Taylor v Bowden [2009] ACTSC 13

2. The sentence imposed was one of 18 months imprisonment for a charge of burglary committed on 14 January 2008 with a concurrent sentence of six months imprisonment for the theft of $711.01 taken in the burglary. The appellant had been in custody since 4 January 2008 and the learned magistrate backdated the sentence to that date.

3. His conviction on those charges put him in breach of a good behaviour order for 18 months that had been imposed when Magistrate Burns sentenced him to 15 months imprisonment on 14 December 2007 in respect of a charge of burglary committed on 12 March 2007. On that occasion, a suspended sentence order was made and it was ordered that he be released forthwith upon that good behaviour order.

4. Magistrate Doogan cancelled the good behaviour order as she was required to do under s 110 of the Crimes (Sentencing Administration) Act 2005 (ACT) (Sentencing Administration Act) and said that she "re-sentenced" the appellant to 15 months imprisonment to be cumulative upon the sentence for the burglary that she had imposed. She set a non-parole period of 24 months to date from 14 January 2008 and expressed it as concluding on 14 January 2010. In addition, "upon release" the magistrate made a good behaviour order on the appellant's own surety of $1,000.00 for 24 months with conditions. There does not appear to be any reason given for such an order and, in my view, there is nothing in the material to justify such an order in circumstances where a non-parole period has been set.

5. The appellant filed his own appeal on 27 March 2008 which sought to challenge the 24 month non-parole period that had been set. He then filed an amended notice of appeal on 22 May 2008 purporting to be an "all grounds and severity" appeal but specifically challenging the non-parole period of 24 months. Finally, a further amended notice of appeal was filed on his behalf by the Legal Aid Office, by leave granted by this court on 9 September 2008. That appeal specified the following grounds:

The grounds of appeal are:

(a) Her Honour failed to attach any or any sufficient significance to the appellant's plea of guilty entered at an early opportunity in the proceedings as required by the provisions of Section 35 of the Crimes (Sentencing) Act 2005.

(b) Her Honour erroneously sentenced the appellant on the basis that he had shown no remorse for his conduct notwithstanding his plea of guilty, [his expression of remorse as recorded in the pre-sentence report]* and his assertion in court that he had instructed his solicitor to articulate his remorse to the court.

(c) Her Honour erroneously sentenced the appellant on the basis that he had threatened the complainant with a knife whereas the statement of facts indicates that at no time did the complainant see the appellant produce a knife.

(d) Her Honour erroneously asserted and attached significance to the fact that the appellant had served his last term of imprisonment at the Belconnen Remand Centre.

(e) Her Honour erroneously misconstrued the submission by the appellant's solicitor that the appellant could remain in custody until such time that a place became available for him in a residential rehabilitation program.

(f) Her Honour failed to have any or any sufficient regard to past attempts by the appellant to overcome his drug habit.

(g) Her Honour failed to have any or any sufficient regard to the immediate need for the appellant to address his drug habit by participate [sic] in a long-term residential drug rehabilitation program.

(h) Her Honour failed to consider the suitability of the appellant for a deferred sentence order notwithstanding that the pre-sentence report recommended his suitability for a deferred sentence order and notwithstanding that the appellant's solicitor had urged Her Honour to consider a deferred sentence order.

(i) Her Honour failed to record reasons for declining to make a deferred sentence order as required by Section 117(4) of the Crimes (Sentencing) Act 2005.

(j) Her Honour's orders sentencing the appellant to terms of imprisonment (constituted by a non-parole period and a period on parole) coupled with a good behaviour order to operate from the date of release from custody while permitted by the operation of Section 29 of the Crimes (Sentencing) Act 2005, nevertheless expose the appellant to the risk of double punishment by both the court and the Sentence Administration Board should he by the one act or omission simultaneously breach both the good behaviour order and the terms of his parole order, and as such is oppressive.

(k) The sentences were manifestly excessive in all of the circumstances.

The circumstances of the offence before the magistrate

6. The offence occurred in the afternoon of 14 January 2008. The occupant of the premises returned home and surprised a person who was burgling his house. He chased the offender through the backyard and, when he was about 10 metres from him, the offender stopped and threatened to stab him, although no weapon was produced. The occupant was able to give police a distinctive description of the offender.

7. Some 10 minutes after the commission of the offence, police observed a person matching the description of the offender some streets away in the same suburb riding a small pink child's bike. An amount of cash roughly equating to what had been taken in the burglary was found on him, together with other property.

(a) Her Honour failed to attach any or any sufficient significance to the appellant's plea of guilty entered at an early opportunity in the proceedings as required by the provisions of Section 35 of the Crimes (Sentencing) Act 2005.

(b) Her Honour erroneously sentenced the appellant on the basis that he had shown no remorse for his conduct notwithstanding his plea of guilty, and his assertion in court that he had instructed his solicitor to articulate his remorse to the court.

I've considered all of the relevant factors, including the submissions made on the defendant's behalf. The only mitigating factor in his favour is that he pleaded guilty, but then again he was caught red-handed, so I don't pay much storage [sic] on the fact that he's pleaded guilty.

10. Section 35(3) and (4) Crimes (Sentencing) Act 2005 (Sentencing Act) provides:

(3) The court may impose a lesser penalty (including a shorter nonparole period) on the offender than it would otherwise have imposed if the offender had not pleaded guilty to the offence.

(4) However, in deciding any lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution's case for the offence was overwhelmingly strong.

11. Section 37 of the Sentencing Act provides:

37 Reduction of sentence - statement by court about penalty

(1) This section applies if a court imposes a lesser penalty for an offence under section 35 (Reduction of sentence - guilty plea) or section 36 (Reduction of sentence - assistance to law enforcement authorities).

_(2) The court must state - _

(a) the penalty (including any shorter nonparole period) it would otherwise have imposed; and

(b) if the lesser penalty is imposed under section 36 - the reason for the imposition of the lesser penalty.

12. It is said that the magistrate's remarks indicated that no significant reduction for the guilty plea had been made and that by reason of the fact that no penalty was stated as to what the court would otherwise have imposed, the magistrate can be taken to not have imposed a lesser penalty as a consequence of the plea of guilty. It was then submitted that the prosecution case for the offence would not amount to such an overwhelmingly strong case as to justify not giving the appellant the benefit of his plea of guilty.

13. It is true that the approach taken by the magistrate to the plea seems to give little weight to it although the magistrate regards it as the "only" mitigating factor. I am satisfied that, as far as this case is concerned in respect of the penalty that she imposed, the magistrate should be taken to have given effect to the utilitarian value of the plea of guilty. The penalty that she imposed indicates this. The imposition of a sentence of 18 months imprisonment for a charge of burglary in this case, particularly having regard to the appellant's background of earlier offending, does not indicate to me that the magistrate has erred. The magistrate could and should have stated that the penalty that she would otherwise have imposed would have been a sentence of not less than twenty-one months imprisonment. Such a sentence would properly indicate the reduction that any court would have made for the plea. It follows that as I consider the sentence imposed by the magistrate to be justified, the magistrate's failure to state the penalty that would otherwise have been imposed, does not assist the appellant.

14. Further, I consider that it was open to the magistrate to sentence the appellant on the basis that the appellant had shown no remorse. As Spigelman CJ observes in R v Thomson; R v Houlton (2000) 49 NSWLR 383 at [118]:

The bare fact of a plea is, of itself, a very simple expression of remorse. Much greater weight may be accorded to the conduct and statements of an accused over a period of time, which confirm a position of genuine and deeply felt contrition. When such contrition is taken into account by a sentencing judge, then the diminution of sentence is given for contrition, not for the plea of guilty. The plea in such a case is, at most, evidence of remorse or contrition and, often, not the best such evidence. It is not desirable to separate out the factor of a plea as an indication of remorse from other manifestations of remorse.

15. That seems to be the case here. Although there may have been an indication to the magistrate that the appellant asked his lawyer to say that he feels sorry for the victim of the offence, that does not have to be regarded as the genuine and deeply felt contrition that would enable a court to give other than utilitarian credit for the plea. And, as I have said, I take the magistrate to have given that credit to the appellant.

16. I add that the issue of the prosecution case being "overwhelmingly strong" to which s 35(4) of the Sentencing Act refers, should not, in principle, be an issue when considering the utilitarian value of the plea of guilty. I refer to the remarks of Spiegleman CJ in R v Thomson; R v Houlton (supra) at [136] and [137]:

136 Separation of the elements of contrition and utilitarian value in the plea of guilty requires a consideration of whether or not the element of strength of the Crown case, to which reference is frequently made as limiting the value of a plea, should be attributed to both of the elements. The Attorney-General submitted that the strength of the Crown case should not have any bearing upon the weight to be attributed to that aspect of the discount which is attributed to purely utilitarian considerations. The authorities support this submission. (See R v Slater (at 525-526); Bond v The Queen (at 7); R v Winchester (at 350); R v Bishop (New South Wales Court of Criminal Appeal, 23 September 1996, unreported); R v Bulger [1990] 2 Qd R 559 at 564.)

1. In R v Winchester_, Hunt CJ at CL related the strength of the Crown case only to the contrition element of the leniency in sentencing which a plea of guilty affords an accused: cf_ R v Beavan (at 12). As his Honour put it (at 350):

"... The extent to which leniency will be afforded upon this ground will depend to a large degree upon whether or not the plea resulted from a recognition of the inevitable."

In my opinion his Honour was correct to link the question of the strength of the Crown case only to the issue of contrition or remorse. A "recognition of the inevitable" may qualify the extent of genuine contrition. It does not qualify the utilitarian value of a plea.

140 Where the accused's own disclosure or confession is the basis of the strong Crown case, this should be taken into account with respect to the utilitarian benefit. Indeed, such conduct should be regarded as the earliest possible timing for a plea.

17. Whether the principle to which I have referred and the comments made by Spiegleman CJ require reconsideration, as far as the ACT is concerned, in light of the definition of "established facts" contained in s 35(7) of the Sentencing Act, may be a question for another day. That definition provides:

established facts _means facts established by - _

(d) submissions made by the prosecution or defence.

18. I would have thought that "admissions by the offender", in light of the comment by Spiegleman CJ referred to above, should act positively in the offender's favour. In any event, my present view is that the circumstances which might be encompassed by "established facts" are relevant to the aspect of the contrition expressed and evidenced by the plea rather than the considerations that appertain to the utilitarian value of the plea. A plea on the utilitarian basis should be evaluated in accordance with the approach propounded by Spiegleman CJ in R v Thomson; R v Houlton set out above and without reference to the strength of the prosecution case.

(c) Her Honour erroneously sentenced the appellant on the basis that he had threatened the complainant with a knife whereas the statement of facts indicates that at no time did the complainant see the appellant produce a knife.

20. There was nothing before the magistrate to suggest that in fact the appellant had a knife in his possession. Nor does the passage upon which the appellant relies do so. I was referred to this passage in the transcript of the sentencing proceedings:

HER HONOUR: ... There is nothing in the pre-sentence report or indeed anything that was submitted on his behalf to me today which says that perhaps he feels sorry for the person whose house he broke into it [sic] and started to burgle and whom he threatened with a knife - - -

THE DEFENDANT: I actually did ask my lawyer to say that downstairs just before, your Honour.

HER HONOUR: By swearing at him. ...

21. To me, that passage makes it clear that the magistrate regarded the threat, not the presence of any knife, as the appropriate circumstance to take into account. The ground of appeal has no substance.

(d) Her Honour erroneously asserted and attached significance to the fact that the appellant had served his last term of imprisonment at the Belconnen Remand Centre.

(e) Her Honour erroneously misconstrued the submission by the appellant's solicitor that the appellant could remain in custody until such time that a place became available for him in a residential rehabilitation program.

23. I am not able to positively infer from what took place before the magistrate, in the interchange with the appellant's solicitor to which I was referred, that she misunderstood or attached significance to the place where the appellant served his last sentence. In any event, any misunderstanding (or perhaps rather, as to the magistrate and the appellant's solicitor being at cross-purposes as to the appellant remaining in remand), could not have affected the ultimate disposition of this matter by the magistrate. The proposal that the appellant remain in remand until he was able to be released to residential rehabilitation under a deferred sentence order was a proposition to which the magistrate clearly did not accede and there was no compelling reason why she should do so.

24. Ground (f) was abandoned but grounds (g), (h), and (i) relating to the possibility of a deferred sentence order were pressed. Those grounds are:

(g) Her Honour failed to have any or any sufficient regard to the immediate need for the appellant to address his drug habit by participate [sic] in a long-term residential drug rehabilitation program.

(h) Her Honour failed to consider the suitability of the appellant for a deferred sentence order notwithstanding that the pre-sentence report recommended his suitability for a deferred sentence order and notwithstanding that the appellant's solicitor had urged Her Honour to consider a deferred sentence order.

(i) Her Honour failed to record reasons for declining to make a deferred sentence order as required by Section 117(4) of the Crimes (Sentencing) Act 2005.

25. Section 27 (1) and (2) of the Sentencing Act provides:

27 Deferred sentence orders - making

_(1) This section applies if - _

(a) an offender has been convicted or found guilty by a court of an offence punishable by imprisonment; and

(b) the court has not sentenced the offender for the offence; and

(c) the offender is neither serving, nor liable to serve, a term of imprisonment for another offence; and

(d) the court considers the offender should be given an opportunity to address his or her criminal behaviour, and anything that has contributed to the behaviour, before the court sentences the offender for the offence; and

(e) the court is satisfied that it may release the offender on bail under the Bail Act 1992.

(2) The court may make an order (a deferred sentence order) requiring the offender to appear before the court at the time and place stated in the order to be sentenced for the offence.

Note The maximum period of the order is 12 months (see s 122 (1)).

1"> 26. Section 117 (4) and (5) of the Sentencing Act provides:

_(4) The court must record reasons for its decision to make a deferred sentence order if - _

(a) any pre-sentence report recommends that the offender is suitable but the court decides not to make a deferred sentence order; or

(b) any pre-sentence report recommends that the offender is not suitable but the court decides to make a deferred sentence order.

(5) Failure to comply with subsection (4) does not invalidate a deferred sentence order.

27. The magistrate had before her a Pre Sentence Report which contained the following:

Assessment

Mr Taylor is a 27 year old male whose current offences shows he has yet to adequately address his drug dependency. While Mr Taylor has agreed to attend Karralika, his motivation to complete his program appears to be strongly based on gaining custody of his son. If custody is not granted, which appears to be a reasonably likely outcome, the offender's desire to complete the program must be placed in question.

It is concerning that Mr Taylor showed no interest in attending a residential rehabilitation facility before the issue of child custody arose. The offender appears to lack the insight to see the benefits to both himself and his children of genuinely addressing his own issues immediately.

Mr Taylor showed no insight into his offence, making no mention of victims and expressing little remorse.

Mr Taylor has been assessed, using the 'Level of Service - Revised' assessment tool, as being at high risk of re-offending.

...

Deferred Sentence

The Court may wish to impose a Deferred Sentence Order to allow Mr Taylor the opportunity to address his offending behaviour. Historically, Karralika requests that residents with deferred sentences receive at least three months bail in order to accurately assess their progress. As it may take one or two months before Mr Taylor could be accepted into Karralika, a deferred sentence of five months may be prudent.

The following conditions may apply to such an order:

• To accept the supervision of ACT Corrective Services and obey all reasonable directions.
• To undergo urinalysis drug screening as directed by ACT Corrective Services.
• Not to use illicit substances.
• To gain admission to a residential rehabilitation program and not be discharged without the permission of ACTCS.
• After completing a suitable residential rehabilitation program, to undertake counselling/treatment/therapy for relapse prevention.

28. I do not regard that report as the recommendation of suitability to which s 117(4) refers. In fact, the report is at pains to make no such recommendation. Unless the magistrate had been satisfied in terms of s 27(1)(d) that the appellant should have been given an opportunity to address his criminal behaviour and anything that has contributed to it, the question of a deferred sentence order did not arise. The Pre Sentence Report does not support such a finding and on the material before the magistrate, there was no compelling reason for her to find to the contrary. Although the report provides assistance in considering the option, it does not recommend the appellant as suitable for such an order so as to require the magistrate to record reasons for not making a deferred sentence order. The grounds of appeal relating to the magistrate making a deferred sentence order in this case are not made out.

(j) Her Honour's orders sentencing the appellant to terms of imprisonment (constituted by a non-parole period and a period on parole) coupled with a good behaviour order to operate from the date of release from custody while permitted by the operation of Section 29 of the Crimes (Sentencing) Act 2005, nevertheless expose the appellant to the risk of double punishment by both the court and the Sentence Administration Board should he by the one act or omission simultaneously breach both the good behaviour order and the terms of his parole order, and as such is oppressive.

(k) The sentences were manifestly excessive in all of the circumstances.

30. It is the consecutive sentences that were imposed that give cause for concern as to whether the total sentence imposed is justified on an overall assessment of the criminality of the appellant's conduct.

31. In the present case, the magistrate had before her a separate charge alleging a breach of the good behaviour order Magistrate Burns had made when he suspended the sentence of 15 months imprisonment that he had imposed on 14 December 2007. The charge before Magistrate Doogan alleged that the appellant was in breach of the good behaviour order by reason of the offence of burglary committed on 14 January 2008 being proved against him. The magistrate then said that she re-sentenced the appellant to that imprisonment of 15 months. She made that sentence fully consecutive upon the sentence she had imposed for the burglary committed on 14 January 2008.

32. Section 110 of the Sentencing Administration Act provides:

1. Cancellation of good behaviour order with suspended sentence order

_(1) This section applies if - _

(a) an offender's good behaviour order was made under the Crimes (Sentencing) Act 2005, section 12 (3) (Suspended sentences) on the offender's conviction for an offence; and

(b) a court is satisfied the offender has breached any of the offender's good behaviour obligations.

_(2) The court must cancel the good behaviour order and either - _

(a) impose the suspended sentence imposed for the offence; or

(b) re-sentence the offender for the offence.

_(3) If the offender has given security under the good behaviour order, the court may also - _

(a) order payment of the security to be enforced; and

(b) order the good behaviour order to be cancelled on payment of the security (if the term of the order has not already ended).

(4) The Crimes (Sentencing) Act 2005 applies to the re-sentencing in the same way that it applies to the sentencing of an offender on conviction for the offence.

Example

The Magistrates Court convicted Desmond of an offence. The court sentenced Desmond to imprisonment for 6 months for the offence and made a suspended sentence order for the entire sentence of imprisonment. The court also made a good behaviour order for the 6-month period. Desmond breaches the order. In re-sentencing Desmond, the court may impose a sentence of imprisonment to be served by periodic detention.

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(5) To remove any doubt, an offender re-sentenced by a court under this section has the same right of appeal as the offender would have had if sentenced by the court on being convicted of the offence.

33. It is quite clear that, in the circumstances before the magistrate, s 110(2) of the Sentencing Administration Act required the magistrate to cancel the good behaviour order. However, two options were available. One was to "impose" the suspended sentence. That would seem to give effect to the suspended sentence of imprisonment that had been imposed. That is, the suspended sentence would be given immediate effect. The other option was to "re-sentence". In the event of re-sentencing, s 110(4) provides that the Sentencing Act is to apply.

34. In Thompson v Young [2008] ACTSC 11, I considered that the similar statutory framework providing for re-sentencing under 108 of the Sentencing Administration Act required a proper evaluation of the objective circumstances of the offence as well as taking into account the subjective circumstances concerning the offender. I consider such an evaluation also applies to the "re-sentencing" required by s 110.

35. I do not see any constraint in s 110 as to the determination of which of the options of either imposing a sentence or taking the action of re-sentencing is to be chosen by the sentencer. However, I am mindful of the considerations said to be contained in the legislative policy concerning suspended sentences and endorsed by Howie JA (with whom Sully and Price JJA agreed) in DPP v Cooke and Anor (2007) 168 A Crim R 379 (Cooke) at [21]-[24] in citing the decision of King CJ in R v Marston (1993) 60 SASR 320. His Honour said:

[21] But two matters should be emphasised from Marston: firstly the determination under s 98(3)(b) should be made bearing firmly in mind that generally a breach of the conditions of the bond will result in the offender serving the sentence that was suspended and, secondly, the principal consideration, if not the only one, is upon the conduct giving rise to the breach. As to the first of those matters King CJ stated:

I repeat what I said in R v Buckman (1988) 47 SASR 303 at 304: "There is a clear legislative policy that in general a breach of a condition of a recognizance upon which a sentence has been suspended, should result in the offender serving the sentence which was suspended. A sentence of imprisonment is imposed and suspended only where imprisonment is fully merited but the court considers it appropriate to give the offender a last chance to avoid imprisonment by leading a law abiding life. It is intended to be a sanction suspended over the head of the offender which is to be activated if there is a lapse into non law abiding ways. The court will not lightly interfere with the ordinary consequence of a breach of the recognisance."

It is of great importance that the courts adhere to that principle. Departure from it by the nonrevocation of suspended sentences tends to undermine the integrity of the system of suspended sentences and their effectiveness as a means of deterring future offenders.

[22] Perry J stated:

_I agree with the observations which have fallen from His Honour the Chief Justice. In doing so, I would repeat the comments which I made in [_Lawrie v The Queen (1992) 59 SASR 400 at 403]: "To excuse or vary the consequences of the breach of bond, the grant of which resulted in the suspension of a term of imprisonment, has a tendency to undermine the integrity of the sentencing process generally. It follows that the power to do so should be exercised sparingly, and only in cases where proper grounds have clearly been made out."

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

[24] As King CJ pointed out, it should not be forgotten that before suspending a sentence the court must have reached the view that nothing but a sentence of imprisonment was appropriate to punish the offender for that crime: see R v Zamagias [2002] NSWCCA 17. The suspended sentence is not an alternative to a bond and should not be treated as such. The suspension of the sentence of imprisonment was an act of mercy designed to assist the offender's rehabilitation or for some other purpose to benefit the offender on the understanding that, if the offender did not fulfil the conditions of the bond, the sentence would be imposed. Therefore, generally speaking, there can be no unfairness in requiring the offender to serve the sentence when the obligations under the bond have been breached.

36. In general, those comments are applicable to the approach to be taken to the cancellation of good behaviour orders made consequent upon a suspended sentence order under the Sentencing Act. However, neither the New South Wales nor South Australian jurisdictions have the option given by s 110(2) of re-sentencing the offender. It is plain from the example given in s110(4) of the Sentencing Act that more scope is given to a sentencer under the ACT legislation to not impose the suspended sentence in its full rigour. That example postulates a different mode of serving the custodial sentence imposed by the sentence that had been suspended. The example indicates the extent of the discretion that can be utilised by courts having to re-sentence upon cancellation of the good behaviour order suspending a sentence.

37. A consideration that, in many cases, would favour the sentencer preferring the option of re-sentencing, is the exclusion of suspended sentences from the requirement in s 65 of the Sentencing Act to set a non-parole period in respect to sentences of imprisonment of one year or longer. Except in the case where the court declines to set a non-parole period (s 65(4) of the Sentencing Act), the procedure involved in re-sentencing would be called upon to at least set a non-parole period. I say that because a non-parole period should be set having regard to the circumstances of the offending as well as the offender's antecedents.

38. In the present case, it was appropriate for the magistrate to re-sentence the appellant as she wished to take the step of making the sentence date from a time other than the date upon which she was to impose it. However, in my view, it was an error to do so without properly evaluating the objective and subjective circumstances of the offending that gave rise whatever action she was proposing to take as to the suspended sentence. Such considerations are clearly relevant to questions affecting whether the sentence be concurrent or consecutive to other sentences.

39. It must be said that the sentence to be imposed for the offence giving rise to the breach of the offender's good behaviour obligations is not a relevant consideration in determining whether to revoke the good behaviour order (cf Cooke at [28]). It follows that the preferable course, either in imposing the suspended sentence or re-sentencing in respect of it, is to cancel the good behaviour order before determining what sentence should be imposed for the offence giving rise to the cancellation. This would give proper attention to the question of whether the suspended sentence is to be the subject of a mere imposition of the suspended sentence or involve re-sentencing in respect of it. To take this course would generally allow for the principle of totality to operate in the event that a sentence of imprisonment is appropriate for the event causing the cancellation (see Cooke at [28] and the comments of Tobias JA, Latham and Fullerton JJ in R v Cooke; Cooke v R [2007] NSWCCA 184 at [18]).

40. That consideration is not as critical in the ACT as it is in New South Wales because of the option of re-sentencing if availed of should enable effect to be given to the totality principle.

41. In any event, the application of the totality principle is clearly an issue in the present case. Although the commission of a further offence of burglary just one month after the appellant had had a sentence of imprisonment imposed but suspended, calls for significant condemnation. There is clearly a need to view the appellant's criminal conduct as a whole. That involves carefully considering whether the punishment to be imposed overlaps in respect of the circumstances that aggravate the later offence.

42. Since the hearing of this matter, I have been provided with a copy of Magistrate Burns' remarks on sentence. He said:

Mr Taylor, as I have already indicated to Mr Jasinski [who was then appearing for Mr Taylor], I am going to proceed by way of a suspended term of imprisonment with respect to the burglary offence 2647 and I will place you on a good behaviour order. Now you must understand that if you do not comply with the terms of the good behaviour order, you have to expect to serve the remainder of the sentence of imprisonment that I am going to impose today.

I have not imposed an immediate term of imprisonment because of the fact that you have already spent some five to six months in custody whilst awaiting sentencing in relation to this matter and I also note that you have completed 85 days out of 90 of the Lyndon House program.

43. It is not clear whether the five or six months in custody to which the magistrate refers means that the magistrate regarded the appellant's offence as meriting 21 months imprisonment. The alternative is that the appellant should be credited with that time in custody if the 15 months fully suspended sentence was at any time to be called up There is also the question of what allowance should be made for the lengthy time that the appellant had spent in residential rehabilitation.

44. A further factor is the other charges dealt with by Magistrate Burns at the time he suspended the sentence for burglary. Charges of receiving stolen property, unlawful possession (2), theft and preventing the carrying out of forensic procedure were dealt with by way of conviction and release on the same good behaviour order. There were also a number of traffic charges that arose out of the police pursuit following the burglary. They, too, resulted in convictions and release upon the same good behaviour order.

45. Having regard to the appellant's antecedents which included previous offences for burglary and theft in the five years preceding, Magistrate Burns' sentence of fifteen months imprisonment seems to me to be amply justified. Nothing in the subjective circumstances that had been put before either magistrate suggests that there should have been a different outcome as far as imprisonment was concerned.

46. I consider that Magistrate Doogan was entitled, and indeed should have taken as the starting point upon cancellation of the good behaviour order, the term of 15 months imprisonment that had been suspended. In addition she had an obligation to take into account the pre sentence custody in relation to the offence constituting the breach (s 63(2) Sentencing Act). I recognise that could be done by reducing the term of the sentence that she intended to impose or she had the option of backdating it. However, in the present case, she took the view that the sentence should be backdated and I would not interfere with that approach.

47. I said earlier that, generally, the better course is to deal with the effect of cancellation before proceeding to deal with the conduct that occasioned the breach. However, unlike the position in New South Wales which, in effect, only involves the question of revocation of the order of suspension, the re-sentencing option in s 110 still allows questions of totality to be addressed.

48. In the present case, the magistrate regarded it as an aggravating feature of the offence before her that the appellant committed the offence whilst on drugs and did not remember it. That circumstance affects the quality of the breach of the good behaviour order. It can be said in the appellant's favour that it was not a deliberate and contumelious breach. A consideration of the aggregate effect of the criminal offending mitigates against the appropriateness of an order being made that the sentences be wholly consecutive. The impact of each of those matters do not appear to have been considered by the magistrate. In that regard, the magistrate was in error.

49. I allow the appeal. The sentence and orders made on 26 March 2008 are to be set aside. The appellant should be re-sentenced. On the charge of burglary committed on 14 January 2008, a sentence of 18 months imprisonment is to be imposed to commence on 14 January 2008. The good behaviour order made on 14 December 2007 is to be cancelled and the appellant re-sentenced to 15 months imprisonment to commence when seven months of the sentence of 18 months imprisonment has been served. That is a total sentence of 22 months.

50. I set a non-parole period of 15 months to start on 14 January 2008 and to end on 13 April 2009.

I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: Director of Public Prosecutions (ACT)