Edwards v Marinus / Wood [2010] ACTSC 57

5. Such first periodic detention will commence on the evening of Friday, 2 July 2010 and is to continue until the afternoon of Sunday, 4 July 2010. The last period of periodic detention will commence on the evening of 1 October 2010 and conclude on the afternoon of 3 October 2010.

1. Earlier this morning the Court made the following ruling on an application by the appellant to adduce evidence on the appeal from a sentence imposed on her by a Magistrate:

"The appellant appeals from a sentence imposed by a Magistrate on two charges of driving whilst disqualified as a repeat offender contrary to s 32 (1) (a) of the Road Transport (Driver Licensing) Act 1999 (ACT).

The Magistrate imposed a sentence of two months imprisonment on the first charge and four months imprisonment on the second charge. A cumulative sentence of six months imprisonment was imposed. In his sentencing remarks the Magistrate observed that the appellant was "not suitable for periodic detention because she's a sole carer for her children".

In a pre-sentence report prepared by Ms Lynne Fowler, a Probation and Parole Officer Assessor employed by ACT Corrective Services, and another fellow officer, the following was set out under the heading "Periodic Detention".

"The offender has signed an undertaking to comply with the offender's periodic detention obligations under the Crimes (Sentence Administration) Act 2005.

However, Edwards the offender has been assessed as not suitable to serve as a sentence by way of periodic detention, due to an indication of unsuitability as contained in s 79 of the Crimes (Sentencing) Act 2005, specifically due to being the sole carer for her children."

Under s 79 of the Crimes (Sentencing) Act 2005 (ACT) "employment and personal circumstances" is listed as an indication of unsuitability for periodic detention because of the "potential impracticability of regular reporting for periodic detention".

I am at a loss to understand why the appellant's role as the sole carer of her children would make her unsuitable for periodic detention such that full time detention should ensue. Perhaps, it relates to the increased likelihood that Community Services would care for the children on a full time basis if necessary. Be that as it may, the Magistrate, acting on the report of Ms Fowler and her colleague, assessed the appellant as unsuitable for periodic detention.

The appellant seeks to adduce evidence on the appeal pursuant to s 214 of the Magistrates Court Act 1930 (ACT). Under s 214 (3) of that Act, the Court must "if it considers it necessary, or expedient to do so in the interests of justice", receive the evidence of a witness.

The evidence sought to be adduced is that of Ms Fowler. Ms Fowler intends to give evidence of the appellant's current suitability to serve a sentence by way of periodic detention. Ms Fowler's evidence will deal with the effect on that assessment of the willingness of the father of the appellant's children to care for them on weekends.

An affidavit was filed by the appellant's solicitor, which sets out, submissions made by counsel before the Magistrate on behalf of the appellant about the availability of the children's father to give evidence of being able to provide "some support at weekends". The Magistrate did not say whether any such evidence would have assisted him. In the end, he relied only on the pre-sentence report to reject periodic detention as an option.

I consider that I must, in the interests of justice, permit Ms Fowler to give evidence of her current assessment of the appellant's suitability for periodic detention based on the availability of the children's father to care for his children at weekends. That is especially so in circumstances where the children are settled at school, the appellant is in full time weekly employment and the prospect of periodic detention for the appellant would mean that the children would have a parent to care for them each day."

2. The new evidence emphasises that the appellant is suitable for a periodic detention order. That is because the appellant's former husband, and the father of her children, is available on weekends to care for the children.

3. The Court is now called upon to take the evidence before the Magistrate, together with the new evidence and sentence the appellant afresh. There is no need to find error in the Magistrate's approach to sentencing or the existence of any special circumstances. See Campbell v Fortey (1987) 85 FLR 462 at 465-6 (per Miles CJ) and R v Nguyen [2006] VSCA 184 at [37] per Redlich JA (with whom Maxwell P and Neeve JA agreed).

4. The conduct which led to the first offence the subject of the appeal ("the 12 August 2009 offence") involved the appellant in what she described as taking a "silly choice" by choosing to drive to work "because the bus takes so long". It had been over a year since her last offence of driving whilst disqualified for which she received a fine of $200 and a further period of disqualification. She had not previously been sentenced to a term of imprisonment. In those circumstances, I consider that a custodial sentence was warranted but, as a first custodial sentence, it was appropriate to order that the appellant be sentenced to a period of one month's imprisonment.

5. The conduct which led to the second offence ("the 12 September 2009 offence") disclosed contumacious offending in the sense described by Refshauge J in Cotter v Corvisy [2008] 1 ACTLR 299 at [38], where his Honour said:

An act becomes contumacious as opposed to merely wilful when the person doing it knows that it is prohibited and has no reasonable excuse for doing it, or no reasonable belief that can be excused.

6. The 12 September 2009, offence occurred in circumstances where the appellant had already been apprehended for the 12 August 2009 offence. That involved contumacious conduct. A custodial sentence of 3 months on that charge would ordinarily be an appropriate one. I see no reason why the sentence should not be cumulative, arising out of 2 entirely separate factual scenarios. Consequently, but for the application of the totality principle, I would have imposed a total sentence of 4 months imprisonment.

7. In accordance with the totality principle, I must now stand back and consider the justice and appropriateness of the combined penalties. While each individual penalty is justified, it is important to dwell on a significant aspect of this appeal. That involves a consideration of the fact that the 12 August offence had not been the subject of any Court proceeding when the 12 September offence occurred. Previously the harshest penalty faced by the appellant for an offence of this type had been a $200 fine. Given that fact, and otherwise standing back and objectively engaging in the requisite intuitive analysis required by the totality principle, I consider that the appellant should ultimately be sentenced to a period of 3 months imprisonment to be served on the basis of periodic detention. To effect that end, the proposed 3 months imprisonment on the 12 September offence will be reduced to 2 months imprisonment. The two sentences of one and two months respectively will be served cumulatively.

8. The sentence imposed is to be served by periodic detention. The appellant is suitable to serve her sentence that way for the reasons identified in the new evidence admitted before the Court on appeal and discussed at [1] above. As a result the children will be cared for by each parent, one on weekends and one during the week. The appellant will be able to continue in her employment to sustain the children and herself and spend time with them during weekday mornings and most evenings.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Marshall.

Solicitor for the appellant: Ben Aulich & Associates