Supreme Court of the ACT|2011-08-24

Butler v Vickers, Yates and Katz [2011] ACTSC 134 (24 August 2011)

DAVID BUTLER v DANIEL JAMES VICKERS, LOUISE YATES

[2011] ACTSC 134 (24 August 2011)

APPEAL AND NEW TRIAL - appeal from Magistrates Court - litigant in person - assistance by the court - specific errors identified - appeal allowed.

CRIMINAL LAW - particular offences - drive whilst disqualified - elements of the culpability of the offence.

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

Woodward v Morgan (1990) 10 MVR 474

Re appeal of White (1987) 9 NSWLR 427

Cardillo v Taylor [1999] WASCA 166; (1999) 29 MVR 301

Ledson v Taylor and Ors [2010] ACTSC 42

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

Apolevski v Kinnane [2010] ACTSC 43

R v Harris [2007] NSWCCA 130

Elson v Ayton and Ors [2010] ACTSC 70

Taylor v Bowden [2009] ACTSC 13

R v Cooke [2007] NSWCCA 184

Saga v Reid and Anor [2010] ACTSC 59

Neil v Nott and Anor [1994] HCA 23; (1994) 121 ALR 148

Mill v The Queen (1988) 166 CLR 59

Craft v Diebert [2004] ACTCA 15

R v Storey [1998] 1 VR 359

Coombe v Douris (1987) 47 SASR 324

Selles and Ors v Bailey [2000] ACTSC 111

Pettitt v Dunkley [1971] 1 NSWLR 376

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

R v Ravet [2011] SASCFC 67

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

R v Huat Phay [2009] ACTSC 130

R v Popovski [2009] ACTSC 131

Arman v Wall and Anor [2008] ACTSC 61

Elson v Ayton [2010] ACTSC 70

R v Gorman [2009] ACTSC 7

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

DANIEL JAMES VICKERS, LOUISE YATES AND BRETT KATZ

1. The appellant be given leave to amend the grounds of appeal in the Notice of Appeal to include as additional grounds the following:

(a) failing to give reasons for not taking the pre-sentence custody into account;

(b) failing to express the amount of discount given for the plea of guilty; and

3. The convictions entered in the Magistrates Court for each of the three offences of driving whilst disqualified being a first offender be confirmed.

4. Mr Butler has committed an offence during the period of the Good Behaviour Order made on 27 August 2008.

5. The Good Behaviour Order made on 27 August 2008 be cancelled and the period of the sentence of imprisonment then suspended be imposed to commence on 11 February 2011.

6. For the offence of driving whilst disqualified on 8 January 2010, David Butler be imprisoned for three months to commence on 11 May 2011.

7. For the offence of driving whilst disqualified on 5 April 2010, David Butler be imprisoned for three months to commence on 11 May 2011.

8. For the offence of driving whilst disqualified on 16 July 2010, David Butler be imprisoned for four months to commence on 11 August 2011.

9. From 24 August 2011 until 10 December 2011, David Butler is to serve the balance of the term of imprisonment by periodic detention, and that the first detention period start on Friday 26 August 2011 when he is to report for periodic detention to the Symonston Periodic Detention Centre.

10. David Butler is required to sign an undertaking to comply with the offender's good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) from 24 August 2011 for a period of eighteen months with a condition that he not drive a motor vehicle on a public road or in a public place, nor be in the driver's seat of a motor vehicle whilst it is on a public road or in a public place for the period of the Good Behaviour Order.

11. David Butler is disqualified from holding or obtaining a driver licence under the Road Transport (Driver Licensing) Act 1999 (ACT) until a court otherwise orders.

1. David Butler appeals against the sentence of imprisonment totalling ten months imposed in the Magistrates Court on 16 November 2010 for a series of offences and for the breach of a Good Behaviour Order.

2. The Notice of Appeal was lodged on 1 December 2010 and the appellant was initially refused bail pending the hearing of the appeal. Bail, however, was granted on 18 February 2011 until 25 February 2011. The appeal was listed for hearing on 16 May 2011 but was then adjourned to 21 June 2011. On 27 May 2011, Mr Butler was granted bail pending the appeal. Thus, he has been in custody for six months and four days since sentence. He also spent nine days in pre-sentence custody.

3. On 21 June 2011, Mr Butler sought an adjournment and the hearing was further adjourned to 22 July 2011 when it was heard by me.

4. The charges of which Mr Butler was convicted were:

(1) That, on 8 January 2010, he, a first offender, drove while disqualified;

(2) That, on 5 April 2010, he, a first offender, drove while disqualified; and

(3) That, on 16 July 2010, he, a first offender, drove while disqualified.

5. These are offences against s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), which provides:

(1) A person who is disqualified by a court in Australia or under the law of any jurisdiction from holding or obtaining an Australian driver licence must not -

(a) drive a motor vehicle on a road or road related area during the period of disqualification except in accordance with a restricted licence issued to the person; or

(b) apply for a driver licence during the period of disqualification and in, or in relation to, the application omit to mention the disqualification.

(a) for a first offender - 50 penalty units, imprisonment for 6 months or both; or

(b) for a repeat offender - 100 penalty units, imprisonment for 1 year or both.

6. Also relevant is s 32(8) which provides:

(8) In this section -

(a) a person who is convicted of an offence against this section (the current offence) is a repeat offender in relation to the current offence if the person has been convicted, or found guilty, of an offence against this section within 5 years before being convicted of the current offence; and

(b) a person who is convicted of an offence against this section is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.

7. I note that the somewhat truncated description of the offences used above (at [4]), are authorised and provided for by s 17 of the Road Transport (Offences) Regulation 2005 (ACT), and Sch 1 to the Regulation.

8. Mr Butler, in addition, had been convicted, on 27 August 2008, of driving on 5 April 2008 with more than the prescribed concentration of alcohol in his blood. He was sentenced to three months imprisonment and the sentence was suspended and a Good Behaviour Order made. The convictions for the offences the subject of this appeal constituted a breach of that Good Behaviour Order.

9. Although, quite properly, the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act), makes no provision for the mechanism by which a breach is brought before the court, ss 107 and 108 require, for action of a breach of such an order, a finding that either an offence has been committed during the term of the order or one (or more) of the offender's good behaviour obligations have been breached. In the Magistrates Court this is often brought before the court by information, though the breach (by committing an offence or otherwise) is not of itself an offence. In the Supreme Court, the usual practice is for a document to be tendered that alleges the breach and states the facts constituting it, or the court deals with a breach constituted by the finding of guilt of the offence committed during the term of the order at the same time as sentencing for the further offence. In this case, an information was laid and the sentence for the breach was dealt with at the same time as the sentences imposed for the other offences.

10. The relevant facts may be summarised as follows.

11. As to the first charge, police on mobile patrol on 8 January 2010 (although the police statement of facts says, in error, "2009"), stopped a vehicle being driven by Mr Butler in Turner because of what might be called erratic driving. Mr Butler was subjected to a breath alcohol screening test, but it proved negative.

12. Although Mr Butler produced a driving licence to the police officers, a check by them disclosed that he had been disqualified from holding or obtaining a licence on 27 August 2008. Mr Butler conceded that this was so, saying "I am not going to lie to you".

13. In submissions to the Learned Magistrate, Mr Butler's counsel explained the situation. Mr Butler conducts a home maintenance and painting business. Because of the disqualification of his licence, he had employed a driver for his business. On this occasion, he and his driver were returning from work and stopped off for drinks. The driver had a few more drinks than he should have and Mr Butler foolishly, his counsel correctly conceding he was foolish, decided that he should not let the driver continue the journey so he drove himself instead. While there is, perhaps, some recognition in this decision of the greater risk to the public of an alcohol impaired driver at the wheel than one who was a disqualified driver, other options, such as using alternative transport like a taxi were not considered.

14. As to the second charge, police attended a collision between a motor vehicle and a bicycle in Turner on 5 April 2010. It appears that the cyclist, on his own admission, had been so pre-occupied with listening to his iPod that he rode out in front of the car which Mr Butler was driving. Again, Mr Butler was subjected to an alcohol breath test which again was negative. Again he produced a driving licence and again police checked it, showing that he was disqualified from holding or obtaining a licence. Again, he admitted that he was aware of the disqualification.

15. In submissions, Mr Butler's counsel explained that Mr Butler had been working at Tarago that day where he had a large contract. For unexplained reasons, his driver did not turn up and, having work deadlines to meet, he drove, apparently to and from work, as he had no-one to drive for him. While alternate transport, such as a taxi, might be available to drive him to Tarago, it would be very expensive, I think I can assume, and he may have difficulty returning to Canberra as, for example, the taxi would not wait while he worked at Tarago. It does not appear that alternatives were explored.

16. As to the third charge, police, on 16 July 2010, stopped a motor vehicle being driven by Mr Butler and in which his son was a passenger. It is not entirely clear from the statement of facts why the police stopped the car. Again, Mr Butler produced a licence and again checks revealed his disqualified status. Again Mr Butler acknowledged his status as a disqualified driver.

17. On 8 July 2010, however, presumably when one of the earlier matters had been in court, he had been granted bail with a condition that he was "[n]ot to drive, or be in the drivers [sic] seat of any motor vehicle". He had, thus, also breached that bail condition, which he acknowledged to police.

18. His counsel's submissions were that his son was due in court at 2.15 pm that day and it had been arranged that Mr Butler's sister would take the son to court. Mr Butler arrived home at about 2.00 pm to find that this arrangement had not worked and that his son, who was still at home, was starting "to go into panic mode". He decided to drive, first, however, to his sister's place and then to the court.

19. This charge was originally to be defended, presumably on some basis of a defence of necessity but on the day of the hearing, he entered a plea of guilty instead. While there are some authorities that might have provided some support for such a defence (see, for example, Woodward v Morgan (1990) 10 MVR 474 and Re appeal of White (1987) 9 NSWLR 427), the actual circumstances do not, for his home was within walking distance of the court and, in any event, being late, though completely undesirable, would, especially as with the explanation able to be offered, have been unlikely to have caused Mr Butler's son "irreparable evil" (R v Loughnan [1981] VicRp 43; [1981] VR 443 (at 448)).

20. Mr Butler also entered pleas of guilty to the other offences.

21. A Pre-Sentence Report and two Updated Pre-Sentence Reports were tendered. They disclose, in summary, the following.

22. Mr Butler is a 55 year-old man. Born in Canberra, the youngest of five children, he did not know his birth father. His mother and stepfather separated when he was seven years old, having what he described as a very traumatic effect on him. Family life deteriorated after that and he received virtually no parental support or guidance. Indeed, by age eleven, he had become uncontrollable and spent time in boys' homes and juvenile institutions.

23. He attended school in Canberra, progressing to High School but leaving at Year 8 level. When not in an institution, he remained in his mother's care until he left home aged eighteen. He thereafter lived a transient lifestyle until he formed a relationship with a woman by whom he had a son. Over the next twenty-seven years he had a series of relationships and fathered three more sons, with two different women.

24. Mr Butler described himself as a good father to his sons. He had sole custody of his eldest son for nine years and regular contact with the others.

25. In 2005, his third son committed suicide. He had great difficulty in coming to terms with the tragedy, especially as the son's mother refused to permit him to attend the funeral. He, unsurprisingly, felt great grief and experienced depression.

26. He told me that he had recently commenced counselling for these problems and the counselling appeared to be achieving some benefits to him.

27. The death also affected his youngest son who went through a rebellious period which strained his father in his parental role. His son has been a patient of ACT Mental Health Services and assessed at clinical review as having symptoms of depression and of being at a low to moderate risk of suicide. He particularly became panicky at his father's court appearances. Mr Butler's son has also had contact with ACT Corrective Services.

28. Mr Butler was self-employed as a painter from about 1995 until he ceased that employment in 2007 due to injuries he received in a motor vehicle collision. He was for a time unable to work but has since established a home maintenance and painting business, probably in about late 2008. The author of the Pre-Sentence Report recorded:

[Mr Butler] enjoys his work and is proud of the reputation he has developed for his business, but finds it difficult to organise a driver to transport him to and from work.

29. Mr Butler said in evidence to me that the further five months imprisonment would destroy his business and that, because of his age and the need for personal contact to maintain it, he believed that it would be completely destroyed and unable to be revived by the time he was released from prison.

30. He admitted that alcohol consumption was his biggest problem. He started drinking at age 14 or 15 and, though a regular drinker, was not an alcoholic. That may be questioned in the circumstances. He drinks every day and has made inquiries about, but did not pursue, assistance from the ACT Health's Alcohol and Drug Program. He reduced his alcohol consumption in late 2010. To his credit, showing some improvement in his behaviour, none of the present offences involved driving with more than the prescribed concentration of alcohol in his blood.

31. Mr Butler appears not to have used illicit substances.

32. The major issue in the context of this appeal is the extensive and appalling record of offences, mostly traffic offences, committed by Mr Butler over the years. Since he turned eighteen, he has been convicted of 131 offences, though 40 of these were what might be termed regulatory offences, for which he was fined varying amounts. They are not to be considered trivial on that account. These offences included having no third party insurance, driving an unregistered vehicle, driving a car with smooth tyres, not wearing a seat belt and the like. Other traffic offences of which he has been convicted, however, include negligent driving, speeding and 15 drink-driving offences, the latter being a clear result of his alcohol abuse.

33. He has some serious offences of dishonesty (take and use a motor vehicle, break and enter and steal, receiving), damage offences and a number of assaults and similar offences on his record. He has committed other offences. He has spent time in prison.

34. The Learned Sentencing Magistrate noted that Mr Butler had "at my count, about seventeen previous convictions for driving either unlicensed or unqualified..." While it is, of course, proper to take these offences into account, it is preferable for a distinction to be made between driving whilst unlicensed and driving whilst disqualified, as was done in Cardillo v Taylor [1999] WASCA 166; (1999) 29 MVR 301 (at 304; [20]) and Cotter v Corvisy (2008) 1 ACTLR 299 (at 304; [18]).

35. There is a similarity in these two types of offences, but the former, driving whilst unlicensed is less serious than the latter, driving whilst disqualified (or suspended), as is shown by the comparative maximum penalties. The offence of driving whilst disqualified or suspended includes an element of breaching a court ordered or statutory deprivation of the privilege of driving occasioned by a breach of the road rules or the commission of an offence or offences.

36. On the other hand, driving while unlicensed may be the result of inadvertence or forgetting to pay the registration fee, though there may be elements of defiance of the regulatory regime. That regime, of course, is no mere revenue raising device, but part of the protection of the public, as I explained in Ledson v Taylor and Ors [2010] ACTSC 42 (at [71]).

37. It is, thus, desirable to make it clear how many of the offences of driving while not holding a valid licence were the more serious offences and how many the less serious one.

38. In this case, Mr Butler has been convicted of ten offences of driving whilst unlicensed, seven of driving whilst disqualified, suspended or cancelled and one of driving contrary to the terms of a special licence.

39. In addition, he has, on his record, three breaches of recognizances into which he entered and three breaches of community service orders, which re-inforce a legitimate view that he does not take his obligations under court orders seriously.

40. Her Honour very properly noted that the offences were aggravated by several factors:

(1) they were all committed within a seven-month period;

(2) two were committed while Mr Butler was subject to a Good Behaviour Order imposed when a sentence of imprisonment was suspended;

(3) two were committed while Mr Butler was on bail for the earlier of the offences; and

(4) he had an appalling record, though it needs to be approached as I have outlined above.

41. Her Honour referred to the purposes of sentencing set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act). She held that, while the entry of a plea was inevitable, there was a utilitarian value in the plea. That must be right, for, if everyone pleaded not guilty, the courts, mightily stretched as they presently are, could not cope.

I've been asked to take into account your time in custody and you having previously served nine days. I have not reduced the sentence in the light of that nine days served.

43. Her Honour rejected a claim for leniency based on the particular hardship that, as Mr Butler is self-employed and maintains a business which also is his accommodation, both business and accommodation may be lost to him if sentenced to full-time custody.

44. Her Honour also rejected the claim that Mr Butler's son's care, which Mr Butler provided, was a consideration that should be taken into account. She acknowledged that there would be some effect on the son but considered that there was "no evidence before [her Honour] as to the likely impact on [the son] in terms of his mental health".

You are charged as a first offender in respect to each of these three matters and that is really a matter of luck because the timing of when they have been dealt with have meant that you have been charged as a first offender rather than a repeat offender. Had you been convicted of the first, you would have then automatically become a repeat offender for subsequent charges. So although I don't take that into account I point out to you that my sentencing options, if you like, are limited purely by chance as to when your matters have been dealt with.

46. While what her Honour says is strictly true, the fact is that the legislature makes clear the circumstances when the higher penalties are applicable for what is precisely defined as "a repeat offender". That does not mean that a sentencer cannot take into account other offences for proper purposes as outlined in Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465. The way her Honour articulated it, however, may have given an impression that she was really treating Mr Butler as a repeat offender. An appellate court should not, however, parse the sentencing remarks made in a busy Magistrates Court with too critical an eye.

47. Her Honour then referred to decisions to which she had been referred, Cotter v Corvisy, Apolevski v Kinnane [2010] ACTSC 43 and also to R v Harris [2007] NSWCCA 130, as applied in Elson v Ayton and Ors [2010] ACTSC 70.

48. Her Honour then sentenced Mr Butler. Her Honour did not actually articulate that she had convicted Mr Butler nor entered convictions. The imposition of the sentences, however, amounted, in the circumstances, to convictions as was said by Dawson and McHugh JJ in Maxwell v The Queen (1996) 184 CLR 501 (at 507). Nevertheless, her Honour first dealt with the breach of the Good Behaviour Order which, of course, was not proved until she had entered a conviction or made a finding of guilt in respect of one of the two offences which were committed during the period of the Good Behaviour Order.

49. While imposing the sentences in the order in which chronologically the offences were committed may be appropriate, as to which see Taylor v Bowden [2009] ACTSC 13 (at [47]), it is necessary first to enter the conviction (or make the finding of guilt) for the offence or offences which constitute the breach of the Good Behaviour Order and then cancel the order under s 110 of the Sentence Administration Act, as to which see R v Cooke [2007] NSWCCA 184 (at [18]), before imposing the sentence. I addressed these issues in Saga v Reid and Anor [2010] ACTSC 59 (at [109] to [114]).

50. While this is an error in the sentencing, it is not, perhaps, such as to invite appellate intervention in itself.

51. It is convenient if I set out what her Honour said in imposing the actual sentences:

In all of the circumstances, Mr Butler, as I sentence you as follows, in relation to breach of the good behaviour order, that good behaviour order is cancelled and the sentence of imprisonment of three months which was originally imposed on charge number CC 4444/2008 is imposed. That sentence will commence today on 16 November 2010.

In relation to charge number 3006/2010, the offence committed on 8 January 2010, you will be sentenced to imprisonment for a period of three months and that is to be served consecutively on the sentence imposed in relation to the breach of the good behaviour order.

In relation to charge number 4139/2010, that committed on 5 April 2010, you will be sentenced to imprisonment for a period of three months. That will be served concurrently with the sentence imposed in relation to charge 3006/2010 but also consecutively on the breach charge.

In relation to charge number 6315/2010, that committed on 16 July 2010, you will be sentenced to imprisonment for a period of four months and that will [be] served consecutively with the sentences imposed on the earlier two breaches which were for terms of three months.

The effect of this is, is that you will be imprisoned from today with an expiry of 13 August 2011. You are disqualified for 12 months in respect to each of those driving whilst disqualified and those 12 months will operate consecutively.

52. On 1 December 2010, Mr Butler lodged his Notice of Appeal. Despite being represented at the sentencing hearing in the Magistrates Court, he lodged it himself. He also conducted the appeal in person.

53. The Notice of Appeal contained one ground, "Severity of sentence". This is sufficient to raise what is usually called the ground of the manifest excess of the sentence.

54. Appeals against sentencing decisions of the Magistrates Court are regulated by Div 3.10.2 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act).

55. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.

56. The 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 of 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 and that I am not merely tinkering.

57. 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. 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, plainly unjust or plainly wrong.

58. Under s 216 of the Magistrates Court Act, the institution of an appeal stays the execution of the sentence on which the appeal has been taken and, accordingly, this needs to be addressed when the appeal is decided. Thus, of the six months and four days, only two weeks and one day were actually spent serving the sentence.

59. As Mr Butler was not represented at the hearing of the appeal, the court had a duty to ensure that he was able to present his case. This may mean that the court has to help to formulate the case of a litigant, who appears in person. As a unanimous High Court said in Neil v Nott and Anor [1994] HCA 23; (1994) 121 ALR 148 (at 150):

A frequent consequence of self-representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy. It has been so in this case. It is necessary to focus on the material placed before Tadgell J. and to ascertain whether, on that material, a refusal to extend time bespeaks an error of principle affecting the exercise of the discretion to extend time.

60. In this case, that seemed to me to require that, when reading the reasons for sentence of, and assessing the sentence imposed by, her Honour, I should identify any apparent specific errors, though I should neither assiduously nor creatively hunt for them nor ignore arguable points just because they do not appear strong.

61. In this context, I identified three errors that her Honour may have committed:

(1) her Honour declined to "reduce the sentence in light of that nine days [previously served]" but did not give reasons for doing so;

(2) her Honour took into account the pleas of guilty and said "some discount is afforded on that basis" but failed to comply with the obligation imposed on her by s 37 of the Sentencing Act; and

(3) her Honour stated, after imposing the sentence, that Mr Butler would be imprisoned "from today with an expiry of 13 August 2011", but the terms of the sentences she said she was imposing actually resulted in imprisonment until 15 September 2011. It was not clear whether her Honour had made a mathematical error or was intending to reduce the period of imprisonment to comply with the principle of totality set out in Mill v The Queen (1988) 166 CLR 59.

These are in addition to the sentencing for the breach of a Good Behaviour Order before making a finding that underpinned the breach (see [49] above).

62. Understandably, because of the contents of the Notice of Appeal, the respondent's written submissions were directed at the ground of manifest excess in the sentence.

63. In that context, the respondent submitted that there was no basis for interference with the sentence. It was submitted that the offences fell within the upper range of the criminality of the offence because:

(a) Mr Butler admitted on each occasion that he knew he had been disqualified from holding a licence. Indeed, on one occasion, he also admitted that he knew he was driving in breach of a bail condition. This was contumacious driving.

(b) On all occasions, the attention of police was alerted by the quality of Mr Butler's driving. This submission, however, does not entirely accord with the facts presented to the Learned Magistrate. On the first occasion, this was certainly correct. On the second occasion, however, the collision was caused, not by any quality of Mr Butler's driving, but by the actions of the cyclist who himself admitted that. On the third occasion, police followed Mr Butler, but there was, in the statement of facts, no reference to any quality of Mr Butler's driving. The impression I gained was rather that, on this third occasion, Mr Butler had been recognised as a disqualified driver.

(c) Mr Butler is a repeat offender. This is not correct in the sense that the legislation gives a precise definition to the term "repeat offender" and Mr Butler did not fit that definition. Indeed, to his (perhaps slight) credit, he had not been convicted of the offence of driving whilst disqualified for the prior five years. The last conviction for such an offence was, in fact, nearly ten years ago. This was not mentioned by the prosecution or by her Honour. On the other hand, it is true that he had on his criminal record an appallingly large number of prior convictions for the offence.

(d) There were no good reasons for the driving. That is correct in so far as none of the reasons he gave would amount to a defence to the charge. On the other hand there were explanations given and these disclosed some, what might be termed, psychological pressure that took the offences outside the more serious forms of contumacy or defiance of his disqualification. They, however, show, as the Learned Magistrate opined, inappropriate thinking when Mr Butler responded to the pressure of each situation by turning to the solution of driving instead of looking first at other options, a number of which would have been available.

64. As to the mitigatory factors, it is correct that the hardship to Mr Butler's son was not clearly explained or supported by the material before her Honour. The assistance that could or might not be available from Mr Butler's sister, at least for the period of any prison sentence, was neither explored nor negatived, even though it was clearly an issue raised in the context of the third offence. By itself, such hardship is not an inevitable contra-indication to full-time imprisonment: Craft v Diebert [2004] ACTCA 15 (at [9] to [10]).

65. The respondent's submissions, however, were curious on this point, when it was said of the issue of hardship to Mr Butler's son:

The difficulty in the submission made by sentencing counsel for the appellant is that no evidence was placed before her Honour, only submissions. Her Honour quite rightly reflected this in her reasons ... Without any significant evidence before her Honour on this issue this could not be a factor considered by her Honour.

66. That is not the correct position. I addressed this in Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 (at 548-50); [16] to [25]). In particular, I referred to what had been said by Winneke, Brooking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 (at 371) as follows:

Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, Judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.

67. As I said in Talukder v Dunbar (at 550; [24]):

Thus, defence counsel can be reasonably confident that appropriate submissions, including assertions of fact, can be made from the bar table and will be accepted by the court and relied upon in the sentence unless challenged, either by the prosecution or the court. Of course, this leaves as somewhat flexible the extent to which such assertions may go before a challenge would be expected and for which defence counsel (or, mutatis mutandis, prosecutors) should be ready to prove in the usual way.

68. The issue of Mr Butler's business was also raised, but, again, interference with the ordinary work of an offender is an inevitable consequence of imprisonment and, where imprisonment is the appropriate response, it will only give way where there is some particular circumstance that justifies it.

69. The offences were serious, as on many occasions the courts have held: Coombe v Douris (1987) 47 SASR 324 (at 325); Cotter v Corvisy (at 312; [67]). Indeed, in this court it has been said of the response the courts make to such offences that "there is a very real likelihood that [the offender] will be sent to prison": Selles and Ors v Bailey [2000] ACTSC 111 (at [22]).

70. It appears to me that, with some modifications I have noted, these are powerful submissions supporting the respondent's contention that the total sentence imposed was not manifestly excessive. That, however, does not conclude the matter. There are the specific errors that I have identified.

71. Although these further grounds were not set out in the Notice of Appeal, the respondent did not seek an adjournment to deal with them. Indeed, Mr T Jackson, who appeared for the respondent, was certainly competent to deal with them without adjournment and he made helpful submissions.

72. So that the record is clear, I shall give the appellant leave to amend the Notice of Appeal to include these grounds. I deal with them each briefly.

(1) Failing to give reasons for not taking the pre-sentence custody into account

73. Section 63 of the Sentencing Act sets out the provisions in relation to pre-sentence custody. It provides:

(1) The court may direct that a sentence of imprisonment is taken to have started on a day before the day the sentence is imposed.

(2) For subsection (1), the court must take into account any period during which the offender has already been held in custody in relation to the offence.

(3) However, subsection (2) does not apply to -

(a) a period of custody of less than 1 day; or

(b) a sentence of imprisonment of less than 1 day; or

(c) a sentence of imprisonment that is fully suspended; or

(d) the suspended part of a partly suspended sentence of imprisonment.

(4) If the offender is charged with a series of offences committed on different occasions and has been in custody continuously since arrest, the period of custody for subsection (2) must be worked out from the time of the offender's arrest.

(5) Subsection (4) applies even if the offender is not convicted or found guilty of -

(a) the offence for which the offender was first arrested; or

(b) any particular offence or offences in the series.

74. This section is somewhat curious in that the first sub-section is discretionary while the second is mandatory. The structure implies that the court may backdate the start of a sentence of imprisonment to a day earlier than the day it is imposed, but is not obliged to do so. If it does, however, it must take into account any period of pre-sentence custody. Thus, it cannot, it appears, be said that a court is statutorily obliged to give credit for pre-trial custody and to do so by backdating the start of a sentence. It appears to be a discretionary matter.

75. The common law, however, is somewhat more directive on this issue, which I addressed in Hawkins v Hawkins (2009) 3 ACTLR 210 (at 223-4; [61] to [63]):

At common law, it was not possible to direct that a sentence should commence prior to the date on which it was imposed: R v Gilbert [1975] 1 WLR 1012 at 1017; R v Frederico; Ex parte Attorney-General (Vic) [1971] VicRp 51; [1971] VR 425 at 427, 431; Wills v Webster [1968] Tas SR (NC 21).
This did not mean that, at common law, periods of pre-sentence custody were not taken into account. In R v Frederico; Ex parte Attorney-General (Vic), Gowans J said (at 430):

If in such a case of a long trial, the offender had been in custody during part of the trial, that could be taken into account in fixing the term of imprisonment as is ordinarily done. The penalty is, after all, determined for the circumstances of the offender as well as for the circumstances of the offence, and in order to provide for the latter consideration there is no need to have resort to any conception of a fictional imprisonment.

See also R v Bennett [1975] Crim LR 654.

As the Full Court of the Supreme Court of Victoria said in R v Renzella [1997] 2 VR 88 at 97 "a court is not only empowered but obliged as a matter of justice to take pre-sentence detention into account." Such an approach has been said to be "long standing sentencing practice": Sultana v The Queen [2007] NSWCCA 107 at [11]. See also R v Marshall [1993] 2 Qd R 307 at 312.

76. I then gave reasons (at 226-7; [79]) why backdating of the start of a sentence was the preferable approach to taking into account pre-sentence custody.

Accordingly, it seems to me that while there is a discretion not to backdate a sentence such a discretion should be very sparingly used and only where it would offend justice and proper sentencing principles to [do] otherwise.

78. Thus, although it was probably not an error for her Honour not to backdate the start of the sentence she imposed, it seems to me that such strong statements of principle require an explanation as to why she refused to do so.

79. Reasons are an important part of the administration of justice: Pettitt v Dunkley [1971] 1 NSWLR 376 (at 382, 388); Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (at 279).

80. In sentencing proceedings, especially where a severe sentence is to be imposed, reasons have a particular importance in explaining to the offender why the punishment is to be imposed. As Sulan J (with whom Duggan and David JJ agreed) said (at [37]) in R v Ravet [2011] SASCFC 67:

The purpose of sentencing remarks is primarily to provide an explanation to a defendant for the sentence imposed, but also to demonstrate that correct principles have been applied. When sentencing remarks address these concerns, not only is the defendant informed about the punishment to which he or she is subject, but it also assists the appellate court in understanding the basis for the sentence and in performing its appellate function.

81. Of course, the extent of the duty depends on the nature of the decision: Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 (at 443-4). In this case, what was involved concerned whether the nine days of pre-trial custody should be given the full weight of constituting service of that portion of the term of imprisonment.

82. In my view, back dating a sentence to take into account pre-sentence custody is so universally adopted as a course to be followed, and, combined with the legislature's expression of the importance of liberty in the enactment of s 18 in the Human Rights Act 2005 (ACT), it became necessary for reasons to be given for not taking this course.

83. Had there not been other errors, the response of the appeal court would probably have been simply to allow the appeal to the extent of backdating the commencement of the sentence to take account of the nine days pre-sentence custody.

(2) Failing to express the amount of discount given for the plea of guilty

84. Section 37 of the Sentencing Act requires that, where the offender is likely to be sentenced to imprisonment, a sentencer, who imposes a lesser penalty because the offender has pleaded guilty, is to state the penalty that otherwise would have been imposed.

85. This provision was, in my view, included in the Act in order to encourage early pleas of guilty so as to improve the efficiency of the criminal justice system where late pleas of guilty, such as on the day of hearing, can lead to the waste of court time and thus lead to delay in the hearing and disposal of other cases.

86. The specification of the amount of the discount is also helpful for appellate courts to assess whether the sentence without the discount is a proper starting point for the sentence and whether the discount given is inadequate or excessive.

87. Although criticised as "artificial" by Rares J in R v Huat Phay [2009] ACTSC 130 (at [26]), his Honour did in that case, and subsequently in R v Popovski [2009] ACTSC 131 (at [23]), do what the section requires.

88. In Arman v Wall and Anor [2008] ACTSC 61, Penfold J considered the effect of a failure to comply with the obligation that s 37 of the Act imposes upon sentencers. Her Honour held (at [26]) that, in the case under consideration, the failure to either explain why the discount was not given or to give a discount and to identify it under s 37 was an error.

89. I dealt with this also in Saga v Reid and Anor, and noted (at [121]) that s 37 imposes an obligation on sentencers that should be obeyed, though I did observe (at [125]):

An appeal court must be careful not to use an obligation such as that imposed by s 37 of the Sentence Act, where the sentence is otherwise within range (though the appeal court might have imposed a different sentence), as a reason to interfere with a sentence in a way that circumvents the time-honoured restraint on sentencing appeals expressed in House v The King.

90. It seems to me that, standing alone, her Honour's failure to express the discount she said she was providing, may not have amounted to an error justifying appellate intervention, though it was a breach of a well-known obligation on all sentencers and with good policy reasons behind it.

91. As noted above (at [51] and [61]), the Learned Sentencing Magistrate expressed the sentence to end on 13 August 2011. In fact, the sentences she actually articulated would end on 15 September 2011.

92. In the appeal book, the Committal Order issued by the Court stated that "[t]he sentence is to end on 15 September 2011". It is inappropriate that the Registry should alter the sentence that has been stated by the Court. That is as inappropriate as a sentencer altering it in Chambers without notifying the parties if that is what happened here. See Elson v Ayton [2010] ACTSC 70. If there is uncertainty or inconsistency, the matter should be referred back to the sentencer. It is necessary even for small amendments to be made after notification to the parties. See R v Gorman [2009] ACTSC 7.

93. As expressed, the error was a little unclear. It is more likely that her Honour made an error in the calculation of the total period of the sentence. On the other hand, it is possible that her Honour was taking "a last look" (Mill v The Queen (at 63)) and holding that the total should be less than articulated. So much was conceded by Mr Jackson.

94. In any event, it was an error that should not have been corrected in the absence of the parties. It should have been corrected, whether in court or in chambers, after notification by the parties.

95. In my view, the combination of the errors I have identified means that the sentence should be set aside. As I have found specific error, I must re-sentence Mr Butler. As Hayne J said (at 160) in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111,

In the [case of specific error], once an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.

Re-sentencing

96. I do not need to repeat what was said above (at [11]) to [18]) about the facts of the offences or (at [22] to [39]) about Mr Butler's subjective circumstances on re-sentencing. Mr Butler tendered to me some references which I admitted into evidence. They showed:

(a) that his youngest son has an unresolved problem with grief arising from the death of Mr Butler's third son, including making threats of self-harm;

(b) that Mr Butler requires counselling for the grief issues he has and which counselling has, for the first time since his son's death, now started;

(e) that he is conscientious as a worker and does not like to let people down;

(f) that he has regularly been seen making appropriate arrangements, such as having his sister drive him around; and

(g) that he is a generous man, providing assistance to others over and above what he is paid to do.

97. It is also the fact that Mr Butler has been released on bail by this court on two occasions. The first occasion was to see his mother who was seriously ill in hospital when he was bailed for that purpose for seven days. The second occasion was shortly after the appeal was delayed in May 2011 and he has been on bail since then.

98. Having been bailed, Mr Butler has resurrected his business and is contracted to provide work shortly to one of the referees. While that is not a factor that can overwhelm an appropriately deterrent sentence, it is a matter for consideration under s 33(1)(r) of the Sentencing Act.

99. There is no doubt that the offences committed by Mr Butler were a serious flouting of the law and were contumacious. No other penalty than a term of imprisonment is appropriate, especially in the light of his record, which not only denies him leniency but also brings the offence closer to the worst category of such cases.

100. Nevertheless, there was evidence to show that Mr Butler did not drive ordinarily in his job and the defiance was not so blatant as to put it in the most serious category of the offence. The reasons given, while by no means justifying the driving, were more rational and more understandable than, for example, the reason given by the appellant in Cotter v Corvisy (at [40]). The explanations were more in line with those referred to in Apolevski v Kinnane.

101. The preservation of Mr Butler's business is an element of his rehabilitation and the needs of his family. While they do not overwhelm the need for severe punishment, they are relevant and to be taken into account, to determine not only the kind of penalty but the extent of it.

102. It is inevitable that a significant period of full-time custody was required for these offences in these circumstances.

103. Mr Butler has, however, been assessed as suitable for periodic detention in the most recent Pre-Sentence Report.

104. According to my calculations, taking into account the nine days of pre-sentence custody, Mr Butler has been in custody in respect of these offences for five months and twenty-eight days, effectively six months.

105. This is a case where that period is not enough imprisonment, but I do not consider that any further full-time custody, which would put his business entirely at risk, is required, given the opportunity that the grant of bail has given him to resurrect it.

106. In the circumstances, I consider that serving the balance of the sentence by periodic detention supported by a Good Behaviour Order of some length, as I consider can be done under s 29 of the Sentencing Act, is adequate punishment in the circumstances.

107. I propose, therefore, to make the following orders:

Butler v Vickers, Yates and Katz [2011] ACTSC 134

At a glance

Court

Decision date

Source

Judgment (216 paragraphs)

Butler v Vickers, Yates and Katz [2011] ACTSC 134 (24 August 2011)

Parties

Legislation Cited (14)

Cases Cited (14)