Amos v McCarron [2017] ACTSC 6

Supreme Court of the ACT|2017-01-19|Before: Refshauge ACJ

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The appeal be upheld.
The sentences of the Magistrates Court imposed on 17 October 2013 be set aside.
Adam Amos be re-sentenced.

APPEAL - CRIMINAL LAW - Appeal from Magistrates Court - appeal against sentence - specific error of law - error in sentencing process - predetermination of the sentence - failure to afford offender procedural fairness in the hearing - error in setting of the non parole period - error by imposing in full the suspended sentences - totality of sentence - appeal procedure principles

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - driving whilst driver licence is suspended - driving whilst disqualified - driving with a prescribed concentration of alcohol in the blood - special driver - repeat offender - breaches of prior Good Behaviour Orders - sentencing principles

Criminal Code Regulations 2005 (ACT), Item 86, Pt 1.2. Sch 1

AB v The Queen [1999] HCA 46; 198 CLR 111

Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497

Attorney-General (SA) v Tichy (1982) 30 SASR 84

Bedford v Earle (No 2) [2015] ACTSC 309

Cooper v Corvisy (No 2) (2010) 5 ACTLR 151

Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299

Dalton v The Queen [2015] ACTCA 48

Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243

Director of Public Prosecutions v Cooke [2007] NSWCA 2; 168 A Crim R 379

Director of Public Prosecutions v Grabovac [1998] 1 VR 664

Ghoubriel v The Queen [2016] ACTCA 66

Guy v Anderson (No 2) [2013] ACTSC 245

GW v The Queen [2016] ACTCA 9

Hammond v Yates [2012] ACTSC 195

House v The King [1936] HCA 40; (1936) 55 CLR 499

Humphrey v Wills [1989] VicRp 42; [1989] VR 439

Johnson v The Queen [2004] HCA 15; 205 ALR 346

Kentwell v The Queen [2014] HCA 37; 252 CLR 601

King v Mainey [2008] ACTSC 108

Law v Ilievski [2016] ACTSC 291

Mill v The Queen [1988] HCA 70; (1986) 166 CLR 59

Moutrage v Haines [2008] ACTSC 36

Quzag v The Queen (No 2) [2016] ACTCA 27

Rees v The Queen [2012] ACTCA 6

R v Boney [2015] NSWCCA 291

R v Brown [1999] NSWCCA 323

R v Curtis (No 2) [2016] ACTSC 34

R v Gilder Rose [1978] Qd R 61

R v Melville (1956) 73 WN(NSW) 579

Saga v Reid [2010] ACTSC 59

Samani v The Queen [2016] ACTCA 48

Scanes v Biziak [2011] ACTSC 168

Scrivener v Papantaniou [2009] ACTSC 41

Snaidero v Crampton [2014] ACTSC 262

Taylor v Bowden [2009] ACTSC 13

Teakle v Western Australia [2007] WASCA 15; 168 A Crim R 483

Tunks v Onorato [2012] ACTSC 148

TW v The Queen [2011] ACTCA 25; 6 ACTLR 18

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Walmsley v The Queen [2014] ACTCA 24

Weininger v The Queen [2003] HCA 14; 212 CLR 629

Fyfe Strachan, "Keeping up Appearances: Apprehended Bias in Antoun v The Queen" [2007] SydLawRw 6; (2007) 29 Sydney Law Review 175

Theresia McCarron, Roger Neville Watts and Suzanne Marie White (Respondents)

1. On 15 December 2011, the appellant, Adam Amos, was convicted of driving whilst his driver licence was suspended by law. In addition to the conviction, he was fined $200 and disqualified from obtaining or holding a driver licence for 12 months.

2. He was, also on that date, convicted of driving as a special driver with the prescribed concentration of alcohol in his blood; he was fined $300. He was disqualified from obtaining or holding a driver licence for a further three months, that is until 14 March 2013.

3. On 19 October 2012, however, he was observed by police driving along Boddington Crescent and then into Marconi Crescent, Kambah. He was intercepted by police and, after some prevarication, admitted that his driver licence had been "suspended" by the Court. He also submitted to a breathalyser test under s 12 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act) which showed a blood alcohol concentration of 0.021 grams of alcohol in 210 litres of breath, a prescribed concentration under s 4C of that Act and a level 1 alcohol concentration under s 4E of that Act.

4. On 28 December 2012, Mr Amos was again seen by police driving on Clift Crescent, Richardson, and, in Lamport Place, was again stopped by police. He admitted that he did not have a current driver licence. He again submitted to a breathalyser test and it showed a blood alcohol concentration of 0.043 grams of alcohol per 210 litres of breath, a level 1 alcohol concentration.

5. Mr Amos was summonsed for offences of driving whilst disqualified as a repeat offender and driving with a prescribed concentration of alcohol as a repeat offender, both on 19 October 2012, and for driving whilst disqualified as a repeat offender and driving with a prescribed concentration of alcohol as a repeat offender, both on 28 December 2012.

6. He was sentenced on 17 October 2013, being convicted and fined for the two

drink-driving offences but convicted and sentenced to two months and three months imprisonment respectively for the two offences of driving whilst disqualified.

7. These convictions constituted breaches of two Good Behaviour Orders made when sentences of imprisonment of three and nine months respectively were suspended on 15 December 2011.

8. Special Magistrate Cush imposed those sentences with no concurrency leading to a total term of imprisonment of 17 months.

9. Mr Amos has appealed against the sentences of imprisonment.

10. Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including against sentences imposed by it, and Div 3.10.2 regulates those appeals.

11. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.

12. Sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.

13. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and re-impose the same sentence.

14. Even if I cannot identify a specific error, however, I may uphold the appeal and substitute another sentence for the original sentence if I find that the original sentence is manifestly excessive, unreasonable, plainly unjust or plainly wrong.

16. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

17. Mr Amos filed a Notice of Appeal through his lawyer on 21 October 2013.

18. In it, he challenged the sentences of imprisonment imposed for the two offences of driving whilst disqualified and the sentences of imprisonment imposed on the breaches of the two Good Behaviour Orders.

19. The grounds of appeal, set out in the Notice of Appeal were as follows:

(i) The learned Special Magistrate erred in pre-determining the sentence before hearing submissions of counsel;

(ii) The learned Special Magistrate erred in setting a non-parole period for a sentence of less than 12 months full-time imprisonment;

(iii) The learned Special Magistrate miscarried his discretion [sic] by imposing in full the suspended sentences previously ordered by Magistrate Doogan;

(iv) In making the component sentences consecutive, the learned Special Magistrate did not properly apply the principle of totality; and

(v) The sentence was manifestly excessive.

20. Mr Amos indicated in the Notice of Appeal that he did not intend to adduce further evidence but, in the event that I decided to re-sentence him, he tendered some relevant material. I will not have regard to that material in deciding whether to uphold the appeal or not.

21. Mr Amos applied for bail and, on 13 December 2013, bailed was granted pending the hearing of his appeal.

22. I deal first with the offences for which Mr Amos had to be sentenced on his pleas of guilty. Though only one sentence imposed in respect of each occasion of driving is the subject of the appeal, it is appropriate to set out the full facts of each offence.

23. On 19 October 2012, Mr Amos was driving along Boddington Crescent, Kambah, when he was identified by police as he stopped at the intersection with Drakeford Drive. Whether that was through application by the police officers of the RAPID System (see Snaidero v Crampton [2014] ACTSC 262 at [29]) or not, there was no information. It was not stated that any manner of his driving had drawn Mr Amos to the police officers' attention.

24. In any event, police intercepted his vehicle on Marconi Crescent, Kambah, and an officer asked for his licence. Mr Amos initially said that he did not have it on him. He was asked whether he had a licence and answered affirmatively; he explained to police that he had left it at home. He did not produce any identification, but, when the police officer pointed out that if there was anything wrong with his licence, police would find out, Mr Amos admitted that his licence had been "suspended" by the Court. He then located his wallet and produced identification.

25. Police confirmed that he had been disqualified from holding or obtaining a driver licence on 15 December 2011 for a total period of 15 months to 14 March 2013. He was, therefore, summonsed to appear in the Magistrates Court to answer a charge of driving whilst disqualified.

26. As a result of the driver licence disqualification, he was, for the purposes of the Alcohol and Drugs Act, a Special Driver: s 4B(1)(d). That meant that under s 4C(a) of that Act the prescribed concentration of alcohol was a concentration of more than 0 grams of alcohol in 100 ml of blood or 210 litres of breath, that is, he was not allowed any alcohol in his breath or blood.

27. Mr Amos was then subjected to a screening test under s 8 of the Alcohol and Drugs Act and, when that proved positive to alcohol, he was placed in custody (s 11(2) of that Act) and taken to Tuggeranong Police Station where he was required under s 12 of that Act to give a sample of breath for breath analysis by a breathalyser device. That showed that he had 0.021 grams of alcohol in 210 litres of breath. That was, of course, greater than the prescribed concentration of alcohol in his breath for a special driver, though it was less than the prescribed concentration for a licensed driver.

28. The summons for the driving whilst disqualified was issued on 5 December 2012 returnable on 10 January 2013, when he appeared. The proceedings were adjourned a number of times until he was sentenced on 17 October 2013.

29. His counsel explained to the Court at the hearing of the charge that Mr Amos misunderstood the way the disqualification had been imposed and he thought he was no longer disqualified. The learned Special Magistrate noted that Mr Amos prevaricated, however, when first spoken to by police and that this appeared inconsistent with that explanation. When confronted with this, his counsel withdrew the submission but, whether through failure to have obtained proper instructions beforehand or other reasons, gave no other explanation of the circumstances for the driving, such as where he was going or for what purpose, all matters that may have been relevant to the issue.

30. His counsel did not seem to be familiar with the law relating to sentencing for offences such as this, or knowledge of the factors relevant to the sentence such as is set out in Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 at 308; [40]- [42], so as to be able to address them in the absence, as in this case, of information about them from other sources, such as the Pre-Sentence Report, other reports or references.

31. The second incident occurred on 28 December 2012, by which time it was likely that Mr Amos would have been served with the summons for the offences said to have been committed in the first incident.

32. On this occasion, Mr Amos was observed driving on Clift Crescent, Richardson, and was stopped by police a short distance later in Lamport Place. Again, there was no explanation for the police interception and no mention of any noticeable manner in which he was driving.

33. Mr Amos was asked to produce his licence, and produced an expired NSW driver licence. This time, however, he told the police officer that he did not have a licence.

34. Again, he was subject to an alcohol screening test which proved positive. He was then taken into custody and conveyed to Tuggeranong Police Station where he underwent breath analysis, which showed a breath alcohol concentration of 0.043 grams of alcohol in 210 litres of breath, an excessive reading to the prescribed concentration of alcohol for a special driver, which Mr Amos then still was, but less than the allowable range limit for a licensed driver.

35. He was, on this occasion, arrested but bailed by police to appear in Court on 10 January 2013, the same date as the return date for the summons.

36. His counsel did not provide any assistance to the sentencing court as to the reason for or circumstances of the second driving incident at all.

37. A Short Pre-Sentence Report, dated 8 October 2013, and a Pre-Sentence Report, dated 15 October 2013, were admitted into evidence. Mr Amos' counsel gave some very brief submissions to the sentencing court. From that material, I can make the following findings.

38. Mr Amos was, at the time of sentencing, 41 years old. He was, at the time, in a de facto relationship of about 18 months standing. There is one child of the relationship and his partner was then due to deliver a second child in about six months. The relationship was described as supportive.

39. Mr Amos also has two children from a previous relationship. He spends most of his free time as a father to his children.

40. In his childhood, Mr Amos experienced a dysfunctional family life. His mother died when he was two. He had no relationship with his father who re-partnered and his

step-mother sexually abused him. He was ordered by his father to leave home when he was 15 years old due to the ongoing conflict with his step-mother.

41. He completed his education to Year 9 standard in NSW and appears to have completed some work-related courses.

42. He was, at the time of sentencing, employed as a part-time painter.

43. Mr Amos suffers from Hepatitis C and this requires monitoring. He has also been treated with prescribed medication by his general practitioner for depression. He attempted suicide as a young person.

44. Mr Amos has a long history of alcohol and illicit drug abuse. His drugs of choice appear to have been heroin and cannabis. He has had a long-term problem with alcohol, though he stated to the author of the Pre-Sentence Report that he had ceased excessive consumption when he was 35, now only consuming the occasional beer. While the two drink driving offences are of concern in this context, on the other hand, the levels of concentration of alcohol are corroborative of his more moderate drinking.

45. He has had some counselling and treatment for his drug and alcohol abuse in the past. It was stated that:

ACT Corrective Service records indicate that Mr Amos is prone to relapse and as such his alcohol and illicit substance abuse bear watching.

46. His counsel submitted, rather opaquely, that Mr Amos was "addressing his drug issues", having "since given up hard drugs and he's getting assistance from Directions ACT, drug counselling". There appears to have been no further information than this available to the sentencing court, a regrettable absence which showed that the learned Sentencing Magistrate was not afforded the assistance that was desirable.

47. Mr Amos has a seriously concerning criminal history dating back to 1990. He has a total of 59 offences on his record so far as I can tell, but his NSW record is not easy to understand. There was, for example, a good deal of material that would have offended against the principle set out in R v Gilder Rose [1978] Qd R 61 at 62 that "no reference should be made ... to any alleged conduct of a criminal nature attributed to [the offender] ... unless he had been convicted of an offence constituted by that conduct". This would include "back-up charges", conduct the subject of infringement notices and allegations never charged and for which he was not convicted.

48. A significant number of his prior offences of which he has been found guilty are dishonesty offences, which it would be reasonable to assume were related to his drug habit, as would be the eight drug offences.

49. Also, a significant number of offences were traffic offences, of which he has 20 on his record. Many were what might be regarded as regulatory offences, by no means to be trivialised by that description, but often not placing the community at significant or any risk. Of the traffic offences, however, four were for drink-driving and seven for driving while not licensed, mostly because of a court ordered disqualification.

50. Ordinarily, such a record would deprive Mr Amos of any leniency, although, as explained in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477, it cannot aggravate any sentence imposed; he must not be sentenced twice for past offending.

51. The criminal record, however, also needs to be placed in some context. Until 2011, he had committed no offences in this Territory. Prior to that, his record consisted entirely of offences dealt with by NSW courts. In that State, his most recent offence was committed on 30 January 2003. That was an offence of contravening an apprehended violence order. His most recent NSW traffic offence was committed on 27 March 2001, namely driving whilst disqualified from holding a licence.

52. There was then, a gap of approximately 10 years until he was charged with possessing an offensive weapon and damaging property committed on 12 February 2011.

53. Thereafter, he was convicted on 15 December 2011 of having trafficked in heroin on 1 January 2011, drink-driving on 24 April 2011, driving on 25 May 2011 whilst his licence was suspended by law, and a further drink-driving offence on that date.

54. There was no direct evidence as to the reason for his relapse into criminality in 2011, though clearly he had returned to heroin use which he explained to the author of the Pre-Sentence Report was, he believed, a factor in his current offending.

55. The Pre-Sentence Report noted that his previous periods of supervision had been completed "with relatively satisfactory compliance". He was assessed as at a moderate risk of re-offending primarily due to his alcohol dependence or abuse, lack of leisure and recreation activities, especially such as would have led him to experience pro-social influences, and his mental health. The latter appears to be being addressed with his general practitioner. His stable and supportive family situation were also considered protective factors.

56. It was submitted by his counsel, but without any helpful details or specific information, that he had "turned his life round". He was said to be gaining assistance with his drug problem from Directions with whom he was accessing counselling. No documentation, as is often tendered to support such a submission, appeared to have been sought. Indeed, as pointed out by the prosecutor, who can thereby properly have been said to challenge this assertion, this matter was not mentioned in the Pre-Sentence Report, prepared only two days prior to sentencing.

57. As noted by Gray J in Taylor v Bowden [2009] ACTSC 13 at [34], the factual circumstances and the objective seriousness of the offence, for which the sentence of imprisonment was suspended and for which the Good Behaviour Order was made, is relevant to the exercise of deciding how to proceed with responding to the breach. See also Saga v Reid [2010] ACTSC 59 at [105], where I pointed out that this would ordinarily require a copy of the Statement of Facts for these offences to be before the Court.

58. It is unclear whether the relevant Statements of Facts were before the learned Sentencing Magistrate; certainly they were not included in the Schedule of Documents (which disclosed no exhibits) provided by the Magistrates Court on the lodgement of the Notice of Appeal. See Tunks v Onorato [2012] ACTSC 148 at [47]; Bedford v Earle (No 2) [2015] ACTSC 309 at [113]- [114].

59. In any event, I was, on the appeal, favoured with a copy of each Statement of Facts.

60. The first offence, namely trafficking in heroin, was committed on 1 January 2011 when two persons attended the home of Mr Amos and asked him about procuring some heroin. These two persons were John Walmsley and Lisa McDonald, regular users of heroin, as were Mr Amos and his then partner, who was also present. Mr Amos said that he could facilitate procuring the heroin and contacted an associate to arrange the supply. Mr Amos had, at that time, regularly purchased heroin from the associate.

61. Mr Amos agreed to purchase heroin from his associate; the purchased heroin would include an extra quarter-weight (drug jargon for 0.25 grams) that he would retain for organising the deal. He and Mr Walmsley then went to meet the associate. Mr Walmsley was, however, dropped off before Mr Amos actually collected the heroin from his associate and paid the money. He subsequently collected Mr Walmsley and they returned to Mr Amos' home with the total purchased heroin of 1.75 grams, much less than the 5 grams traffickable quantity: Item 86 of Pt 1.2 of Sch 1 of the Criminal Code Regulations 2005 (ACT).

62. Mr Walmsley and Ms McDonald then left the premises and went back to Ainslie Village where they later consumed the rest of the heroin.

63. As a result of this consumption, Ms McDonald died of an overdose. This may have actually affected the outcome of the sentencing of Mr Amos, though it is difficult to see how it should have done so. The circumstances of Ms McDonald's death are set out in Walmsley v The Queen [2014] ACTCA 24 at [2]- [11]. As can be there seen, Mr Amos bears no direct responsibility for the death, other than from the inevitable consequence that any supply of heroin may result in the misuse by or overdosing of the end user, a circumstance obtaining with every such supply.

64. Mr Amos co-operated with police, providing statements against both his associate and Mr Walmsley and agreeing to give evidence against them.

65. As to the second offence, Mr Amos was driving along Wakefield Avenue, Dickson, when he was stopped by police, though there was no indication of why he was stopped and certainly no suggestion that it was because of any manner of his driving. The police officers who stopped Mr Amos were said to "have had previous dealings with him". That may have been the reason.

66. The officers asked Mr Amos for identification, but he could not provide it. The police were satisfied from their prior dealings as to his identification.

67. Checks showed that his driver licence had been suspended on 27 April 2011 for driving with the prescribed concentration of alcohol. Thus, he was a Special Driver.

68. He was subject to a screening test, which proved positive, and taken into custody to City Police Station. A breath analysis then conducted with him showed that he had 0.146 grams of alcohol in 210 litres of breath, a level 3 alcohol concentration under s 4E of the Alcohol and Drugs Act.

69. He was dealt with for both offences on 15 December 2011. For the offence of trafficking in heroin, he was sentenced to nine months imprisonment immediately suspended for two years with a Good Behaviour Order with special conditions in addition to the core conditions. For the drink-driving offence, he was sentenced to three months imprisonment, also immediately suspended for two years with a Good Behaviour Order with no special conditions.

70. Submissions were made by both counsel for Mr Amos and the prosecution on the hearing of both sets of offences on 17 October 2013.

71. Those submissions for Mr Amos were brief and not particularly thorough or thoughtfully composed for a series of offences that were inevitably to require the Court to consider a significant term of imprisonment.

72. The prosecutor submitted that the offences were "aggravated" by his criminal history. It is important, however, to be very clear about the effect of a prior criminal record. It is unambiguous that a prior criminal record cannot lead a sentencing court to increase a sentence beyond what is an appropriate and just sentence for the instant offence: Baumer v The Queen (1988) 166 CLR 51 at 57. As Spigelman CJ, with whom the other members of a specially convened court of five judges agreed, said in R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 at 574; [24]:

the principle of proportionality requires the upper boundary of a proportionate sentence to be set by the objective circumstances of the offence, which circumstances do not encompass prior convictions.

73. That is not to say that a prior criminal record is not "adverse to the offender": Weininger v The Queen [2003] HCA 14; 212 CLR 629 at 666; [116]. Thus, as pointed out in Veen v The Queen (No 2) at 477, a record may show "a continuing attitude of disobedience of the law". Here, that becomes relevant because of both his repeated similar breaches of the law but also the near decade absence of similar convictions, moderating the effect of this fact, though the relapse obviously requires a stern reminder of the need for compliance with the law.

74. Some of the ways in which a prior criminal record can be relevant to sentencing are set out in Cotter v Corvisy at 312; [61]-[65].

75. Insofar as it is relevant because "continuing criminality" may require a deterrent sentence, I note that, in Rees v The Queen [2012] ACTCA 6 at [2], the Court of Appeal held that four years, much less than in this case, was a relevant gap to negate such a conclusion. Of course, following that gap, Mr Amos had been convicted of some six offences, so that diminishes the mitigatory value of the break or gap from offending.

76. The prosecutor pointed to the repetition of the offence a little over two months later, though the prosecutor inaccurately truncated the period to "within two months", no doubt for punitive effect.

77. The prosecutor then submitted that Mr Amos was still subject to a suspended sentence. That, of course, meant that he was on conditional liberty at the time of committing the offences. While relevant to sentencing and ordinarily are aggravating factor, it has been held, though in a somewhat different sentencing context, that this is not relevant to the objective seriousness of the offence: R v Boney [2015] NSWCCA 291 at [18]- [20].

78. The prosecutor then referred to the history of prior offending in a similar way, namely driving while unauthorised - driving while suspended, driving whilst disqualified, and driving as an unlicensed driver. That is a relevant and important matter.

79. The learned Special Magistrate then immediately proceeded with sentence. His Honour set out the facts of the offences in an appropriately summary form and acknowledged the pleas of guilty at a relatively early stage, except for the first offence of driving whilst disqualified, where Mr Amos considered at first that he may have had a defence of reasonable excuse. His Honour held that there was a utilitarian value in the pleas and that they were evidence of remorse.

80. His Honour then referred to the breaches of the Good Behaviour Order and set out in summary form the facts of each, which suggests that his Honour had access to the relevant Statements of Facts, probably because the files of the proceedings involving those offences were in Court before him.

81. The prosecutor had submitted that the "ostensibly harsh penalty" for the trafficking charge was "because that trafficking led directly to the death of a person". His Honour accepted that this was the inference to be drawn but concluded that he would not draw that inference and rejected the suggestion that the offence was aggravated by the death of Ms McDonald without clearer evidence of a relevant connection, such as from an inquest finding.

82. His Honour then referred to the option he had of imposing the sentences that had been suspended, under s 110 of the Crimes (Sentence Administration) Act 2005 (ACT), though his Honour referred to the wrong legislation.

83. His Honour referred to some authorities on the issue, but I could not identify them from the references he made. His Honour also relied on decisions of the Supreme Court of South Australia, to which I have referred in various decisions, which point out the importance of responding properly to the breach of a conditional release order lest that sentencing disposition be brought into disrepute.

84. His Honour also referred to the need for the courts to accept that there must be a deterrent to drink-driving. As to the offences of driving whilst disqualified, his Honour referred to what I had said in Cotter v Corvisy at 306-7; [33] and statements made in other decisions which I had cited at 307; [35] and 317; [88].

85. His Honour then, with respect, rightly pointed out that it was necessary "to look at all the circumstances which surround [the offence]".

86. His Honour referred to the Pre-Sentence Report and to the criminal history of Mr Amos, noting that, as submitted by his counsel, there was a considerable "gap" from 2000 until 2010, with the relapse into heroin use as the explanation for the further offending. His Honour accepted that he was seeking assistance for that. His Honour referred to the relationship of Mr Amos and his partner and the acknowledgement by Mr Amos that the offences were serious.

87. His Honour acknowledged that he needed to consider other options before deciding on a sentence of imprisonment and that he had to have regard to totality in imposing a sentence that was not crushing.

88. His Honour referred to the criminal record of Mr Amos, which he generously described as "unfortunate", but correctly noted that it was relevant to retribution, deterrence, and the protection of society.

89. His Honour then indicated that he took into account the plea of guilty of showing some remorse. His Honour indicated that he had reduced the length of each sentence of imprisonment by a month to reflect the plea.

90. His Honour then handed down a typed document which set out the sentences his Honour proposed to impose with some explanation of them. It was quite a detailed document of one and a half pages. Clearly, the document had been prepared prior to the sentencing hearing and, apart from a couple of small annotations, that is by making the two disqualifications from holding or obtaining a licence concurrent, his Honour imposed the sentences set out in the document.

91. I shall deal with each of the issues in the Notice of Appeal in turn as counsel for Mr Amos and for the respondents both did.

92. It was submitted that the learned Sentencing Magistrate had, by handing down the written sentence which must have been completed prior to hearing the submissions of counsel, gave the appearance of having pre-determined the sentence before hearing those submissions and thus failed to afford Mr Amos procedural fairness.

93. There can be no doubt that sentencing proceedings must have the ordinary characteristics of judicial determinations that are to be conducted by the Court in an independent, impartial manner and, except in strictly limited circumstances, in public.

94. The Court must conduct its business with procedural fairness. A recent example of these requirements in sentencing is to be found in what was said by Buss JA in Teakle v Western Australia [2007] WASCA 15; 168 A Crim R 483 at 499-500; [62]- [63].

95. What is submitted in this case is that the learned Sentencing Magistrate had, prior to hearing the submissions of counsel, pre-determined the outcome, that is the sentence. Such a pre-determination would be to deny a party natural justice or to show bias as was recognised by Isaacs J in Dickason v Edwards [1910] HCA 7; (1910) 10 CLR 243 at 260.

96. While the efficiency of having the document prepared in this case was helpful as is often needed with multiple sentences, which by their nature can be problematic (see, for example, Law v Ilievski [2016] ACTSC 291 at [1]- [2]), nevertheless, the perception of a pre-determined outcome in the procedure actually adopted has the capacity to provide an appearance of unfairness and a reasonable sense of grievance that the submissions of counsel have been ignored. His Honour did not even adjourn to consider whether the submissions had affected his prior view.

97. This case is different from those where a judicial officer expresses strong views that show pre-judgment, such as in Humphrey v Wills [1989] VicRp 42; [1989] VR 439. Indeed, here, the learned Sentencing Magistrate did not disclose his views until the very end of the proceedings. Thus, it was not as clear - or, perhaps, blatant - an example of

pre-judgment as in Antoun v The Queen [2006] HCA 2; (2006) 80 ALJR 497. On the other hand, it was more problematic for the views of the learned Sentencing Magistrate were not disclosed to the parties and so did not assume the character of a provisional view about which the parties might be able to express their own views and attempt to persuade his Honour of the need for a change in those provisional views.

98. For example, it was clear that all the sentences of imprisonment were to be cumulative with no concurrency. While His Honour expressed the need to respect the principle of totality, a provisional view of full concurrency would have provided counsel for Mr Amos with the opportunity to direct specific submissions to that issue.

99. It also seems to me that to go to the lengths that his Honour did in setting out the somewhat complex sentencing exercise would have given the clear impression that his Honour's view would be very difficult to sway as this would require some re-formulation of the document.

100. It is suggested that Antoun v The Queen stands for the recognition of the High Court that the importance of due process overrules the efficiency in the administration of justice: Fyfe Strachan, "Keeping up Appearances: Apprehended Bias in Antoun v The Queen" [2007] SydLawRw 6; (2007) 29 Sydney Law Review 175 at 185.

101. Having said all that, a number of matters need to be acknowledged which do make the question at issue here more complicated.

102. In the first place, his Honour did listen to all the submissions and engage with counsel, not necessarily rejecting all the submissions of counsel for Mr Amos nor accepting all the submissions of the prosecutor. Indeed, the judge in Antoun v The Queen had ultimately heard the submissions. His Honour also did here, though perhaps not "under sufferance", as in Antoun v The Queen at 505; [36].

103. Secondly, his Honour in, at least, his remarks on sentence, did address almost all of the submissions made by counsel for Mr Amos and seemed to accept most of them.

104. Thirdly, his Honour did vary the orders he made in one respect. Initially, it was clear from the document that his Honour was proposing to make the disqualification of Mr Amos from holding or obtaining a driver licence consecutive for each of that to be imposed for the two offences of driving whilst disqualified but made manuscript changes to make them concurrent. This had been the subject of a specific submission from counsel for Mr Amos.

105. Finally, nothing was said on the appeal as to what submissions would have been made were the document or an oral summary of its contents to have been placed before counsel as a provisional view of the sentences to be imposed.

106. The submissions of the respondents seemed to misunderstand the issue, submitting that the submissions for Mr Amos suggested that "it was unusual or uncommon for a judicial officer to deliver an ex tempore sentence". That was not submitted nor the issue at all.

107. Then, the respondents' submissions continued by suggesting that Mr Amos "asks the Court to infer a pre-determination of the sentence based purely on the fact that the sentence was delivered ex tempore". That was also not the issue at all.

108. These submissions were of no help in resolving the appeal.

109. The line between what is pre-judgment and what is a provisional view is "an ill-defined line": Vakauta v Kelly [1989] HCA 44; (1989) 167 CLR 568 at 571.

110. Not without some hesitation, I consider that the process has miscarried and that Mr Amos may well have a legitimate complaint that justice was not seen to be done and that the learned Sentencing Magistrate appeared to have pre-judged the issue of the sentence to be imposed.

112. The learned Sentencing Magistrate set a non parole period of 12 months. That was an error, both Mr Amos and the respondents agreed.

113. The relevant provisions of the Crimes (Sentencing) Act 2005 (ACT) are as follows:

Part 5.2 Imprisonment - nonparole periods

64 Application - pt 5.2

(1) This part applies to a sentence of imprisonment imposed by a court on an offender for an offence, other than an excluded sentence of imprisonment.

(2) However, if the sentence of imprisonment includes a periodic detention period, this part applies only to that part of the sentence to be served otherwise than by periodic detention.

...

65 Nonparole periods - court to set

(1) This section applies if the court sentences the offender to a term of imprisonment of 1 year or longer, or 2 or more terms of imprisonment that total 1 year or longer.

(2) The court must set a period (a nonparole period) during which the offender is not eligible to be released on parole.

114. It is clear that, as, the period of full-time imprisonment in this case was only for four months, there was no requirement to set a non parole period and, arguably, no power to do so.

115. Thus, in doing so, the learned Sentencing Magistrate fell into error. Mr Amos submitted that this error justified appellate intervention and, therefore, re-sentencing. The respondents submitted that it was sufficient were I simply to set aside the non parole period.

116. Ordinarily, a specific error (as defined in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505) will enliven the sentencing discretion of an appellate court and the offender must be

re-sentenced: AB v The Queen [1999] HCA 46; 198 CLR 111 at 160; [130]. That, however, does not apply to every such error and, indeed, the error here would not justify re-sentencing, especially where the error cannot have been said to vitiate the sentencing discretion: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at 618; [42].

117. In this case, as I have upheld ground one of the appeal, the occasion for re-sentencing does arise and this error can be corrected in that context. If that had not been so, I would have upheld this ground, but merely set aside the non parole period fixed by the learned Sentencing Magistrate.

118. Mr Amos submitted that it was an error for the learned Sentencing Magistrate to impose the two suspended sentences in full, especially the nine month sentence of imprisonment for the offence of trafficking in heroin.

119. I have addressed the issue of the response to a breach of a Good Behaviour Order in a number of decisions after reviewing the relevant authorities. Recently, I said the following in R v Curtis (No 2) [2016] ACTSC 34 at [15]- [19]:

In Saga v Reid [2010] ACTSC 59 at [99]- [101], I adopted what had been said in other cases; namely, that the failure of courts to act where there has been a clear breach of the conditions of a conditional release order, such as a Good Behaviour Order, imposed when a sentence of imprisonment is suspended and by which the offender avoided being sentenced to full-time prison, is likely to bring such sentences into disrepute.
Nevertheless, as I pointed out in Guy v Anderson [2013] ACTSC 5 at [83]- [87], there is, in this jurisdiction, no presumption in favour of imposing the original sentence that had been suspended. Thus, a court may, in an appropriate case, merely sentence the offender to the same sentence, including suspension of the term of imprisonment, as originally imposed. While that would have the effect of extending the period in which the offender is subject to a Good Behaviour Order, that may be modified to take account of the period of satisfactory compliance with the earlier order.
Over time, a number of considerations have been identified as relevant to the decision as to the appropriate response to the breach of a Good Behaviour Order.
These include the proportion of the term of the Good Behaviour Order that had been served without breach, any rehabilitation attained by the offender prior to the breach, the nature of the offence which breached the order, including whether it is similar to the offence for which the sentence of imprisonment, then suspended, was imposed, the relative seriousness of the offence so that the imposition of the suspended sentence would be disproportionate to the gravity of the breach offending; and, the prospects of the offender's rehabilitation.
Indeed, with re-sentencing, the legislation expressly applies the Crimes (Sentencing) Act 2005 (ACT), to any re-sentencing, which permits all relevant factors on sentencing to be taken into account.

120. In this case, there is a further important consideration. The two suspended sentences were imposed on the same day. Where there was no need to consider the total period of full-time imprisonment, the question of totality did not loom large and does not appear to have been addressed.

121. Nevertheless, as a fact, the two sentences were imposed at the same time and without specifying any different start date. Thus, by virtue of s 62 of the Crimes (Sentencing) Act, they both started on the same day. That is to say, they were both concurrent. This is consistent with and, perhaps, mandated by s 71 of that Act.

122. The learned Sentencing Magistrate gave no apparent consideration to this issue. In that sense his Honour failed to consider a relevant consideration.

123. Further, his Honour gave no consideration to the issues dealt with in R v Curtis (No 2) at [18]. For example, his Honour did not address the issue that the breaching offences were of a different character to the offence of trafficking in heroin. Whether that justified re-sentencing rather than the imposition of the sentence imposed was simply not explored.

124. For these reasons, this ground must be upheld.

125. Mr Amos next submitted that in making all the sentences of imprisonment consecutive, that is to be served cumulatively, his Honour had not observed the principle of totality established in Mill v The Queen [1988] HCA 70; (1986) 166 CLR 59 at 62-3.

126. This principle applies to the sentences for both the breaching offences and for the sentences imposed on the breach: Director of Public Prosecutions v Cooke [2007] NSWCA 2; 168 A Crim R 379 at 388; [28]- [30].

127. The principle of totality does not, however, prohibit multiple sentences of imprisonment from being directed to be served consecutively. Indeed, in some circumstances, that would be appropriate. For example, the sentence should not suggest that an offender can commit further offences with impunity because there will be no or little additional punishment: Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 684; R v Brown [1999] NSWCCA 323 at [24].

128. Thus, ordinarily a sentence for an offence that breaches a court order, such as a Good Behaviour Order, will be cumulative on the sentence imposed on breach: R v Kain (1985) 38 SASR 309 at 312. This will, however, always be subject to the principles of totality and proportionality.

129. Nevertheless, there are a range of principles that need to be considered, including those explained in Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-3. See also R v Melville (1956) 73 WN(NSW) 579 at 581.

130. This is a matter of discretion. Thus, as the High Court pointed out in Johnson v The Queen [2004] HCA 15; 205 ALR 346 at 356; [26]:

The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce [Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610] does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected.

131. Accordingly, more needs to be shown than merely that the sentences were all accumulated as that may indeed be appropriate where, as here, the two sets of fresh offences were not related: Ghoubriel v The Queen [2016] ACTCA 66 at [82].

132. There is no doubt that the totality principle requires what is sometimes called "a last look" by the sentencing court to ensure that the sentence for multiple offences is not more than is appropriate for the criminality of the offences: Moutrage v Haines [2008] ACTSC 36 at [41]. That does not require a sentence to use the actual word "totality": King v Mainey [2008] ACTSC 108 at [24].

133. Indeed, the sentencing remarks may be silent but the sentence and its structure make it clear that the principle has been applied: Scrivener v Papantaniou [2009] ACTSC 41 at [88].

134. Here, his Honour expressly referred to the principle of totality. Apart from the error of failing to make the two breach sentences concurrent, there is nothing in the sentence to suggest that his Honour did not have regard to the totality principle. A challenge to its application, however, is in reality a challenge that the sentence is manifestly excessive, a different ground of appeal.

135. Finally, Mr Amos submitted that the sentence as a whole was manifestly excessive. That does not depend on a specific error but a finding that the sentence is "unreasonable or plainly unjust" as explained in House v The King at 505.

136. It is necessary to make out this ground to show that the sentence imposed was not within the reasonable or just range of sentences for the total criminality committed by Mr Amos. I have set out in TW v The Queen [2011] ACTCA 25; 6 ACTLR 18 at 27-8; [60]- [61], the approach to be taken to such a ground of appeal. Those principles have recently been summarised in Dalton v The Queen [2015] ACTCA 48 at [18], as follows:

The principles that apply in relation to the appeal ground that a sentence is manifestly excessive are well settled. They include the following:

At a glance

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Judgment (219 paragraphs)

Amos v McCarron [2017] ACTSC 6 (19 January 2017)

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Legislation Cited (6)

Cases Cited (14)