at the time he was informed of the offences, driving to a meeting in Queensland. His wife, who telephoned him, was very distressed and was unable to speak to him properly, but asked him to return home, which, despite the meeting he had arranged to attend, he did.
46. On arriving home, he found his wife very upset, weeping at the smallest things she found wrong in the house, washing her undergarments three times as Mr Sampson had rummaged through them.
47. He said his son was also very upset because the vehicle that had been taken was "to him ... everything" as he had invested a lot of time and money into it.
48. The male owner is required to travel for his work to many sporting events and national meetings and he now constantly worries, especially for his wife, when he is away, calling many times while he is absent. He has trouble sleeping at night, waking to the smallest noise. He hides personal items when he leaves the house and checks the locks and windows, needing to touch each lock physically, becoming almost compulsive.
49. As a result of the burglary, he has, at significant expense, re-keyed his home, his South Coast house and all the family cars.
50. The insurance company has been trying, in his view, to "under pay [the] claim and that [has] caused extra stress." His wife expresses the view that they should sell the home and move and this causes him to be angry.
51. As the courts know, this is a common, regrettable and distressing consequence of such offences. The male owner says that "once the sanctity of the place that we all felt safe has been destroyed, it is hard to reclaim that serenity and comfort."
52. His son's statement confirms this. When he discovered the burglary, he found the house open and ransacked. His statement makes sobering reading. He also writes of the effect on the family dogs, one of whom was "freaking out", the other "looking very nervous".
53. He, too, wrote of his mother's distress, as she was "crying and so shocked".
54. He was pretty happy when his vehicle was recovered but angry that everything had been taken out of the cab.
55. He found that he could not sleep well for weeks, every noise waking him and, indeed, waking randomly. He, too, has become obsessive about checking that every door and window is locked and hiding things. He worries about his mother and has become distrustful. He has also suffered financially in damages and replacements for items he has worked very hard to acquire.
56. The female owner, wife of the male owner and mother of their son, also provided a statement, which confirms much of what is set out above. She had been informed of the burglary by her son while she was at work and she heard his panic on the phone at the loss of his vehicle.
57. When she arrived home, the police were there and would not permit her to enter until they had completed their crime scene investigation, which increased her sense of panic.
58. The items taken were of sentimental as well as monetary value, including gifts from her husband of 34 years and from her long past grandmother, as well as gifts from her children. This included her diamond wedding band.
59. The theft of her laptop computer has put her work back three to four years through the loss of hundreds of hours of work and research.
60. She now feels sick with anxiety when she walks into her bedroom and still feels hurt and heartbreak. She is nervous when leaving the house, feeling violated and sad, becoming terrified at the tiniest of noises.
61. The theft of the passports has made her nervous about the possible misuse of them or information in them against her. She looks at strangers to see if they are wearing her jewellery.
62. She also feels sad for her son who lost items of monetary value but also of irreplaceable sentimental value.
63. The stress and distress has made her physically ill and she continues to suffer.
64. It is very affecting to read these statements and see how such pain can be caused by what is, in many ways, an unremarkable burglary, which the courts unfortunately see only too often, and the ongoing and long-lasting mental and physical effects such crimes can cause.
65. The Magistrates Court had before it a Pre-Sentence Report, an assessment report from the Court Alcohol and Drug Assessment Service (CADAS) and a criminal history of Mr Sampson. From this material I can make the following findings.
66. Mr Sampson was born about 35 years ago. He is an Aboriginal man and took a strong interest in his cultural heritage when he was younger, organising and participating in aboriginal dance performances, including during previous periods of imprisonment in juvenile detention facilities. His interest, however, declined as he became more dependent on illicit drugs, though he would, it appears, wish to become more engaged with the aboriginal community in the future.
67. Mr Sampson experienced a difficult childhood, witnessing alcohol abuse and domestic violence and being the victim of sexual abuse from another family member when he was seven years old. This, no doubt, has significantly affected him through his life. He maintains regular contact with his parents, who live in Sydney, and maintains some contact with his five elder siblings.
68. Mr Sampson has an 11 year old son from a former partner, but, as he and his mother live in Perth, Mr Sampson has, unfortunately, had no contact with his son for over five years. His former partner experienced a late still-birth in 2013 and this had an ongoing traumatic effect on Mr Sampson. He is currently in another relationship.
69. Mr Sampson had a difficult education. He was expelled from school in Year 9 and never obtained his Year 10 certificate. He has never been employed in the community but, while in prison, has been employed from time-to-time and has been a delegate at the Alexander Maconochie Centre.
70. Mr Sampson has a long and entrenched drug and alcohol history. He first consumed alcohol when he was 13 and has continued to drink, though on the material I had, it was not easy to determine his present level of consumption.
71. He first used opiates when he was 14 and has continued to use heroin after that. Indeed, he was sentenced to nine years imprisonment for a number of armed robberies, which had resulted from his use of heroin. He commenced on a methadone program about five years ago to which I refer below (at [74]), which has significantly reduced his heroin intake, though it appears that he still uses it when not in custody.
72. He commenced using amphetamines also at age 14, but his most regular use was when he moved to Canberra in 2009. He started using methylamphetamine shortly after he was released from custody on parole and began committing further offences almost immediately afterwards in order to fund that illicit drug use. When first remanded in custody he provided a sample of urine for analysis that returned positive readings for cannabis, methylamphetamine and benzodiazepines. On 17 April 2016, further urinalysis showed positive readings for amphetamines and methylamphetamines.
73. Mr Sampson has had contact with workers from the Winnunga Nimmityjah Aboriginal Health Service alcohol and other drug treatment team. He completed the Solaris Program, a therapeutic community program within the Alexander Maconochie Centre, in 2013, which I have described in R v JM [2014] ACTSC 380 at [26]. He has indicated a willingness to participate again in that program.
74. Mr Sampson has been on a methadone maintenance program for about five years with a maintenance dose of 80 mg daily. He is still on the program, and is currently receiving 35 mg daily.
75. Mr Sampson completed the SMART Recovery Program in 2015. I have described that program in R v McGrail [2016] ACTSC 142 at [78]- [80]. Thus, he has been making some efforts to manage his drug addiction.
76. Mr Sampson is in good physical health, but he has had some mental health challenges. He was diagnosed in 2001 with a Personality Disorder Not Otherwise Specified and has had some treatment for that condition, though he is no longer receiving treatment or counselling for it. He has had treatment for depression, but says that the depression "comes and goes". He has made previous attempts at self harm and has experienced suicidal ideation.
77. Mr Sampson has engaged in treatment with a worker from the Service Assisting Male Survivors of Sexual Assault (SAMSSA) and he said that this was very helpful. He has maintained some "on and off" contact with workers from SAMSSA.
78. Mr Sampson appears to have had difficulties in the community, though his release from custody prior to the current imprisonment saw him progressing well for some time, abstaining from drugs for five weeks and maintaining his driver licence.
79. Mr Sampson has an extensive criminal history which has some complications. It is a very serious and long history. He has been found guilty of 130 offences. The vast majority, more than 70, are offences of dishonesty including burglary and theft or the NSW equivalent, break, enter and steal. Moreover, he also has a number of convictions for violence including serious offences such as robbery and attempted robbery.
80. On 20 November 2013, he appeared in the Magistrates Court pleading guilty to offences of burglary and theft, committed on 27 April 2013. He was sentenced to a total time of 18 months imprisonment to commence on 2 May 2013 and suspended on 20 November 2013 with a three year Good Behaviour Order.
81. On 22 July 2014 he was convicted of aggravated robbery, the circumstances of aggravation being the use of an offensive weapon, and also convicted of dishonestly riding in someone else's motor vehicle without consent. Penfold J imposed a sentence of three years and nine months to commence on 21 May 2014 with a non parole period of two years and nine months to commence on 21 February 2013. See R v Sampson [2014] ACTSC 210.
82. Regrettably, the sentence to be imposed on Mr Sampson by the learned Magistrate for the offences the subject of this appeal was complicated because Mr Sampson had earlier been sentenced in New South Wales, but released on parole, which was transferred to Australian Capital Territory. The circumstances are set out in the sentencing remarks of Penfold J in R v Sampson at [16]-[19]. I do not need to repeat them but take them into account.
83. Penfold J cancelled the Good Behaviour Order made on 20 November 2013 to which I have referred above (at [80]) and imposed the 18 months imprisonment, backdated to 21 February 2013 to take account of the pre-sentence custody. Her Honour noted that Mr Sampson was then serving the balance of a sentence imposed in NSW for an offence of breaking, entering and stealing for which he was granted parole. That parole was transferred to the ACT and became an ACT parole order but was automatically cancelled by the convictions on 20 November 2013, though the learned Magistrate failed to make an appropriate order at that time under s 161 of the Crimes (Sentence Administration) Act 2005 (ACT), resulting in him not starting to serve that sentence until arrested on 11 December 2013 for the offences dealt with by Penfold J. He has remained in custody since then.
84. In sentencing Mr Sampson, Penfold J directed that the sentences that she imposed commence on 21 May 2014 for the aggravated robbery and on 21 February 2017 for the offence of dishonestly riding in someone else's motor vehicle without consent. That was partially concurrent with the sentences he was serving following the cancellation of the breach of the Magistrates Court Good Behaviour Order and which was to commence on 21 February 2013, and the balance of his parole for the NSW offence which commenced on 11 December 2013. The sentences imposed would end on various dates, but the whole head sentence is to end on 20 February 2018.
85. Her Honour then made a non parole period to commence on 21 February 2013, when the first of the sentences commenced, and to expire on 20 November 2015.
86. It also has to be noted that, while Mr Sampson was in custody for the above offences dealt with by Penfold J, he appeared in the Magistrates Court to be sentenced for some further offences. On 25 July 2014, he was convicted and fined for possession of methylamphetamine on 1 May 2013. On 22 August 2014, he was sentenced to imprisonment for three months for two offences, one of possessing methylamphetamine and the other of, being a detainee, possessing a prohibited thing, namely cannabis, both committed on 31 December 2013, that is while he was in custody. The sentence was directed to commence on 21 February 2018, that is at the end of the sentence imposed by Penfold J, and a new non parole period was set in accordance with s 65 of the Crimes (Sentencing) Act 2005 (ACT) to commence on 21 February 2013 and to end on 20 November 2015, the same date as the non parole period set by Penfold J.
87. The offences the subject of this appeal were committed shortly after the end of the non parole period, presumably being the date or about the date when he was released to the community. The first was committed on 26 November 2015 about five days after he was released and the second, being 4 January 2016 about six weeks after that date.
88. As Mr Sampson is an Aboriginal man, he was eligible to be dealt with by the Galambany Court. I have described that process in Hall v CL [2015] ACTSC 286 at [36]- [49]. He was dealt with in that Court before being sentenced.
89. In this case, however, I did not have any details of the process that applied to Mr Sampson and, in particular, the Panel's recommendations, which process I explained in Hall v CL at [47].
90. Though it would have been preferable for that information to be available on the appeal, no point was taken on the appeal about any difference between the Panel's recommendations and the sentence imposed.
91. I did not have the transcript of the sentencing hearing before the learned Magistrate, but I did have her Honour's remarks on sentence. Again, it did not appear that either party needed to rely on anything specific that arose in the course of the giving of evidence or making of submissions.
92. As I indicated above (at [39]), her Honour noted that the burglary offence was committed on residential premises rather than commercial premises, which made it somewhat more serious. Her Honour noted that it was committed while Mr Sampson was on parole. As explained by the New South Wales Court of Criminal Appeal, in Boney v The Queen [2015] NSWCCA 291 at [19], relying on what was said by the High Court in Muldrock v The Queen [2011] HCA 39; 244 CLR 120; [27], that is not a matter that affects the objective seriousness of the offence, though it is an aggravating factor in respect to the overall circumstances of the offending.
93. Her Honour described, without further explanation, that the offence of dishonestly taking someone else's motor vehicle without consent as "a relatively serious offence". The maximum penalty made it so, but it seemed to me to be a relatively unremarkable version of that offence; there was no damage to the car, it was not used to commit further crimes, and so on.
94. Her Honour took into account the pleas of guilty, which, her Honour said, facilitated the administration of justice and was indicative of remorse; they entitled Mr Sampson to a discount on the sentence. Her Honour also referred to his criminal history which, her Honour said, did not aggravate the offences. That must be correct, but it did reduce the degree of leniency available to Mr Sampson, which was also correct.
95. Her Honour referred to the matters in the CADAS Report and in the Pre-Sentence Report, as well as in the Victim Impact Statements and, as described in them, the "significant stress" the victims experienced as a result of the commission of the offences.
96. Her Honour then said that she took into account:
the principle of totality, and particularly note that you are already serving a period of custody in relation to other matters. I specifically take into account the principles set out in Bugmy v R (2013) 302 ALR 192 because of the disadvantages that you experienced growing up.
97. Her Honour referred to deterrence as "a highly relevant consideration", while acknowledging rehabilitation as a consideration, because Mr Sampson was "still a relatively young man". Her Honour noted, correctly, that people are entitled to feel safe in their homes.
98. Her Honour also indicated that she would impose a penalty that would "publicly denounce [Mr Sampson's] conduct and hold [him] accountable". Her Honour acknowledged that Mr Sampson was "in the grip of" an addiction when he committed the offences.
99. Her Honour then proceeded to impose sentence as follows:
(a) For the offence of burglary, Mr Sampson was sentenced to imprisonment for three years, reduced from three years and four months imprisonment on account of the plea of guilty. The sentence was said to be wholly cumulative on the sentences he was then serving, so as to commence on 20 May 2018 and end on 19 May 2021;
(b) For each of the offences of theft, he was sentenced to 12 months imprisonment, reduced from 14 months imprisonment for the pleas of guilty. These sentences were to be concurrent with the sentence for the burglary and with each other;
(c) For the offence of dishonestly taking someone else's motor vehicle without consent, he was sentenced to 18 months imprisonment reduced from 20 months imprisonment for the plea of guilty and also to be concurrent with the earlier offences;
(d) For the offence of dishonestly driving someone else's motor vehicle without consent, he was sentenced to 18 months imprisonment reduced from 20 months imprisonment for the plea of guilty. It was directed to be concurrent as to six months with the other sentences, commencing on 20 November 2020 and ending on 19 May 2022.
100. A non parole period of two years was expressed to be set. Despite the requirement in s 65(3) of the Crimes (Sentencing) Act 2005, her Honour did not state when it started, though her Honour did say that he would be eligible to be released on 25 May 2019, in reality the end of the non parole period.
101. There were some discrepancies on the bench sheets and formal order with what her Honour orally pronounced and what is recorded in the transcript as her Honour having pronounced. Thus, for the burglary, the bench sheet and the formal order actually shows a term of imprisonment from 21 May 2018 to 20 May 2021, and for the thefts, a term of imprisonment from 21 May 2018 to 20 November 2019. It appears as though there has been a correction on the bench sheets to those dates from 20 May 2018, 19 May 2021 and 19 November 2019 respectively. Similar amendments appear to have been made to the bench sheets for the offence of dishonestly taking someone else's motor vehicle without consent.
102. Similarly, for the sentence for the offence of driving someone else's motor vehicle without consent, the bench sheet, unlike the orally pronounced sentence, refers to 21 November 2020 to 20 May 2021 and appears to have been amended from some other month to November and from 20 to 21 as well as from 19 [May 2021] to 20 [May 2021]. It was hard to read the first unamended date on this bench sheet.
103. This is curious as there is no reference to such amendments in the transcript. Indeed, the prosecutor requested confirmation of the date for the sentence for the offence of taking someone else's motor vehicle without consent and her Honour confirmed that it would begin on 20 May 2018 and says, "What I have written on the bench sheet is 20 May 2018 to 19 November 2019". The transcript does not record any correction to the dates of the sentences and no other material shows how such an amendment could have been made, though the bench sheet records a correction to 21 May 2018 and 19 November 2019, which are the dates on the formal order.
104. Although the amendment was of 1 day, it was still an additional day for which Mr Sampson would be deprived of his liberty. To amend this without reference to the parties, if, indeed, that happened, would be of concern. See Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178 at 192-4; [81]- [93], although a small amendment such as this may not require a re-listing but at least an explanation: Elson v Ayton at 193; [89]. There was nothing in the papers on the appeal to explain this.
105. Mr J Moffett, counsel for Mr Sampson, conducted the appeal as if there were, despite the ground expressed in the Notice of Appeal, three specific errors in the sentence: a failure to specify the start date for the non parole period, the failure of the learned Sentencing Magistrate to take into account pre-sentence custody, and a failure to apply the principle of totality. The latter may, in fact, be, in reality, the source of the ground of manifest excess. The respondent engaged with each of these challenges and did not complain that they were not expressed in the Notice of Appeal. I was content to proceed on that basis.
106. I shall, therefore, deal with each challenge separately.
107. Section 65 of the Crimes (Sentencing) Act requires a court that imposes a sentence of imprisonment, whether by one term or two or more terms, that is longer than 12 months, to set a non parole period unless it considers that it would be inappropriate to do so having regard to the nature of the offence or offences and to the offender's antecedents.
108. It is very rare for a court to decline to set a non parole period. The reasons for parole have been discussed by the High Court in cases such as Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627-9 and Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 at 530-1. In R v Shrestha [1991] HCA 26; (1991) 173 CLR 48 at 67:
The basic theory of the parole system is that, notwithstanding that a sentence of imprisonment is the appropriate punishment for the particular offence in all the circumstances of a case, considerations of mitigation or rehabilitation may make it unnecessary, or even undesirable, that the whole of that sentence should actually be served in custody.
109. The non parole period is "the minimum time that a judge determines justice requires that [a prisoner] must serve having regard to all the circumstances of his offence": Power v The Queen at 628. Thus, all of the sentence, including both the non parole period and any period on parole, serves all the purposes of punishment including retribution, deterrence, and rehabilitation.
110. In this case, her Honour clearly accepted that there was no basis for not imposing a non parole period. Her Honour, however, failed to comply with the Crimes (Sentencing) Act in two respects.
111. In the first place, s 65(3) of the Crimes (Sentencing) Act requires the Court to specify when the non parole period starts and ends. Her Honour did not do so in terms; her Honour said, "That non parole period will be for a period of two years, and therefore you will be eligible for parole on 25 May 2019".
112. It was submitted that the failure to specify the start and end of the non parole period was an error of law. This is not an easy issue to resolve.
113. On the one hand, s 65(3) of the Crimes (Sentencing) Act states that the Court "must state" these dates. That is, at first sight, a mandatory obligation: Grunwick Processing Laboratories Ltd v Advisory, Conciliation and Arbitration Service [1978] AC 655, 690, 698. This is re-inforced by s 146(2) of the Legislation Act 2001 (ACT), which provides that the use of "must" is an indication "that the function is required to be exercised". Further, s 146(2) is a determinative provision which may be displaced expressly or by a manifest intention.
114. This is relevant here, for there are a number of provisions in the Crimes (Sentencing) Act where a court is, by the use of "must", required to do certain things, such as record reasons for a decision (s 10(4)), give a notice of an order for an offender (s 12(4)), record details of the start and term of sentences (s 75(1)) and include in a notice certain matters such as the term of an order (s 103(2)). In 26 instances of such requirements, the section making the requirement also expressly includes a
sub-section that failure to comply with the relevant requirement does not invalidate the sentence. There is no such provision in s 65.
115. It seems to me that the requirement to state the start and end of a non parole period is obligatory. The consequences of the breach, however, are not easy to determine and a breach does not necessarily invalidate the order made, as McHugh, Gummow, Kirby and Hayne JJ observed in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388-9.
116. In this case, clearly, great inconvenience could flow from non-compliance. In Samuel Montagu & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306, the UK Court of Appeal held that a statement required to be contained in consignment notes could be sufficiently included in accordance with the requirement if not verbatim, but to like effect.
117. Here, the learned Sentencing Magistrate has specified the period of the non parole period (two years) and the date when Mr Sampson will be eligible for parole (25 May 2018), which latter date must reasonably be the date the non parole period ends. From this information, the start date can easily be calculated.
118. While I do not need, for reasons set out below, to make a final finding, I am provisionally of the opinion that her Honour did manage to comply with the requirements of s 65(3) of the Crimes (Sentencing) Act. I leave for another day whether the structure of the Act would mean that non-compliance would have amounted to such an error of law as to invalidate the sentence.
119. That, however, does not end the issue as discussed in oral argument for her Honour was also required also to comply with s 66 of the Crimes (Sentencing) Act. That provides:
66 Nonparole periods - setting if sentence currently being served
(1) This section applies if -
(a) the offender is serving a sentence of imprisonment (the existing sentence); and
(b) the offender is sentenced to a further term of imprisonment (the primary sentence).
Note Pt 5.3 deals with whether the primary sentence is to be served concurrently or consecutively (or partly concurrently and partly consecutively) with the existing sentence.
(2) Section 65 (Nonparole periods - court to set) applies as if the court that imposes the primary sentence had sentenced the person to imprisonment for a term equal to the total of the terms of the existing sentence and the primary sentence.
(3) The imposition of the primary sentence automatically cancels any nonparole period set for the existing sentence.
(4) Any nonparole period set for the primary sentence must not make the offender eligible to be released on parole earlier than if the primary sentence had not been imposed.
120. At the time of sentencing, Mr Sampson was already serving a sentence of imprisonment as noted above (at [84]-[86]). Thus, this section applied.
121. Her Honour was clearly aware of this, for she stated that the terms of imprisonment she was imposing "will be cumulative upon your present period of imprisonment". That further term of imprisonment cancelled the non parole period set for the earlier terms of imprisonment.
122. Thus, her Honour was required to set a further non parole period and, in doing so, to proceed as if the sentence for which the non parole period was set related to the total term of imprisonment, that is to include the earlier terms which Mr Sampson was serving when her Honour sentenced him, as well as the further term to which he was being sentenced. It also required that the date when the non parole period started and ended should be specified.
123. In this case the sentences with which her Honour was required to deal under s 66(2) of the Crimes (Sentencing) Act commenced on 21 February 2013.
124. Whether her Honour understood that is unclear. Her Honour said immediately after imposing the sentence for the offence with which she was dealing:
I am now required as a matter of law to set a nonparole period in relation to those periods of custody, and that is a resetting of the nonparole period, given that you are currently on a period of full-time custody. That nonparole period will be for a period of two years, and therefore you will be eligible for parole on 25 May 2019.
125. While the reference to "those periods of custody" is ambiguous as to whether it referred to the sentences she had just imposed or all the periods of custody, aggregated by virtue of s 66(2) of the Crimes (Sentencing) Act. It perhaps becomes clearer when her Honour refers to the fact that Mr Sampson is "currently on a period of full-time custody".
126. The next sentence, however, is inconsistent for two years from 21 February 2013 would be 20 February 2015. Clearly, that is not when the learned Sentencing Magistrate intended he be eligible for release.
127. Even were her Honour to be referring only to the period of the sentences she was imposing, this did not seem to apply, for that period commenced on 20 or 21 May 2018, depending on whether one accepts the amended or unamended version of the sentence. It would appear that her Honour was calculating the two years from the day and month of sentencing, namely 25 May (though not, of course, the year), not the actual date of the start of the sentence.
128. In my view, a non parole period must commence at the start of the sentence. That is the only basis on which it can comply with the purpose as described in Power v The Queen, namely the period of incarceration that the offender must serve. The offender serves the period from the start of the sentence of imprisonment, not some later date, subject, perhaps, to a notional recognition of subsequent periods of
non-custody, as in Millard v The Queen [2016] ACTCA 14 at [78].
129. The importance of proceeding in this way is that the Court can then see clearly the relationship between the non parole period and the period of parole. Although there is no mathematical formula for such a relationship, it is easy to overlook the relationships that have been established by the courts when imposing earlier sentences and this may well work an injustice.
130. In my view, her Honour clearly did not comply with s 66 of the Crimes (Sentencing) Act and the sentence must be rectified accordingly.
131. Mr Sampson was arrested for these offences on 8 January 2016. He appeared in the Magistrates Court the next day and was remanded in custody. He has remained in custody thereafter.
132. There was no material to suggest when, if ever, his parole granted on or about 20 November 2015 was revoked. As he did not plead guilty until 12 February 2016, it could not have been prior to that date.
133. It would have been important for the learned Sentencing Magistrate to have had that information and, in particular, the date of the re-set sentence because under s 161 of the Crimes (Sentence Administration) Act, the period of parole is not counted towards the serving of the original sentence and, on cancellation of parole, an offender is liable to serve the balance of the period of imprisonment he or she was liable to serve at the parole release date.
134. The short point, however, is that there was a period of pre-sentence custody which Mr Sampson served. That period was not taken into account by her Honour.
135. The usual way this is done is to backdate the commencement of a period of imprisonment to take into account pre-sentence custody. That is provided for in s 63 of the Crimes (Sentencing) Act.
136. It is a matter of discretion as to whether the sentence is backdated: Wronski v Raue [2012] ACTSC 87 at [9]. In that case, her Honour expressed the relevant approach to s 63 of the Crimes (Sentencing) Act at [11], as follows:
My own formulation of the effect of s 63(1) is:
(a) that it provides a genuine discretionary power to backdate for good reason;
(b) that if there is applicable pre-sentence custody as described in s 63(2), there should be appropriate backdating unless there is a good reason not to do so; and
(c) that, at least, explicit reasons should be given for backdating not reflecting
pre-sentence custody, and for not backdating in respect of any relevant pre-sentence custody as described in s 63(3) to (5).
137. Although her Honour, in this formulation, slightly differed from an earlier approach I had articulated, I accept that it is the correct approach to the provision: R v Elphick (No 2) [2015] ACTSC 23 at [86]- [90]. The Court of Appeal appears to have accepted that approach: R v Hutchinson [2014] ACTCA 29 at [20].
138. It seems from the material before me that her Honour's attention may not have been specifically drawn to this issue. On the other hand, her Honour had the bench sheets of the offences before her and they clearly showed the refusal of bail and remand in custody.
139. Her Honour did not provide any indication that she had taken into account the period of pre-sentence custody and gave no reasons for not doing so. In my view, that was an error in the sentencing process. Mr M Fernandez, counsel for the respondent, very properly acknowledged this.
140. In Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 at 62-3, the High Court accepted as a recognised principle of sentencing the principle of totality which was, as the High Court quoted, set out by D A Thomas, Principles of Sentencing (Heinemann London, 2nd ed, 1979) at 56-7, as follows:
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
[footnotes omitted]
141. See also Pearce v The Queen (1998) 194 CLR 610 at 624; [45]; R v Meyboom [2012] ACTCA 48 at [62]- [67].
142. The Court of Appeal in Slater v The Queen [2014] ACTCA 33 at [23], considered the various authorities and concluded:
Two distinct principles may be distilled from these cases:
(a) the totality principle applies in all cases where a court comes to sentence an offender who is currently serving a term of imprisonment; and
(b) where a court is sentencing a multi-jurisdictional offender and cannot achieve appropriate totality by backdating the commencement date of a subsequent sentence, it is appropriate to reduce the head sentence, as well as the non-parole period, of the subsequent sentence to achieve that end.
143. Mr Moffett complained that the sentences imposed by the learned Sentencing Magistrate were simply made fully cumulative on the sentences Mr Sampson was already serving.
144. He did not challenge the individual sentences, nor could he, for they were within range for the offences committed, having regard to Mr Sampson's personal circumstances.
145. He was also faced with the difficulty that her Honour had specifically made reference to the need to respect the totality principle as I noted above (at [96]). Nevertheless, a reference to the principle may not be enough if an appellate court can be satisfied that there is error in the application of the principle. See Wickey v The Queen [2012] ACTCA 38 at [20]- [22].
146. The difficulty in this case is that the reference to totality by her Honour was at the beginning of her Honour's remarks on sentence. That is not at all fatal necessarily, but it does rather suggest that her Honour did not have a "last look", as referred to by Mr Thomas. See also Crawford v Laverty [2008] ACTSC 107 at [44].
147. The total period for which an offender will be incarcerated is relevant, even if the individual sentences have been properly set. This can be dealt with appropriately by a degree of backdating which renders the further sentence partially concurrent. See R v Massey [2016] ACTSC 278 at [88].
148. So far as this is concerned, Mr Moffett referred to the following matters.
149. Mr Sampson has had a serious history of being the victim of sexual abuse which is relevant to his childhood disadvantage. See Bugmy v The Queen (2013) 249 CLR 571 at 594-5; [43]-[44].
150. While he has serious drug and alcohol problems, no doubt in part stemming from his childhood experiences, he has had some prior rehabilitation in the past and is participating in relevant programs while in custody, expressing a wish to address his addiction and, where he can, taking steps to progress it.
151. A major problem for Mr Sampson is that his prior custody, which has been a very large feature of his life since 2002, and whilst not entirely continuous, has been enough to render him somewhat institutionalised. This will require a complex process of integration into the community when he is released with a reasonably lengthy parole period and, probably, a period of post-custody residential rehabilitation.
152. It seems to me that her Honour did not properly consider the issue of totality.
153. Having come to the view that the learned Sentencing Magistrate did not properly impose the non parole period, failed to take into account pre-sentence custody and did not apply the principle of totality, the appeal has been made out.
154. The individual sentences have, however, not been challenged. I do not consider that they need to be significantly revisited other than to make some small adjustments to bring them into line with desirable sentencing practice. Accordingly, I will structure the sentence in a rather different way. This will apply also to the partial cumulation and concurrency of the sentences as between them.
155. I consider that the principle of totality requires some concurrency between the sentences imposed by her Honour and those Mr Sampson was serving at the time he was sentenced in addition to taking into account pre-sentence custody.
156. I consider that a reasonably long period of parole is necessary as his current desire for rehabilitation in a residential drug rehabilitation facility will require intense and lengthy supervision if Mr Sampson is to be able to conduct himself in the community without further offending.
157. I will also recommend that any grant of parole be conditional upon him entering a residential facility if that remains appropriate.
158. Accordingly, I will uphold the appeal and re-sentence Mr Sampson as indicated in these reasons.
159. Thus, in re-sentencing, I will reduce the sentence for the offence of burglary to bring it more into line with current sentencing practice, but will make two of the offences of theft partially cumulative because of the significant monetary and sentimental value of the property stolen. See R v McMahon [2014] ACTSC 280 at [94].
160. The value of the motor vehicle dishonestly taken without consent on 26 November 2015 also justifies some degree of cumulation of the sentence for the other offences.
161. The offence of dishonestly driving someone else's motor vehicle without consent, being unrelated and committed some time later, justifies a cumulative sentence, somewhat concurrent to comply with the totality principle.
162. I will impose sentences that give effect to these considerations.
I certify that the preceding one hundred and sixty-two [162] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Sampson
De Haan [2016] ACTSC 327
(2014) 46 VR 308
(1990) 169 CLR 525
(2013) 249 CLR 571
(2011) 32 VR 361
(2010) 5 ACTLR 151
(2010) 241 FLR 178
(1936) 55 CLR 499
(1988) 166 CLR 59
(1998) 194 CLR 610
(1974) 131 CLR 623
(1998) 194 CLR 355
(2002) 37 MVR 354
(1991) 173 CLR 48
(2011) 6 ACTLR 18
(2000) 202 CLR 321
(2014) 305 ALR 323
(2005) 228 CLR 357
(2009) 3 ACTLR 210
(1979) 23 SASR 98
(2013) 302 ALR 192