Webb v Biddle [2014] TASSC 6

1. On 21 October 2013 the applicant was sentenced by Magistrate Brett to a period of five months' imprisonment, the execution of which was wholly suspended for 18 months on conditions:

a that the applicant commit no offence punishable by imprisonment;

b that the applicant perform 63 hours of community service; and

c that the applicant comply with the supervision of a probation officer.

1. The learned magistrate imposed a sentence of imprisonment globally on four complaints, one of which charged an offence of using an unregistered motor vehicle contrary to s27(1) of the Vehicle and Traffic Act 1999.
2. Section 27(1)(a) of the Vehicle and Traffic Act prescribes, in the case of a first offence, a maximum penalty of a fine not exceeding 20 penalty units.
3. No prior convictions were tendered to the learned magistrate and thus the applicant was to be sentenced as a first offender on that complaint.
4. In addition to the offence of using an unregistered motor vehicle, the global sentence was imposed in relation to the following charges:

a four offences of aggravated burglary contrary to s245(a)(iii) of the Criminal Code;

b one offence of burglary contrary to s244 of the Code;

c five offences of stealing contrary to s234 of the Code;

d one offence of receiving stolen property contrary to s258 of the Code; and

1. one offence of making off without payment contrary to s38A(1) of the Police Offences Act 1935.

1. The following matters were put to the learned magistrate on behalf of the applicant in mitigation of the applicant's offending:

"As far as the details of that offence are concerned, it was her intention initially to make payment for the fuel, however when the card was declined she accepts that she left and that there was no further attempt made to offer payment for the fuel.

As far as the registration of the vehicle was concerned, it was a situation where she had only recently purchased the vehicle. She was unaware that the registration had lapsed, and as your Honour has heard, it's not something that she has a prior history for. Obviously the more serious offences are those involving numerous counts of burglary and stealing. The circumstances behind that are that Ms Webb and her partner, Mr Wylie, had made the decision to leave town and reside at camping grounds in fairly remote areas. The genesis of that decision was that Mr Wylie did have warrants outstanding for his arrest and wished to remove himself from a place where he would be easily located by police.

Ms Webb instructs me that for the most part the items that were taken were those that were necessary to their survival, a number of them were in the form of food, bedding, power generators and the like. The more expensive of those items are those that have been recovered by police, so the financial loss to the various owners of the property mercifully is relatively limited. I'd certainly be asking your Honour to take into account that Ms Webb was cooperative with the police when interviewed. She has entered pleas of guilty at an early stage, I would be saying really at the first available opportunity, given that when she appeared before the Court on the 20th of August in relation to these matters, it wasn't possible for pleas to be entered as the necessary documentation hadn't been received from police, so as soon as there's been an opportunity for her to provide instructions in relation to the specific charges, she has entered pleas of guilty to all counts.

It was behaviour that was very much out of character for her and your Honour has heard again that she doesn't have any prior matters of a similar nature or indeed any prior matters that have come before the Court at any stage. She is still in a relationship with Mr Wylie. That relationship has become one of more positive influence now that he is currently subject to the auspices of the Court mandated diversion program. Ms Webb is also, to the extent that it's possible, availing herself of the assistance that's being offered to Mr Wylie through that program, in particular she has been attending his counselling sessions with the Bridge Program. It's in the form of group sessions, and so she's able to attend that with him. That's in the form of three hour sessions on a regular basis and Ms Webb instructs me that both she and Mr Wylie are gaining considerable assistance from that and assistance that, to some extent, is relevant to the particular circumstances of these offences to the extent that they were influenced by the consumption of alcohol and other substances.

Ms Webb currently has the care of three children from a previous relationship. The children are aged eight, five and three. They reside with Ms Webb and her mother in Devonport. She also has indirectly, involvement in the care of her current partner's child, who is aged seven and resides in Port Sorell. She spends time with Mr Wylie, and by extension, with Mr Wylie's son at his current residence, which is in Burnie. However, it's their hope and their intention to ultimately obtain their own accommodation in the Port Sorell area so that it's convenient, in particular, to the address where Mr Wylie's son is currently residing.

Ms Webb is currently reliant on Centrelink benefits. From those benefits she contributes to the cost to the ordinary household costs, in particular in relation to the address in Devonport where she resides with her mother. She's expressed a view to potentially in the future, looking at obtaining employment in the areas of child care or a similar field. I raise that not to assert that there's going to be any specific detriment by the recording of convictions in relation to these matters, but to indicate to your Honour that the recording of convictions is, in and of itself, going to be a significant penalty for her and particularly the recording of convictions in relation to matters of dishonesty. That is something she accepts as being part of the penalty that's going to follow from her conduct in relation to these offences. It is conduct, as I've said, that was out of character, and I'd be asking for your Honour to have particular regard to her prior good character when assessing the question of penalty."

1. The learned magistrate made the following comments on passing sentence:

"You've pleaded guilty to a number of charges, the ones that relate to you alone include making off without payment and driving an unregistered motor vehicle, but it must be fairly obvious that by far the most serious set of charges are the aggravated burglary and stealing and the burglary and stealing. There's my count, four counts of aggravated burglary and stealing and one count of burglary and stealing. There was a significant amount of property involved. I don't believe that all of that property has been recovered, but in any event, the property involved in the stealing amounted to about six or seven thousand dollars.

The aggravated burglaries in particular, and I'm not diminishing the seriousness of the other charges, but the aggravated burglaries in particular I regard as extremely serious. They involve the invasion of a place that a home occupier ought be entitled to consider safe and sacrosanct and that is a residential home. The commission of those offences are capable of instilling a sense of fear and loss of security among law abiding citizens. The community rejects the commission of that type of offence.

I'm satisfied that at the time of commission of these offences you were subject to some influence from your partner, but it also seems to me that you were - you participated in these offences freely and without regard to the rights and welfare of the victims of your offence. It's clear that you have no prior convictions and accordingly, to some extent, I can regard the commission of these offences as out of character, but against that I note also that there are a significant number of these offences and they were committed over a period of one to two months and I think that given that, that the question of them being out of character only carries a limited amount of weight.

You have the care of three young children and your partner's child. That matter needs to be taken into account, but again there's another side to that, and that is that the courts would take the view that perhaps you should have thought about your obligations in that regard before committing these offences and to some extent the commission of offences, when you have those responsibilities, tends to aggravate the matter rather than mitigate it. However, I need to take into account that you do, in actual fact, provide that care and I need to take the welfare of your children into account.

It seems to me that - I've thought about the fact that you have no prior convictions, but it seems to me that the offences do require the imposition of a sentence of imprisonment from the point of view of both deterrents of the general public - sorry, the community - deterrents of members of the community who might commit such offences and deterrents of you in the future. I am going to impose such a sentence, however I am going to wholly suspend that sentence and that's a recognition of a number of factors. Firstly, the fact that these are the first time you've committed any offence of note, and so it's my belief and hope that by the suspension of the sentence and having it effectively hanging over your head for a period of time, you'll be encouraged to rehabilitate yourself and deterred from committing further offences. Make absolutely no mistake, this will be a sentence of imprisonment and if you breach the terms of suspension, the most important of which is that you're not to commit another offence punishable by imprisonment during the period of the suspension, I'll have absolutely no hesitation in requiring that you serve this sentence, care of children or not. Do you understand me?

HIS HONOUR: I'm also going to impose a period of community service. I will - in accordance with the recommendation of the pre-sentence report, I will moderate the period to take account of the fact that you have the care of children, but for a modest period you're going to have to find someone else to care for them because you're going to have to do some work in the community, and the purpose of that is really to maintain the punitive effect of the sentence. I'm also going to make you subject to the supervision of a probation officer and that will give you the opportunity to engage in appropriate rehabilitation and the support you need to do so.

The orders I make are these. You will be convicted of all of the offences to which you pleaded guilty. You're sentenced to five months imprisonment. That sentence will be wholly suspended for a period of eighteen months from today. The conditions of suspension will be as follows: firstly, you're not to commit an offence punishable by imprisonment during that period; secondly, you'll be subject - you'll perform sixty three hours of community service and the usual conditions of a community service order will be incorporated into the sentence; thirdly, you'll be subject to the supervision of a probation officer during the period of - that period of eighteen months that the sentence is suspended for, and all of the optional and core conditions of a probation order will be incorporated into the sentence.

One of those conditions is that you need to report to Community Corrections within one clear working day in order to commence the supervision. You'll pay levies pursuant to the Victims of Crime Compensation Act in the sum of two hundred and twenty dollars within twenty eight days. You'll pay costs in respect of these complaints in the sum of - I'll modify the total, but it will be in the sum of two hundred dollars."

1. The applicant has moved to review the order of sentence. The amended notice to review contains two grounds as follows:

"1 The learned magistrate erred in law in that the sentence imposed was manifestly excessive in all the circumstances of the case.

1. The learned magistrate erred in law by imposing a term of imprisonment in respect of the offence of use unregistered motor vehicle on complaint number 52373/2013 when such sentence exceeded the maximum penalty available at law."

1. As to the first of the two grounds of the notice to review the applicant's counsel, Ms Ker, made the following written submissions:

1. The Applicant submits the offences of aggravated burglary and burglary, were at the lower end of the scale for offences of this type.
2. In relation to the offences of aggravated burglary, the sole circumstance of aggravation alleged was that the place in relation to which the burglary was committed was being used or was ordinarily used for the purposes of human habitation (AB 1, 3, 5).
3. No specific findings of facts were made on this issue; however, the Applicant submits the material facts of each offence established only the latter circumstance, namely, that the place in relation to which the burglary was committed was ordinarily used for the purposes of human habitation. It was at no time asserted or established that the premises in question were, or were likely to be, occupied at the time the offences were committed.
4. The material facts established that, in one instance, a window was broken in the course of the offence to effect entry to the premises (AB 9), but that in all other instances entry was effected by forcing a door or window. With the exception of the one broken window, it was not asserted or established that any damage was caused during the commission of the offences.
5. The Applicant submits the offences of stealing were mitigated by the value of the property in question and the recovery of a substantial amount of that property.
6. The value of the stolen property was estimated as $6,000 to $7,000 (AB 16). Whilst not insignificant, this amount is a modest one having regard to the jurisdictional thresholds for stealing and like offences: such offences are heard summarily where the property value does not exceed $5,000, and in the absence of any objection from the defendant, are heard summarily where the property value does not exceed $20,000.
7. A significant amount of the stolen property was recovered from the Applicant and was seized by police without obstruction or resistance. The recovered property was not set out in full but included a generator, a motorcycle, a swag and various tools (AB 9, 10). The other items stolen, established as food, alcohol, firewood and bedding, were of a comparatively low value, minimising the financial loss occasioned by the commission of the offences.
8. The material facts established the property in question was taken for the immediate use of the Applicant and her partner rather than for any intended or realised financial gain that might aggravate the offences.

1. The Applicant submits pleas of guilty were entered at the first reasonable opportunity in relation to all charges with the exception of the offence of make of without payment on complaint number 52373/2013, and that pleas of guilty were entered to all charges at an early stage in proceedings.
2. The Applicant first appeared on complaint numbers 52850/2013, 52851/2013, 52853/2013 and 52854/2013 on 16 July 2013. The Applicant first appeared on complaint number 52373/2013 on 30 July 2013. On each date, the respective complaints were adjourned without plea to 20 August 2013. The adjournment of proceedings in this manner was permitted under the Justices Act 1959.
3. On the resumption of proceedings on 20 August 2013, the Applicant pleaded to the charges contained in complaint number 52373/2013. The Applicant pleaded not guilty to the offence of make off without payment and guilty to the offence of use unregistered motor vehicle (AB 13, 19).
4. The Applicant sought a further adjournment of the proceedings on complaint numbers 52850/2013, 52851/2013, 52853/2013 and 52854/2013. The stated basis of this application was that Tasmania Police had provided documents relevant to the Applicant's case less than a week prior to her appearance in court and had not had the opportunity to provide instructions in relation to that material (AB 19). That submission was not challenged by the Respondents and the adjournment was granted.
5. On the resumption of proceedings on 11 October 2013, the Applicant pleaded guilty to all charges on complaint numbers 52850/2013, 52851/2013, 52852/2013 and 52854/2013 (AB 9 to 12, 21 to 23). The Applicant was also granted leave to amend her plea of not guilty to the offence of make off without payment on complaint number 52373/2013 to a plea of guilty (AB 13, 21).
6. The Applicant submits her pleas of guilty were an acceptance of her conduct and a genuine expression of remorse.
7. There was a high level of co-operation with police in relation to the offences of aggravated burglary, burglary, stealing and receiving stolen property. Specifically, the material facts establish that the Applicant made detailed admissions when interviewed by police (AB 24, 25).
8. The mitigating effect of a plea of guilty is to be assessed dependent upon, inter alia, the quality of the evidence available to the prosecution.
9. The material facts do not establish the quality of the evidence that would have been available to the prosecution in the absence of the Applicant's co-operation. The property recovered from the Applicant would not without more have established her guilt in respect of the offences of aggravated burglary and burglary, particularly having regard to the involvement of a second person in the commission of those offences.
10. Accordingly, the Applicant's admissions and pleas of guilty ought not be considered mere acceptance of the inevitable as contemplated by the Court of Criminal Appeal in Murphy v R.

1. The Applicant submits that her prior good character and the unlikelihood of reoffending were such that the need for personal deterrence was limited.
2. The Applicant has no prior convictions for offences involving dishonesty (AB 25).
3. The offences of aggravated burglary, burglary, stealing and receiving stolen property were committed by the Applicant between 2 May 2013 and 13 June 2013. Whilst the offences were committed over a period of time, they arose from the established personal circumstances concerning her partner and to that extent constituted a single course of criminal conduct.
4. The Applicant's conduct in this regard ceased immediately upon her encounter with police on 26 June 2013 and was not continued or repeated subsequent to the commencement of criminal proceedings against her.
5. The offence of make off without payment constituted a spontaneous and unsophisticated breach of the law and ought not be considered a significant indication of the Applicant's character generally.

1. The Applicant submits that the imposition of a custodial sentence of the length imposed was not warranted in the circumstances of the case.
2. The decision to impose a suspended sentence must be made in accordance with the two stage process identified by Justice Kirby in Dinsdale v R and must commence with the primary determination that a sentence of imprisonment is the appropriate penalty to the exclusion of any lesser sentence. Whilst Dinsdale concerned legislative provisions specific to Western Australia, this approach has been accepted by the Court of Criminal Appeal as a correct statement of the law of Tasmania: see Langridge v R [2004] TASSC 97.
3. The Applicant submits that a period of five months imprisonment was not warranted in the circumstances of the case, and that such a sentence cannot be justified by reference to the order suspending its execution.
4. The Applicant submits that, given a sentence of imprisonment, the condition to perform 63 hours of community service was unnecessary to accomplish the purpose for which the learned magistrate made the condition, that is, to 'maintain the punitive effect of the sentence.' (AB 32)
5. A wholly suspended sentence of imprisonment is, with limited exceptions, taken to be a sentence of imprisonment. Such an order carries with it the risk that the sentence may be activated at some later stage and accordingly has a punitive effect in its own right.

37 In this case, the punitive effect of the sentence was also achieved by:

1. The condition that the Applicant be subject to the supervision of a probation officer during the period of the suspended sentence;

c The order for payment of costs in the sum of $200.

1. A probation order is an order with both rehabilitative and punitive aspects. An example of the latter is the requirement that the offender must not leave or stay outside Tasmania without the permission of a probation officer.
2. The recording of convictions may have a negligible effect in the case of a repeat offender; however, the Applicant had no record of criminal convictions. The existence of such convictions may be to her detriment in the future in, for example, obtaining employment. This may prove to be particularly so given the convictions are for offences of dishonesty.
3. The orders for payment of costs amount to fines as defined by section 4 of the Sentencing Act 1997. Such an order is therefore punitive in effect."

1. As will be seen, the respondents do not actively oppose the applicant's motion. In respect of ground 1 of the notice to review, counsel for the respondents, Mr Nicholson, made the following written submissions:

"5 In respect of the contention made by the applicant that the sentence imposed by the learned Magistrate was excessive in the circumstances, the respondents make no general contentions, except for the following:

1. The applicant ought to have been convicted. Whilst she was a first offender, the offences of dishonesty warranted an 'official record of the commission of the offence'. [Attorney General v Smith [2002] TASSC 10, per Crawford J (as he then was) at [26]. See His Honour's discussion generally at [24] - [25] also. The issue of conviction or non-conviction was more recently discussed by Porter J in Blake v Adams [2013] TASSC 44, in His Honour's reasons at [28] - [54].] Moreover, conviction is in and of itself an effective punitive sanction; and
2. Some form of intermediate sanction was appropriate, such as community service hours which would promote deterrence of the applicant from committing similar further offences in the future as well as her rehabilitation. Moreover, an order such as the community service order made by the learned Magistrate would be a 'regular and tangible reminder [to her of her] wrongdoing'. [Tanner v Brown [2011] TASSC 59, per Wood J at [47].]" Footnotes italicised.

1. Having reviewed the transcript of the proceedings before the learned magistrate, and having been greatly assisted by the careful and comprehensive written submissions of Ms Ker, as well as those of Mr Nicholson, advanced with his customary fairness, I am persuaded that the sentence imposed by the learned magistrate was manifestly excessive.
2. The applicant was a 25 year old mother of three, with no prior convictions, who committed a number of offences of dishonesty in something of a spree, in circumstances where aggravating features were minimal. When apprehended, the applicant assisted police and she pleaded guilty at the earliest stage that was practicably possible. A significant amount of the $6,000 - $7,000 worth of property stolen was recovered. A sentence of imprisonment was not at all warranted in those circumstances and the learned magistrate's sentencing discretion miscarried in my view, by the imposition of a suspended prison term.
3. Having found that the sentence of imprisonment imposed by the learned magistrate was excessive, the motion to review succeeds and, having been thereupon invited to re-sentence the applicant in line with the approach taken by Porter J in Chatwin v Godfrey [2013] TASSC 70 at [14] and [21], it is unnecessary for me to embark upon any consideration of the second ground of the notice to review.

1. The motion to review is allowed and the sentencing order of the learned magistrate is set aside.
2. As to the re-sentencing, I proceed, as did Porter J in Chatwin v Godfrey (above) on the facts as stated by the prosecutor to the magistrate, and I take into account all of that which was said by counsel in submissions in mitigation to the learned magistrate. On the basis of an independent exercise of the sentencing discretion, I impose one sentence on:

1. the two counts on complaint number 52850/2013 of one offence of aggravated burglary contrary to s245(a)(iii) of the Code, and one offence of stealing contrary to s234 of the Code; and 2. the four counts on complaint number 52851/2013 of two offences of aggravated burglary contrary to s245(a)(iii) of the Code and two offences of stealing contrary to s234 of the Code; and

1. the four counts on complaint number 52853/2013 of one offence of aggravated burglary contrary to s245(a)(iii) of the Code, one offence of burglary contrary to s244 of the Code and two offences of stealing contrary to s234 of the Code; and

1. the single count on complaint number 52854/2013 of receiving stolen property contrary to s258 of the Code; and 2. the count on complaint number 52373/2013 of one offence of make off without payment contrary to s38A(1) of the Police Offences Act.
2. I record a conviction in the respect of each offence and I order that the applicant perform 63 hours of community service. In addition I make a probation order for a period of 12 months from 21 October 2013, with no special conditions
3. In respect of the one count on complaint number 52373/2013 of using an unregistered motor vehicle contrary to s27(1) of the Vehicle and Traffic Act, I record a conviction.
4. I order that the applicant pay Magistrates Court costs in the sum of $200.