CRIMINAL LAW - appeal against sentence - whether sentence manifestly excessive - whether nonparole period manifestly excessive - rehabilitation of young offender

Crimes (Sentencing Act) 2005 (ACT) pt 5.2

Crimes Act 1900 (ACT) s 374

Firearms Act 1996 (ACT) s 43

Taylor v R [2014] ACTCA 9

Legal Aid ACT (Appellant)

ACT Director of Public Prosecutions (First and Second Respondent)

Court File Number(s): CC 9969 and 9970 of 2011; CC 4 4373, 4378 and 5118 of 2013

1. The appellant appeals against sentences imposed by the Magistrates Court on 10 January 2014 on two grounds: first, that the terms of the subject sentences are manifestly excessive (particularly the sentence relating to an offence of unauthorised possession of firearm); and, second, that the nonparole period is manifestly excessive and/or should not have commenced on 10 January 2014. The sentences imposed were as follows (nature and date of offence, period of imprisonment and start date):

(a) For the offence of traffic in a controlled drug committed on 25 October 2011, two months' imprisonment from 27 November 2014;

(b) For the offence of unauthorised possession of firearm committed on 25 October 2011, six months' imprisonment from 27 November 2014;

(c) For the offence of repeat offender, drive while licence suspended committed on 25 May 2013, two months' imprisonment from 27 October 2013;

(d) For the offence of unauthorised possession of firearm committed on 25 May 2013, 18 months' imprisonment from 27 May 2013;

(e) For the offence of reckless driving committed on 25 May 2013, two months' imprisonment from 27 May 2013;

(f) For the offence of repeat offender, drive while licence suspended on 10 May 2013, one month's imprisonment from 27 May 2013;

(g) For the offence of possess ammunition for a firearm committed on 27 May 2013, fine of $500.

2. In relation to the offence of unauthorised possession of a firearm committed on 25 May 2013 (point (d) above), the Magistrate imposed a nonparole period of 12 months from 10 January 2014 to 9 January 2015. In relation to the episodes of offending where sentences of imprisonment were imposed, the total effective sentence of imprisonment was two years' imprisonment from 27 May 2013 to 26 May 2015, with an effective nonparole period of 19.5 months, to 9 January 2015. The nonparole period represents 81 per cent of the effective sentence.

3. The 2011 offences had originally resulted in sentences that were largely suspended, but the appellant breached the associated good behaviour orders and was resentenced.

4. The appellant was 21 years of age when the 2013 offences were committed, and he had a long criminal history for motor vehicle matters and serious matters of dishonesty, including offences of aggravated burglary. For one such matter that occurred in September 2009, he had received a sentence of 15 months' imprisonment, approximately 13 months of which was suspended. The sentence commenced from October 2011.

5. The pre-sentence report indicated that the appellant had a long history of substance abuse and had relapsed into drug use after previous attempts at residential rehabilitation. His conduct in prison was not exemplary.

6. The appeal to this Court is by way of rehearing or review. The Court will intervene only where error is demonstrated. Error can be expressly identified or it can be inferred from the fact that a sentence or aspect of a sentence is plainly unreasonable or unjust.

7. The first ground of appeal is that the sentences were manifestly excessive. The appellant's submissions were directed to the sentence of 18 months' imprisonment (reduced from two years for the plea of guilty) that was imposed for the offence of unauthorised possession of firearm committed on 25 May 2013. The appellant takes no issue with the percentage reduction for the plea of guilty, conceding that in the circumstances it was generous.

8. The brief facts in relation to this offence were as follows. The police followed the appellant's vehicle after reports of an altercation involving the appellant at a service station. The appellant initially evaded police. He ran from the scene after stopping his vehicle. Police found a silver coloured model 19 Smith and Weston .357 calibre revolver with a six-barrel cylinder wrapped in an item of clothing under the root of a large tree about 100 metres from the appellant's vehicle. Five barrels were loaded with live ammunition. The revolver was operational and, if the trigger had been pulled, the gun would have fired. At the time, the appellant was serving a partially suspended sentence for the same offence.

9. The offence is contrary to s 43(1) (a) (iii) of the Firearms Act 1996 (ACT). That subsection addresses both possession and use of firearms and may relate to one or two firearms. The maximum available penalty for the offence is five years' imprisonment. As the prosecution elected to proceed summarily under s 374 of the Crimes Act 1900 (ACT), the maximum sentence that could have been imposed was two years' imprisonment: s 374(7).

10. Contrary to the submission of the appellant, when assessing an appropriate penalty, a Magistrate must consider the maximum available penalty of five years' imprisonment; two years' imprisonment is merely a jurisdictional limit.

11. The Magistrate noted that the relevant episode of offending was similar to the earlier episode, and her Honour noted that the firearm was a concealable firearm, was associated with ammunition and was loaded. Her Honour considered that the offence was extremely serious and towards the upper end of objective seriousness for that type of offence. She took into account the plea of guilty and the subjective circumstances. She noted the pre-sentence report. She noted that the criminal history did not aggravate the offence but disentitled the appellant to leniency. She further noted that the appellant was on conditional liberty, that the manner in which the appellant had dealt with the firearm was very dangerous and that denunciation was an important sentencing objective. She also considered the appellant's need for rehabilitation, particularly in the context of his relative youth.

12. No issue can properly be taken with the manner in which the Magistrate approached sentencing for this matter. Her Honour considered relevant objective and subjective features, had appropriate regard to the maximum available penalty, applied an appropriate discount for the plea of guilty, and arrived at a sentence that was appropriate in all of the circumstances.

14. The second ground of appeal concerned the nonparole period. Provisions in relation to the setting of a nonparole period are contained in Pt 5.2 of the Crimes (Sentencing Act) 2005 (ACT).

15. In her reasons, the Magistrate did not expressly indicate why the nonparole period was to start from 10 January 2014 rather than 27 May 2013.

16. Strictly speaking, it was not necessary for the Magistrate to do so. However, the clear intent of pt 5.2 is that, when fixing a nonparole period, a court must look at the total period that an offender will spend in custody, taking into account all of the sentences that are being imposed by the court on the relevant occasion, as well as any sentences that are otherwise being served by the offender. It is not necessary for the court to backdate a nonparole period to the date upon which the first of the sentences began to be served. However, the court must take that period into account.

17. In this case, there are two matters of interest. First, on the bench sheet, the Magistrate noted:

Imp 18 mths 27 May 13 - 26 Nov 14

Non parole period 12 mths on total sentence. ∴ Eligible for parole on 9 Jan 2015.

That statement appears to be internally inconsistent.

Second, in her reasons for decision, the Magistrate said:

In relation to all of those offences for which periods of imprisonment have been made, I provide a nonparole period of 12 months. That will provide you, I hope, with sufficient time to reflect upon your conduct, to find a way ahead, to find a change in yourself, to free yourself from drugs and to attend the [Solaris program]. It will also provide you with a period, once you've achieved parole, with a period still hanging over your head, as it were, to help encourage you to continue to abstain from illicit drugs and to find a way to live without them successfully within the community.

18. There is an obvious inconsistency; on the one hand, the Magistrate was concerned to, to impose a nonparole period of 12 months, but she in fact imposed a nonparole period of 19.5 months on the total sentence. Her Honour was concerned to support the appellant in relation to drug rehabilitation, among other things, by providing him with a significant period on parole in the community, yet the period of parole was only four months.

19. It is reasonably apparent that the complex sentencing process in which the Magistrate was engaged has caused an error in relation to the fixing of the nonparole period, and that the period that her Honour did in fact fix does not reflect her intent.

20. An error has been established and it is appropriate that I should engage in a resentencing exercise.

21. In relation to the fixing of an appropriate length for a nonparole period, the relevant principles are set out in the decision of Taylor v R [2014] ACTCA 9, at [19]. Among other things, a nonparole period represents the minimum period of imprisonment that justice requires that an offender should serve in detention. An offender's prospects of rehabilitation are important to the fixing of a nonparole period and may make a significant difference to it. There is no "available range" for nonparole periods, but in this jurisdiction a nonparole period is frequently set in the range of 50 to 70 per cent of the total term of imprisonment. A judicial officer may decide to go outside that range; if so, ordinarily one would expect to see some expression of the reasons for doing that.

22. The appellant is a young man and, generally, rehabilitation assumes some prominence in the case of younger persons. On the other hand, his general attitude and history suggest that his prospects of rehabilitation are somewhat limited. That, in itself, may tell in two ways. First, it may suggest that it is in the interests of the community that he be detained for a relatively long period in custody before being released on parole. On the other hand, it may indicate that close supervision in the community while on parole is the best way of supporting rehabilitation.

23. In this case I have decided to impose a relatively long period of parole, but one that falls within the usual range. A nonparole period that is two-thirds of the total effective sentence will serve the purpose of keeping the appellant in custody for a significant period of time, and he may be able to undertake the Solaris program. It will also ensure an available parole period of eight months. If he is deemed suitable by the Sentence Administration Board for release to parole, then he will receive support in the community for a significant period, something that he obviously requires (assuming he is prepared to accept it) to address entrenched drug addiction and criminogenic behaviour.

24. I set aside the nonparole period fixed by the Magistrates Court and instead I fix a nonparole period to start on 27 May 2013 and finish on 26 September 2014.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.