Supreme Court of the ACT|2015-10-09|Before: Refshauge ACJ

Bedford v Earle (No 2) [2015] ACTSC 309 (30 October 2015)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

The appeal be upheld.
The sentences imposed in the Magistrates Court on 2 September 2015 be set aside.
1. Richard Bedford be re-sentenced.

APPEAL - Jurisdiction, practice and procedure - appeal from the Magistrates Court - appeal against sentence - sentencing principles - pre-sentence custody - backdating of sentence - plea of not guilty - remorse - defence based on a technicality - accused did not give evidence - penalised for pleading not guilty - expert report - psychologists report - unchallenged expert evidence - rejection of expert evidence - failure to give reasons for rejecting expert evidence - failure to mark documents as exhibits - manifestly excessive

CRIMINAL LAW - Jurisdiction, practice and procedure - driving a motor vehicle whilst disqualified from holding or obtaining a licence - traffic offences - breach of bail undertaking - repeat offender - extensive criminal record

Magistrates Court Act 1930 (ACT), s, 216, Pt 3.10, Div 3.10.2

Bedford v Earle [2015] ACTSC 306

Butler v Vickers [2011] ACTSC 134

Cameron v The Queen (2002) 209 CLR 339

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

Fusimalohi v The Queen [2012] ACTCA 49

Grimshaw v Mann [2013] ACTSC 189

Hall v CL [2015] ACTSC 286

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

Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616

Manny v Burmester [2002] ACTSC 44

Moutrage v Haines [2008] ACTSC 36

Nottle v Trenerry [1993] NTSC 47; (1993) 3 NTLR 68

Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610

Pettitt v Dunkley [1971] 1 NSWLR 376

Ring v Beath [2009] ACTSC 19

Roberts v Smorhun [2013] ACTSC 218

R v Campbell [2010] ACTCA 20

R v Shannon (1979) 21 SASR 442

Scrivener v Papantaniou [2009] ACTSC 41

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Taylor v The Queen (1978) 45 FLR 343

Tunks v Onorato [2012] ACTSC 148

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

Wronski v Raue [2012] ACTSC 87

"Criminal Appeals from the Magistrates Court", Practice Direction No 3 of 2012 (Supreme Court)

Case Title: Brett Jason Ford v Richard Karl Bedford

1. Richard Karl Bedford, the appellant, has a shocking traffic record from 1994 when he was convicted of driving with the prescribed concentration of alcohol.

2. On 2 April 2012, he was again convicted by the Local Court of Queanbeyan of driving with a high range prescribed concentration of alcohol and he was disqualified from holding or obtaining a driver licence for 5 years. He had later, on 26 June 2014, been convicted of driving whilst disqualified from holding or obtaining a driver licence.

3. On 20 October 2014, however, he drove a motor vehicle on Limestone Avenue, Ainslie, when he was stopped by police and charged with, being a repeat offender, driving whilst disqualified.

4. On 31 October 2014, he drove again along Limestone Avenue, Ainslie, and was again stopped by police and charged again as a repeat offender with driving whilst disqualified.

5. On 28 January 2015, Mr Bedford was driving south-easterly along William Hovell Drive, Cook, when he was stopped by police and was arrested by police for, being a repeat offender, driving whilst disqualified.

6. After various hearings in court, he was convicted of all three offences on 2 September 2015. He was sentenced for the first offence to four months imprisonment from that day, for the second offence to six months imprisonment to commence on 2 January 2016, that is to be wholly cumulative on the earlier sentence and for the third offence to 7 months imprisonment to commence on 2 July 2016, that is to be wholly cumulative on the earlier sentences.

7. The total period of imprisonment was, thus, 17 months. The sentence is a little unclear after this as will be set out below.

8. On 3 September 2015, Mr Bedford appealed against the sentence.

9. Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court. This includes appeals against sentences imposed by it, which are regulated by Div 3.10.2 of that Act.

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

11. Sentences imposed in the Magistrates Court are not to be set aside on appeal 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 imposed.

12. 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 reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable or plainly unjust or plainly wrong.

14. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal itself results, by statute, in a stay of the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

15. The Notice of Appeal was filed on 3 September 2015. It set out seven grounds of appeal as follows:

the sentences appealed from are manifestly excessive;
the sentences appealed from were affected by an error of fact, namely that the learned Magistrate incorrectly sentenced the appellant upon the basis that he had committed 5 prior offences of either driving whilst suspended or disqualified, when in fact he had only 4 such prior convictions;

the learned Magistrate did not have regard to the effect of the sentences upon the appellant's family, contrary to s 33(1)(o) of the Crimes (Sentencing) Act 2005 ('the Act');

the learned Magistrate had regard to the appellant's plea of not guilty, and the manner in which he defended the charges, upon sentence, contrary to s 34 of the Act;
the learned Magistrate did not have regard to the 8 days the appellant spent in custody, on remand, on charge CC14/10478, contrary to s 63(3) of the Act;
the learned Magistrate did not give adequate reasons for rejecting the opinions of the appellant's treating psychologist, which opinion were not challenged by the prosecution, and preferring the opinions of the author of the pre-sentence report over same; and
the learned Magistrate did not have regard to the 'Verdins principles' when sentencing the appellant.

16. At the hearing of the appeal, Mr Bedford abandoned grounds (b) and (c) in the Notice of Appeal. I do not have to deal with them.

17. The salient facts are set out above (at [1]-[5]). It is appropriate to expand on them a little.

18. On 20 October 2014, Mr Bedford, then driving along Limestone Avenue, Ainslie, failed to stop at or near the stop sign controlling the intersection with Quick Street as he was turning right into Quick Street. Police in a marked police vehicle were targeting traffic controls and noticed Mr Bedford's driving. They caused him to stop in Quick Street and asked him for his licence.

19. Mr Bedford said that he had left his licence at home but produced a photographic work identification card which enabled his identity to be ascertained. Police quickly identified that he had been disqualified from holding or obtaining a driver licence for 5 years when convicted and sentenced for driving with a high range prescribed concentration of alcohol by the Local Court at Queanbeyan as noted above (at [2]).

20. Police also ascertained that, on 26 June 2014, he had been convicted in the ACT Magistrates Court of driving whilst disqualified, making him a repeat offender. He was charged with that offence.

21. He was required to attend court on 30 October 2014, which he did. Despite the production of a work identification card and telling police he was driving to work, he was, curiously, described in the Police Statement of Facts as unemployed.

22. Mr Bedford was granted bail, which included conditions that he not drive a motor vehicle until properly licensed to do so and that he not be in the driver's seat of any motor vehicle.

23. Despite still being a disqualified driver and the bail conditions imposed the day before, Mr Bedford drove again on 31 October 2014, again along Limestone Avenue. Police recognised the vehicle from the earlier incident and stopped him on Fairbairn Avenue. There did not seem to be a manner of his driving that drew him to police attention. When asked why he was driving, Mr Bedford said that he had no other way to get to work. He was arrested and taken to the ACT Watch House, appearing in court the next day, charged with, being a repeat offender, driving whilst disqualified.

24. He was granted bail with the same bail conditions as for the earlier charge. He was again described as "unemployed" on the Police Statement of Facts.

25. On 28 January 2015, police were on mobile patrol on William Hovell Drive, Cook, when Mr Bedford was noticed driving in a south-easterly direction. There did not seem to be any manner of driving that drew him to police attention on this occasion either.

26. He was stopped on McCoy Circuit, Acton, as police were unable to intercept him earlier because of peak hour traffic. On this occasion, Mr Bedford acknowledged that he was a disqualified driver and that his current bail conditions prohibited him from driving.

27. He was arrested and appeared in court later that day. He was refused bail and remanded in custody. On 4 February 2015, however, he was granted bail on the same conditions as made for the previously granted bail.

28. After a number of adjournments, and following pleas of not guilty, all matters were listed for hearing on 31 July 2015.

29. At the hearing, Mr Bedford challenged the validity of certain certificates from the Road Transport Authority tendered to prove that he was a disqualified driver on the days when he was intercepted by police while driving. The learned Magistrate dismissed the challenge and found Mr Bedford guilty of all three offences. That finding is not challenged on the appeal.

30. The matters were adjourned then to 2 September 2015 for sentence and Mr Bedford's bail was continued.

31. Mr Bedford was born 45 years ago in Victoria. He was brought up in a low socio-economic area of Melbourne where he had quite "toxic" experiences at school, including being subject to bullying and assaults. Indeed, on one occasion he was abducted and held against his will for two and a half hours. This, Mr Leigh Nomchong, psychologist, who examined Mr Bedford for the sentence proceedings, considered led to Mr Bedford developing Post Traumatic Stress Disorder.

32. When he was 20 years old, he was attacked and stabbed more than 30 times. He was again assaulted and stabbed when he was 21 years old, which resulted in a punctured lung. He has since then experienced further assaults.

33. He was married and has a son now aged 23 who lives in Melbourne. He and his first wife are estranged. There was a substantial dispute over custody of his son but Mr Bedford ultimately obtained custody. His son, however, has severe behavioural problems. These problems resulted in the break-up of his second marriage, but he maintains contact with his son.

34. He was married for 11 years to his second wife. They have two children aged 7 and 5 years old and Mr Bedford had, until he was remanded in custody, access to them at the weekends. He now describes himself as single. Both children have had significant medical problems, some of a very severe kind.

35. He has a distant relationship with his parents, though they have been supportive in maintaining his rental residence for some of the time he is in custody.

36. He completed Year 11 at school and obtained employment in banking, landscaping, transport and retail industries.

37. Mr Bedford has a history of employment in accounting and finance. He is an employee of the Corporate Finance team of the Commonwealth Scientific and Industrial Research Organisation (CSIRO). He says he enjoys the work and is very engaged with it. His employer describes him as a valued member of the team and he has been promoted.

38. He has been diagnosed with anxiety and depression, for which he has been prescribed medication. He is also diabetic. There is the possibility of a personality disorder, possibly a Borderline Personality Disorder and a Narcissistic Personality Disorder. His possible substance abuse disorder (alcohol) is currently in remission. He currently suffers from back pain.

39. Mr Bedford has had a history of alcohol abuse. He first consumed alcohol when he was 16 years old but, by age 33, his consumption was problematic. He was drinking about 29 standard alcoholic drinks a night. He has, however, reduced his consumption since March 2015 and is receiving treatment through Directions ACT. He has, however, used alcohol as a form of self-medication, even though it has caused him further problems, especially with the criminal justice system.

40. His engagement more recently with Directions ACT appears to have moderated his alcohol abuse, though a standardised test still showed his current pattern of drinking was at a high risk or harmful level.

41. Mr Bedford has used cannabis and, apparently, still uses it occasionally; the Pre-Sentence Report suggested once every six months. When taken into custody, a screening test showed the presence of cannabis in his system. He said, however, that this was the result of his "passive smoking" of cannabis through his son's use.

42. Mr Bedford acknowledged that he should not have been driving but said that his thought processes were disturbed because of a theft of property from his home by his son. He has now arranged for his vehicle to be in the possession of another person to limit his access to a vehicle.

43. Mr Bedford has a significant criminal history dating back to 1990. Apart from some dishonesty and drug offences in 1990 and 1991, they are all traffic or traffic related offences. There are a total of 23 offences plus the three the subject of this appeal. The majority of these offences are either drink-driving offences (8 offences) or driving whilst disqualified or similar (7 offences).

44. Mr Bedford has received counselling in twelve sessions from a psychologist, Mr Nomchong. Mr Nomchong also prepared a Report that was tendered to the learned Sentencing Judge.

45. In his Report, Mr Nomchong opined that Mr Bedford had very good insight into the nature of his crime, its consequences, its effect upon society and the risk to others, but his depression was an obstacle to him overcoming his dysfunctional behavioural pattern which is littered with impulsivity. Given the right and consistent psychological and psychiatric support, combined with other appropriate services, such as various courses, Mr Nomchong thought that it would be quite possible that Mr Bedford could overcome the alcohol addiction, resolve his depression and thereby minimise his likelihood of reoffending.

46. Mr Nomchong also considered that incarceration would provide "an extremely challenging psychological crisis for him". Indeed, Mr Bedford's fear of incarceration is described by Mr Nomchong as almost irrational. There is some suicidal ideation associated with it.

47. The learned Sentencing Magistrate set out the history of the three offences and where his driving record was directly relevant to those offences.

48. Her Honour then referred to the plea of not guilty which she properly described as "his right" and, briefly, the argument he had mounted at the hearing and her rejection of it.

49. Her Honour noted that Mr Bedford did not give evidence at the hearing of the plea of not guilty, but did give evidence on sentence.

50. Her Honour emphasised, by repetition, that, when driving on the three occasions, Mr Bedford "knew" that he was driving with a suspended licence. Indeed, her Honour repeated it on six occasions within eight sentences. It is not clear why the learned Magistrate felt it appropriate to repeat the fact; it seemed a rather inappropriate rhetorical device, not necessarily appropriate in sentencing remarks.

51. Her Honour then referred to the earlier similar offences for which he had been sentenced to three months periodic detention on 26 June 2014.

52. Her Honour referred to his earlier offending, referring to the 8 drink-driving offences. Her Honour also referred to the comments in the Pre-Sentence Report about his history of alcohol consumption and the presence of cannabis when arrested for the third offence.

53. Her Honour cited a number of passages from the Mr Nomchong's Report and contrasted it with the opinion of the author of the Pre-Sentence Report.

54. Her Honour noted Mr Bedford's claim that his access to his vehicle was limited, but expressed some scepticism that the arrangements he had put in place had actually made access more difficult or less likely.

55. Her Honour then referred again to the hearing on the plea of not guilty and made a curious comment:

So, then the matters that are at odds with Attitude to the Offence, as I say, Mr Bedford did not give any evidence at the hearing. He pleaded not guilty and he pleaded not guilty on the basis of a technicality. He wanted and tried - and, again, this is his right but nevertheless it is significant in my view - he wanted and tried to escape the consequences of his actions by attempting to argue on the basis of a technicality and his argument failed.

56. It is not clear to me, and her Honour did not clarify, why it was relevant to repeat that Mr Bedford did not give evidence at the hearing (especially as his defence was "a technicality" about which he may be unlikely to have any evidence to give) and why it was significant that he pleaded not guilty on the basis of a technicality. The reasons are silent as to any justification for these comments in the sentencing remarks.

57. Despite Mr Bedford's evidence and that of Mr Nomchong, her Honour did not accept that Mr Bedford was remorseful and concluded that, rather, he was merely sorry for himself as he faced incarceration. Her basis for that finding was not stated. She noted, too, his concern for the loss of his job, his accommodation and his possessions and for the welfare of his young children, but considered those inevitable consequences of the proper sentence to be imposed.

58. Her Honour also expressed scepticism of the fact that Mr Bedford explained his actions as "not thinking clearly", contrasting that with his functioning well at work, including receiving a promotion.

59. Her Honour referred to my decision in Cotter v Corvisy (2008) 1 ACTLR 299 at 308; [38], where I referred to this kind of offending as contumacious when a person does an act knowing that it is prohibited and having no reasonable excuse for doing it or a reasonable belief that it can be excused. Her Honour also referred to comments I quoted with approval, to the effect that the offence of driving under disqualification was a serious offence, that the effectiveness of disqualification depends on its observance and if the orders are ignored the court's orders are rendered ineffective.

60. Her Honour accepted that a custodial sentence would cause difficulties for Mr Bedford but, having regard to the objectives and purposes of sentencing, considered that no other sentence than imprisonment was appropriate. Her Honour expressly rejected a sentence of periodic detention, even though he had successfully completed such a sentence in the past.

61. Her Honour then convicted Mr Bedford of each offence and imposed the following sentence:

• Driving whilst disqualified on 20 October 2014: 4 months imprisonment to commence on 2 September 2015 and licence disqualified for 2 years.

• Driving whilst disqualified on 31 October 2014: 6 months imprisonment to commence on 2 January 2016 and licence disqualified for 2 years cumulative upon the earlier disqualification and any other suspension.

• Driving whilst disqualified on 28 January 2015: 7 months imprisonment to commence on 2 July 2016, though without a mention of a licence disqualification. Under s 32(5) of the Road Transport (Driver Licensing) Act 1999 (ACT), the conviction would automatically disqualify Mr Bedford from holding or obtaining a driver licence for two years, such disqualification to be additional to those already imposed.

62. That constituted a sentence of 17 months imprisonment. Her Honour did not appear to "take a last look at the total just to see whether it looks wrong: Moutrage v Haines [2008] ACTSC 36 at [41]. Her Honour suspended the imprisonment from 1 April 2016. Her Honour, as required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), made a Good Behaviour Order, apparently for 12 months, from 2 April 2016, with a probation condition that Mr Bedford be under supervision of the Director-General for 12 months or such lesser period as the person supervising him considered appropriate and that he attend such educational programs as directed, particularly relating to drug and alcohol counselling.

63. The convictions constituted a breach of two earlier Good Behaviour Orders, both made on 31 August 2013, when Mr Bedford was convicted of one of his earlier offences of driving whilst disqualified and also convicted of an offence of drink-driving committed at the same time. For these offences, he was sentenced to three months imprisonment for the first offence, which was to be served by periodic detention, and an 18 month Good Behaviour Order was also made. For the second, a 12 month Good Behaviour Order was made.

64. Without opposition from the prosecution, the learned Magistrate found the breaches proved but, as is possible under s 108(2)(a) of the Crimes (Sentence Administration) Act 2005 (ACT), took no further action on either breach.

65. It is appropriate to deal with the grounds of the appeal seriatim. They were not argued in the order in which they were pleaded. It is convenient to deal with them as follows.

66. Mr Bedford was arrested on 28 January 2015 and refused bail. He was later granted bail on 4 February 2015. Thus, he spent 8 days in custody.

67. Her Honour was aware of this fact as she mentioned it when rehearing the facts. There was, however, no other mention of it. The term of imprisonment was not directed to start on a day before it was imposed (under s 63(1) of the Crimes (Sentencing) Act) as is almost universally done: Butler v Vickers [2011] ACTSC 134 at [82]. It is also the preferable course to take when taking into account pre-sentence custody: Hawkins v Hawkins (2009) 3 ACTLR 210 at 226-7; [79].

68. It is not required to proceed in this way. Despite the universality of the practice, it is not mandatory and is a "genuine discretion" of the sentencer, but it should be done unless there is a good reason not to do so and that good reason should be expressed: Butler v Vickers at [78]; Wronski v Raue [2012] ACTSC 87 at [11].

69. Indeed, in Nottle v Trenerry [1993] NTSC 47; (1993) 3 NTLR 68 at 71, Mildren J referred to s 405(2) of the Criminal Code (NT), relevantly equivalent to ss 62 and 63 of the Crimes (Sentencing) Act, and said:

Undoubtedly the power conferred by the court under s 405(2) to antedate a sentence is discretionary, but it is well-established that the failure to antedate a sentence is sentencing error unless reasons are given for the failure to adopt that practice: see R v Reed [1992] VicRp 79; [1992] 2 VR 484 at 486.

70. No reasons were given by the learned Magistrate for not proceeding in this way. It is difficult to think of any appropriate ones. Indeed, Mr P Edmonds, who appeared for Mr Bedford, submitted that this earlier period of incarceration had a particularly salutary effect on Mr Bedford, leading him to a stark realisation of the consequences of his continued disobedience of court orders.

71. Mr T Hickey, who appeared for the respondent, did not strenuously submit that I should not accept that this was an error, either by failing to have regard to the pre-sentence custody (by backdating the start of the sentence of imprisonment) or in failing to give reasons for not doing so. He submitted, however, that all I needed to do in this case was re-adjust the sentence to start at 8 days before it was imposed. See Butler v Vickers at [83].

72. I have referred earlier (at [48] and [55]), to the references by the learned Sentencing Magistrate to the earlier hearing on the plea of not guilty. Mr Edmonds submitted that her Honour had improperly taken the not guilty plea into account, despite an apparent recognition that Mr Bedford was entitled to plead not guilty and put the prosecution to proof of its allegations.

73. In the first place, Mr Edmonds referred to s 34 of the Crimes (Sentencing) Act. It prohibits a court from increasing

the severity of the sentence it would otherwise have imposed because ...

...

(c) ... the offender chose not to give evidence on oath;

...

(f) ... the offender chose to plead not guilty.

74. Mr Edmonds invited me to conclude that the references to Mr Bedford not giving evidence and pleading not guilty "on the basis of a technicality" meant that her Honour had increased the severity of the sentence as a result, especially because of her Honour's use of the word "significant".

75. Given that the imposition of a sentence is a result of the sentencer engaging in an instinctive synthesis of the relevant factors and not a mathematical exercise (see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611; [75]), it is difficult to ascertain what the sentence "otherwise ... imposed" may be and whether its severity has been increased as a result.

76. Nevertheless, Mr Edmonds submitted that the length and total cumulation of the sentences enabled the inference to be drawn, particularly in the light of the express references by her Honour to these issues.

77. In the alternative, however, he submitted that the common law was that a plea of not guilty was an irrelevant consideration which raised the question of a specific error of the type referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499.

78. He referred to Cameron v The Queen (2002) 209 CLR 339 at 343; [12], where Gaudron, Gummow and Callinan JJ said:

Although a plea of guilty may be taken into account in mitigation, a convicted person may not be penalised for having insisted on his or her right to trial. The distinction between allowing a reduction for a plea of guilty and not penalising a convicted person for not pleading guilty is not without its subtleties, but it is, nonetheless, a real distinction, albeit one the rationale for which may need some refinement in expression if the distinction is to be seen as non-discriminatory. (footnotes omitted)

79. Indeed, in that case, the words of one of the authorities, to which the Court there referred for the proposition in the first sentence of the quotation, are even more apposite, where for the Full Court of the Supreme Court of Victoria said in R v Gray [1977] VicRp 27; [1977] VR 225 at 231:

It is impermissible to increase what is a proper sentence for the offence committed in order to mark the court's disapproval of the accused's having put the issues to proof or having presented a time-wasting or even scurrilous defence.

80. These authorities do not go quite as far as to say that a plea of not guilty is an irrelevant consideration, but they do make it clear that there can be no penalty for pleading not guilty.

81. The difference is not an easy one. As the plurality said in Cameron v The Queen at 343; [13]:

It is difficult to see that a person who has exercised his or her right to trial is not being discriminated against by reason of his or her exercising that right if, in otherwise comparable circumstances, another's plea of guilty results in a reduction of the sentence that would otherwise have been imposed on the pragmatic and objective ground that the plea has saved the community the expense of a trial. However, the same is not true if the plea is seen, subjectively, as the willingness of the offender to facilitate the course of justice.

82. To elucidate the practical expression of the issue, it is helpful to refer to what King CJ said in R v Shannon (1979) 21 SASR 442 at 445:

It is one thing to assess a proper sentence as proportionate to the crime and to reduce it for mitigating factors. It is quite another to assess the sentence which the crime deserves and to increase it for subsequent behaviour such as contesting the charge. The sentencing judge should keep the distinction in mind and, where appropriate, should be able to explain it to the prisoner.

83. Mr Hickey submitted that her Honour had not improperly penalised Mr Bedford for pleading not guilty. He submitted that an evaluation of the sentence could not lead to that finding.

84. He submitted that her Honour was merely using the reference to base her finding that Mr Bedford was not remorseful.

85. I accept that the paragraph in which the relevant passage occurred commences with a reference to "Attitude to the Offence" and then is immediately followed by a discussion of remorse.

86. The reference to Attitude to Offence is a reference to that section in the Pre-Sentence Report where it was stated:

Although Mr Bedford agreed with the police Statement of Facts, and acknowledged he should not have been driving, he minimised his actions by claiming that his thought process was impeded after his adult son took property from his residence.

Mr Bedford stated that he chose to register a vehicle in his mother's name and chose to drive that vehicle on two occasions, despite knowing that he was subject to a Court order prohibiting him from driving a vehicle. Mr Bedford claimed that his access to this vehicle is now limited by it being in possession of another person in order to prevent this from happening again.

Mr Bedford acknowledged that he presented an unacceptable risk to other road users in chosing [sic] to drive on two occasions.

87. There is nothing directly about remorse here. There is evidence of insight which is very relevant to rehabilitation and, perhaps, to remorse. The reference to minimising his action may indicate some less than complete acceptance of responsibility, which may moderate the level of remorse, though not necessarily erase it.

88. Further, there is no indication that the author of the Pre-Sentence Report had access to Mr Nomchong's Report, which supported the explanation (not excuse) provided by Mr Bedford as to his disordered thought processes. A genuine explanation of behaviour is not inconsistent with a full acceptance of responsibility.

89. Remorse is a complex matter. I have addressed some of the relevant issues in Fusimalohi v The Queen [2012] ACTCA 49 at [28]- [35].

90. It needs to be pointed out, however, that a plea of not guilty is not necessarily inconsistent with remorse. See R v Thomson; R v Houlton (2000) 49 NSWLR 383 at 412; [117]; Allen v The Queen [2008] NSWCCA 11; (2008) 180 A Crim R 428 at 435; [41].

91. In this case, the challenge was, as her Honour was at pains to point out, a defence on a "technicality". It is clear from R v Gray that the basis for the plea is not a relevant factor. Indeed, one might expect that the technicality would be a defence advised by Mr Bedford's legal advisors who may have had good (though, as it turned out, wrong) grounds for suggesting that the argument was a tenable one.

92. It seems to me that if there is a legal reason (as opposed to a factual one) why a defendant is not guilty of an offence, then that is an issue that he or she should be entitled to take, without, in an appropriate case, compromising his or her genuine remorse for committing what, depending on the outcome of the argument, may or may not turn out to be an offence or an offence provable on admissible evidence beyond reasonable doubt.

93. On the other hand, taking such a point would not, of course, facilitate the course of justice, such as is evidenced by a plea of guilty. In an appropriate case, in the conduct of a defence, where the only issue was a narrow one, there may be room for a discount under s 35A of the Crimes (Sentencing) Act due to assistance in the administration of justice.

94. That may well have applied here, for there may have been admissions, such as that he was driving, made by Mr Bedford, though these would probably not have justified any significant discount.

95. Here, my concern is that her Honour referred at least twice to the fact that Mr Bedford did not give evidence on the hearing of the plea of not guilty and referred, apparently disparagingly (for why else mention it at all) to the fact that the challenge was based on a technicality.

96. As I have noted earlier (at [56], if, indeed, the challenge was a technical one, apparently relying on admissibility of documents, there would have been no need at all for Mr Bedford to give evidence. Her Honour did not suggest that it was the absence of the evidence that caused the defence to fail.

97. Given the risk that these references to Mr Bedford not giving evidence at the hearing were completely irrelevant to any issue her Honour had to decide, especially as he did give evidence at the sentencing hearing, it seems to me that the comment of King CJ in R v Shannon assumes some importance. Her Honour did not explain the distinction between reducing the sentence for mitigation and here making reference to matters in the context of aggravation which can only be the meaning sensibly given to her Honour's reference to "tried to escape the consequences of his actions by attempting to argue on the basis of a technicality and his argument failed."

98. I am satisfied that the only available inference from the repetition of and form of description used is that her Honour had penalised Mr Bedford for pleading not guilty. Were her Honour to have merely been using the plea of not guilty as a basis for challenging the remorse asserted by Mr Bedford, it would have been easy to say so and to use language that did not lead to the inevitable conclusion that, contrary to what was said in R v Gray, to which I have referred above (at [79]), she was expressing censure of the conduct of his defence in a way that is only explicable in a finding that her Honour was penalising Mr Bedford for pleading not guilty.

99. Accordingly, this ground of appeal is made out. That strictly relieves me of the need to deal with the other grounds. In deference to the argument presented, I will make brief reference to the other grounds argued.

100. Mr Nomchong is a well qualified psychologist whose reports have been received and accepted by the courts of this Territory for many years.

101. That does not mean that his reports must inevitably be accepted or that his opinions embraced without proper consideration.

102. In this case, his Report was tendered without objection and Mr Nomchong was not required for cross-examination on his Report.

103. When Mr Bedford was being cross-examined, it was not suggested to him that anything he had told Mr Nomchong was inaccurate nor was anything he said in his evidence inconsistent with what had been reported by Mr Nomchong as having been told to him.

104. Further, in submissions to the learned Magistrate by Mr Edmonds, reference was made to Mr Nomchong's Report and there was no suggestion from the learned Magistrate that she rejected it or would not accept it.

105. In submissions to the learned Magistrate, Mr T Buckingham, counsel for the prosecution, did suggest that the counselling provided by Mr Nomchong had not prevented Mr Bedford from re-offending which, he submitted "somewhat undermines some of Mr Nomchong's opinions about the defendant's remorse and his attitude towards the offending". He also submitted that there was, in the Report, no direct connection between the diagnosis of Mr Bedford's mental impairment to the offending behaviour.

106. There was, however, no submission that the Report should not otherwise be accepted. In particular, there was no suggestion that it was not reliable because it was based on self-report. That common criticism must be carefully made, for due regard must be had to the expertise of the author.

107. The first of these criticisms of Mr Nomchong's Report is difficult to understand for two reasons. In the first place, of the twelve sessions held by Mr Nomchong with Mr Bedford, only four had occurred before the third offence was committed. It may reasonably be suggested that Mr Nomchong would not have resolved the relevant issues in Mr Bedford's behaviour in that time, else the further eight sessions would be superfluous.

108. Further, the question of remorse is not a static matter; a defendant can become remorseful as he or she gains insight over time and realises the nature of the conduct and its implications. That, after four sessions with Mr Nomchong, Mr Bedford re-offended is not a rational basis for finding that, by the time of the twelfth session, he had not moved on sufficiently to become truly remorseful.

109. It appears to me that the fact of re-offending does not, in the circumstances, undermine Mr Nomchong's Report.

110. As to the second matter, the lack of a connection between the diagnosis and the offending does not undermine the value or accuracy of the Report, but only means that the relevant factual or expert basis situation for an application of principle 1 in what was referred to as "the Verdins principle (see R v Verdins [2007] VSCA 102; (2007) 16 VR 269 at 276; [32]) has not been made out. That does not constitute a challenge to the Report itself.

111. It is not clear from her Honour's sentencing remarks exactly how her Honour dealt with Mr Nomchong's Report. Mr Edmonds' submissions and the Notice of Appeal suggest that her Honour rejected it. Mr Hickey did not demur.

112. Certainly, her Honour contrasted Mr Nomchong's opinion with that of the author of the Pre-Sentence Report. There were no reasons given for the choice.

113. So far as that was concerned, it appears that a number of other documents were before the learned Magistrate which are relevant to these matters. They include reports or letters from officers of Directions ACT, being a case worker, a psychiatrist and a general practitioner. These tendered documents were not in the bundle of material provided by the Magistrates Court following the filing of the Notice of Appeal. That is a matter of great concern, for they form part of the record of the court and should be available to the appeal court. Neither counsel had copies.

114. I note that, contrary to the decisions of this Court, the learned Magistrate did not mark these documents as exhibits. See Manny v Burmester [2002] ACTSC 44 at [25]; Tunks v Onorato [2012] ACTSC 148 at [47]; Grimshaw v Mann [2013] ACTSC 189 at [19]- [23]; Roberts v Smorhun [2013] ACTSC 218 at [57]- [65]. That may well be the reason why they were not included in the Schedule of Documents as provided for in the Supreme Court's Practice Direction No 3 of 2012: "Criminal Appeals from the Magistrates Court". This failure by the learned Magistrate has significantly hampered the proper hearing of this appeal. In any event, counsel for the parties accepted that these documents were supportive of and to the same effect as the Report of Mr Nomchong and that I should proceed on that basis. Given the persons from whom these documents had come, that gives significant support and corroboration to Mr Nomchong's Report.

115. Ordinarily, unchallenged expert evidence should not be rejected unless there is other evidence which can displace or throw doubt on it. See Taylor v The Queen (1978) 45 FLR 343 at 364. This does not, of course, apply to the mere recounting in a report of matters told to the expert, unless, as here, there is corroboration of those matters. Here, Mr Bedford gave sworn evidence and there was supporting material from other experts. It was not clear how the Pre-Sentence Report threw doubt on Mr Nomchong's Report.

116. Mr Hickey submitted that her Honour had rejected the evidence of Mr Bedford and that this was a proper basis on which her Honour was entitled to reject Mr Nomchong's Report (if that is what she did). In fact, her Honour said that she was "mindful of the comments made in Mr Nomchong's reports [sic]", which is not consistent with rejecting his report.

117. The evidence that Mr Bedford gave, however, was consistent with Mr Nomchong's Report.

118. Nevertheless, the learned Magistrate expressed scepticism of the explanation given by Mr Bedford for his driving, for the fact that Mr Bedford could achieve successfully at work but be so inadequate in other areas of his life and which had been relied on and explained as a matter of expertise by Mr Nomchong,. Given the expertise of Mr Nomchong, it is not clear what evidence or expertise the learned Magistrate had to enable her to take that approach. Certainly she gave no reason or basis for doing so.

119. Despite the invitation of counsel for the prosecution to reject that part of Mr Nomchong's Report relating to remorse, there was no real challenge to the whole of his Report and the challenge to his findings on remorse was, perhaps, inadequate.

120. The principal problem is that, insofar as the learned Magistrate rejected Mr Nomchong's Report, she gave no reasons for doing so. While a jury need not give reasons, that is not a privilege enjoyed by a judicial officer. See Pettitt v Dunkley [1971] 1 NSWLR 376 at 383, 388; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. Given the critical role that Mr Nomchong's Report played in the circumstances of Mr Bedford's sentencing, reasons for how her Honour approached it were required: Butler v Vickers at [81]-[82].

121. It seems to me that the learned Magistrate, insofar as she rejected Mr Nomchong's Report, gave no reasons for doing so. That was required, particularly in the light of the evidence given by Mr Bedford, including his cross-examination and the areas on which he was not cross-examined and the supportive other expert evidence. This ground of appeal is also made out.

122. The difficulty with this ground of appeal is that the issue was not properly ventilated before the learned Magistrate. Indeed, counsel for Mr Bedford referred to R v Verdins and the "so-called Verdins principles" and said, "the defendant doesn't seek to place any huge reliance on that case or those principles. He simply puts that evidence [i.e Mr Nomchong's Report and the other material from Directions ACT] as evidence of some background or context".

123. While I accept that there was evidence that could have been relied on to suggest some connection between Mr Bedford's mental condition and the offending, and also that his mental condition would exacerbate the effect of prison on him, those matters were not raised or argued.

124. It can hardly be then said that her Honour had erred in not applying principles that she had not been asked to apply. This ground of appeal is not made out.

125. The court has explained, on many occasions, how this matter needs to be addressed in argument. Whether a sentence is manifestly excessive or manifestly inadequate is a conclusion to be drawn from an evaluation of the relevant factors and circumstances. See, for example, R v Campbell [2010] ACTCA 20 at [32]- [34], where the Court said:

32. In Hawkins v Hawkins (2009) 3 ACTLR 210, Refshauge J said (at 219 [46]-[47]):

The determination of whether a sentence is manifestly excessive (or inadequate) is not an easy task. It must, however, be approached rationally and, as Gleeson CJ and Hayne J said in Dinsdale v The Queen, quoted above (at [42]), must be accompanied by reasons. See R v Holder [1983] 3 NSWLR 245 per Street CJ (at 254).
Counsel is, therefore, obliged not merely to assert the alleged manifest excess (or inadequacy) of the sentence but must also address the basis of the assertion by identifying the relevant matters which go to show how it is said the court can - and should - draw the relevant conclusion.

See also R v Thorn [2010] ACTCA 10 (at [33]).

33. As was said by Hunt CJ at CL in R v Ellis (1993) 68 A Crim R 449 (at 461):

What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence which merely forms part of that range.

It is helpful also to refer to what King CJ (with whom White and Mohr JJ agreed) said in R v Morse (1979) 23 SASR 98 (at 99):

To determine whether a sentence is excessive, it is necessary to view it in the perspective of the maximum sentence prescribed by law for the crime, the standards of sentencing customarily observed with respect to the crime, the place which the criminal conduct occupies in the scale of seriousness of crimes of that type, and the personal circumstances of the offender.

126. In R v TW (2011) 6 ACTLR 18 at 27-28; [61], I suggested some ways in which this might be done, as follows:

This can be achieved, for example, where a court of criminal appeal has set out a range or tariff for a particular offence or where, as in Rama v The Queen [2006] ACTCA 25, a conspectus of comparable sentences, identifying relevant characteristics, is produced to the court. Neither party proceeded in either way in this case, making it difficult for the court to discharge the obligation of assessing the sentence against the relevant sentencing standards. In that sense, the appellant has not produced the necessary material from which the court can determine whether the appeal should be upheld or not.

127. The appellant did not do this. Instead, he relied on one issue, namely that, as Mr Bedford has not been sentenced to full-time custody before, principle requires a moderation of the sentence. Mr Edmonds referred to what Penfold J had said in Ring v Beath [2009] ACTSC 19 at [31]- [36]. The approach is well summarised by her Honour in Scrivener v Papantaniou [2009] ACTSC 41 at [53]:

There is an argument to be made that even a repeat offender who has no experience of full-time custody when he or she offends should not necessarily be assumed to need a sentence at the high end of the scale in order to be effectively deterred from offending again. That is, at least for an offence where a fairly short term of imprisonment is available, the first such term should appropriately reflect the nature and seriousness of the offence but need not always be set at the high end of the applicable range in order to ensure a deterrent effect. For some offenders, even repeat offenders, one experience of full-time custody will be enough to deter future offences (see my comments in Ring v Beath [2009] ACTSC 19 (16 March 2009) at [34] and [35]).

128. It seems to me that this is not a principle that enables a court to identify an error in sentencing. It is, however, one of the factors that is to be taken into account which can then be compared against the sentence imposed to see whether it is manifestly excessive.

129. Mr Edmonds also raised the fact that there had been full cumulation of the sentences. That is not, of itself, an error. Indeed, there are strong reasons why separate occasions of criminality should be separately recognised by additional punishment. See R v Harris [2007] NSWCCA 130; (2007) 171 A Crim R 267 and Hall v CL [2015] ACTSC 286 at [145].

130. Full accumulation only becomes an error if it results in a sentence that is manifestly excessive. For reasons set out in cases such as Director of Public Prosecutions v Grabovac [1998] 1 VR 664 at 680, it is preferable to impose properly proportionate sentences and then make them partly or wholly concurrent rather than impose artificially reduced sentences that are wholly accumulated.

131. Given that there are a range of sentences that are appropriate in any circumstances, the choice of whether a longer sentence with greater concurrence or a shorter sentence with greater (or full) cumulation is within the discretion of a sentencer and in accordance with principle as explained in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610, including as explained in Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616.

133. Effectively, three grounds of appeal have been made out and, in my view, the appeal should be upheld and the sentence set aside. A new sentence should be imposed.

134. Accordingly, on 9 October 2015, I upheld the appeal. I indicated that I would deliver my reasons separately. These are those reasons.

135. I then re-sentenced Mr Bedford. See Bedford v Earle [2015] ACTSC 306.

I certify that the preceding one hundred and thirty-five [135] numbered paragraphs are a true copy of the Reasons for Decision of his Honour Acting Chief Justice Refshauge.

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Transport (Driver Licensing) Act 1999

(Sentence Administration) Act 2005

(Sentencing) Act 2005

Bedford v Earle

At a glance

Court

Decision date

Before

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Judgment (195 paragraphs)

Bedford v Earle (No 2) [2015] ACTSC 309 (30 October 2015)

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Legislation Cited (8)

Cases Cited (16)