The applicant was aged 40 at the time of the proceedings before the learned magistrate. He had a considerable record of relevant prior convictions. His convictions for violence and breaches of court orders, excluding the offending giving rise to the suspended sentences which were before the learned magistrate which are under review, are as follows:
[2]
1 week imprisonment (cumulative to other sentences imposed for alcohol and driving-related offences committed on 23 September 1995)
[3]
2 weeks' imprisonment (cumulative to other sentences imposed for alcohol and driving-related offence committed on 19 October 1995)
1 month imprisonment wholly suspended on condition to be of good behaviour and to commit no similar offence of assault of police for 12 months.
[6]
10 weeks' imprisonment wholly suspended on condition that he be of good behaviour for a period of 12 months.
[7]
Global sentence with drink-driving offences committed on 25 January 2008 and 12 September 2007.
[8]
Global sentence with fail to comply with direction of police officer:
[9]
The applicant has an extensive record for alcohol-related driving offences. He has been sentenced with respect to 12 separate incidents involving such offending in the period 1982 to 2008, five of these incidents in the period 2002 to 2008. These incidents have given rise to: seven convictions for exceeding the prescribed blood alcohol limit, involving readings as high as 0.243; two convictions for drive with alcohol in body without authority (both involving blood alcohol readings in excess of 0.23); four for refuse breath analysis, and two for drive under the influence. He has a total of five prior convictions for drive whilst disqualified.
This category of prior offending has attracted suspended and actual terms of imprisonment, the first of which was a wholly suspended term of four weeks' imprisonment imposed in 1983 for offences of drive whilst disqualified and exceed 0.05. He has since received ten sentences of imprisonment, five of which were wholly or partially suspended, in the period 1989 to 2008. Most recently, in March 2008, he was sentenced to 18 months' actual imprisonment upon a conviction for drive a motor vehicle while exceeding the prescribed alcohol limit. He has been disqualified for extended periods.
The circumstances of the offender at the time of the sentencing orders made by the learned magistrate included the following:
The applicant acknowledged that he was an alcoholic. Daily consumption of alcohol was his main pastime in recent years.
His relationship with Ms Whiteroad had been on-again, off-again, and they both engaged in excessive consumption of alcohol.
Prior to the assault and multiple breaches of Police Family Violence Order on 20 January 2014, the applicant had been staying with Ms Whiteroad in breach of the Family Violence Orders. Ms Whiteroad had been charged with instigating some past breaches of the order by the applicant.
The applicant failed to appreciate the seriousness of his assault upon Ms Whiteroad until he saw the photographs of the injuries he inflicted. He did not see his threat to kill Ms Whiteroad as significant.
The applicant suffered from anxiety, had been diagnosed with major depression, and had been prescribed medication which he had ceased taking in May 2014 because he had felt better.
The applicant had been unemployed since 2010. He lived in accommodation supported by the Salvation Army.
He had received no assistance in relation to his alcohol abuse, such as treatment or counselling.
He had told the probation officer who prepared a pre-sentence report that he would be co-operative with directions for assessment and treatment in relation to his alcohol use.
He had been assessed as eligible for participation in the Family Violence Offender Intervention Program. The probation officer stated, "on assessment he presented as high risk and a direct sentencing to FVOIP as a special condition of a probation order is respectfully recommended".
[10]
The learned magistrate referred to the applicant's antecedents and his personal circumstances, and went on to make the following comments:
[11]
"I certainly also have to take into account your prior convictions. You've got a history which demonstrates - which demonstrates the issues you've got with alcohol, drink/driving matters, drive whilst disqualified, under that legislation, but also there's prior matters involving Ms Whiteroad. There are - there were, sorry, the three suspended sentences which were to give you an opportunity to demonstrate you wouldn't reoffend but you have. The Court has to start from the point of view that it must activate those sentences unless it would be unjust to do so, and it's been submitted by Mr Street, as you heard, that the latest sentence of eighteen months should not be activated in full because that sentence dealt not only with breach of family violence matters but also a drink/driving charge, and you heard Mr Biddle, the prosecutor, indicate that it was his submission that it should be fully activated.
[12]
There's clearly been no sign of rehabilitation, which is a factor that can be taken into account in relation to suspended sentences, and in my view, having considered the matters, I accept the submission from the prosecutor that the prior convictions are concerning, there's been an escalation, particularly in relation to this assault which is more serious than other matters you've had previously, and I accept the submission that - oh, I do accept the submission that the eighteen month suspended sentence on the 19th of August last year was clearly intended to deter you from drink/driving and driving whilst disqualified and that has - you have been deterred from doing that or from that type of offending so far, but you haven't been deterred from other types of offending, which these matters are.
[13]
Taking into account those matters, my order is that the four month suspended sentence imposed on the 10th of December 2012 and the two months suspended sentence imposed on the 16th of January 2013, both be activated in full. My decision is that it would be unjust to activate the whole of the eighteen months suspended sentence and I'm - and I will be activating twelve months of that. It does take into account that it covers drink/driving but you have reoffended.
[14]
In relation to the new matters, if's my view that I have to impose a sentence that reflects the serious nature of these charges and the on-going disregard for those orders by contacting Ms Whiteroad frequently and being there. The sentences I impose in relation to that is ten months' imprisonment cumulative to the other.
[15]
Now I need to backdate the commencement of the sentences to the 18th of August when you went into custody this year, and what I intend to because I also need to take into account the two months when you were on remand from May - sorry, March to May of 2013, that wasn't taken into account on the 19th of August when you were sentenced. So what I intend to do is deduct that from the ten month sentence - I don't really have much option I think to deal with it otherwise - I'll bring that back to eight months. So it was a ten month sentence but reduced to eight months to take into account the two months in remand.
[16]
So eighteen months of all those suspended sentences plus eight months now, in in relation to the new matters. I think it's the only practical solution unless anybody has any submissions to the contrary - no. Thank you."
[17]
Having imposed a total of 26 months' imprisonment, the learned magistrate then proceeded to impose an additional sentence of 12 months' probation to commence upon release, which included conditions that he undergo assessment and treatment for alcohol or drug dependency, and submit to testing for alcohol or drug use as directed, and other special conditions, including that he attend the Family Violence Offender Intervention Program if directed by Community Corrections.
The notice to review asserts error in that it was unjust to make an order requiring the applicant to serve the sentences of imprisonment of two and four months. Further, it asserts error in that the sentences imposed were manifestly excessive. Analysis of this grievance involves having regard to the sentence of eight months' imprisonment for the new offending and the substituted sentence of 12 months' imprisonment, to see if either was manifestly excessive. It also involves considering whether the aggregate of all the sentencing orders made by the learned magistrate, having regard to the totality principle, are plainly excessive.
[18]
The key statutory provision governing breach proceedings is the Sentencing Act, s 27. The court's power to activate the suspended sentence is enlivened if the court is satisfied that the offender has been found guilty of a new offence committed during the period that an order suspending a sentence of imprisonment is in force: s 27(4B).Sections 27(4B) and (4C) govern the consequences if the person has reoffended while the suspended term is in force. Section 27(4B) is expressed in mandatory terms, providing that the court "must" activate the sentence of imprisonment that is held in suspense and order the offender to serve it. The only exception to that requirement is if subs (4C) applies and such order would be "unjust". Section 27(4C) sets out the options that the court has if an order under subs (4B) would be unjust:
[19]
(4C) If the court is of the opinion that an order under subsection (4B) would be unjust, the court may instead -
[20]
(a) activate part of the sentence that is held in suspense and order the offender to serve it; or
[21]
(b) order that a sentence (in this section called the "substituted sentence") take effect in place of the suspended sentence; or
[22]
(c) by order, vary the conditions on which the execution of the sentence was suspended, including extending the period of suspension in the order to a day no later than 12 months after the day the offender was found guilty of the new offence; or
[23]
(d) make no order in respect of the suspended sentence."
[24]
Section 27 also provides that sentences of imprisonment must, unless the court otherwise orders, be served immediately and cumulatively with other terms of imprisonment previously imposed: s 27(6). Thus, in this case, because the learned magistrate did not make an order that any of the sentences be served concurrently, each of the terms of imprisonment imposed accumulate and amount to a total of 26 months' imprisonment, with none to be served concurrently.
The principle of totality is well recognised. It requires a judicial officer imposing sentences for multiple offences to review the aggregate of the sentences and consider whether the total effect of the sentences is just and appropriate. In Mill v The Queen[1988] HCA 70; (1988) 166 CLR 59, the High Court at 63 approved of the description of the principle in Thomas, Principles of Sentencing, 2nd ed (1979), 56-57 as follows (omitting references):
[25]
"The effect of the totality principle is to require a sentence who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'."
[26]
The totality principle serves to ensure both that the overall sentence is not excessive relative to the totality of the criminality of the offending, and also that an offender is not subjected to a "crushing sentence" not in keeping with his or her record and prospects: Postiglione v The Queen[1997] HCA 26; (1997) 189 CLR 295 at 304. The principle applies when sentencing for multiple offences, and also to cases where an offender is being sentenced at a time when he or she is already serving a sentence of imprisonment: Postiglione at 308_;_ see, also, recognition of the principle in s 16B of the Crimes Act1914 (Cth). For a thorough consideration of the totality principle, see Hall v Tasmania[2015] TASCCA 6, per Pearce J.
The totality principle also applies when sentencing for contravention of a suspended sentence resulting in the activation of the suspended sentence, and the imposition of a sentence for the new offence constituting the breach: R v Nolan[2009] QCA 129; Kaya v The Queen[2014] VSCA 55 at [19]-[21] per Neave and Weinberg JA. The legislative scheme for breach proceedings in Tasmania, like other jurisdictions, allows for the courts in their sentencing discretion to impose concurrent or partly concurrent sentences: Sentencing Act,s 27(6). This can be a suitable means, albeit not the only means, of giving effect to the totality principle in cases involving the activation of a term of suspended imprisonment and the imposition of imprisonment for the new offence: Mill v The Queen at 63. There is no criticism made of the learned magistrate in her approach of reducing the sentence of 18 months' imprisonment to 12 months' imprisonment as a means of achieving totality, rather than making part of the 18 month term concurrent.
From the discussion set out above, it can be seen that the sentencing task under s 27B is far from complete once it is determined that it would not be unjust to impose the original sentences. In accordance with the principles I have identified, it was necessary for the learned magistrate to review the aggregate sentence to ensure that the combined effect of the sentences was a just and appropriate sentence reflecting the totality of the criminal behaviour: Mill v The Queen at 63. Here, the learned magistrate was evidently mindful of the principle; as noted, the question is whether the sentences reflected adequate consideration had been given to the principle, in the circumstances.
Finally, it is relevant to note that the totality principle applies to both the head sentence and a non-parole period: Mill v The Queen; Devine v The Queen[2003] TASSC 52. Thus, the question is whether the overall sentence is excessive, relative to the totality of his criminal offending, noting that the applicant is not eligible to apply for parole.
The court's usual sentencing power in the Sentencing Act,s 17, to make provision for parole applies to breach proceedings: s 27(6A)(b).Section 17(2)(b) provides that a court may allow eligibility to apply for parole by ordering that an "offender is not eligible for parole in respect of that sentence before the expiration of such period as is specified in the order". The parole ineligibility period must not be less than one-half of the sentence imposed: s 17(3). Significantly, an offender is not eligible for parole if no order is made specifying a parole ineligibility period: s 17(3A). There is no default entitlement absent a court order setting a non-parole period. Here, the learned magistrate did not make an order under the Sentencing Act,s 17(2) providing that the applicant was not eligible for parole before the expiration of a specified period. Therefore, the applicant is ineligible for parole: s 17(3A). While the Corrections Act1997, s 68 makes provision for a statutory non-parole period, s 69 provides, in part, that a prisoner is not to be released on parole if ineligible for parole by operation of s 17(3A) of the Sentencing Act.
Section 70 of the Corrections Act also bears on the issue of parole. It provides that a prisoner is not to be released on parole before the completion of:
[27]
"(a) the non-parole period applicable to the prisoner's sentence; or
[28]
(b) a continuous period of imprisonment of 6 months -
[29]
whichever is the greater, unless, in the opinion of the Board, there are exceptional circumstances warranting the earlier release on parole of the prisoner."
[30]
Therefore, while the periods of imprisonment of four months and two months would not individually have been of sufficient length for a parole eligibility order, they could be taken into consideration with the other sentences imposed by the learned magistrate, resulting in "a continuous period of imprisonment" of 26 months. It was open to the learned magistrate to make orders allowing the applicant to apply for parole in relation to the State offences. Alternatively, the magistrate had discretion to make such orders on some sentences of imprisonment and not others, and, of course, to take the course she did which was not to make any order at all. It should be noted that if no order is made then the only means of ameliorating the full effect of the term of imprisonment imposed is remissions for good behaviour: Corrections Regulations2008, reg 22. This regulation provides, inter alia, that, if granted, a remission of a prisoner's sentence is not to exceed three months, that it cannot exceed one-third of the total period of imprisonment to which the prisoner is sentenced, and that the prisoner must serve no less than three months of the total period of imprisonment.
The court's power to fix a non-parole period applies in relation to a suspended sentence that has been activated and ordered to be served in whole or part, and to an effective term of imprisonment as a substituted sentence: s 27(6A)(b). The allowance to be made with respect to parole eligibility is one of the relevant factors for the court to consider in deciding, pursuant to s 27B, whether it is unjust to order the offender to serve the whole of the sentence. There is a line of authority from the Queensland Court of Appeal which is prescriptive in relation to the appropriate stage for consideration of parole eligibility. It is suggested that consideration of a parole eligibility date is an aspect of the decision as to whether it is unjust to order the offender to serve the whole of the suspended sentence. The question of parole is not a "separate and independent exercise of discretion, arising once a decision is made": R v Baker[2011] QCA 104, applying R v Norden[2009] QCA 42; [2009] 2 Qd R 455 at [13]- [15]. Whilst the statutory schemes regarding suspended sentences and breach proceedings in Tasmania and Queensland are similar, there are differences in the parole provisions not explored on this review. It is not necessary that I reach a conclusion as to whether parole eligibility is a consideration which only arises at the stage of determining whether it would be unjust to activate the sentence, or whether it may arise as a separate and independent exercise of discretion once that determination has been reached. For present purposes, it is sufficient to note that the allowance to be made for parole is one of the factors bearing on the court's discretion pursuant to s 27B, and that a failure to make allowance for parole may result in a sentence which reveals that the court's discretion has miscarried.
Before turning to consider the sentencing orders under review, I pause to reflect on general principles applicable to the court's discretion in fixing a non-parole period. The purpose of such orders is to give a sentencing judge the opportunity, when appropriate, to mitigate a penalty of imprisonment in favour of the rehabilitation of a prisoner through conditional freedom. The question of how long the non-parole period should be is a question for the sentencing judge. According to well-established principle, the non-parole period should be: "the minimum period the judge determines that justice requires the prisoner must serve, having regard to all the circumstances of the offence": Power v The Queen[1974] HCA 26; (1974) 131 CLR 623 at 629; Deakin v The Queen[1984] HCA 31; (1984) 11 A Crim R 88. See Director of Public Prosecutions v Harris[2013] TASCCA 5 at [10], per Blow CJ, for the application of this principle to the legislation under consideration.
Section 17(4) of the Sentencing Act provides the court with guidance in exercising its discretion with respect to parole eligibility:
[31]
"(4) In exercising its discretion under subsection (2), a court may have regard to such matters as it considers necessary or appropriate and, without limiting the generality of this, may have regard to all or any of the following:
[32]
(a) the nature and circumstances of the offence;
[33]
(c) any other sentence to which the offender is subject."
[34]
Relevant here is "any other sentence to which the offender is subject".
In Gill v The Queen[1990] TASSC 37, Crawford J, with whom Neasey J agreed, spoke of the effects of not making an order that a defendant be eligible for parole at the earliest possible time, and said at 7-8:
[35]
"The making of an order by a sentencing judge that a prisoner shall not be eligible for parole, or extending the non-parole period, has the effect of increasing the severity of the punishment by delaying the possible time for release from prison. It may act as a deterrent to the prisoner and others contemplating crime. It may also have the effect of protecting the public from further criminal conduct by the prisoner by keeping him locked away. Conversely it may discourage reformation and good behaviour in prison, and prevent or lessen the chances of rehabilitation under supervision through conditional freedom. These effects, or the possibility of them or the object of achieving them, or some of them, should be considered by sentencing judges before making an order removing eligibility for parole or extending the non-parole period."
[36]
In Devine v The Queen, Evans J at [30] gave the following guidance in relation to fixing a non-parole period:
[37]
"Subject to the need to preserve a sentence's capacity to achieve all its intended objectives, in my view, a court should, in its approach to fixing a parole eligibility date, if any, be optimistic about a prisoner's rehabilitation prospects. If that optimism proves to be misplaced, it is reasonable to expect that the prisoner will not be paroled as the Parole Board is only empowered to grant a prisoner parole after considering the matters details in the Corrections Act, s72(4), which include the rehabilitation of the prisoner, the likelihood of the prisoner re-offending, and the protection of the public."
[38]
In Barrett v Wilson[2015] TASSC 3 at [22], Pearce J expressed approval of those remarks. I also agree with that approach, at least as a starting point.
[39]
The result of the sentencing orders made by the learned magistrate is that 26 months' imprisonment was imposed with no eligibility for parole. The learned magistrate imposed eight months' imprisonment for the new offences. In relation to the suspended terms of imprisonment breached by the commission of the new offences, the learned magistrate determined in relation to two of the suspended terms that they should be activated and, with respect to the suspended term of 18 months, that it would be unjust to activate that. A substituted period of 12 months' imprisonment was imposed. In an exchange with defence counsel regarding this particular sentence, her Honour referred to the totality principle, but not with reference to any other sentence. There was no comment about or reference to the matter of parole. It cannot be discerned whether the magistrate gave consideration to the matter of parole, or whether her Honour overlooked her power to make such an order in the context of breach proceedings. The learned magistrate did not give reasons for not allowing for parole eligibility, noting, of course, that there is no statutory obligation to provide reasons when not making an order barring or allowing parole eligibility: Sentencing Act,s 17(7).
The grounds of review require consideration of all the sentencing orders made by the learned magistrate. It is necessary to consider whether it was unjust for the learned magistrate to make an order requiring the applicant to serve the sentences of imprisonment of two and four months. Further, it needs to be considered whether the sentences of eight months' imprisonment for the new offending, and the substituted sentence of 12 months' imprisonment were, individually, manifestly excessive. Further, whether the sentences in their cumulative effect, having regard to the totality principle, and having regard to the lack of eligibility to apply for parole, are manifestly excessive. It would be shown that a sentence or sentences were manifestly excessive if they were, in their effect, so severe having regard to the facts as to be "unreasonable or plainly unjust": House v The King[1936] HCA 40; (1936) 55 CLR 499 at 505.
[40]
As noted, the new offences, involving a charge of using a carriage service to harass another person, six charges of breaching a Police Family Violence Order, and a charge of assault, attracted a global sentence of eight months' imprisonment. This sentence was reduced from a period of ten months' imprisonment to take account of a period of time spent in custody.
In my view, a sentence of eight months' imprisonment was not in the least excessive for this offending. The applicant has shown a disregard for protective orders concerning Ms Whiteroad. The charges concerned two separate occasions. The offence of assault was particularly serious. There were multiple punches to the face and head inflicted upon a defenceless victim, any one of which could have resulted in serious injury. Even if there had been no injury at all, this would have been a serious assault. The applicant lacks an appreciation of this. The photographs provided to me are black and white photocopies, but they still disclose multiple locations of injury, including eye region, the cheek, behind the ear and the neck.
In fact, I regard the period of ten months' imprisonment contemplated by the learned magistrate as being appropriate. A deterrent sentence was clearly necessary. I consider that it would have been preferable to have taken the time he spent in custody of two months and ten days into account on the drink driving charges, noting that these were the charges for which he was remanded in custody, and not to diminish the deterrent message in the sentence for the new offences. However, this could not warrant disturbing the sentence. The sentence of eight months' imprisonment, viewed in isolation, was not manifestly excessive.
[41]
Activation of suspended sentences of two and four months' imprisonment
[42]
I turn to the two sentences activated under the Sentencing Act,s 27: a global sentence of four months' imprisonment and another of two months' imprisonment. No error can be seen in the approach taken in the determination that it was not unjust to activate the sentences. Indeed, counsel did not argue before the learned magistrate that an order requiring the applicant to serve these sentences would be unjust. On review, the applicant did not make submissions that there was any error in this regard. It can be seen that the learned magistrate correctly proceeded on the basis that the sentences must be activated unless it would be unjust to do so.
In relation to the sentence ordered to be served of four months' imprisonment, the original offending included two separate incidents of assault. Each involved a single application of force and did not result in injury. The sentence also related to six incidents of breaching conditions of bail or bail notice, in the most part involving protective conditions. I note that these breaches included intimidating behaviour. The offence of destroy property was also an act of intimidation. The new offences involved aggressive and intimidating conduct very much like the original offending. The new offence of assault was a clear and blatant repetition of violent behaviour of the same kind towards the same complainant, with an escalation in the degree of violence. As the learned magistrate observed, it was not a case where the applicant had made good progress towards his rehabilitation. Having regard to the nature of the breach and the gravity of it, it was entirely open to the learned magistrate to activate this sentence.
It could also not be seen as unjust to order the applicant to serve the term of two months' imprisonment. The original charges involved an assault, destroying valued items of the complainant's property, and breaches of bail conditions or bail notice. I have allowed for the fact that two offences of destroy property were reflected in the sentence of four months' imprisonment, rather than the term of two months' imprisonment. Again, the new offences I have discussed amounted to a clear breach, and a return to the same kind of conduct, but worse. The ground of review asserting error with respect to the finding that it was not unjust to activate these sentences of imprisonment fails.
[43]
Substituted sentence of 12 months' imprisonment
[44]
The remaining sentence imposed was one of 12 months' imprisonment. The learned magistrate concluded that it would be unjust to activate the original sentence of 18 months' imprisonment, and imposed a substituted sentence of 12 months' imprisonment. There is no criticism in the submissions before me of the learned magistrate's conclusion that it would be unjust to activate the period of suspended imprisonment of 18 months.
I will first consider whether a sentence of 12 months' imprisonment as a substituted sentence was manifestly excessive. The original offending here is quite different to the new offence. There are no acts of violence or intimidation. There is an act of trespass, breaches of a Family Violence Order by being in the complainant's residence and by leaving love notes, and, on one occasion in March 2013, making a phone call to the complainant from Risdon prison. Otherwise, the sentence relates to the driving offences committed in August 2012.
The new offences did not involve any offences of drink driving or driving whilst disqualified. The applicant has not offended in that regard since his offending in August 2012. It seems that the original suspended sentence imposed in August 2013 has so far been effective in deterring him from reoffending in this regard. He has not committed any new offences of drive whilst disqualified, noting that a lengthy disqualification period has been and remains in place. He has an appalling history of drink driving offences, drive whilst disqualified and like offences. Generally, the blood alcohol readings involved have been very high, over four times the legal limit. His most recent prior offence was in January 2008 for a blood alcohol reading of 0.228. The original offence under consideration involves a much lower reading than his past habitual offending.
There was, in my view, justification for recognising that the applicant has not reoffended with respect to driving offences, and has indicated his preparedness to undergo alcohol counselling. Further, the period of time he spent in custody of two months and ten days relates to this offending, and it would have been preferable to have taken it into account when imposing the sentence here. Recognition of these considerations could take the form of an order fixing a non-parole period, or by activating part of the suspended sentence and requiring part of it to be served and the balance suspended for a further period of time to give the applicant further opportunity to demonstrate reform.
These positive factors were to be considered in the exercise of wide sentencing discretion. Minds may differ as to how much weight to give to them. Notwithstanding these positive considerations, the substituted sentence, viewed in isolation, was not manifestly excessive.
In having regard to the substituted sentence of 12 months' imprisonment, it must be noted that the applicant faced effective imprisonment for activation of other suspended terms of imprisonment as a consequence of the same new offending. This is a relevant factor in determining whether it would be unjust or oppressive to activate a further suspended sentence, and if it would be unjust, in determining the nature of the substituted sentence. The penal nature of the suspension of imprisonment had already been felt by the applicant. An order that yet another suspended sentence be served because of the same new offending may, depending on the facts, be a more severe course than is warranted by all the relevant considerations, including the public interest: Tanner v Brown[2011] TASSC 59 at [97]. I conclude that the substituted sentence of 12 months' effective imprisonment was harsher than it needed to be in light of the matters I have mentioned. This bears on a consideration of the sentences in their aggregate effect.
[45]
It remains to consider whether the sentencing orders of the learned magistrate were manifestly excessive because of the combined effect of the cumulative terms of imprisonment imposed, given the totality principle, and because no orders were made allowing the applicant to be eligible to apply for parole.
It goes without saying that the fixing of a non-parole period requires careful consideration having regard to all the circumstances and the well-established principles that I have referred to. It should be the minimum period that the magistrate or judge determines that justice requires the prisoner must serve. There is no statutory safety net allowing the prisoner an ability to apply for parole if an order is overlooked. In this case, there is seemingly no justification for not making a non-parole order. The applicant's prior convictions do not reveal that he has been given opportunities of parole in the past and squandered them. Indeed, it does not appear that allowance for parole has ever been made. He is a persistent offender, particularly in relation to breaches of protective orders, driving and alcohol offences, and court orders of disqualification from driving, but not incorrigible. A significant factor in his offending is his alcohol problem. He was regarded by Community Corrections as someone who had acknowledged his problem and was prepared to take steps to address it. The granting of parole may encourage reformation and increase the chances of rehabilitation under supervision through conditional freedom: Gill at 7-8, per Crawford J. The recommendations made by Community Corrections would sit well with such supervision, and parole may provide added incentive to complying with such intervention.
The failure to make any allowance for parole eligibility means that the combined sentences are particularly severe. There is no chance of early release, apart from remissions for good behaviour. The resulting period of imprisonment is disproportionate to the totality of the offending, notwithstanding the number of offences and the serious aspects of some of the offences. Noting that the applicant has already spent four months and ten days in prison, he faces the certainty of spending time in prison comparable to the time that may be served by an offender who has received a sentence of five years' imprisonment, who has been afforded the minimum non-parole period of two and a half years. Of course, parole is not unconditional liberty, but the comparison demonstrates the relative severity of the combined sentences in this case.
In conclusion, the sentences imposed are manifestly excessive by virtue of the failure to allow any opportunity for parole. Consequently, there is error in each of the sentences. Further, the substituted sentence of 12 months' actual imprisonment is too harsh in the circumstances, given the other sentences of effective imprisonment to be served by the applicant, and other factors I have referred to. The applicant has not reverted to offending in terms of drink driving or drive whilst disqualified, fulfilling one of the main purposes of the original conditional suspended sentence of imprisonment. The substituted sentence was plainly excessive for these reasons, as well as the failure to fix a non-parole period. The sentencing orders are plainly unjust and the motion to review succeeds.
[46]
I proceed to resentence the applicant in the exercise of my sentencing discretion. I consider that minimum non-parole periods are appropriate. In resentencing for the new offences, I should not impose a global sentence, given the mix of Commonwealth and State offences and orders to be made with respect to parole eligibility: Crimes Act,ss 19AC, 19AJ. I consider it appropriate to increase the period of imprisonment for the new offences. The appropriate length of imprisonment is that originally contemplated by the learned magistrate, being ten months, before it was reduced for time spent in custody on other matters. The course of imposing a greater sentence falls within the powers available to me: Justices Act1959, s 110(2)(b) and (i); Kentwell v The Queen(2014) ALJR 947 at [43]. I intend making orders imposing three months' imprisonment for the Commonwealth offences, and seven months' imprisonment, to be served cumulatively, for the assault. In relation to the offences of breach of Police Family Violence Order, I shall impose one month's imprisonment, concurrent with the term of seven months' imprisonment. The total period of imprisonment is to be backdated to 18 August 2014. I shall make provision with respect to parole eligibility. Before making orders resulting in an increase in the length of the period of imprisonment, I shall hear from the applicant and Crown Counsel. [Subsequently, having heard submissions (Justices Act, s110(2AA)), the term of three months' imprisonment with respect to the Commonwealth offences was imposed, but was ordered to be served concurrently. The term of one month imprisonment with respect to offences of breach of Police Family Violence Order was ordered to be served cumulatively. As such, in light of all the circumstances, including those that have occurred since the sentencing orders were imposed in October 2014, the period of imprisonment for the new offences was not increased.]
In relation to the substituted sentence, I consider that there should be some immediate consequence of breaching the suspended sentence, but that it may be tempered at this stage. In fact, it is desirable to provide the applicant with an incentive to continue to not reoffend beyond his release and the expiration of parole, in the event he is granted parole. I shall leave the same head sentence of 12 months' imprisonment intact, and in so doing I have here taken account of the totality principle and given credit for the two months and ten days that the applicant has spent in custody. I will make an order pursuant to the Sentencing Act,s 27(4C)(b) that four months of this term be served immediately, cumulative to other sentences to be served, and the balance, eight months, is suspended on condition that he not commit any offences punishable by imprisonment for a period of 12 months from the date of release and a further condition that he comply with supervised probation in the same terms as the order made by the learned magistrate. Further, an order will be made that the applicant is eligible to apply for parole once he has served half of that effective period of four months' imprisonment.
In relation to the activated sentences of imprisonment of two months and four months, each to be served cumulatively, I shall make orders that the applicant is to be eligible to apply for parole after he has served the minimum period of half of each of those sentences.
Thus, in relation to the aggregate of these periods, being a total of 18 months' imprisonment the applicant will be eligible to apply for parole once he has served the minimum period of nine months' imprisonment.
[47]
The motion to review is allowed.
The global sentence of eight months' imprisonment on complaints 50805/2014 and 52974/2014 is set aside.
On complaint 52974/2014, in relation to the charge of assault, the applicant is sentenced to seven months' imprisonment backdated to 18 August 2014. On complaint 52974/2014, in relation to six charges of breach of Police Family Violence, the applicant is sentenced to one month's imprisonment, to be served cumulatively. In relation to each sentence, the applicant is not to be eligible to apply for parole until he has served one half of that period of imprisonment.
On complaint 50805/2014, the applicant is sentenced to three months' imprisonment, to be served concurrently.
The order activating the four month suspended sentence in relation to complaints 53863/2012, 54240/2012, 54242/2012, 54425/2012, 54426/2012, 54552/2012, 54806/2012 is varied, in that the applicant is not to be eligible to apply for parole until he has served one half of that period of imprisonment.
The order activating the two month suspended sentence in relation to complaint 54427/2012 is varied, in that the applicant is not to be eligible to apply for parole until he has served one half of that period of imprisonment.
The substituted sentence of 12 months' imprisonment imposed in relation to complaints 54237/2012, 51088/2013 and 51720/2013 is set aside.
The probation order made with respect to all complaints is set aside.
On complaints 54237/2012, 51088/2013 and 51720/2013, the applicant is sentenced to a period of 12 months' imprisonment. Four months of this term are to be served cumulatively. The applicant is not to be eligible to apply for parole until he has served one half of that effective period of imprisonment. The last eight months of this sentence are suspended on condition that he not commit any offences punishable by imprisonment for the period of 12 months upon release. As a further condition of the suspended sentence, the applicant is ordered to comply with supervised probation for the period of 12 months upon release, special conditions of which order are:
[48]
(a) that he attend educational and other programs as directed by his probation officer;
[49]
(b) that he undergo assessment and treatment for alcohol or drug dependency;
[50]
(c) that he submit to testing for alcohol or drug use as directed;
[51]
(d) that he submit to medical or psychological or psychiatric assessment and treatment as directed;
[52]
(e) that he attend the Family Violence Offender Intervention Program as directed by Community Corrections.
Applications are not brought in every possible instance. There is a discretion to exercise as to whether breach proceedings should be brought ("the authorised person may apply to the court", s 27(1)), and, if proceedings are brought, which suspended sentences should be the subject of the proceedings. There was the potential for error for lack of jurisdiction.
Having regard to all that has occurred as outlined above, particularly the fact that the applicant was represented, and counsel proceeded on the basis that an application was made and pressed, I will proceed on the basis that there was an oral application in terms of the unsigned written application which had not been filed. I note that, at one stage, defence counsel waived the notice requirement in s 27(2). Absent any challenge, I will assume that there was sufficient foundation for the court's jurisdiction_._ Of course, that is not an end to the difficulties created, as there is not a copy of the application available to me, and there is no record of the contents of the written application that defence counsel showed the court and the prosecutor. The sentences covered by the application were not identified in open court. The complaint numbers and charges should have been identified. That has led to uncertainty in the proceedings, and now in this Court. Indeed, I am only able to ascertain which suspended terms of imprisonment were the subject of the application from the sentencing orders made by the learned magistrate.
I point to another obvious problem concerning the procedure that was adopted. A necessary step is that respondents to such applications admit the factual assertions in applications to activate suspended sentences or show cause. A disputed application results in a hearing. Respondents can only make this choice if they know what is asserted.
Also giving rise to uncertainty is that the facts were not read out or handed to the court during the proceedings. In the present proceedings, I have been provided with copies of facts, as part of the judge's papers. However, there is no verification of the documents provided to the learned magistrate according to the court record or transcript of the proceedings, because it did not occur in open court. Because of the uncertain state of affairs, I have been provided with an affidavit from the prosecutor, Mr Biddle, verifying that copies of those same documents that I have been provided with were provided to Magistrate Bartlett's clerk.
(1988) 166 CLR 59
(1979) 46 FLR 386
(1997) 189 CLR 295
(1974) 131 CLR 623
(1936) 55 CLR 499
I have previously expressed concern about such an approach in a different context, concerning multiple pleas of guilty: Ferguson v Tasmania[2011] TASSC 51 at [39]-[44].
There is particular difficulty in taking such a course when a court is engaged in resentencing. The resentencing should be on the basis of the materials before the original sentencing magistrate. The facts for the prosecutor are prepared for the original sentencing hearing and these documents usually show what is intended to be said, not what was said, and the facts are often modified for any number of reasons, for example, because they contain extraneous information or errors, or because of representations made by the defence, often before the proceedings commence. One of the safeguards in reading the facts in open court is that the defendant, or defence counsel, has the opportunity to identify material which was not before the court when sentencing.
The prosecution did not inform the court about the time the applicant had spent in custody in relation to the original matters. As can be seen from the account of the proceedings above, the prosecution did not endeavour to obtain this information or assume responsibility for doing so. However, the prosecution brings the application and needs to be armed with all relevant information to assist the court. The duty of the prosecution in relation to the court's sentencing task is to assist the court to avoid appealable error, and this includes assisting the court by an adequate presentation of facts: R v Tait(1979) 46 FLR 386 at 389, per Brennan, Deane and Gallop JJ. The facts are not limited to the facts of the offence. In terms of what is an adequate presentation of the facts, that "depends on what is fair, reasonable and practical in the circumstances of the particular case ... the court should be placed in a position where it is able to impose a sentence which is fair and appropriate having regard to the interests of both the person being sentenced and the community": Rumpf[1988] VicRp 55; (1987) 29 A Crim R 252 at 257, per McGarvie J with whom Young CJ and Murray J agreed. If an assertion is made by the defence in the sentencing hearing, such as the one made here, which needs to be verified, then the prosecutor should assume responsibility of attending to that task.
In this case, information about the time spent in custody referable to the charges to be the subject of resentencing was material to the exercise of the magistrate's discretion. It was fortunate that defence counsel was alert to this issue and drew it to the attention of the magistrate. Also, it was fortunate that the learned magistrate made time to check the situation. However, it was the prosecutor's duty to bring this fact to the attention of the court. Presumably, if the applicant had not been represented, this fact would not have been revealed and the resentencing would not have taken account of a fact that would and should have resulted in a reduction of the period of imprisonment otherwise imposed. I am conscious that in this Court, fortunately, Crown counsel conscientiously assume the responsibility of checking such matters. It may be that the procedure adopted in this case highlights that training for prosecutors conducting breach proceedings in the Magistrates Courts is required.
In conclusion, in bringing an application, oral or written, the prosecutor should:
specify (in the application) which suspended terms of imprisonment are the subject of breach proceedings (bearing in mind that this involves the exercise of prosecutorial discretion);
inform the court of time spent in custody on remand, if not reflected in the sentencing orders or record of prior convictions;
read the facts of offending as stated in the original proceedings;
provide to the court the material handed to the court by the prosecution during those proceedings, such as prior convictions and victim impact statements; and
draw to the court's attention other material provided to the court in those proceedings, such as pre-sentence reports, references, etc.