SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: / Miles v The QueenCitation: / [2016] ACTCA 54
Hearing Date: / 3 May 2016
Decision Date: / 14 October 2016
Before: / Penfold, Burns and Wigney JJ
Decision: / See [91]-[92]
Catchwords: / CRIMINAL LAW – appeal from a single judge of the Supreme Court – appeal against sentence – manifestly excessive – application of the principle of totality – application of the parity principle – errors in setting the non-parole period – errors of fact – failure to articulate objective seriousness of the offences – no merit in grounds of appeal – appellant re-sentenced to address sentencing errors by primary judge – appeal otherwise dismissed.
Legislation Cited: / Criminal Code 1995(Cth), s 135.1(3)
Criminal Code 2002 (ACT), ss 309, 310
Crimes (Sentencing) Act 2005 (ACT), ss 37, 57, 65
Crimes (Sentencing Procedure) Act 1999 (NSW), s 22
Cases Cited: / Bugmy v The Queen [2013] HCA 37; 249 CLR 571
Celeska v Langlands [2014] ACTSC 211
Dalton v The Queen [2015] ACTCA 48
Delaney v R; R v Delaney [2013] NSWCCA 150; 230 A Crim R 581
Director of Public Prosecutions v Grabovac [1998] 1 VR 664
Elias v The Queen [2013] HCA 31; 248 CLR 483
Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
House v The King [1936] HCA 40; 55 CLR 499
Law v Ilievski [2016] ACTSC 291
Lowe v The Queen [1984] HCA 46; 154 CLR 606
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Miles v The Queen [2014] ACTCA 41
Mill v The Queen [1988] HCA 70; 166 CLR 59
Munro v The Queen [2014] ACTCA 11
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Abbott [2007] VSCA 32; 170 A Crim R 306
R v Allred [2015] ACTSC 327
R v Diamond (Unreported, Supreme Court of the ACT, Nield AJ, 29 October 2010)
R v Massey [2015] QCA 254
R v Melkie (Unreported, Supreme Court of the ACT, Gray J, 17 February 2011)
R v Meyboom [2012] ACTCA 48
R v Miles (Unreported, Supreme Court of the ACT, Nield AJ, 17 October 2013)
R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
R v Van Ryn [2016] NSWCCA 1
Saxon v The Queen [2014] VSCA 296
Taylor v The Queen [2014] ACTCA 9
Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465
WO (a child) v The State of Western Australia [2005] WASCA 94; 153 A Crim R 352
Texts Cited: / David Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979)
Parties: / Christopher John Miles (Appellant)
The Queen (Respondent)
Representation: / Counsel
Self-represented (Appellant)
Mr S Drumgold (Respondent in relation to ACT matters)
Mr T Shepherd (Respondent in relation to Commonwealth matters)
Solicitors
Self-represented (Appellant)
ACT Director of Public Prosecutions (Respondent in relation to ACT matters)
Commonwealth Director of Public Prosecutions (Respondent in relation to Commonwealth matters)
File Number: / ACTCA 30 of 2015
Decision under appeal: / Court: ACT Supreme Court
Before: Rares J
Date of Decision: 1 July 2015
Case Title: R v Christopher Miles
Citation: [2015] ACTSC 162
PENFOLD J:
Introduction
1. I have read in draft the judgment of Burns and Wigney JJ. I rely on their detailed description of the background to this appeal and, with the qualifications and additions set out below, agree with their Honours’ judgment.
A sentence that no reasonable judge could have imposed
2. Their Honours at [61] rely on the formulation of Maxwell P who, in R v Abbott [2007] VSCA 32; 170 A Crim R 306 at 309; [14], said that:
The ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances.
3. With great respect to Maxwell P, I am not convinced that this is the correct test for dealing with a claim of manifest excess (or, presumably, manifest inadequacy). First, since this test was propounded by his Honour in 2007, the High Court has had ample opportunity to adopt this formulation, which seems to originate in the administrative law area, but to my knowledge it has so far resisted the temptation. For instance, in Bugmy v The Queen [2013] HCA 37; 249 CLR 571, the High Court, in summary, confirmed the explanation of manifest excess or inadequacy as identifying a sentence that was outside the range of available sentences. At 588; [24], French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ referred to the sentencing discretion miscarrying because the sentencing judge imposed a sentence “that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards”, and at 597; [52], Gageler J said that to show that the sentence was manifestly inadequate, the appellant had to establish “that the sentence was outside the range of available sentences in all the circumstances of the case”.
4. I also note that Maxwell P’s formulation of the test, to the extent that it requires an appeal court to identify the sentencing officer as unreasonable rather than his or her decision as simply wrong, may have the possibly unintended effect of imposing an additional and unjustifiable inhibition on an appeal court examining a claim of manifest excess or inadequacy.
5. In my view, it is a formulation appropriately avoided in favour of the High Court’s explanations of how such claims should be dealt with. See also Celeska v Langlands [2014] ACTSC 211, at [10], and the comments of Refshauge J in Law v Ilievski [2016] ACTSC 291 at [23] to [26].
Failure to specify plea of guilty discount
6. At [89] below, their Honours refer to Rares J’s failure to comply with s 37 of the Crimes (Sentencing) Act 2005 (ACT) by specifying either the sentencing discounts he has given by reference to the appellant’s pleas of guilty, or the sentences he would have imposed in the absence of pleas of guilty, and note that such a failure does not invalidate a sentence.
7. I do not disagree with that proposition, while noting that in the ACT the Crimes (Sentencing) Act, s 37, does not expressly preserve the validity of a sentence imposed on a plea of guilty without any reference to the plea of guilty, and that this can be contrasted with:
(a) numerous other provisions of the Crimes (Sentencing) Act which do preserve the validity of sentences imposed in breach of particular statutory requirements (see, for instance, s10(5), referring to a failure to record reasons for imposing a sentence of imprisonment); and
(b) s 22(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW), which expressly preserves the validity of a sentence on a plea of guilty that has not been reduced for the plea, despite the failure of the sentencing court to comply with a statutory requirement (found in s 22(2)) to record its reasons for not reducing the sentence.
8. On the other hand, I note that such a failure, if it suggests that a plea of guilty has been overlooked (as to which see R v Thompson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383 at 419; [160], Spigelman CJ) may amount to a sentencing error which, if not invalidating a sentence, does enliven an appeal court’s power to re-sentence (Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 617; [42]).
Failure to specify objective seriousness
9. I agree with their Honours’ comments at [80] and [81] about the appellant’s claim that Rares J did not make a specific assessment of the objective seriousness of the offending, including their conclusion that his Honour had adequately addressed the matters relevant to objective seriousness.
10. I add the following comments, made originally in Roncevic v Boxx [2015] ACTSC 53 at [45] and [46]:
It is not uncommon for sentencers to identify an offence as being a high, middle or low range example of the offence charged, and this is often helpful as part of assembling all the relevant material into a manageable set of factors from which the appropriate sentence will emerge by the “instinctive synthesis” process described in Markarian (at 373-375 (Gleeson CJ, Gummow, Hayne and Callinan JJ) and 383-390 (McHugh J)).
I am not, however, convinced that it is useful or even legitimate to further divide those categories, for instance, by adding lower-middle and upper-middle and, possibly an infinite range of further categories or, more transparently, by attempting to locate each offence on a 10 or even 100-point scale. Unless a sentencer rejects the instinctive synthesis approach and secretly uses some kind of mental (or even actual) calculator that spits out a sentence after scores are fed in for each relevant factor, it is hard to see how such a superficially but unsustainably specific assessment could be useful. Furthermore, the instinctive synthesis required of a sentencer, and the variety of matters that are to be considered in that process, must mean that there could never be a direct correlation between an apparently precise assessment of the objective seriousness of an offence and the exact length of the sentence determined for that offence. See, for instance [AB v The Queen [1999] HCA 46; 198 CLR 111] at [115] (Hayne J); [Barbaro v The Queen [2014] HCA 2; 253 CLR 58] at [34] (French CJ, Hayne, Kiefel and Bell JJ)).
Orders
11. The qualifications I have mentioned above do not, however, lead me to different conclusions from those reached by Burns and Wigney JJ, and accordingly, I agree with the orders proposed by their Honours.
I certify that the preceding eleven [11] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.Associate: David Hoitink
Date: 14 October 2016
BURNS and WIGNEY JJ:
Introduction
12. On 1 July 2015, the appellant, Christopher Miles, was sentenced by Rares J in relation to nine offences. He now appeals from the sentences imposed.
Earlier sentences
13. The sentences imposed by Rares J involved a significant amount of concurrency with earlier sentences imposed upon the appellant by Burns J and Nield AJ.
14. On 19 March 2013, the appellant was sentenced by Burns J in respect of one offence of conspiracy to commit aggravated robbery. His Honour imposed a sentence of 6years and 9 months imprisonment, to commence on 5 January 2011, with a non-parole period of 4 years and 6 months.
15. On 17 October 2013, the appellant was sentenced by Nield AJ in respect of two offences of aggravated robbery. In passing sentence his Honour took into account two additional offences pursuant to s 57 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act), being a further offence of aggravated robbery, and an offence of taking a motor vehicle without consent.
16. Nield AJ imposed a sentence of 11 years and 1 month imprisonment, of which 3years and 9 months was to be served concurrently with the earlier sentence imposed by Burns J, resulting in an effective sentence of 14 years and 1 month imprisonment. His Honour set a non-parole period of 9 years for that effective sentence.
17. The appellant subsequently appealed the sentences imposed by Burns J and NieldAJ. The appeals were heard together.
18. On 29 August 2014, the Court of Appeal upheld the appeal in relation to the sentence imposed by Burns J on 19 March 2013 for conspiracy to commit aggravated robbery: Miles v The Queen [2014] ACTCA 41. The Court reduced the appellant’s sentence to four years imprisonment. The effect being that the appellant’s sentence was to run from 5 January 2011 until 4 January 2015.
19. The Court of Appeal dismissed the appeal in relation to the sentence imposed by NieldAJ. However, as a consequence of upholding the appeal against the sentence imposed by Burns J, the Court adjusted the starting dates of the sentences imposed by Nield AJ, with the effect that those sentences commenced two years earlier than had originally been ordered, so that they commenced on 5 January 2012 and expired on 4February 2023. The Court reduced the concurrency between the sentences imposed by Burns J and Nield AJ to three years, from the earlier three years and nine months.
20. As a result of these adjustments the appellant was liable to serve an effective sentence of 12 years and 1 month imprisonment. The Court adjusted the appellant’s non-parole period to seven years and seven months, to expire on 4 August 2018.
Sentences under appeal
21. Of the nine offences dealt with by Rares J, five were offences against Territory laws, and four were Commonwealth tax offences in contravention of s 135.1(3) of the Criminal Code Act 1995(Cth).
22. His Honour imposed a total sentence of 12 years imprisonment, commencing on 4February 2014 and expiring on 3 February 2026. This, in combination with the earlier sentences that the appellant had already been liable to serve, provided an effective sentence of 15 years and 1 month imprisonment. His Honour set a non-parole period of nine years and four months, to expire on 4 May 2020.
23. The effect of the sentences imposed by RaresJ was to extend the appellant’s effective sentence of imprisonment by three years. The period during which the appellant would not be eligible for release was increased by two years, achieved through an increase in the non-parole period in relation to the Territory offences of one year and nine months, and a further period of three months during which he would be serving part of the sentences imposed in relation to the Commonwealth tax offences in full-time custody; recognizance release orders (RROs) were made requiring the appellant to be released after that three month period on entering into recognizances to be of good behaviour.