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Place: Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

IN THE SUPREME COURT OF THE ) No. ACTCA 23-2005

) No. SCA 18 of 2005

AUSTRALIAN CAPITAL TERRITORY )

)

COURT OF APPEAL )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: CALLI-ANN THORN

Appellant

AND: ASHLEY DEAN LAIDLAW

Respondent

Judges: Higgins CJ, Gray and Madgwick JJ

Date: 16 December 2005

Place: Canberra

REASONS FOR JUDGMENT

THE COURT:

1. This was an appeal against the severity of sentences in relation to two offences of minor theft. We announced our orders at the conclusion of the hearing and now publish our reasons.

The offences

2. The appellant is a twenty year old woman who engaged in two incidents of shoplifting in late 2004. On 27 August 2004 she stole two exercise books, seventeen packets of skin art glitter stickers, three packets of hair bands and a hair brush from a Woolworths store. The total value of the items was $79.61. On being apprehended, the appellant was asked about some of the items, but ultimately produced all of the stolen goods. The appellant was held until the arrival of a police officer and was spoken to by police at the site.

3. The second incident occurred on 9 September 2005 and involved the theft of a Nokia mobile phone cover and a ‘Playboy flashing mobile phone accessory’ from Platinum Communications at Woden Plaza. The total value of the items was $25.00. The appellant was apprehended by an employee of Platinum Communications, and the items were returned. The appellant was held while police were called, and the appellant was subsequently taken to Woden Police Station before she was released. It was submitted before the primary Judge that the motivation for this offence was to repay a debt of $20 borrowed to buy cannabis. History of Proceedings

4. Both matters were initially heard in the Magistrates Court on 14 March 2005 when the appellant pleaded guilty to two counts of minor theft. The Magistrate imposed a sentence of one month’s imprisonment in respect of the first offence, and a sentence of two months’ imprisonment in respect of the second offence to be served consecutively.

5. In sentencing the appellant, the learned Magistrate placed significance on the fact that the second offence occurred seven days after the appellant had been released on a recognizance to be of good behaviour for a period of eighteen months following a conviction for trespass on premises under the Crimes Act 1914 (Cth), and considered that the appellant ‘is somebody who at the age of [nineteen and a half] I regard as a hardened offender’.

6. The appellant then appealed to the Supreme Court against the severity of the sentences imposed. It was submitted that error in the Magistrate’s decision was evidenced by certain remarks made by her Honour and that the sentence was manifestly excessive. Specifically, it was submitted that three errors occurred. The appellant firstly challenged the imposition of sentences ‘that could only be justified by offences falling into the worst cases of minor theft’ when these offences did not do so. The appellant next contended that the learned Magistrate failed to give any significant discount for the utilitarian value of the appellant’s pleas of guilty. Finally, she submitted that an error arose from the imposition of a sentence of imprisonment when other, more suitable alternatives were available; this represented a failure to apply the principle that a sentence of actual imprisonment is the sentence of last resort.

7. Both appeals against the sentences were dismissed by the primary Judge. His Honour noted the mitigating factors associated with the appellant and observed that they were ‘all matters that should properly have been taken into account by the learned Magistrate’. However, the primary Judge also stated that ‘her Worship was bound to take into account the fact that the second offence, in particular, was committed only seven days after the appellant was released upon a recognizance that she had undertaken to be of good behaviour for a period of 18 months’. Ultimately, the primary Judge dismissed the appeal on the bases that: I am left in a situation where I am simply unable to conclude that either of the sentences were so manifestly excessive as to fall outside the range of discretion reasonably available to the learned Magistrate. Nor am I able to conclude that the learned Magistrate fell into appealable error by ordering that the sentences be served cumulatively.

The length of each sentence was confirmed, but the primary Judge varied the date of commencement from 14 March 2005 to 12 May 2005.

Appellant’s submissions in this Court

8. In written submissions, senior counsel for the appellant argued that the principal issue was whether or not the sentences imposed by the learned Magistrate were manifestly excessive. However, the appellant also raised three subsidiary issues. The first was whether the Magistrate was correct in allowing only a minimal discount for an early plea of guilty. The second was whether, and if so to what extent, the fact that an offence was committed shortly after entering into a recognizance called for a heavier sentence than would otherwise have been imposed. The third matter was whether the learned Magistrate was correct in her approach to the degree of discount for an early plea of guilty. The charges had only previously been before the Court once, when they were adjourned for a case management conference after the appellant’s representative indicated that there would be pleas of ‘not guilty’, however the remand was broken and the matter listed for sentence to enable pleas of guilty.

9. In short, the appellant contended that she was not so much sentenced for the actual quite minor offences to which she had pleaded guilty, but on the basis that the Magistrate had a particular view about her previous record. Counsel noted that the sentence for the second offence was double that of the first, despite it involving property of a lesser value. Thus, no real regard was had to the actual circumstances of the offences, and in that respect, the sentencing discretion of the learned Magistrate miscarried. As such, the appellant argues that this Court is empowered to re-sentence the appellant de novo. Counsel acknowledges that this point was not emphasised on appeal to the primary Judge but argued that that should not prevent this Court dealing with it.

10. The appellant further submits that this error was at least partially caused by the possibility that the trespass offence seemed to aggravate the circumstances of the second theft in the Magistrate’s mind. Specifically, the appellant contends that the Magistrate’s written reasons demonstrate that she was incensed by the appellant’s antecedent criminal history and the second incidence of theft constituted the proverbial ‘last straw’, and accordingly doubled the punishment imposed for the first offence of theft. The appellant submits that the breach of her recognizance should not be considered an aggravating factor. Respondent’s submissions

11. The respondent submits that the primary Judge cannot be said to have erred in not addressing grounds not argued before him. The respondent contends that unless a matter goes to jurisdiction, a judge sitting on appeal is not required to roam through the material before the lower court in a search for other points not argued by the appellant’s counsel that might make good the appeal. The right to raise a new question on appeal is exceptional and rarely permitted, citing Crampton v The Queen (2000) 206 CLR 161.

12. The respondent also contests the appellant’s classification of the issue on appeal. The respondent submits that the only issue on appeal is whether the learned primary judge made an error of law, and contends that no such error was made.

13. In any case, the respondent also submits, the sentence for the first offence was not beyond range and represented a proper exercise of sentencing discretion. In relation to the second offence, the respondent argued that, for several reasons, it could not be considered equal to or lesser than the first offence.

14. The respondent, relying on the decision in Veen v The Queen (No 2) (1988) 164 CLR 465 at 477, submitted that the appellant’s criminal record as a juvenile is a significant factor in the construction of an appropriate sentence. Her antecedents show her to be an individual for whom significant leniency in respect of property offences has been granted in the past, but, despite these opportunities, there had been an inadequate response to that leniency. In that context the respondent says that the appellant’s antecedent criminal history aggravates the current offences. It is well recognised that the commission of an offence whilst subject to a recognizance is a matter of aggravation.

15. The respondent submits that the general principle that rehabilitative sentencing objectives should be given priority in the cases of young offenders (as outlined in R v AEM Snr; KEM; MM [2002] NSWCCA 58) does not apply in the present case. While the sentence imposed did not completely deny any prospect of rehabilitation, not only was the appellant at a high risk of re-offending, her past and ongoing response to conditional liberty had been poor. As a result, the learned Magistrate did not infringe that general principle. Legal framework

16. The maximum penalty for a charge of minor theft (theft of goods to the value of $2 000) is six months’ imprisonment, fifty penalty units (or $5 000) or both under the Criminal Code 2002 (ACT) s 321. Section 354 of the Crimes Act 1900 (ACT) provides that sentences are to be served concurrently unless the Court otherwise orders.

17. This Court has jurisdiction to hear the appeal by virtue of s 37E(2)(a)(ii) of the Supreme Court Act 1933 (ACT). The powers of the Court on appeal are outlined in s 37O of the Supreme Court Act 1933 (ACT); they include the power to re-sentence an offender: s 37O(5). This power is mirrored in s 218 of the Magistrates Court Act 1930 (ACT) in relation to appeals to the Supreme Court from the Magistrates Court.

18. An appeal from the Magistrates Court to the Supreme Court is not a complete re-hearing de novo but an appeal predicated on establishing error on the part of the court below. Likewise an appeal from a Judge of the Supreme Court to this Court. Once error is demonstrated in the court below, then the appellate court, exercising the power of the Supreme Court at first instance, can re-sentence as it sees fit. Appellate restraint

19. The primary Judge made reference to the well-known principles governing sentencing appeals and the following classic passage from House v The King (1936) 55 CLR 499 per Dixon, Evatt and McTiernan JJ at 504-505: …the judgment complained of, namely, sentence to a term of imprisonment, depends upon the exercise of a judicial discretion by the court imposing it. The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

20. His Honour also referred to R v Tait and Bartley (1979) 24 ALR 473 at 476 per Brennan, Deane and Gallop JJ as to the necessity for appellate restraint: An appellate court does not interfere with the sentence imposed merely because it is of the view that that sentence is insufficient or excessive. It interferes only if it can be shown that the sentencing judge was in error in acting on a wrong principle or in misunderstanding or in wrongly assessing some salient feature of the evidence. The error may appear in what the sentencing judge said in the proceedings, or the sentence itself may be so excessive or inadequate as to manifest such error…

21. Recently, the High Court restated the requirements for a successful appeal against sentence in Dinsdale v The Queen (2000) 202 CLR 321. Kirby J at 339-40 (with whom Gummow and Gaudron JJ agreed) stated that: The necessity to show error…is fully accepted by courts deciding appeals against sentence. … Because the imposition of a sentence involves the exercise of judgment and evaluation upon which minds can differ, it bears close similarities to the making of a discretionary decision. Like such a decision, if properly imposed, a sentence will not be disturbed on appeal merely because the appellate court would have reached a different result had the responsibility of sentencing belonged to it. As in the case of appellate review of a discretionary decision, a brake is imposed upon undue appellate disturbance of primary decisions (and unwarranted appeals seeking that relief) by the necessity to identify an error that justifies and authorises appellate intervention. Such an error may involve the adoption by the primary judge of an incorrect principle, giving weight to some extraneous or irrelevant matter, failing to give weight to some material considerations, or a mistake as to the facts. (Footnotes omitted.)

22. Similarly, in Wong v The Queen (2001) 207 CLR 584, Gaudron, Gummow and Hayne JJ stated at 605: Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

Appellant’s background and the prospects of her rehabilitation

23. The appellant had had a difficult childhood and adolescence. She had had no contact with her biological father from a very early age. She was the victim of serious abuse perpetrated by a neighbour between the ages of ten and fourteen. The appellant had become dependent on illicit drugs. Her usage of them appeared to have begun during that period of abuse, which presumably contributed to it.

24. After that period of abuse, the appellant came into occasional contact with the criminal justice system. In addition to the commission of the trespass offence, she had a number of prior convictions, including nine offences of minor theft; one of burglary; two of taking a vehicle without lawful authority or excuse; four of riding in a vehicle knowing it to have been taken without lawful authority, attempted armed robbery and attempted robbery. All offences were, apparently, of a relatively minor kind.

25. However, as the primary Judge observed, the appellant’s mother had apparently identified positive changes in the appellant’s attitude in the months leading up to the Magistrates Court hearing. The appellant’s motivation to complete her Year 12 Certificate was also noted. The primary Judge also noted that the appellant had told the Parole and Probation officer who prepared the pre-sentence report that she had ceased using heroin and ‘speed’ during the previous period of fifteen months, that she no longer wanted to use drugs, and that she recognised that they had an adverse effect on her mental and physical health. Rehabilitation

26. The role of rehabilitation is particularly relevant in relation to young offenders, a point recently reiterated by the New South Wales Court of Appeal in R v AEM Snr; KEM; MM [2002] NSWCCA 58. Beazley JA, Wood CJ at CL and Sully J observed at [97] that: It is well accepted that in the case of youth, general deterrence and public denunciation usually play a subordinate role to the need to have regard to individual treatment aimed at rehabilitation: see R v DAR (unreported New South Wales Court of Criminal Appeal, 2 October, 1997; R v Mazzilli [2001] NSWCA 117.

The comparative seriousness of this case

27. In the present case, although offensive and troublesome to the retailers concerned, the offences were, relatively speaking, low in the scale of seriousness. No loss to the retailers was incurred. The nature of the items stolen suggests a degree of immaturity on the appellant’s part. Her recidivism is fairly characterised as that of a persistent nuisance, criminally unmindful of other people’s rights. She abused her conditional liberty and special obligation to obey the law imposed by her recognizance. It is also relevant that the appellant entered guilty pleas in relation to both offences and that she had a background apt to make growing into responsible adulthood difficult.

Conclusion

28. A decision that may involve sentencing a young offender to prison for the first time requires a careful exercise of sentencing discretion. As a general rule, courts do and should strive to mould some other sentencing disposition unless the seriousness of the offence in all its circumstances, including those of aggravation by recidivist conduct and offending whilst being under a special obligation to obey the law as a result of a bond extended by a previous sentence, demands actual imprisonment. Only cases of real seriousness warrant a departure from this rule. This proposition is firmly founded on established principle: see for example, Pham & Ly (1991) 55 A Crim R 128 at 135 per Lee CJ at CL (with whom Gleeson CJ and Hunt J agreed).

29. On one view, this is a case where the Magistrate faced a situation of a quite young woman who had committed these offences barely into her adulthood, but there were several factors that militated against conferring leniency on her. The appellant had a lengthy record of offending, including offences of dishonesty, albeit that the offences seem to have been relatively minor. Despite having been previously incarcerated in a child welfare institution, she committed both shoplifting offences in breach of a recognizance. The learned Magistrate apparently and understandably thought that, despite the comparatively minor nature of the offences, only a term of imprisonment would bring home the consequences of such actions to the appellant.

30. However, accepting that that was her Honour’s impression and that she was entitled to have it and to give effect to it, we think that an error of principle is nevertheless apparent in what was done. A sentence of imprisonment should never exceed that which is the minimum necessary to accomplish the sentencing objectives which the sentencer considers should have most weight in the case at hand: Hoare v The Queen (1989) 167 CLR 348 at 354; Veen v The Queen [No.2] (1988) 164 CLR 465 at 472. Such a notion has been statutorily recognised in other jurisdictions and has been termed the principle of ‘parsimony’. It may be a useful and acceptable neologism to call it the principle of minimality. In the ACT it is the necessary and implicit corollary to s 345(1) of the Crimes Act 1900 (ACT) which provides: A court shall not pass a sentence of imprisonment on any person for an offence against a territory law unless the court, after having considered all other available penalties, is satisfied that no other penalty is appropriate in all the circumstances of the case.

31. That there were two offences enlarged the range of sentencing options available to her Honour. She could have, as an alternative, suspended the sentence for one or other of the offences and/or considered partial suspension of the other. The result would have been that the appellant would have tasted an adult prison for the first time and experienced the contrast between it and the child welfare institution she had previously known. She could have then been released and, significantly, released with the knowledge that she would be returned to prison for a longer period if she offended again.

32. The principle of parsimony or minimality is especially important in relation to youthful offenders, where, as we have indicated, rehabilitation of the offender is almost always a matter to be given great importance. The present case is not simply one of an offender who has been given many chances and failed to take advantage of them. Rather, the appellant was young and apparently immature for her age at the time of committing these offences. Despite the aggravating features, these offences cannot be classed as, comparatively, really serious. While the appellant’s prospects for rehabilitation did not appear bright, there was some indication that she had shown a dawning preparedness to moderate her untoward behaviour. In short, she was not beyond ‘rational hope’ of rehabilitation cf R v Blaskovic [1999] FCA 1306 at [31]. Positive remarks in the pre-sentence report lent support to that view.

33. It seems to us that, had the learned Magistrate had present to her mind this principle and its proper application to the present case, she could not have imposed the sentence that she did, at least without explanation of why the precise course she was choosing was necessary. No such explanation was apparent or is otherwise obvious. We conclude that her Honour did not apply what we have referred to as the principle of minimality, as she should have done.

34. Likewise, although the point was raised only in the course of the oral submissions before us, technically and sufficiently it was an appellable error by the learned primary Judge not to have corrected the Magistrate. The point is of general importance, could not be cured by the respondent’s calling of further evidence and concerns the propriety of a first custodial sentence for a young offender to be served in an adult gaol. Exceptionally, we would allow the point to be raised.

35. The consequence is that the appeal should be allowed and we should re-sentence the appellant. Disposition

36. As at the hearing the appellant had served fifteen days’ imprisonment. We considered that the appropriate sentencing disposition was as follows, and so ordered at the hearing: a sentence of imprisonment for one month should be imposed in respect of the first offence, and a sentence of imprisonment for one month for the second offence, to be served cumulatively. Time served to date should count. The sentences are to be suspended after the appellant has served fifteen days, upon her entering into a recognizance in the sum of $1 000 to be of good behaviour for a period of eighteen months from 31 October 2005; during that time, the appellant is to: accept the supervision of the Director of Corrective Services (ACT); obey reasonable directions of the Director, including, but not limited to, courses of education, supervision of employment, and/or place of living; participate in a Cognitive Skills Course of twenty-two weeks as referred to in her pre-sentence report; and is to report within twenty-four hours to the Intake Officer of Adult Corrective Services at Eclipse House, London Circuit, Canberra, ACT.

37. The consequence of our order was that the appellant’s sentence was suspended forthwith.

38. In addition to the matters in her favour referred to above, the appellant had not reoffended since her sentence by the learned Magistrate. There is a basis for reasonable apprehension that the ‘clanging of the prison gate behind her’, together with the fear of further captivity in an adult gaol, as well as her probably having matured to a degree, may have been sufficient to deliver to her the short, sharp and beneficial shock that her Honour apparently had in contemplation. Although the extent of our intervention in the duration of the sentence is not on one view substantial, neither is it, in context, such that it can be regarded as ‘tinkering’.

39. Finally, we would add that our sanctioning of a very short term of imprisonment should be regarded as exceptional. We do not mean to cast doubt on the general rule that, where the choice for a sentence is between such a short term and some other sentencing disposition, only rarely will the former be appropriate.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 16 December 2005

Counsel for the Appellant: Mr B J Salmon QC

Solicitor for the Appellant: Legal Aid Office (ACT)

Counsel for the Respondent: Mr R Refshauge SC

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

Date of hearing: 31 October 2005

Date of judgment: 16 December 2005

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