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[2015] ACTSC 185
Supreme Court of the ACT
2015-07-16
Penfold J
Original judgment source is linked above.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
The appeal is upheld, and the appellant will be re-sentenced.
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - Interference with Discretion of Court Below - appeal from sentence imposed in Magistrates Court - unrepresented defendant sentenced on guilty plea for drug-driving - whether error in treatment of guilty plea - whether sentence manifestly excessive having regard to guilty plea and defendant's circumstances - whether error in relation to defendant's claim for reduction in licence disqualification period.
CRIMINAL LAW - PARTICULAR OFFENCES - Driving Offences - whether guilty plea to drug-driving offence entitles offender to reduction in licence disqualification period.
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - obligations of judicial officer to unrepresented defendant appearing for sentence.
Crimes (Sentencing) Act 2005 (ACT), ss 17, 37, 35
Court Procedures Rules 2006 (ACT), rr 6, 5193
Ede v Hyde [2014] ACTSC 305
House v The King [1936] HCA 40; (1936) 55 CLR 499
Joyce v Clark [2012] ACTSC 74
Kenny v Ritter [2009] SASC 139
Mwauluka v Turkich [2013] ACTSC 1
R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104
Roncevic v Boxx [2015] ACTSC 53
1. On 8 January 2015, John William Bullock was sentenced in the Magistrates Court on a guilty plea to a "drug-driving" charge. He was fined $300 and disqualified from driving for three years, the default disqualification period for the offence. He has appealed against that sentence.
2. The police statement of facts for Mr Bullock's offence is relevantly as follows:
About 5:20 pm on Monday 22 September 2014, Police were on mobile patrol on Charnwood Place, Charnwood, in the Australian Capital Territory (ACT).
At this time Police saw a maroon Holden Astra Sedan bearing ACT registration YAI70K heading in a northerly direction on Charnwood Place, Charnwood with two males on board.
Police caused the Holden Astra to stop on Charnwood Place, Charnwood.
Police approached the vehicle and had a conversation with the male driver, now known to be John William Bullock, born. 14 October 1960, the defendant now before the Court. The defendant's son was sitting in the front seat of the vehicle.
The defendant produced his full photographic ACT, C class driver licence, number 345965, with an expiry date of 4 October 2015.
The image on the driver licence matched the appearance of the defendant and Police were satisfied with the identity match.
The defendant underwent an alcohol screening test, the result of which was negative.
About 5:35 pm that same day, the defendant was required to undergo a drug screening test.
The result of the defendant's drug screening test showed a positive indication to a prescribed drug.
Police advised the defendant that the result of the drug screening test was positive and he was taken into custody and conveyed to Belconnen Police Station for the purpose of undergoing Oral Fluid Analysis (OFA).
At 6:08 pm that same day, the defendant supplied a sufficient sample of his oral fluid.
The oral fluid sample was analysed using an Oral Fluid Analysis instrument.
The result as recorded by the Oral Fluid Analysis instrument, showed a positive indication to a prescribed drug.
The defendant admitted to taking some cannabis about four hours previously.
The remaining portion of the defendant's oral fluid sample was sealed in a labelled vial using a tamper-evident seal, number RTA027553.
Police issued the defendant with a written 'Direction Not to Drive a Motor Vehicle' notice and directed the defendant not to drive a motor vehicle for a period of 12 hours.
The defendant was advised of the process that would occur and he was given written information in relation to the matter. He was advised that he may receive a summons in relation to this matter. The defendant was then released from custody.
The sealed vial containing the remaining portion of the defendant's oral fluid sample, which had been stored securely, was delivered to an approved laboratory where it-underwent a confirmatory analysis.
The laboratory analysis confirmed the presence of a prescribed drug, namely Delta-9-tetrahydrocannabinol was detected in the defendant's oral fluid sample.
An approved analyst issued a certificate stating that result.
At the time of the incident Charnwood Place, Charnwood was a single lane un-divided road with a posted speed limit of 50krn/h. Traffic conditions were moderate, the road surface was dry, bitumen and in good condition, with the road surrounded by shops.
The defendant was polite and co-operative with Police.
3. Mr Bullock appeared in the Magistrates Court on 10 December 2014, and indicated a plea of guilty. He appeared again on 8 January 2015 and was sentenced. Whether correctly or otherwise, he believed he was not entitled to legal aid, and nor was he advised at any point to see the duty solicitor. Accordingly, he appeared unrepresented on both occasions.
4. Mr Bullock's criminal record was in evidence before the Magistrate. It showed that Mr Bullock, who is now 54 years old, was a regular offender as a younger man, with a criminal history consisting mainly of traffic offences but including a number of break and enter offences in 1979, an assault in 1980 for which he was fined $100, offensive behaviour in a public place in 1987 for which he was also fined $100, minor offences relating to cannabis in 1992, dealt with by good behaviour orders, and offences in 2008 of trafficking in cannabis and possession of stolen property for which he received a suspended sentence.
5. I note, however, that under the Road Transport (Alcohol and Drugs) Act 1977 (ACT) Mr Bullock was a "first offender" in relation to the drug-driving offence.
6. The grounds of appeal were specified in the Notice of Appeal as follows:
7. The order sought on appeal was a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The grounds for making such an order were identified as:
8. The Notice of Appeal also foreshadowed the tendering of further evidence on appeal.
9. The respondent in submissions suggested that the appeal grounds needed amendment, and indicated that there would be no opposition to the identified amendments. This invitation was not taken up, but in the course of argument the first appeal ground was effectively reformulated to address the issues raised, and I did not see any need to insist on a formal amendment
10. On the appeal, the respondent consented to the admission of two documents that, if tendered on the sentencing hearing, would have supported claims made by Mr Bullock in the Magistrates Court. Counsel for the respondent noted that the documents had not been provided as required by r 5193 of the Court Procedures Rules 2006 (ACT), but did not oppose compliance with that rule being dispensed with under r 6. The documents were accordingly admitted under s 214(3)(b) of the Magistrates Court Act 1930 (ACT). They were a letter from Mr Bullock's doctor, and a document issued by the Office for Children, Youth and Family Support in the Community Services part of the ACT Government.
11. As well, counsel for the appellant had attached to her written submissions several further documents, including references for Mr Bullock, that she said she would want to tender for the purposes of any re-sentencing.
12. The transcript of the sentencing hearing includes the following exchanges:
HER HONOUR: John Bullock. Now Mr Bullock on the 10 December, you were charged as a first offender that on Monday the 22 September 2014 having been the driver of a motor vehicle on a road you did have within the relevant period a prescribed drug in your oral fluid. Do you plead guilty or not guilty to that offence?
MR BULLOCK: Beg your pardon?
HER HONOUR: Do you plead guilty or not guilty - - -
MR BULLOCK: What was that prescribed drug?
HER HONOUR: A prescribed drug in your oral fluid.
MR BULLOCK: But it's a prescribed drug.
HER HONOUR: It's an illegal drug. It's cannabis apparently.
MR BULLOCK: Yes, your Honour. Yes, your Honour.
HER HONOUR: Plead guilty. Thank you. Sorry, was that - you understand, or yes you are pleading guilty?
MR BULLOCK: I do. I do.
HER HONOUR: You are pleading guilty?
MR BULLOCK: Yes, guilty. Guilty.
...
HER HONOUR: What do you wish to say in relation to this offence? And in particular what would be the effect of loss of your licence? The default period of disqualification is three years. I have some discretion to reduce that for sufficient and appropriate reasons.
MR BULLOCK: I was - see your Honour, I was at hospital all the night before and I did - they didn't give me anything for pain so I came home and I had a smoke of marijuana, I fell asleep and I woke up. My script was supposed to be in for the chemist so I raced to get my script from the chemist and I completely forgot that I had smoked and - well, your Honour, I have got nothing - - -
HER HONOUR: All right. What will be the effect of loss of your licence? Have I got any reason at all to reduce the three year default period?
MR BULLOCK: No, your Honour. There is no excuse for what - - -
HER HONOUR: No. But is there any reason for me to reduce the default so the start point is I disqualify you for three years from driving unless there is some reason that you can give me that I should make that a lesser period?
MR BULLOCK: See your Honour, I've got - I've got to go and have tests and stuff done. I've got a pacemaker and I've got also a - I had the aorta and mitral valve replacement done.
HER HONOUR: Right. So should you be driving anyway?
MR BULLOCK: I've got to go and get blood tests done. I've got to get them every week. I've got to get blood tests every week. That's all I can say your Honour. I (indistinct) Plus I've got my grandson, I have him. That's all. I'm at fault, I know that.
HER HONOUR: All right. What is your income?
MR BULLOCK: I'm on a pension. Disability pension.
13. It is convenient to deal with the appeal grounds out of order.
Manifest excess/error in relation to guilty plea
14. Counsel argued the latter two points in the grounds of appeal as a claim that there had been a specific error, in the nature of those identified in House v The King [1936] HCA 40; (1936) 55 CLR 499, in her Honour's treatment of Mr Bullock's guilty plea, or that the sentence was manifestly excessive.
In sentencing you today, I take in to account the purposes and factors of sentencing set out in the legislation. The statement of facts has been read in to the record. In terms of objective seriousness, I note that you had a passenger in the vehicle at the time that you were detected, although you were not detected through the manner of your driving, it appears to have been a random check. I take in to account your plea of guilty, it has utility for the administration of justice and is indicative of remorse and I have given you a discount for that plea. I take in to account your age and your personal circumstances. I take in to account your criminal history, it does not aggravate this offence ... but it does reduce the degree of leniency that may have been extended to a person of good character. This is a matter where deterrence is relevant. I impose a penalty to deter you from engaging in this conduct again and also to deter others. This is a matter of protection of the community. If you have drugs in your system, you may be compromised in your ability to react in emergency situations and that presents a danger to other road users. I impose a penalty upon you to denounce your conduct and to hold you accountable. You are convicted of the offence, I fine you $300. I waive court costs in light of your financial circumstances. There appear to no reasons to reduce the default period of disqualification; you are therefore disqualified from holding or obtaining a driver's licence for a period of three years. (emphasis added)
16. Mr Bullock's guilty plea had been early (on his first court appearance), but this may not be particularly unusual for a drink- or drug-driving offence.
17. The guilty plea discount clearly did not reduce the disqualification period, so it could only have been applied in setting the fine amount, although her Honour did not specify that at any point. Although the fine amount was not particularly high (being 20% of the maximum fine), it was not obviously low, given that the offence involved cannabis and the testing did not appear to have been the result of police observing anything unusual or concerning about Mr Bullock's driving before he was stopped.
18. A failure to mention a guilty plea may indicate an error of failing to take account of a relevant consideration (see R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 115 A Crim R 104, Spigelman CJ at [52] and [53]). A failure to give a plea of guilty discount is not an error, and nor is a failure to specify the guilty plea discount that is given, at least in cases in which there is no statutory obligation to do so. See Joyce v Clark [2012] ACTSC 74 at [22] to [37]. Section 37 of the Crimes (Sentencing) Act applies, relevantly, only where s 35 of that Act applies because there is "a real likelihood" that a sentence of imprisonment will be imposed; it is therefore not applicable to an offence that does not carry a penalty of imprisonment.
19. However, in this case her Honour was obviously aware of the guilty plea (although she did not refer to it being an early guilty plea) and claimed to have given a discount for it; the fine amount could easily have reflected a discount of around 25% off a fine that even then, at $400, would not have been excessive (at [16] above).
20. Counsel seemed to be suggesting, however, that the guilty plea should also have entitled Mr Bullock to a significant discount on the disqualification period, and that the absence of such a discount either revealed a specific sentencing error or provided the basis for a finding that the sentence was manifestly excessive.
21. Counsel conceded that she had no authority for the proposition that where a sentencing discount for a guilty plea was available, it had to be applied to all elements of the sentence, or for the more limited proposition that at the least it had to be applied to any relevant licence disqualification. Furthermore, it seems unlikely that either of those propositions is correct.
22. As I understand it, the vast majority of drink-driving and drug-driving charges proceed on guilty pleas, for the obvious reason that in general the offence is made out by production of the results of the relevant testing, and in most cases there is no credible defence to the charge. If guilty pleas necessarily entitle an offender to a discount on the disqualification period, then there would be almost no cases in which the default disqualification period remained applicable. Such a conclusion would be entirely inconsistent with the line of recent decisions in this court about the appropriate treatment of the default disqualification period and the circumstances in which and the process by which an alternative disqualification period may be set (collected and discussed in general terms in Mwauluka v Turkich [2013] ACTSC 1 at [40] to [43]).
23. At best, there may be an argument that the explanation for the general absence of guilty plea discounts as a ground for reducing a disqualification period is that most guilty pleas to drink-driving and drug-driving charges reflect an overwhelming Crown case and a recognition of the inevitable on the part of the accused and that as such, they would not entitle the accused to any, or any significant, sentencing discount. However, this argument would overlook the significance of the role of a guilty plea in facilitating the course of justice (however inevitable that course might really be), which may permit a guilty plea discount even in the face of an overwhelming Crown case.
24. Furthermore, even if it were correct that guilty plea discounts are available in relation to licence disqualification periods but only where the guilty plea is not a recognition of the inevitable, there would be no basis in the facts of this case for concluding that the case against Mr Bullock was not overwhelming and that therefore he, unlike most such offenders, was entitled to a guilty plea discount off the default disqualification period.
25. Accordingly, I reject counsel's submission that her Honour's treatment of the guilty plea revealed any specific House v The King error. I do note, however, that for a sentencer to state that a guilty plea discount has been given:
(a) without indicating either the amount of that discount or the percentage discount applied; and
(b) where relevant, without indicating which element of the sentence has been discounted;
(c) is generally unhelpful and particularly likely to leave an offender dissatisfied (even if he or she has in fact received a generous discount).
26. Furthermore, a failure to identify a guilty plea discount significantly undermines its capacity to encourage offenders to facilitate the course of justice by pleading guilty (Markarian v The Queen (2006) 228 CLR 357 at 387; [74], McHugh J).
28. The first appeal ground was argued as a claim that her Honour had erred in her treatment of Mr Bullock as an unrepresented litigant. It is clear from the transcript quoted at [12] above that the sentencing Magistrate recognised Mr Bullock's position as an unrepresented defendant, and gave him opportunities to make relevant submissions, especially about the appropriate disqualification period. When asked, Mr Bullock did identify two matters that might well have provided a reason for further consideration of the disqualification period, being:
(a) his own state of health and in particular his need for regular medical tests; and
(b) his responsibility for his grandson.
29. However, instead of teasing these matters out a bit further, and considering whether Mr Bullock should be given an opportunity to provide more information about them, her Honour simply moved on to ask about Mr Bullock's financial position.
30. When her Honour came to sentence, she referred to Mr Bullock's financial position as the explanation for waiving court costs. She made no further comments about the matters raised by Mr Bullock as significant to his disqualification period. It is for that reason not clear whether her Honour did not believe Mr Bullock's claims, or whether she took the view that neither health difficulties nor childcare responsibilities in any form were ever sufficient to justify consideration of whether to vary the default disqualification period. If her Honour took that latter view, I consider that she should have articulated it (given that the application of such a rigid principle in exercising a discretion might well have provided an appeal ground of itself). Alternatively, if her Honour did not believe Mr Bullock, or did not regard his claims as explained to her as sufficiently convincing, I consider that she should have invited him to provide evidence and further details of those claims, and offered him an adjournment for that purpose.
31. The respondent pointed to my comments in Ede v Hyde [2014] ACTSC 305 about the obligations imposed on a court dealing with an unrepresented defendant. In that case, after quoting from the South Australian case of Kenny v Ritter [2009] SASC 139 about those obligations in general, I said at [38]:
I do not quarrel with any of these principles. I am not, however, convinced that they require a judge to invite an appellant to seek an adjournment to obtain further evidence if it is already clear to the judge, because of the nature of the issue concerned, that the further evidence in support of submissions already made is very unlikely to make any difference to the judge's sentencing approach or, in the particular circumstances, to the judge's willingness to make the s 17 order sought.
32. It is important, however, to focus on the kind of case I described as not requiring an unrepresented defendant to be offered an adjournment to obtain further evidence, being a case where:
it is already clear to the judge ... that the further evidence in support of submissions already made is very unlikely to make any difference to the judge's sentencing approach.
33. In Ede v Hyde, the appellant, who was extremely articulate, had received some legal advice before representing himself in the Magistrates Court. He had made extensive submissions in the Magistrates Court, raising a number of grounds on which he sought a non-conviction order for an offence of supplying a declared substance (specifically dexamphetamine) to someone else without authorisation. He mentioned:
(a) his lack of criminal history;
(b) that recording a conviction would be "especially punitive" given his career plans;
(c) that the quantity of dexamphetamine was small; and
(d) that before the offence he had been suffering depression and anxiety, compounded by the effect of a car accident.
34. Mr Ede had handed up a long document prepared by himself that expanded on these claims and referred to evidence of some of them, but he did not tender any such evidence. He also made lengthy oral submissions expanding on his written submissions. The sentencing Magistrate had indicated in his sentencing remarks that he did not consider that any of these grounds justified the non-conviction order sought. That was not to do with inadequacies in the evidence put before him, but with the nature of the claims.
35. In my judgment on appeal, I also found (at [82) that the matters relied on by the appellant and about which he sought to tender further evidence would not, even if proved by more evidence, have made any difference in the Magistrates Court.
36. That is not this case. In the current case, the matters raised in general terms by Mr Bullock might well have been relevant to the impact of a licence disqualification. Furthermore, it is clear from the transcript extracts quoted at [12] above, and it should have been clear to her Honour, that Mr Bullock could not on any view have been described as articulate. Although his criminal record suggested that he had some familiarity with court processes, there was no basis to assume that he had ever had to speak for himself in such processes.
37. For these reasons, I consider that Mr Bullock's sentencing process was infected by error. Whether the error is identified as a failure of procedural fairness in not offering Mr Bullock, being an unrepresented defendant, an adjournment so that he could provide evidence in support of his need for a driving licence, or a failure to take account of a relevant consideration (Mr Bullock's health problems and childcare responsibilities), does not seem to matter. Either error would be sufficient to re-open the sentencing discretion, provided I am satisfied that another sentence would be warranted (Roncevic v Boxx [2015] ACTSC 53 at [19] to [23]).
38. The letter from Mr Bullock's doctor said, relevantly:
He suffers from valvular heart disease, for which he has had surgery, and is fitted with a pacemaker. He is on warfarin. He also has chronic anxiety and depression and chronic back pain.
39. The document from the Office for Children, Youth and Family Support is headed "Care & Protection Services Specific Parental Authority (SPA) KINSHIP CARER". It was issued in 2012, and authorises Mr Bullock to exercise daily care for a named child or young person who I am told is his grandson. The document records that he has been approved, and has agreed, to exercise parental responsibility for that child or young person.
40. Having regard to the further evidence that was admitted on the appeal by consent, I am satisfied that a sentence involving something less than the default disqualification period would be appropriate in this case.
41. The further evidence that was tendered at the appeal hearing, but not exhibited, may be admissible for the purposes of the re-sentencing.
42. Accordingly, I shall uphold the appeal, and hear submissions on re-sentencing before determining the exact content of the new sentence.
I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Bullock
Bower [2015] ACTSC 185
(1936) 55 CLR 499
(2006) 228 CLR 357