Gordon v Reddin [2013] ACTSC 87

4. At about 2.35 am on 16 November 2012 Constable Gordon and Senior Constable M Bunt were conducting random breath testing of drivers of motor vehicles on Hindmarsh Drive, Chifley. Constable Gordon caused the respondent's motor vehicle to be stopped in order to have the respondent submit to a breath test. The test of the respondent's breath was positive, which showed that the respondent's breath held more than 0.05 grams of alcohol per 210 litres of breath. The respondent was arrested and he was taken to Woden Police Station at where he underwent breath analysis, which showed that he had 0.158 grams of alcohol per 210 litres of breath. He was charged with the subject offence.

5. On 12 February 2013 the respondent appeared before Magistrate Fryar in the Magistrates Court to answer the charge. He pleaded guilty to the charge. The Crown prosecutor provided the statement of facts prepared by Constable Gordon to Magistrate Fryar, and then she told Magistrate Fryar that the respondent was "not recorded", whatever that may mean. The respondent's solicitor provided four testimonials to Magistrate Fryar, and then he told Magistrate Fryar what were his instructions about the respondent's personal details, employment, and lifestyle, that the respondent had "a clear record approaching almost three decades", whatever "a clear record" may mean, and that he was a "first offender."

6. After hearing submissions, Magistrate Fryar gave her judgement, in which she referred to these factors, albeit not in these words or order, which are my words and order:

(1) a level 4 breath alcohol concentration is a significantly high reading, albeit that the respondent's breath alcohol concentration was, "just over the level 4 limit";

(4) drink driving is dangerous for the driver and other road users;

(6) the respondent's guilty plea entered at the "first available opportunity";

(8) the respondent's "unblemished driving record of 27 years";

(10) the suspension of the respondent's driver's licence for "nearly three months".

Then Magistrate Fryar said that, although she found the respondent to be guilty of the offence, without proceeding to conviction, she required the respondent to sign an undertaking to comply with the good behaviour conditions specified in sections 85 and 86 of the Crimes (Sentencing Administration) Act for 12 months, and ordered him to pay court costs of $69 and the criminal injuries compensation levy of $50 within seven days.

7. On 20 February 2013 the Director of Public Prosecutions filed the Crown's notice of appeal seeking orders that:

(1) the order of Magistrate Fryar made on 12 February 2013 be set aside and either;

(2) the respondent be resentenced by the Supreme Court; or

(3) the proceedings be remitted to the Magistrates Court for the respondent to be resentenced by a magistrate.

8. The Crown's notice of appeal specified that the grounds of appeal were that:

(2) Magistrate Fryar erred in her application of section 17 of the Crimes (Sentencing) Act.

9. On 30 April 2013 the Crown's appeal came on for hearing before me.

10. The Crown prosecutor relied upon his written submissions, which are that:

(1) Magistrate Fryar failed to consider the factors which section 17(3) of the Crimes (Sentencing) Act required her to consider in deciding whether to make an order under section 17(2) of the Act;

(2) Magistrate Fryar failed to give adequate weight to the objective seriousness of the offence committed by the respondent and to general deterrence; and

(3) Magistrate Fryar was inadvertently misled that the respondent was a "first offender" who had "a unblemished driving record of 27 years."

11. In order to put the third ground of appeal into context, on 12 April 2013 the Crown prosecutor provided to me, at my request, a copy of the respondent's driver's record. This record showed that the respondent was first licensed on 17 January 1994, so that he had held a driver's licence for 19 years, not for "almost three decades", as at 12 February 2013 when he appeared before Magistrate Fryar, and that he had paid penalties for six occasions of driving a motor vehicle in excess of the applicable speed limit by less than 15 kilometres per hour, so that he was not a "first offender" with "a unblemished driving record of 27 years" as at 12 February 2013 when he appeared before Magistrate Fryar. As I have said before, and I repeat now, a judicial officer deciding a sentence to be imposed upon an offender must be provided with all material relevant to the sentencing process so that the judicial officer may make an informed decision based upon all relevant material. It is beyond argument, it seems to me, that Magistrate Fryar was misled by both the Crown prosecutor and the respondent's solicitor, although, I suppose, neither of them knew at that time about the respondent's driving record. But, of course, they should have known of it.

(1) I should not have any regard for the respondent's driving record because:

(i) I have not been given a reasonable explanation by the Crown for the failure to adduce it as evidence before Magistrate Fryar (see section 214(4) of the Magistrates Court Act); and

(ii) The Crown's notice of appeal stated that "the appellant will not seek to put further evidence before the court."

(2) Magistrate Fryar's sentence is not manifestly inadequate when the facts that the respondent had suffered a suspension of his licence from 13 November 2012 to 12 February 2013, almost three months, that the respondent was subject to a good behaviour order for 12 months, and that the respondent was ordered to pay court costs and a victims' injury compensation levy are taken into account.

13. The Crown's appeal is a "review appeal" within Division 3.10.3 of the Magistrates Court Act. Sections 219B, C, D and F are relevant. I considered the principles relating to a Crown review appeal from a decision of a magistrate to the Supreme Court based upon the ground of manifest inadequacy of sentence in Kaye v Siddiq (2013 ACTSC 207, 26 March 2013), and I do not see the need to repeat what I said in that case. Suffice it to say that an appellant court does not interfere with a sentencing judge's sentence unless:

(ii) failed to take into account a relevant factor, or;

(iii) gave too much or too little weight to a relevant factor, or;

(2) the sentence itself is so unreasonable, either so excessive or so inadequate, as to show some error in principle.

14. I considered the effect of section 17 of the Crimes (Sentencing) Act in R v C V (SCC 55 of 2012, 5 September 2012; an appeal to the Court of Appeal was heard on 8 May 2013 and judgment is reserved). I do not see the need to repeat what I have said in R v C V. Suffice it to say that section 17 of the Act requires the sentencer to consider:

(7) any extenuating circumstance in which the offence was committed; and

(8) anything else that the sentencer considers relevant.

15. I think that Magistrate Fryar did not consider the factors that she was required to consider in deciding whether to make an order under subsection 17(2) of the Crimes (Sentencing) Act because:

(2) she did not mention the respondent's state of physical or mental health; and

(3) she did not make any reference to any or, to the absence of any, extenuating circumstance in which the offence was committed.

I realise that, if she had taken these factors into account, Magistrate Fryar may have reached the same decision, but it is important, if a sentencer proposes to exercise a statutory discretion, that all of the criteria for the exercise of that discretion are taken into account.

16. Also I think that Magistrate Fryar failed to give appropriate weight to the seriousness of the offence committed by the respondent, although she said that:

(1) a level 4 breath alcohol concentration is a significant high reading;

(4) drink driving is a serious offence for the driver and other road users.

I repeat the comment of Howie J in Application by the Attorney General For A Guideline Judgement Concerning The Offence Of High Range Prescribed Concentration Of Alcohol ([2004] [2004] NSWCCA 303; 61 NSWLR 305, [2004] 147 A Crim Reports 546) that "a high range prescribed concentration of alcohol offence is one of the most serious offences under the road traffic legislation." (see paragraph 43) and that "it is a matter of common knowledge that at the level of intoxication represented by a reading of 0.150 the person must have consumed a quantity of alcohol that would manifestly influence his or her driving skills." (see paragraph 101).

17. Furthermore, I am concerned that Magistrate Fryar may not have given adequate weight to general deterrence although she said "general deterrence is something that I must take into account when considering how to sentence an offender in relation to these sorts of matters." As she said, drink driving is antisocial, prevalent and dangerous and, in my view, there is a real need for a sentence imposed upon a "drink driver," particularly one with a level 4 breath alcohol concentration, to adequately reflect general deterrence to deter other drivers of vehicles from drinking and then driving.

18. I think that it is clear that Magistrate Fryar was misled as to the respondent's antecedents, but this was more the fault of the Crown prosecutor, who should have provided the respondent's driving record to Magistrate Fryar, than it was the fault of the respondent's solicitor. I think that it is fair to say that, if she had known the respondent's driving record, Magistrate Fryar would not have invoked section 17 of the Crimes (Sentencing) Act.

19. Section 219F of the Magistrates Court Act sets out the powers of the Supreme Court hearing a review appeal. This section provides that:

(1) On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court -

(a) dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or

(b) set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.

(2) If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may -

(a) for a decision mentioned in section 219B (1) (d) - order that the Magistrates Court commit the person to whom the decision relates to the Supreme Court for sentence under section 92A; or

(b) for a decision mentioned in section 219B (1) (e) - order that the Magistrates Court continue the committal hearing of the person to whom the decision relates in accordance with part 3.5; or

(c) for a decision mentioned in section 219B (1) (f) -

(i) impose the sentence or penalty the Supreme Court considers appropriate; or

(ii) by order, exercise any power that the Magistrates Court might have exercised; or

(i) remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or

(ii) make any other order the Supreme Court considers necessary to decide the matter finally, including a prohibition order or habeas corpus order.

(a) correcting any defect or error in the proceeding before the Magistrates Court; or

(b) enabling the matter to be decided on the merits;

the Supreme Court may make the amendments of the proceeding in the Magistrates Court it considers appropriate.

(4) For subsections (1) (b) and (2) (c), the Supreme Court must not -

(a) vary a sentence or penalty such that the sentence or penalty as varied could not have been imposed by the Magistrates Court; or

(b) impose a sentence or penalty that could not have been imposed by the Magistrates Court.

(5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.

(6) On the dismissal of an appeal, the decision of the Magistrates Court appealed from may be enforced, executed or given effect to as if the appeal had not been instituted.

(7) If, in relation to a sentence or penalty mentioned in section 219B (1) (f), the Supreme Court -

(b) imposes a sentence or penalty or makes an order under subsection (2) (b);

the sentence or penalty as varied or imposed or the order made has effect as if it were a decision of the Magistrates Court and may be enforced by the Magistrates Court accordingly.

(8) On an appeal under this division from an order, decision, sentence or penalty mentioned in section 219B (1) (a), (d), (e) or (f), the Supreme Court must order that the costs of and incidental to the appeal are payable by the appellant.

(9) Subsection (8) applies whether the Supreme Court dismisses the appeal or exercises any of the other powers given to it by this section.

20. I am satisfied that (1) Magistrate Fryar erred in her application of section 17 of the Crimes (Sentencing) Act in failing to consider what she was required to consider in deciding whether to make an order under section 17(2) of the Act and, (2) the sentence imposed by Magistrate Fryar upon the respondent was manifestly inadequate because she failed to give adequate weight to the objective seriousness of the offence and to general deterrence.

21. As to the order that I should make, I disregard the respondent's driving record because it was not in evidence before Magistrate Fryar, as it should have been, and I cannot see any appropriate reason for granting leave to the Crown to rely upon it because it was available to be provided and, as I have said, should have been provided to Magistrate Fryar by the Crown, but the Crown prosecutor failed to provide it to her.

22. I consider that, despite finding error on the part of Magistrate Fryar, and despite finding that the sentence imposed by Magistrate Fryar upon the respondent was manifestly inadequate, I should dismiss the Crown's appeal, pursuant to section 219F(5) of the Magistrates Court Act because I consider that no substantial miscarriage of justice has happened.

(2) I order, pursuant to section 219F(8) of the Magistrates Court Act that the Crown pay the respondent's costs of an incidental of the appeal, such costs to be agreed or, if not agreed, assessed by the registrar in accordance with regulation 4(2) of the Magistrates Court Regulation 2009.

I certify that the preceding twenty three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the applicant: Direction of Public Prosecutions