Ursino v Read; Ursino v R [2005] ACTSC 106

Supreme Court of the ACT|2005-10-10|Before: Crispin J

1. in matter SCA 49/05 the appeal be upheld and the non-parole period varied so that it expires on 30/1/06 rather than 3/2/06;

2. in matter SCA 48/05 the appeal be upheld and the non-parole period be varied so that it expires on 27/2/06, rather than 3/3/06.

1. The appellant seeks to challenge sentences imposed upon him in the Magistrates Court by Magistrate Burns (SCA 49/05) on 21 June 2005, and by Magistrate Lalor (SCA 48/05) on 29 June 2005.

3. He also admitted two breaches of recognisances entered into pursuant to orders made in the Magistrates Court on 15 June 2001 and 9 March 2004, respectively. The offence for which the appellant had been sentenced on 9 March 2004 had been one of assault occasioning actual bodily harm and, upon his conviction, the Court had imposed a sentence of 12 months' imprisonment but suspended that sentence upon the appellant entering into the recognisance to which I have referred. The other breach of recognisance related to an earlier failure to pay compensation as ordered by the Court.

4. Magistrate Burns imposed a sentence of 3 months' imprisonment in respect of the offence of failing to appear, and a further sentence of 5 months' imprisonment in respect of the offence of escape arrest, the latter to be cumulative upon the earlier sentence.

5. With reference to the breach of recognisance relating to the offence of assault occasioning actual bodily harm, his Honour imposed a sentence of 9 months' imprisonment, and ordered that 6 months of that sentence be cumulative upon the sentence imposed for the offence of escaping from arrest. His Honour directed that no further action be taken in relation to the breach of the other recognisance.

6. His Honour set a non-parole period to expire on 3 February 2006.

7. Mr Doig, who appeared for the appellant, submitted that these sentences were excessively severe. He effectively conceded that, viewed objectively, they were within the range of discretion reasonably available to his Honour. However, he challenged them on a number of grounds.

8. First, he suggested that his Honour had fallen into error by failing to consider other community-based sentencing options. He pointed out that the pre-sentence report had indicated that the appellant had consented to periodic detention, but that there had been no other substantial material before his Honour that canvassed the merits of such an approach.

9. As Mr Doig suggested, it is incumbent upon a sentencing magistrate or judge to consider periodic detention when dealing with charges of such a nature. In the present case, however, neither party seems to have made any submission directed to the possibility of periodic detention and the pre-sentence report revealed that Corrective Services records had indicated that the appellant had reported erratically to that service over a lengthy period of contact during earlier periods of supervision. His reporting pattern had been variously described as erratic or without appointment, though at other times satisfactory. His demeanour during supervision sessions had frequently been reported as aggressive or agitated, though there had been occasional notations suggesting more positive attitudes displayed by him during some supervision interviews. The report also referred to his continued drug usage, and noted that he had acted in a dismissive manner when asked about an anger management course that he had undertaken. It also noted that he had minimised the extent to which he had an anger management problem, though he had acknowledged that he had had numerous convictions for offences of violence.

10. His Honour also had before him a report from a clinical psychologist, Ms Cassandra Richards, which included the following passage:

Whilst Mr Ursino indicates that he experiences remorse after violent incidences, his impulsivity, lack of insight, and hostile biases towards negative beliefs about other's intentions increase his risk of re-offending. Mr Ursino continues to use illegal substances in an attempt to manage his anger problems, and he does not intend ceasing this usage.

11. Despite the criticisms that Mr Doig made of the adequacy of the reports provided to the Court, it seems to me that his Honour was entitled to come to the view that sentences of fulltime imprisonment were required. Indeed, it seems likely that the failure of the appellant's counsel to raise the possibility of periodic detention merely reflected his recognition of the inevitable.

12. As his Honour observed, offences of failing to appear in answer to a bail undertaking are prevalent, and the commission of offences of that character put the community to the expense and inconvenience of having to locate and arrest the absconding defendant and bring him or her back to court. Furthermore, if alleged offenders were permitted, without significant penalty, to delay trials or sentencing proceedings by failing to answer their bail, confidence in the whole process could suffer and other alleged offenders might be encouraged to adopt a similar course. Hence, in the absence of any significant mitigating factor, custodial sentences should be expected for offences of this kind.

13. His Honour made somewhat similar observations, again in my view correctly, in relation to offences of escaping arrest. Whilst not particularly common, such offences nonetheless are potentially capable of undermining the administration of criminal justice, and if an unduly lenient approach were to be taken to them it might well lead to others taking a similar approach. In the present case, the appellant had climbed out of the toilet window in his unit after he had been arrested, and then fled the scene. He had to be chased by police and, when apprehended about 300 metres away, was aggressive towards them.

14. It should also be borne in mind that the appellant had already been released upon a recognisance after being sentenced by the Chief Magistrate last year, and that the offences of failing to answer his bail and the escape arrest both constituted breaches of that recognisance.

15. In these circumstances it was clearly open to the learned Magistrate to proceed in the manner that he did. In the particular circumstances of this case, I would not assume that his failure to specifically refer to the question of periodic detention reflected a failure to have considered that possibility rather than a rejection of it as inappropriate. However, even if his Honour had fallen into such an error, it would have had no impact on the outcome of this appeal because the sentences were, in my view, amply warranted.

16. Secondly, Mr Doig adverted to the fact that his Honour had taken into account the fact that the accused had spent 46 days in custody, that being a figure which had been common ground in the proceedings before his Honour, but pointed out that the appellant had actually been in custody for 50 days. This was conceded. Accordingly the respondent accepted that the appeal should be upheld for the limited purpose of deducting four days from the non-parole period.

17. Thirdly, Mr Doig submitted that his Honour had fallen into error in referring to the particular offence to which the bail undertaking had related. This error was also conceded. However, Mr Lundy, who appeared on behalf of the respondent, submitted that it was an error of no substantial relevance. The learned Magistrate had said that the bail undertaking had required the appellant to appear in respect of a charge of assault, to which he had pleaded not guilty, but went on to say that he dismissed the substance of the allegation from his mind in sentencing the defendant. It is conceded that such an approach would have been entirely appropriate, had that been the charge to which the bail undertaking related. However, the bail undertaking had in fact related to an allegation of breach of recognisance that had been imposed not for assault, but for damaging property of the Australian Capital Territory.

18. During the course of his remarks on sentence his Honour said:

It is relevant to observe, however, that the alleged offence for which the defendant was on bail was not minor or trivial, particularly so in the case of this defendant, who has a lengthy history of offences of violence.

19. For myself, I doubt that the nature of the alleged offence for which bail was granted will usually be of any substantial relevance in determining an appropriate sentence for breach of bail. The offence is constituted by a failure to comply with an undertaking to attend on the day in question, and such an offence is established irrespective of whether the charge for which the bail was required was minor, trivial, substantial or, for that matter, whether it was ultimately proven or dismissed as groundless. It may, nonetheless, be open to a magistrate to take into account the fact that bail had been granted for a relatively trivial offence but, in this case, it is difficult to see how the suggested confusion could have made any substantial difference as to the gravity of the offence of failing to comply with the bail undertaking. Furthermore, even if his Honour had fallen into appealable error by reason of that confusion, the sentence was, as mentioned earlier, amply warranted.

20. Finally, in reply, Mr Doig sought to raise a fourth point, though it appears to be one that was not taken in the notice of appeal. He contended that in sentencing the appellant for breach of the recognisance, the Magistrate's discretion had miscarried because there had been inadequate material in the pre-sentence report to enable his Honour to adequately address the question of the appellant's compliance with the recognisance prior to the breaches in question.

21. It is true that the material was somewhat limited, in that the passage concerning the erratic reporting pattern of the appellant during previous periods of supervision did not adequately describe the nature and extent of the difficulties so described, or as Mr Doig suggested, the time at which the erratic reporting commenced. Nonetheless, his Honour was obliged to do the best he could with the evidence that had been presented. There was no application for an adjournment to adduce further evidence to qualify or add to the material contained in the pre-sentence report or the report of the clinical psychologist, and what material was available amply justified the comments that his Honour made. I can see nothing to indicate that his Honour fell into appealable error.

22. Regrettably, the appellant has a long record for violence. He has, on my count, nine previous convictions for assault, with four of those being for assault occasioning actual bodily harm, and has also been convicted of possessing a weapon with intent. Yet despite his record, and despite a diversity of sentencing approaches including previous sentences of full-time imprisonment, he still appears to minimise the extent to which he has had, and still has, an anger management problem. He apparently not only persists in using illegal substances, but purports to do so in an attempt to manage his anger. He made it plain to his psychologist that he had no intention of ceasing his drug usage.

23. In these circumstances it seems to me that the sentences that Magistrate Burns imposed were not only open to his Honour but, if anything, somewhat more lenient than the appellant deserved. Accordingly, even if I had found some appealable error in the approach taken by his Honour and proceeded to re-sentence the prisoner, that exercise would not have assisted him.

24. In relation to the appeal against the sentences imposed by Magistrate Burns, I uphold the appeal only to the extent of noting that the appellant had served 50 days in custody prior to being sentenced, rather than 46. Accordingly, I will reduce the non-parole period by 4 days so that, instead of expiring on 3 February 2006, it will expire on 30 January 2006.

25. The appeal against the sentence imposed by Magistrate Lalor may be dealt with more succinctly. The appellant had pleaded guilty to one count of common assault, that being an assault committed upon his own father. This offence, it should be noted, was also committed at a time when the appellant was subject to the recognisance entered into pursuant to the sentence on 9 March 2004. Magistrate Lalor imposed a sentence of 3 months' imprisonment for the assault and ordered that it be served cumulatively upon the third of the sentences imposed by Magistrate Burns. A non-parole period was set to expire on 3 March 2006, obviously with the intention of extending the existing non-parole period by a period of only one month.

26. In the course of his reasons for judgment, the learned Magistrate observed that the matter had been mentioned on five previous occasions, and said; "He therefore loses any benefit to a plea of guilty, any substantial benefit to a plea of guilty". I note, in passing, that there is no general principle to the effect that a plea of guilty ceases to have any mitigating effect if made after the case has been mentioned before the court. On the contrary, there may be many circumstances in which an offender would be entitled to a considerable benefit as a result of a plea of guilty, even after the matter had been mentioned on a number of occasions. However, the stage at which any plea of guilty is entered may obviously be relevant to the amount of leniency that may be extended to the offender in question.

27. In the present case, I am not persuaded that his Honour's remarks demonstrated any appealable error and the sentence imposed again seems to have been an extremely lenient one, having regard to the nature of the assault in question, the fact that it was committed in breach of a current recognisance and the appellant's previous record of violence.

28. I will uphold the appeal against that sentence only for the purpose of making a four-day adjustment in relation to the non-parole period consistent with the adjustment which I have already found should be made to the earlier non-parole period. As I have mentioned, it seems clear that his Honour had intended to increase the non-parole period by a period of one month. It is common ground between counsel now appearing before me that it would be appropriate to reflect the four-day adjustment by varying the non-parole period so that it will expire on 27 February 2006, rather than 3 March 2006.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Solicitor for the appellant: Darryl Perkins Solicitor

Solicitor for the respondent: ACT Director of Public Prosecutions

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Judgment (35 paragraphs)