Thorn v Laidlaw [2005] ACTSC 53

. . . 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.

3. These principles have since been considered in a number of cases where the importance of the discretion has been repeatedly stressed. In Tait v Bartley (1979) 46 FLR 386 at 388, the Full Court of the Federal Court of Australia said and I quote:

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 . . . .

4. During the course of their written submissions counsel have referred to other authorities to like effect, but for present purposes it is unnecessary to cite them. Mr Edmonds, who appears on behalf of the appellant, submitted that an error in the present case was evident both from certain remarks of the Magistrate and also from the manifestly excessive nature of the sentences imposed.

5. The particular errors that Mr Edmonds identified are as follows:

° Firstly, imposing sentences that could only be justified by offences falling into the worst cases of minor theft when these particular offences did not do so.

° Secondly, failing to give any or any significant discount of utilitarian value of the appellant's pleas of guilty.

° Thirdly, imposing a sentence of imprisonment when other more suitable alternatives were available, thereby failing to adopt the principle that a sentence of imprisonment is a sentence of last resort.

6. So far as the first of these points is concerned, it should be observed that the maximum penalty for an offence of minor theft is six months' imprisonment. Accordingly, the sentences actually imposed in this case constituted, in one case, one-sixth of the maximum and, in the other case, one-third of the maximum. It should also be observed that the second of the offences was committed only seven days after the appellant had been released on a recognizance to be of good behaviour for a period of 18 months following her conviction for an offence of trespassing on premises.

7. She was unable to call in aid evidence of good character; the evidence revealing that she had prior convictions, apart from the offence to which I have already referred, for 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 that vehicle to have been taken without lawful authority or an excuse, attempted armed robbery and attempted robbery.

8. It is true that the value of the goods stolen was not high, but that must be considered in the context of offences of minor theft. Having considered all of the matters put to me by Mr Edmonds on this issue, I am unable to see any basis for an inference that the sentences in question would only have been applicable to the worst cases of minor theft.

9. The second contention must be considered in the context of the learned Magistrate's remarks and the circumstances that led her to make them. The learned Magistrate observed and I quote:

The only aspect in her favour in this, the only possible mitigating circumstance in her favour is that she's pleaded guilty to the offences. But as I have said, there is only so much and a very, very small amount of discount that can be given to - minimal. Minimal amount of discount that can be given to this particular defendant for pleading guilty. One matter she pleaded not guilty to, and it was set down for hearing, but she pleaded guilty to it before me on the last occasion that she was in court. She was caught red-handed on both occasions. So the discount that you can give somebody for pleading guilty after being caught red-handed is minimal, in my view.

10. As Mr Edmonds quite properly pointed out, there is ample authority for the proposition that even if the plea of guilty does not reflect significant remorse, nonetheless, there may be justification for applying quite a substantial discount by reason of the purely utilitarian value of the plea. One example of a case in which a quite substantial amount of discount might be justified would be one in which the community was spared the time and expense of a very lengthy trial.

11. Much, however, depends upon the circumstances. In the present case, Mr Edmonds submitted that her Worship had fallen into error by concluding the discount that could be given to a person for pleading guilty after being caught red-handed was minimal. I must say that I would not necessarily accept that proposition as a principle of general application. However, I think that when her Worship's remarks are read carefully, it becomes clear that her Worship had first dealt with the situation of "this particular defendant". Indeed she used that phrase clearly in stating that only a minimal discount could be given to the appellant pleading guilty. The more general observation she made later I think, must be considered in the context of that remark. The position was, or appeared to be that the plea of guilty to one charge, being made only after an initial indication of a plea of not guilty, appeared not to have been motivated by remorse and, as the learned magistrate observed, the appellant had been caught red-handed on each occasion. There is no factor identified in her Worship's reasons for judgment or so far as I can determine in the evidence that was before her, that would justify a conclusion that the utilitarian value of a plea of guilty was, in this case substantial.

12. In the circumstances, despite the hesitation I have about embracing the more general statement of principle which it is suggested her Worship was adopting, I have nonetheless been unable to find any error in her Worship's remarks.

13. The third proposition is, in my view, also unsustainable. As her Worship quite properly observed, the alternatives of suspended sentences or other options involving release on recognizance appeared fruitless, given the fact that the appellant had been given such opportunities on a number of occasions in the past and had breached each of the recognisances into which she had entered.

14. The appellant indicated that she would not consent to a sentence of periodic detention.

15. Mr Edmonds did suggest that her Worship had fallen into error by failing to consider home detention. But that is an application to be made after the sentence is imposed and it appears that such an application was not made and has still not been made. I am unable to say that her Worship fell into error by failing to accede to an application that was not made.

16. It is true that the appellant, after initially refusing to consent to an order for community service, changed her mind but I am unable to see that her Worship fell into error by regarding such a sentence as inadequate.

17. Mr Edmonds relied most substantially upon the proposition that in all the circumstances the sentences imposed upon the appellant were manifestly excessive. He stressed that she had had a tragic childhood, having had no contact with her biological father from a very early age and in particular, having been the victim of sexual assault perpetrated by a neighbour between the ages of 10 and 14. Whilst that neighbour fled rather than faced prosecution there is no reason to doubt the accuracy of the accounts given by the appellant in relation to that abuse. Indeed, the pre-sentence report revealed that she received $30,000 compensation for that pattern of sexual assault. Mr Edmonds also stressed the fact that whilst the appellant had clearly become dependent upon illicit drugs, her usage of them appeared to have commenced during the period of the sexual abuse and was presumably attributable to it. These are very significant matters which, in any contexts, would have not only entitled the appellant to the very great sympathy that should properly be extended to anybody who has lived through such experiences but would also be taken into account as strong factors in mitigation of penalty.

18. A further factor identified by Mr Edmonds was the positive changes that her mother had apparently found in the appellant's attitude in recent months and her motivation to complete her Year 12 Certificate.

19. Furthermore, the appellant 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 15 months and that she no longer wanted to use drugs that she recognised had an adverse affect on her mental and physical health.

20. Mr Edmonds also pointed to the fact that the second offence of minor theft was apparently attributable to an intention to effectively repay a debt of $20 incurred by borrowing money to buy cannabis by stealing telephone cases in order to give them to her creditor.

21. These are all significant matters and all matters that should properly have been taken into account by the learned Magistrate. On the other hand 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.

22. Having carefully considered all the facts and the arguments very ably put forward on behalf of the appellant by Mr Edmonds, 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. For these reasons the appeal against each sentence must be dismissed.

23. Mr Edmonds that leaves you, however, in a situation where no question of an application for service by way of home detention has been determined.

HIS HONOUR: It's over to you to make that application in the other court.

MR EDMONDS: Could I just query your Honour in terms of the effect of the dismissal of the appeal, I wonder whether the date of commencement of the sentence needs to be altered. Because - - -

MR EDMONDS: I think it was a matter of three or four days - in fact I'm instructed five days prior to being granted bail, in fact, by your Honour.

HIS HONOUR: All right. Mr Clark is there any difficulty about that?

MR CLARK: I'm just checking that your Honour. It appears to me that your Honour granted her bail on 18 March and I know that she was sentenced by the Magistrate on 14 March.

MR CLARK: - - - it was - yes, no difficulty with that.

HIS HONOUR: Let me say then that I will take that into account. The orders that I make are firstly that the appeal be dismissed subject only to the following further order. Namely that the sentences be confirmed but that the date of commencement be varied from 14 March 2005 to 12 May 2005. Nothing further?

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the appellant: Mark Fleming Criminal Lawyers

Solicitor for the respondent: ACT Director of Public Prosecutions