APPEAL - appeal from decision of the Magistrates Court of the ACT - principles for determining sentencing appeals - Magistrates Court Act 1930 (ACT).

CRIMINAL LAW - sentencing - refusal of sentencing Magistrate to grant adjournment for preparation of CADAS report - appellant's history of drug abuse canvassed in pre-sentence report - failure of appellant to provide evidence of rehabilitation intentions - no error by Magistrate.

CRIMINAL LAW - sentencing - Magistrate's consideration of alternatives to full-time imprisonment - no obligation to make a deferred sentence order - appellant's unsuitability for community service work or periodic detention does not entitle her to a more lenient sentence - no error by Magistrate - Crimes (Sentence Administration) Act 2005 (ACT), s 10.

CRIMINAL LAW - sentencing principles - whether sentences manifestly excessive - offences at lower end of spectrum - inadequacy of information about quantity of heroin - Magistrate's approach to time in custody - relevance of appellant's mental or emotional state to theft offence - significance of no time in custody before offence committed - sentencing for Centrelink fraud - term of imprisonment is starting point but not inevitable outcome - sentences on ACT offences manifestly excessive.

CRIMINAL LAW - sentencing principles - pleas of guilty - no requirement to give discount or explain why no discount given - Magistrate erred by failing to consider pleas of guilty - Crimes (Sentencing) Act 2005 (ACT) ss 35, 37.

CRIMINAL LAW - sentencing - totality - no evidence Magistrate failed to apply totality principle properly.

Crimes Act 1914 (Cth), s 16A

Crimes (Sentencing) Act 2005 (ACT), s 10, 35, 37, 117

Drugs of Dependence Act 1989 (ACT), s 171

Bates v Wheatley [2000] WASCA 38 (18 January 2000)

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

DPP (Vic) v Raddino [2002] VSCA 66; (2002) 128 A Crim R 437

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

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

Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357

Mill v R (1988) 166 CLR 59

Taylor v Bowden [2009] ACTSC 13 (2 March 2009)

R v Purdon (unreported, NSWCCA, Hunt, McInerney and Donovan JJ, 27 March 1997)

R v Seckold [2005] ACTSC 34 (18, 22 February 2005)

R v Thomson; R v Houlton [2000] NSWCCA 309 (17 August 2000)

R v Tsokos [1995] NSWCA 388 (19 June 1995)

Ring v Beath [2009] ACTSC 19 (16 March 2009)

The Queen v Brewer [2004] ACTCA 10 (1 June 2004)

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. This is an appeal by Koni Margaret Scrivener from four sentences of imprisonment imposed in the Magistrates Court in relation to offences of:

(a) obtaining a financial advantage for another under subs 135.2(2) of the Commonwealth Criminal Code Act 1995 (the Commonwealth Criminal Code);

(b) providing false or misleading information under subs 137.1(1) of the Commonwealth Criminal Code;

(c) possession of a prohibited substance, namely heroin, pursuant to subs 171(1) of the ACT Drugs of Dependence Act 1989; and

(d) minor theft under s 321 of the ACT Criminal Code 2002 (the ACT Criminal Code).

2. At the same hearing, the appellant was also sentenced for five other offences, being minor drug and traffic offences, but there is no appeal from those sentences.

Obtaining a financial advantage/providing false or misleading information

3. On 18 January 2006 a Mr Robert Feeney, a recipient of Centrelink Newstart payments, was remanded to the Belconnen Remand Centre (BRC). Centrelink was informed of his remand on 19 January, but did not at that stage cancel his payments.

4. On 27 January 2006 the appellant visited the BRC, and Mr Feeney "signed his ATM card over to her" (it is not clear to me how an ATM card is "signed over", but it appears to be assumed in relevant material that the effect was to enable the appellant to access Mr Feeney's bank account).

5. On 10 February 2006 the appellant became the correspondence nominee for Mr Feeney in his dealings with Centrelink. This entitled her to receive information about Mr Feeney's payments and entitlements and provide information on his behalf. That day, she lodged his fortnightly payment continuation form, informing the Centrelink officer that Mr Feeney was in hospital and unable to lodge his form. the appellant had visited Mr Feeney in the BRC two weeks before making this statement and therefore must have known that her statement was false or misleading (this was the basis of the provide false or misleading information charge). On 13 February 2006, Centrelink deposited a payment of $437.70 net (after recovery of an earlier overpayment) into Mr Feeney's bank account (this was the basis of the charge of obtaining a financial advantage for another).

6. The appellant was charged with these offences, and two other related offences, on 5 September 2007. At the hearing on 7 March 2008, no evidence was offered on the other two charges and the appellant pleaded guilty to the two offences described above.

7. On 6 March 2007, the appellant was observed in a Woden supermarket taking toys, nappies, baby formula and jumpsuits from the display and hiding them in an empty pram. She then went out through the checkout without paying for the items, which were valued at $275.65 in total.

8. The appellant was approached by security officers, and tried to run away. She was detained in the supermarket's security office, police were called, and later that day she was formally arrested and charged with minor theft. She pleaded guilty to this offence on 18 June 2007.

9. On 5 September 2007, police stopped a car being driven by the appellant in Red Hill, ACT. A search of police indices revealed that a first instance warrant had been sworn for the appellant, and she was arrested and held overnight.

10. The following morning, police at the City Watchhouse had difficulty rousing the appellant. They found a syringe and a small plastic package in her hands, which, they suspected, contained heroin. It seems that the contents of the syringe and the plastic package were never analysed to confirm the presence of heroin, but the appellant pleaded guilty to a charge of possessing a prohibited substance, namely heroin, on 19 September 2007.

11. On 7 March 2008, the appellant was sentenced in the Magistrates Court for the four offences. She was sentenced to a total term of 6 months and 24 days imprisonment, made up of:

(a) 24 days imprisonment for possession of a prohibited substance (reflecting time already served); and

(b) 3 months imprisonment for each Commonwealth offence, to be served concurrently with each other but consecutively on the possession sentence; and

(c) 3 months imprisonment for the minor theft charge, to be served consecutively upon the Commonwealth sentences.

12. The appellant began a period of full-time imprisonment immediately on being sentenced. She lodged an appeal against sentence on 2 April 2008, but remained in custody until she was released on bail on 1 May 2008, having served the possession sentence and nearly 2 months of the Commonwealth sentences.

13. The grounds of appeal set out in the Notice of Appeal are as follows:

(i) her Honour failed to order a CADAS report so that the appellant's drug problems could be properly assessed prior to sentencing;

(ii) her Honour miscarried her discretion in failing to impose a deferred sentencing order that would have allowed the appellant to undergo drug rehabilitation before sentencing;

(iii) her Honour did not give proper consideration to alternative sentencing options before imposing a sentence of imprisonment on the appellant;

(iv) her Honour erred in sentencing the appellant on charge CC2007/8774 (possession of heroin) when there was no information on the amount of heroin found in the appellant's possession;

(v) the sentences were manifestly excessive in the circumstances (this ground originally related only to the minor theft sentence, but was amended at the hearing, by leave, to encompass all four sentences);

(vi) her Honour miscarried her discretion in failing to grant an adjournment to allow the appellant to obtain further information concerning her treatment for drug abuse and/or proposals for rehabilitation;

(vii) her Honour miscarried her discretion in failing to reduce the sentences for a guilty plea or, alternatively, she failed to explain the reduction in sentence as required by s 37 of the Crimes (Sentencing) Act 2005; and

(viii) in directing that the sentence on charge CC2007/2413 be served consecutively with the sentence on charges CC2007/42027 and CC2007/42030, her Honour failed to consider the principle of totality.

14. Counsel for the appellant did not seek to adduce further evidence on appeal.

15. The maximum penalty for the Commonwealth offences includes imprisonment for 12 months, and the maximum penalties for the minor theft and possession offences include imprisonment for 6 months and 2 years respectively.

16. On an appeal against sentence, an original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 324-325; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at 371).

17. As well, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 340). That is, no specific error need be shown to justify a finding that the sentence is "manifestly excessive", and if specific error is shown then there is no need to argue manifest excess.

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

Grounds (i) and (vi) - failure to order a CADAS Report or to adjourn to allow appellant to obtain more evidence re drug problems

19. At the hearing in the Magistrates Court, the appellant's then counsel had submitted that further information about the appellant's drug use, specifically by way of a report from the Court Alcohol and Drug Assessment Service (CADAS), would be helpful in sentencing, because since the preparation of the pre-sentence report the appellant had sought admission to a residential rehabilitation program (Kadesh House) and had started a methadone program. He sought an adjournment to obtain a CADAS report, and indicated that both prosecutors (for the Commonwealth and for the ACT) agreed to his proposal.

20. The learned Magistrate, however, refused a further adjournment, on the basis that the appellant "has a shocking record of not complying, not appearing, breaching bail, breaching conditions, not attending". She went on:

... if you tell me that she is a drug user I'll accept that ... you can address me as to what she is doing to try to rehabilitate because she is a person, if she keeps on taking drugs and stealing ... . She's a person at high risk of reoffending and that's the concern here. So, you can tell me what, if anything, she is doing to rehabilitate herself.

21. Having issued this invitation, however, her Honour then asked for proof of the matters mentioned by counsel from the bar table about the appellant's efforts in relation to rehabilitation, and did not respond to counsel's advice that he could probably obtain evidence, but hadn't had time to follow it up at that stage. That is, having refused a request for time to allow a proper assessment to be made by way of a CADAS report on the basis that information could be given from the bar table, her Honour then proceeded to sentence on the basis that:

... there is nothing at all to suggest that she has done absolutely anything in relation to any rehabilitation and ... she has been given opportunities to undertake drug and alcohol counselling and she still committing offences ... she hasn't taken prior opportunities and now at the 11th hour because she is just about to be sentenced on various charges, she is now saying that she wants an opportunity to rehabilitate. It's just a little bit too little and a little bit too late ... is it not?

22. The pre-sentence report was dated 27 February 2008, just over a week before the appellant was sentenced, but it was suggested on behalf of the appellant that she had been interviewed for the report at some time in January before her most recent rehabilitation attempts. On the other hand I note that the pre-sentence report refers to a failure by the appellant to report for scheduled appointments; it seems, although it is not absolutely clear from the pre-sentence report, that the scheduled appointments were on 10 December 2007 and 30 January 2008. No information was available, either at the appeal hearing or, apparently, in the Magistrates Court, about the actual date of the pre-sentence report interview, or about the significance of the missed appointment apparently scheduled for 30 January 2008, or about the dates of the appellant's claimed steps toward rehabilitation (that is, the dates on which the appellant had contacted Kadesh House and had commenced on the methadone program).

23. The pre-sentence report did, however, identify the appellant's history of drug abuse, and also reported her belief "that she will be able to overcome her dependence on heroin".

24. As well, despite criticising the absence of independent evidence of the appellant's approach to Kadesh House and of her engagement with the methadone program, her Honour did in fact appear to accept the advice given by the appellant's counsel, at least about the approach to Kadesh House, when she said:

I am told today, that she has, last week, made arrangements, or made some phone calls for an admission to a drug rehabilitation centre.

25. It may be unfortunate that her Honour, having refused to give an opportunity for further evidence about drug issues to be sought, then appears to have taken exception to the absence of such evidence at the hearing. However, noting the appellant's failure to provide any of the evidence of her rehabilitation intentions that should have been available to her even without a CADAS report (presumably in the expectation that the requested adjournment would be granted), and the appellant's apparent failure to develop such intentions until long after the offences were committed and very shortly before she was sentenced, it is not clear that her Honour was unreasonable in concluding that:

... her prospects of rehabilitation in my view are very small. She is a person who has failed in the past. She is someone who doesn't show herself to have much commitment to rehabilitate. ... She's still using, or she admits that she is still using illicit drugs. That is what it says in the pre-sentence report, and there is no evidence to the contrary, so that's the way that I take it.

26. I note also that a CADAS report could have been sought earlier, when the pre-sentence report was ordered; even in the absence of any steps towards rehabilitation, the appellant's drug use history might have been relevant to her sentencing. As well, even without a CADAS report, the appellant could have offered more convincing evidence of her most recent rehabilitation attempts (for instance, in the form of letters from Kadesh House and the methadone program).

27. In the circumstances, I do not consider that her Honour fell into error in refusing the adjournment sought.

Grounds (ii) and (iii) - failure to properly consider alternatives to full-time imprisonment

28. Counsel for the appellant submitted that her Honour failed to properly consider possible alternatives to full-time imprisonment as required by s 10 of the Crimes (Sentencing) Act 2005 (the Sentencing Act).

29. At the sentencing hearing, the appellant's then counsel mentioned the appellant's participation in the methadone program, the alcohol and drug counselling she was receiving, and her wish to attend a rehabilitation centre, and invited the learned Magistrate to make a deferred sentence order. Her Honour indicated that she was not minded to grant a deferred sentence, saying "I can't see why I would be minded". Although at no stage did her Honour specifically or directly explain why she was not so minded, she made several comments in the course of the hearing to the effect that she was not convinced that the appellant was serious about rehabilitation (see, for instance, her Honour's comments quoted at [21] above).

30. Counsel for the appellant submitted that a comment in the pre-sentence report to the effect that "a deferred sentence may be beneficial to allow [the appellant] sufficient time to address her substance abuse issues", coupled with the contention of her counsel in the Magistrates Court that the appellant was now interested in pursuing rehabilitation, suggested that a deferred sentence order would have been the most appropriate penalty in the circumstances and that having regard to s 10 of the Sentencing Act, this option should have been more thoroughly considered by the sentencing Magistrate.

31. Counsel for the ACT DPP noted that her Honour did in fact consider and reject the option of imposing a deferred sentence; the past failures of the appellant to comply with court orders, coupled with her criminal history and the learned Magistrate's view of the seriousness of the offences, persuaded her Honour that only a sentence of full-time imprisonment was appropriate in the circumstances.

32. Counsel for the Commonwealth DPP noted that a deferred sentence is not a sentencing alternative under Commonwealth legislation, although she conceded that a Griffiths remand (see Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293) could have been used to achieve the same results in relation to the Commonwealth offences.

33. The learned Magistrate was under no obligation to impose a deferred sentence, as is clear from par 117(3)(a) of the Sentencing Act:

_(3) The court may make, or decline to make, a deferred sentence order despite - _

(a) any recommendation in any pre-sentence report about the offender's suitability for a deferred sentence order;

As well, I find that the pre-sentence report comment (see [30] above) did not in any case amount to a recommendation about the appellant's suitability for a deferred sentence (see Taylor v Bowden [2009] ACTSC 13 (2 March 2009), Gray J at [28]). The pre-sentence report comment contained little more than a statement of the obvious - that deferred sentences allow offenders time to address substance abuse issues. The pre-sentence report assessed the impact of a deferred sentence on a person in the appellant's position; it made no assessment of the particular appellant's suitability for such a sentence, or about the likelihood that she would be able to benefit from it.

34. In argument, counsel for the appellant conceded that a sentencing court is not required to provide express reasons in respect of every sentencing option not adopted, but he articulated the following test for a requirement to give reasons for refusing a particular option:

Where on the facts of a case it appears that a sentencing option may be particularly appropriate or desirable, then the reason for that option not being adopted by the court should be made known to the offender in sentencing remarks.

35. This formulation appears to set out an unobjectionable proposition, but that is partly because it is probably too vague to impose any particular obligations on sentencing courts. The formulation assumes that the scope of "the facts of a case" can be readily identified, and that it is possible to apply an objective test to the question whether, on the basis of those facts, a sentencing option is particularly appropriate or desirable. That may be correct in some cases, but it is not clear that in this case there was any useful objective evidence before her Honour to support a suggestion that the appellant was particularly committed, or even open, to a serious attempt at rehabilitation such as to provide the basis for a deferred sentence. Rather, the appellant's previous failure to make any progress in rehabilitation would presumably have been seen by her Honour as part of the facts of the case, and on that basis there would have been no obvious reason to see a deferred sentence as particularly appropriate or desirable. I note also that although the appellant's counsel at the sentencing hearing did mention the deferred sentence option three times, he did not refer her Honour to the comment in the pre-sentence report. Nor did he make any submissions about why her Honour should have taken the appellant's rehabilitation plans seriously at that time.

36. Thus, counsel's formulation does not resolve the issue in this case. I cannot find any basis for suggesting that her Honour was obliged to make a deferred sentence order, or that she did not give adequate consideration to that option.

37. Her Honour also, in the course of sentencing, referred to the fact that the appellant had been found unsuitable both for community service work and for periodic detention. I accept the submission of counsel for the Commonwealth DPP that ruling out those sentencing options did not thereby entitle the appellant to a more lenient sentence, but that it was up to the sentencing Magistrate to find the most appropriate sentence available; see R v Tsokos [1995] NSWCA 388 (19 June 1995), in which Hulme J, with whom Gleeson CJ and Powell JA agreed, said at [9]:

There is nothing in R v Christine Blair _[_unreported, 20/11/1987] to support the view that a court, unable to impose a sentence it regards as theoretically the most appropriate, is obliged to impose a sentence that is more lenient. The correct approach is to choose from the available options the sentence which is most appropriate.

38. I find that there was no error in her Honour's consideration of alternative sentencing options.

Ground (iv) - the quantity of heroin in the appellant's possession

39. Counsel for the appellant noted that at the sentencing hearing, the DPP did not tender any evidence about the precise quantity of heroin found in the appellant's possession, or indeed evidence confirming that it was heroin. He submitted that this absence of information adversely affected the learned Magistrate's ability to sentence the appellant.

40. Counsel for the ACT DPP disagreed with the appellant's submission, contending that the information provided in the police Statement of Facts, which was agreed on behalf of the appellant, taken with the appellant's plea of guilty, was enough for the Magistrate to proceed to sentence. She also highlighted the discussion between the appellant's solicitor and the learned Magistrate, in which her Honour acknowledged that the amount of heroin was "small".

41. Given the appellant's undisputed history of heroin use, the circumstances of the finding of the syringe and packet, and the appellant's plea of guilty, I cannot see that the learned Magistrate fell into error in accepting that the substance found in the appellant's possession was heroin, and sentencing her on the basis that it was a small amount of heroin.

Ground (v) - that the sentences were manifestly excessive

42. The appeal ground that the sentences were "manifestly excessive" does not require an appellant to identify any error on the part of the sentencing court. Rather, establishing that a sentence is manifestly excessive allows an otherwise unidentifiable error to be inferred. The courts have noted that manifest excess, and its counterpart, manifest inadequacy, almost by definition, are difficult to explain and difficult to argue. In Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6], Gleeson CJ and Hayne J said:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

43. In DPP (Vic) v Raddino [2002] VSCA 66; (2002) 128 A Crim R 437, Chernov J, with whom other members of the Victorian Court of Appeal agreed, said at [30]:

This Court has often said that a ground of manifest inadequacy does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly inadequate or it does not.

44. The relevant circumstances to be drawn to the court's attention include the objective and subjective features of the offence and the offender. These matters will be particularly useful in a "manifest excess" inquiry if they can be placed in the context of different penalties imposed in cases that are recognisably similar or where the penalties are similar but the objective and subjective features of the offence and the offender are recognisably different. These comparisons may be useful in considering whether, having regard to the features of the particular case, the sentence imposed on the appellant was outside the appropriate range for that offence committed by that appellant in those circumstances.

45. Counsel for the appellant identified several matters relevant to the claim of manifest excess.

46. The Commonwealth offences relate to a single payment of $437.70 net (after recovery of an earlier overpayment of around $60). The appellant was initially also charged in relation to other transactions, but no evidence on those charges was offered at the hearing. The appellant had no previous convictions for Commonwealth fraud offences, and the payment was being recovered from Mr Feeney.

47. As already mentioned, the quantity of heroin involved was very small and the goods taken in the minor theft were of low value and were all recovered.

48. All the offences appear to be less serious examples of the conduct proscribed by the applicable legislation.

49. The effect of sentencing the appellant to 24 days time served for the possession of heroin charge was to deny her any credit for time served in respect of the other offences.

The appellant's drug addiction and troubled medical history

50. The appellant claimed that the minor theft was done to support a drug addiction. The incident involved stealing items for babies; it is possible that such items are readily sold for cash, but it seems unlikely that they are particularly negotiable items in the illicit drugs market.

51. The appellant has a troubled medical history, which includes a confirmed ectopic pregnancy, claims of miscarriages and still births, and a pregnancy which seems to have resulted in the birth of a live child whose whereabouts could not, however, be established by the pre-sentence report author. Counsel did not suggest that there might be any connection between this history and the nature of the items taken in the minor theft, but I would not rule out the possibility that the theft had as much to do with the appellant's disturbed emotional state as it had to do with her drug addiction.

Absence of any direct benefit from the Commonwealth offences

52. Counsel for the appellant contended that she obtained no direct benefit from the Commonwealth offences. Having regard to the relationship between her and Mr Feeney and in particular her ability to access his bank account, I do not accept this submission. Counsel pointed out that any reparation order would be directed at Mr Feeney, not the appellant, but this does not exclude the possibility that the appellant obtained a direct or indirect benefit from the Commonwealth offences.

Absence of previous experience of full-time custody

53. The appellant had no experience of full-time custody at the time she committed the Commonwealth offences. In June 2006, several months after those offences were committed, but before the minor theft and the possession offences, she spent 6 weeks in full-time custody for breach of a periodic detention order. There is an argument to be made that even a repeat offender who has no experience of full-time custody when he or she offends should not necessarily be assumed to need a sentence at the high end of the scale in order to be effectively deterred from offending again. That is, at least for an offence where a fairly short term of imprisonment is available, the first such term should appropriately reflect the nature and seriousness of the offence but need not always be set at the high end of the applicable range in order to ensure a deterrent effect. For some offenders, even repeat offenders, one experience of full-time custody will be enough to deter future offences (see my comments in Ring v Beath [2009] ACTSC 19 (16 March 2009) at [34] and [35]).

54. Counsel submitted that both the sentences themselves, and the accumulation of the sentences, were manifestly excessive, given that, as mentioned in [48] above, all the offences were less serious examples of the proscribed conduct concerned.

55. Counsel for the ACT DPP conceded that the appellant's offences did not "fall into the highest range", but maintained that the sentences were appropriate given the serious nature of the appellant's conduct. She also submitted that the appellant should not be afforded any leniency in view of her past criminal behaviour, which included among other things a number of convictions for minor theft and receiving stolen property.

56. Counsel for the Commonwealth DPP submitted that a court sentencing an offender for crimes involving Centrelink fraud should generally start from a period of imprisonment, although she did concede that this was not a rigid rule. The principle, set out in R v Purdon (unreported, NSWCCA, Hunt, McInerney and Donovan JJ, 27 March 1997), was referred to and approved by the ACT Court of Appeal in The Queen v Brewer [2004] ACTCA 10 (1 June 2004) (Brewer) in which Gray, Connolly and Gyles JJ said at [12]:

There is a long line of New South Wales Court of Appeal authority to the effect that in the case of fraud against the social security system a custodial sentence should be imposed unless there are "very special circumstances" justifying some lesser order: [references omitted]

The formulation adopted by the New South Wales Court of Appeal that "special", or even "very special" circumstances must be shown to justify anything other than an immediate custodial sentence, could lead to error if it were taken to mean that a non-custodial sentence would only be appropriate in circumstances that were mathematically unusual, and a sentencing magistrate or judge would err if they refused to look at the individual circumstances of the offender beyond finding that those circumstances were not unique or unusual. As Crispin J observed in Cruse v Treminio [[2001] ACTSC 59] at [6] -

Judges and magistrates frequently state that for offences of a particular kind sentences requiring the offenders to actually serve some period of imprisonment will generally be appropriate or even that such sentences will be appropriate save in exceptional circumstances. Such statements reflect the general experience of the courts and are intended to sound a warning to those tempted to commit such offences. They should not be seen as the adoption of legal rules which, in effect, reverse the principle that a sentence of imprisonment should be imposed only when no other penalty would be adequate, and cast some onus onto offenders to demonstrate that their circumstances are sufficiently unusual to merit a description such as "exceptional" or "very special". It is true that lenient sentences should not be imposed if they do not reflect a just response to the criminal conduct of offenders. It is also true that in cases of deliberate and sustained fraud imprisonment is likely to be required and the scope for leniency may be limited. However, where leniency is warranted, it should not be withheld merely because it might also be warranted in other cases. Neither justice nor mercy should be rationed.

58. I interpret this authority to mean that, although a sentence of imprisonment might be the starting point in sentencing for Centrelink fraud, it will not be the inevitable outcome. I would add to this the further comment that the starting point of imprisonment must be more readily departed from in some cases than in others. For instance, an offence carrying a shorter maximum term of imprisonment (eg 12 months imprisonment as in this case) would seem to allow more flexibility than one carrying a longer maximum term (eg 10 years imprisonment as in Brewer). Equally, an offence involving a very small amount of money (eg around $500 in this case) would seem to allow more flexibility than one involving a very large amount of money (eg over $80,000 in Brewer).

59. Thus, I do not consider that her Honour was in any sense obliged to impose sentences of imprisonment in relation to the Commonwealth offences. On the other hand I note that her Honour appears to have decided, for reasons that emerge from her sentencing remarks, that in this case no leniency was warranted and that prison sentences were appropriate.

60. Although 3 months imprisonment for each of the Commonwealth offences, even to be served concurrently, may be at the harsh end of the scale considering the nature and circumstances of the offences and the small amount of money involved, I do not consider, having regard to Brewer, that these sentences are so harsh that error on her Honour's part must be inferred.

61. The ACT offences, however, are a different matter.

62. A sentence of 3 months imprisonment for the theft offence, given that the maximum penalty was 6 months imprisonment, the goods were of low value (even within the limits of a minor theft charge), and all the goods were recovered, seems in any case to be severe. As mentioned at [51] above, the nature and circumstances of the particular theft must also raise some questions about the appellant's mental or emotional state at the time.

63. More significantly, however, the sentence of 24 days imprisonment for an offence that involved, apparently, no more than a trace of heroin left in a syringe and not even analysed, being an offence that was detected solely because the appellant was already in custody on an earlier offence, seems with respect to reflect a convenient way of dealing with time in custody rather than a reasoned decision that the offence, of itself, justified nearly a month in custody.

64. I note in this context appeal ground (iv), related to the inadequacy of information about the quantity of heroin involved in this offence. It may be that her Honour did not properly consider whether she was sentencing the appellant for possession of the traces of heroin in the syringe and the plastic packet or in fact for a quantity of heroin that included the heroin that the appellant had apparently already administered to herself while in custody.

65. Having regard to the matters mentioned in [62] to [64] above, I find that the ACT sentences of imprisonment for 24 days and for 3 months were manifestly excessive.

66. This appeal ground identifies in the alternative two possible errors, namely failing to give a discount for a plea of guilty, and failing to give reasons for not giving such a discount in breach of s 37 of the Sentencing Act.

67. It is not clear that failing to give a sentencing discount as such is an error; s 35 of the ACT Sentencing Act confers a power rather than a duty to give such a discount, while par 16A(2)(g) of the Crimes Act 1914 (Cth) only requires the court to take a plea of guilty into account in sentencing. Nor is failing to give reasons for refusing such a discount in breach of s 37 of the ACT Sentencing Act, which in fact requires only that if such a discount is given, the sentence that would have been imposed but for the discount should be specified (there is no equivalent provision in the Commonwealth Crimes Act).

68. In the NSW Court of Criminal Appeal's Guideline Judgment in R v Thomson; R v Houlton [2000] NSWCCA 309 (17 August 2000), Spigelman CJ said at paragraph [52]:

The absence of any reference to actual consideration of the guilty plea in the course of the sentencing should, as a general rule, in the light of the obligation of sentencing judges to give reasons for their decision, lead to an inference that the plea was not given weight.

69. As implied by Spigelman CJ, the basic error in relation to sentencing discounts for pleas of guilty involves failing to have regard to a plea of guilty (this is an error contemplated by both the ACT and the Commonwealth provisions). Failing to give reasons for refusing a discount, while not an error itself, might lead to a finding of error if it meant that an appeal court could not be satisfied that the plea had been properly considered.

70. The learned Magistrate referred to the appellant's pleas of guilty, but only in her introductory description of the offences for which she was sentencing the appellant

... the defendant has pleaded guilty to various charges ... She has also pleaded guilty to another charge ...

71. There was no indication of what Spigelman CJ referred to as "actual consideration of the guilty plea".

72. Counsel for the respondents submitted, correctly, that her Honour was not obliged to give a discount for any of the pleas of guilty, and pointed to:

(a) the limited utilitarian value of the pleas of guilty relating to the two Commonwealth offences, which were entered only on the day of the contested hearing; and

(b) the appellant's apparent lack of remorse, which counsel inferred from the pre-sentence report author's comment that the appellant "has denied responsibility for this offence, despite pleading guilty".

73. These factors might have justified her Honour in refusing to give any discount for the pleas, but she did not identify them as her reasons for doing so. In those circumstances, it is a real possibility that her Honour simply did not consider the pleas properly.

74. As to the specific submissions made on behalf of the respondents, I note that the pleas may not have been as insignificant as suggested.

75. The pleas of guilty on the Commonwealth offences were certainly made late in the day. However, it is possible that, when accompanied by a prosecution failure to offer evidence on two other charges, they reflected some negotiations between the appellant and the prosecution, and were in fact made at an early opportunity after those negotiations concluded. At the beginning of the contested hearing, counsel for the Commonwealth DPP said:

Your Honour, this is a social security case and it has four charges. I understand my course - my friend proposes a course of action in relation to charge 42030 and 42027. In relation to the two remaining charges, 42028 and 42029, the prosecution withdraws those charges on the basis that there's no evidence to offer.

76. Counsel for the Commonwealth DPP later recognised that a sentence focused on rehabilitation might be considered. This approach, and counsel's comment that "my friend proposes a course of action", are consistent with the possibility that the pleas were made in accordance with a prior agreement, and this possibility was not ruled out at the appeal hearing. Pleas of guilty emerging from negotiations may carry less weight in some respects than earlier pleas, but should not necessarily be treated as late pleas of guilty.

77. The failure to take responsibility mentioned by the pre-sentence report author and interpreted as showing a lack of remorse in relation to the theft charge may also be more complex than it appears. The pre-sentence report comment is worth quoting in full:

[The appellant] has denied responsibility for this offence despite pleading guilty. She claims she did not leave the store with the pram and the stolen items and that she was looking for advice from her partner who was waiting outside the store with the couple's child. She denied secreting items in various sections of the pram and stated that she had left the pram inside the store when she went to look for her partner.

78. The appellant's story is quite inconsistent with the agreed statement of facts for this offence; in particular, the appellant asserts that her partner was waiting for her outside with their child, but there is no reference to the child in the statement of facts, which refers to a male friend who was waiting for the appellant outside the store getting involved in a scuffle with the loss prevention officer. It is possible that the appellant's story reflects a deliberate refusal to take responsibility for the offence despite pleading guilty, but it is also possible, noting that the appellant has apparently been separated from the only live child she has borne (see [51] above), that the appellant has a tenuous grip on reality in matters affecting her child.

79. On the basis that the pleas did deserve to be given some weight, and in the absence of any explanation of her Honour's approach to the pleas of guilty in her sentencing remarks, it is more appropriate to infer that the pleas were not properly considered than to infer that they were considered and disregarded for good reason.

80. My finding that the sentences for the ACT offences were excessive, and those for the Commonwealth offences were harsh, is consistent with a finding that her Honour did not take account of the appellant's pleas of guilty, although of course neither of those first-mentioned findings logically implies that her Honour did not take sufficient account of the pleas of guilty. Counsel for the Commonwealth DPP referred me to the case of Bates v Wheatley ([2000] WASCA 38 (18 January 2000)), a decision of a single judge of the WA Supreme Court, who found, where the sentencing Magistrate had imposed the maximum sentence available on an offender who had been caught while committing the offence and had pleaded guilty:

In all those circumstances it seems to me that the fact that the learned Magistrate did not refer expressly in his reasons to the plea of guilty does not reflect a failure on his part to take the plea into account. It merely reflects that the plea of guilty was not a mitigating factor of any weight and was not one which therefore had the effect of reducing the sentence.

81. Where an appeal court is also satisfied that the pleas should have been given no weight, a finding of this sort may be consistent with the view of Spiegelman CJ in the Guideline Judgment (see [68] above); it is not clear to me that it is a safe finding where the appeal court considers that the pleas may have had some real significance.

82. In this case, I find that her Honour was in error in failing to give proper consideration to the appellant's pleas of guilty.

83. Counsel for the appellant submitted that the learned Magistrate erred by failing to take into account the principle of totality and erred in her accumulation of sentences.

84. In Mill v R (1988) 166 CLR 59 (Mill), the High Court at 62-63 explained the totality principle as follows:

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

85. This principle has been followed in the ACT. In R v Seckold [2005] ACTSC 34 (18, 22 February 2005) Crispin J said at [32]:

... it may nonetheless be appropriate to look at the overall effect of the sentences and to scale them back, so that the totality of the punishment involved will be reasonably commensurate with the overall course of the criminal conduct.

86. The second respondent, supported by the first respondent, argued that each offence subject to appeal arose from separate and discrete conduct, and should be treated as such by a sentencing court. Counsel submitted that "the principle of totality doesn't go so far as to mean that individual criminal offences need to be wrapped up, so to speak, and sentenced to concurrent terms of imprisonment", and that the sentences imposed in this case are "appropriate having regard to the criminality of the conduct".

87. Counsel for the ACT DPP is quite right that the totality principle does not require concurrent sentences for separate and unrelated offences. However, the requirement for the Court "to take a last look at the total just to see whether it looks wrong" may in an appropriate case require some concurrency between such offences in order to ensure that the total is not "wrong". Furthermore, as the Court in Mill said at 63:

Where the principle [of totality] falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.

88. Although the learned Magistrate made no reference to the totality principle in imposing sentence, I consider that her Honour did not mis-apply the totality principle in her decision about which sentences were to run concurrently and which were to be accumulated. The problems I have identified with the ACT sentences (see [61] to [65] above) might have been mitigated by an adjustment of the length of the total sentence in reliance on the totality principle, but as indicated I consider that the real problem was the original length of those two sentences rather than how they were to be served. Accordingly, I refrain from finding that her Honour erred in failing to apply the totality principle properly.

89. I find that her Honour erred in her treatment of the appellant's pleas of guilty; as well, I find that the sentences on the ACT offences were manifestly excessive. Accordingly, the appellant must be re-sentenced.

I certify that the preceding ninety (90) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Wilson Phillips O'Keefe Lawyers

Solicitor for the first respondent: Director of Public Prosecutions (Cth)

Counsel for the second and third respondents: Ms J Davidson

Solicitor for the second and third respondents: Director of Public Prosecutions (ACT)