STATE OF TASMANIA v NMB 10 OCTOBER 2024
COMMENTS ON PASSING SENTENCE JAGO J
I have before me an application for breach of a suspended sentence. On 27 August 2024 I sentenced the respondent to two years and six months’ imprisonment, for four counts of indecent assault. Two of those counts, related to complainant B and occurred between 24 October 2017 and 23 November 2018. The evidence in respect to when the counts occurred was non-specific. The first count was said to have occurred when B was 12. The second count was said to have occurred “like a month or a few weeks later”. B’s date of birth is 24 October 2005; thus, she was 12 between 24 October 2017 and 24 October 2018. The second count potentially occurred within the month after her 12th birthday.
On 24 November 2016, in the Magistrates Court Devonport, the respondent was sentenced to a six-week term of imprisonment, the activation of which was wholly suspended on condition he did not commit an offence punishable by imprisonment for a period of two years. The prosecution now applies for activation of that suspended period of imprisonment on the basis that the commission of counts 1 and 2 breached it.
The complicating factor is that on 31 January 2018, the suspended sentence was activated by a Magistrate and the respondent was ordered to serve the six-week term of imprisonment. The respondent commenced serving that period of imprisonment before he appealed against the Magistrate’s order and was released on bail, pending the hearing of the appeal. He was released on bail on 27 February 2018.
On 17 August 2018, Geason J set aside the Magistrate’s order activating the suspended sentence. In the decision of Butcher v Lyons [2018] TASSC 39, Geason J found: “a magistrate acting reasonably could not have concluded that an order activating the sentence was anything but unjust. …. Pursuant to s 27(4C), I must deal with the application. …I make no order in respect of the suspended sentence. It remains operative until November 2018.”
The respondent contends that the suspended sentence was activated on 31 January 2018 by the Magistrate’s order and remained activated until it was set aside by the order of Geason J on 17 August 2018. The respondent contends the suspended sentence was therefore not in force during that period of time because it had, in real terms, been converted into an operative term of imprisonment. The prosecution submit to the contrary. They argue the effect of Geason J’s order to set aside the magistrate’s order and make no further order pursuant to s 27(4C), had the effect of leaving the original suspended sentence in place, in its original terms, and operative from the date on which it was imposed.
In my view, the suspended sentence was not operative between 31 January 2018 and the respondent’s release on bail on 27 February 2018. During that time, the suspended sentence had been activated and was converted to an actual period of imprisonment. It is also apparent the suspended sentence was back in operation after Geason J’s order of 17 August 2018. The question is, however, did the grant of bail have the effect of reviving the operation of the suspended sentence, thus bringing it back into operation from 27 February 2018. The respondent contends the grant of bail did not have that effect and it was not until the order setting aside the magistrate’s order was made by Geason J, that the suspended sentence came back to life. The prosecution contend that the bail order is largely irrelevant because the effect of Geason J’s order on 17 August 2018 was to reinstate the original sentencing order and make it operative for the entire period of time, including the period of time in which the respondent was actually serving the activated period of imprisonment.
In my view, the answer lies in s 117A of the Justices Act. When the respondent was admitted to bail, the bail order had the effect of suspending the operation of the magistrate’s order. That again enlivened the suspended sentence. But during the period of time the respondent was in custody serving the activated period of imprisonment, the suspended sentence was not operative. It had been converted to an actual period of imprisonment.
Therefore, for the respondent to be in breach of the suspended sentence, I would need to be satisfied that the breaching offences, namely the indecent assaults against B, occurred outside of the time frame of 31 January and 27 February 2018, and before the expiration of the suspended sentence on 24 November 2018. At its highest, the evidence establishes that the first count in respect to B occurred somewhere between 24 October 2017 and 24 October 2018, when she was 12. There is nothing within the evidence that provides anymore specificity. I could not conclude beyond reasonable doubt that the indecent assault did not occur between the period 31 January 2018 and 27 February 2018. Similarly, the evidence in respect to count two, at its highest, was that it occurred “like a month or a few weeks later” following count one. Given there can be no certainty as to when count one occurred, there, likewise, can be no certainty as to when count two occurred, and I could not exclude beyond reasonable doubt, the possibility that it occurred whilst the suspended sentence was activated and not operative.
I should say, in any event, that even if I had been able to determine that the breaching offences occurred whilst the suspended sentence was operative, I would nevertheless have found that it was unjust to activate the suspended period of imprisonment. The suspended period of imprisonment was a six-week period. It was imposed for two counts of breach of family violence order. The respondent served 27 days of the 42-day sentence. The breaching offences were of a markedly different nature than the offences for which the sentence was imposed. Further, the respondent has just been sentenced to a two-and-a-half-year period of imprisonment for the sexual crimes committed against B and S. Totality principles would have work to do if the balance of the suspended sentence was to be activated. In all those circumstances, I am satisfied it would be unjust to activate it in any event.
The application for breach of suspended sentence is not made out and the application is dismissed.