Hugg v Driessen [2012] ACTSC 46

Supreme Court of the ACT|2012-04-03

[2012] ACTSC 46 (3 April 2012)

APPEAL AND NEW TRIAL - in general and right of appeal - appeal from Magistrates Court - appeal against sentence - appeal upheld

TRAFFIC LAW - offences - driving with the prescribed concentration of alcohol - period of disqualification - relevant factors and approach to determination of proper period

CRIMINAL LAW - jurisdiction, practice and procedure - judgement and punishment - sentencing - need to ensure defendant has full opportunity to address relevant matters

Roads Transport (Driver Licensing) Act 1999 (ACT), ss 7(c), 31(4), 32(7)

Australian Capital Territory (Self Government) Act 1988 (Cth)

Migration Act 1958 (Cth) div 4B

Taxation Administration Act 1953 (Cth) ss 8C, 8D, 8E, sch 1 div 286

Court Procedures Rules 2006 (ACT), r 5103(c) (i)

Nygh, P E, and Butt, P, Butterworths Australian Legal Dictionary (Butterworths, 1997)

Morris v East (1988) 83 ACTR 1

Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1

Cox v Button [1949] SASR 244

Welch v United Kingdom (1995) 20 Eur Court HR (ser A) 247

R v Kirby; Ex parte Boilermaker's Society of Australia [1956] HCA 10; (1956) 94 CLR 254

Watling v Watson; Ex parte Watson [1966] QWN 60

Lim v Minister for Immigration (1992) 176 CLR 1

Al -Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1

Barac v Thexton [2008] ACTSC 137

Application by the Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305

Thomas v Police (SA) [2010] SASC 18; (2010) 55 MVR 76

Reeves v Police ( 1997) 70 SASR 457

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

R v McLaughlin (Unreported, Supreme Court of the ACT, Refshauge J, 7 August 2009)

ON APPEAL FROM A MAGISTRATE OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The order of the Magistrates Court that Melanie Renee Hugg be disqualified from holding or obtaining a driver licence for 18 months be set aside and in lieu she be disqualified from holding or obtaining a driver licence for nine months.

1. The period during which Melanie Renee Hugg is disqualified from holding or obtaining a driver licence will end on 26 November 2012.

1. Driving after drinking alcohol is properly regarded as a serious matter because of the increased risk of serious injury or death that it causes. See Morris v East (1988) 83 ACTR 1 at 9-10. The greater the level of blood alcohol concentration, the greater the risk.

2. The appellant, Melanie Renee Hugg, was charged with, being a first offender, driving a motor vehicle on a road with level 4 alcohol in her breath. This is an offence contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act) and renders Ms Hugg liable to a maximum penalty of 15 penalty units (that is a fine of $1 650) or imprisonment for nine months or both. A conviction also means that Ms Hugg was, under s 32 of the Alcohol and Drugs Act, automatically disqualified from holding or obtaining a drivers licence for three years, though the court may reduce that period but not to less than six months.

3. Ms Hugg pleaded guilty to the charge on the first day she appeared in court, namely, 13 July 2011. She appeared for herself. She was fined $1 100 and ordered to pay $67 court costs and a levy of $50 under s 68(1) of the Victims of Crime (Financial Assistance) Act 1983 (ACT). She was also required to pay a Victims Services levy of $10 under s 24(2) of the Victims of Crime Act 1994 (ACT). The learned Chief Magistrate, who sentenced Ms Hugg, also reduced the period of disqualification under s 32 of the Alcohol and Drugs Act to 18 months.

4. This was, thus, a combination order under s 29 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), being a fine order (s 29(1)(d)) and an order imposing another penalty, namely, the disqualification and victims services levy

5. Ms Hugg wished to appeal against the sentence and sought advice from her solicitor on 1 August 2011. That, of course, was outside the appeal period of

28 days set by s 209 of the Magistrates Court Act 1930 (ACT). On 19 August 2011, however, Master Harper extended the time within which she may appeal and Ms Hugg filed her Notice of Appeal on 19 August 2011 in accordance with

r 5103(c)(i) of the Court Procedures Rules 2006 (ACT).

6. Pursuant to s 208(1)(e) of the Magistrates Court Act, an appeal may be brought against an order of the Magistrates Court made under certain provisions of the Sentencing Act, in particular under s 208(1)(e)(v) from combination sentences under pt 3.6 of the Sentencing Act. Section 29 appears in pt 3.6 so this appeal is well commenced.

7. In both the original Notice of Appeal and the further amended Notice of Appeal, Ms Hugg appeals only from the sentence imposed.

8. Appeals against sentencing decisions of the Magistrates Court are regulated by

div 3.10.2 of the Magistrates Court Act.

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

10. 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. 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.

11. Under s 216 of the Magistrates Court Act, the institution of an appeal stays the execution of the sentence from which the appeal has been taken and, accordingly, this needs to be addressed when the appeal is decided.

13. A motor vehicle was seen by a member of the community being driven erratically in Chisholm, a suburb in the ACT, at about 7.35pm on 13 May 2011. Police were alerted and a description of the driver was provided.

14. Later, police saw the motor vehicle parked in a public street. Two women were in the vehicle and the one who was in the driver's seat did not match the description of the driver earlier given, though the woman in the passenger's seat did.

15. Police spoke to the women. The woman in the driver's seat was asked who had been driving and, although said to be somewhat reluctant at first in answering, pointed to the other woman, who was Ms Hugg. Ms Hugg, when spoken to by police, immediately admitted it was she who was driving earlier.

16. Ms Hugg was then subject to a breath screening test for alcohol and, when that was positive, she was taken into custody and at Tuggeranong Police Station she was subject to a breathalyzer test which showed that she had 0.166 grams of alcohol in 210 litres of breath. That is, under s 4D of the Alcohol and Drugs Act equivalent to 0.166 grams of alcohol per 100ml of blood, a level 4 concentration under s 4E of the Alcohol and Drugs Act. Police formed the view that Ms Hugg was highly intoxicated. At the time that Ms Hugg was taken into custody, the weather was fine and the road where she was parked was dry. It was said that traffic conditions were moderate but it is not clear whether that relates to the road on which Ms Hugg was driving or where she was parked and taken into custody.

17. Ms Hugg represented herself in court. She was obviously unsure of the court procedure and did not even tender the character references she had clearly brought to court for the hearing. The prosecutor, very properly, tendered those references, either the originals or copies of what had apparently been earlier provided to her.

18. The learned Chief Magistrate, after hearing the facts read by the prosecution, summarised them, and then asked Ms Hugg whether there was anything that she would like to say about the offence. Ms Hugg explained that she was a learning support assistant in Catholic schools helping teachers with children that required extra help.

19. At this point, the prosecutor interrupted and tendered the references. The learned Chief Magistrate then pointed out that Ms Hugg was not actually driving at the time she was apprehended and Ms Hugg explained she was at her girlfriend's house and they were going to another friend's place and her girlfriend was to drive. Her girlfriend was also breath tested but alcohol was not detected on her breath.

20. Her Honour did not ask Ms Hugg to address the issue of licence disqualification or, after asking about her employment, ensure that Ms Hugg had nothing else to say about the matter but proceeded immediately to impose the sentence.

21. While it is true that the procedures in a busy Magistrates Court are inevitably to be truncated, the opportunity for a defendant to address all relevant matter is of fundamental importance. In the case of unrepresented defendants, this will likely require some assistance from the sentencing officer who can be expected at least to draw the defendant's attention to the relevant areas for consideration.

22. Her Honour then imposed sentence, noting that Ms Hugg had entered a plea of guilty on the first occasion and had admitted to the police that she was the driver in circumstances where she was not actually seen by police to be driving. She noted one prior conviction (for what appears to be a very minor theft for which no penalty but only a conviction was recorded) but, being of a dissimilar type of offence, properly disregarded it.

23. Her Honour noted that Ms Hugg had young children and was trying to recreate a career for herself.

24. Her Honour then imposed the sentence as noted above (at [3]) and ordered payment of the fine by instalments.

25. The ground of the appeal was that the disqualification of the licence was manifestly excessive. The Notice of Appeal, however, was amended to provide a substituted ground that her Honour failed to have regard to material considerations determining the period of licence disqualification.

26. The prosecution raised the preliminary question of whether an appeal lay from the disqualification of a person from obtaining or holding a driver licence. There has been some uncertainty about that issue because of the terms of s 208 of the Magistrates Court Act, but the present position is that where the court reduces the automatic period of disqualification the order is appellable: Travini v Starczewski [2009] ACTSC 123; (2009) 169 ACTR 1 at 11-12; [63]-[64].

27. The submission of the prosecution was a little different, for it was submitted that the disqualification was not a penalty and so not within s 29 (l)(i) of the Sentencing Act. As noted above, the appeal was brought under s 208(1)(e)(v) of the Magistrates Court Act because the order was made under s 29(1)(d) and (i) of the Sentencing Act. Paragraph (i) refers to "an order (however described) imposing another penalty available under any other Territory law". Clearly the Alcohol and Drugs Act is another Territory law. The question then is whether the disqualification is a penalty within the meaning of s 29(1)(i) of the Sentencing Act.

a. That s 64(4) of the Road Transport (General) Act 1999 (ACT) (Road Transport Act) seemed to distinguish between disqualification and penalty, referring to "[a] disqualification under this section is in addition to any penalty imposed for the offence." See also ss 31(4) and 32(7) of the Road Transport (Driver Licensing) Act 1999 (ACT) (Driver Licensing Act) which are to the same affect.

b. That the separation of powers doctrine embodied in the Australian Capital Territory (Self Government) Act 1988 (Cth) meant that a licence disqualification could not be regarded as a penalty.

29. The first argument can be disposed of fairly quickly. The relevant part of s 64(4) of the Road Transport Act is set out above (at [28](a)). It could have been drafted to include the words "any other" before the word "penalty" which would have put the argument beyond doubt as in Cox v Button [1949] SASR 244 at 245.

30. The problem for the prosecution's argument in this case, however, is that the disqualification was not imposed under s 64 of the Road Transport Act and thus

s 64(4) of that Act did not apply. Similarly, it was not imposed under ss 31 or 32 of the Driver Licensing Act so ss 31(4) and 32(2) of that Act also did not apply. There is no equivalent provision in ss 32, 33, 34 or 35 of the Alcohol and Drugs Act.

31. There is no necessary reason to import the provisions of other Acts into the construction of the Alcohol and Drugs Act even though they are what might be called "cognate laws" (defined as "[a]n Act whose subject matter is relater[sic] to another Act. The term is particularly used when two Acts with related subject matter are enacted at the same time": Nygh, P E, and Butt, P, Butterworths Australian Legal Dictionary (Butterworths, 1997) 206.

32. Though I do not have to decide it, my inclination is to consider that, notwithstanding the implication arising from the provisions in those other Acts, a disqualification is a penalty even in those Acts: see R v Novakovic [2007] VSCA 145; (2007) 17 VR 21 at 30; [45]. There is no reason for that not to apply in the case of the Alcohol and Drugs Act. As noted by the respondent, see also: Malige v France (1999) 28 Eur Court HR 578 and Welch v United Kingdom (1995) 20 Eur Court HR (ser A) 247. Further, it seems to me that the omission of "only" in the provisions of the Road and Transport Act and the Driver Licensing Act is too weak a basis for departing significantly from ordinary sentencing principle. Such a departure should be made explicitly, and not be derived through inference arising from the construction of these provisions.

34. The second argument is a little more complicated. Though it is not necessary to consider the nature of judicial power in detail, it may be accepted that the executive may not exercise judicial power: R v Kirby; Ex parte Boilermaker's Society of Australia [1956] HCA 10; (1956) 94 CLR 254.

35. The respondent submitted that if the disqualification of a licence was a penalty then the issue of an immediate suspension notice, which under s 61B of the Road Transport Act may be issued by a member of the Australian Federal Police (an officer of the executive, not the judiciary), would be unconstitutional.

36. There are a number of answers to this. The argument seems to proceed from an assumption that s 61B of the Road Transport Act is valid and therefore the characterization of a licence disqualification cannot be a penalty. The proper argument is, however, the reverse. A court must assess the validity of s 61B by determining whether the power it grants to the executive (in this case the police) is an exclusively judicial power.

37. Secondly, the two powers (immediate suspension and disqualification) are quite different. One is an immediate suspension or withdrawal of a privilege (see Watling v Watson; Ex parte Watson [1966] QWN 60 at 61) whereas the other is the imposition of a consequence upon a finding of guilt. The police officer who suspends need only have a reasonable belief in the commission of an "immediate suspension offence", a test which applies an approach used in other circumstances such as arrest and certain seizures. Of course, the Road Traffic Authority has, under s 7(c) of the Driver Licensing Act, power to suspend or cancel a driver licence, a wider power than that relied upon by the respondent.

38. It is not at all clear that the suspension of a drivers licence is the imposition of a penalty. That the result of administrative action (immediate suspension) and the exercise of judicial power (disqualification) is the same is not determinative. For example, the detention of a person may be permissible by the executive in some circumstances and in others an invalid exercise of judicial power. In Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, the High Court rejected the argument that the provisions of div 4B of the Migration Act 1958 (Cth) which provided for the detention of certain non-citizens without recourse to the courts was invalid. A majority of the Court held

(at 10, 30-2, 57, 71-2) that the power to make laws with respect to aliens includes the power to make laws providing for their expulsion or deportation and includes authorizing the executive to hold an alien in custody pending his or her expulsion or deportation. Indeed, the High Court held in Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 that such detention could be for an indefinite duration.

39. One of the bases for that approach was that the purpose of the detention was not punitive: Re Woolley; Ex parte Applicants M276/2003 [2004] HCA 49; (2004) 225 CLR 1 at 32-3. This would also apply with respect to immediate suspension of the drivers licence, a clearly protective measure and not a punitive one.

40. There are other examples where administrative action has the same characteristics as punishment. See, for example, the administrative penalties for failing to lodge a taxation return on time under sch 1 div 286 of the Taxation Administration Act 1953 (Cth), similar to the imposition of a fine for such a failure under ss 8C, 8D and 8E of that Act.

41. In my view this argument also does not succeed. Accordingly, the appeal is competent.

42. It needs to be noted that the period of disqualification is not to be regarded in the same light as the statutory maximum fine or term of imprisonment provided for in an offence. While a penalty, it has a significant protective element in it: Boeyen (1990) 50 A Crim R 482 at 484-5. It also is a default penalty that should be imposed unless there is a good reason not to do so: Scott v Wynants

43. I have discussed the position in relation to disqualification in some detail in Barac v Thexton [2008] ACTSC 137 at [43]-[55]. I follow the approach I articulated there.

44. While these matters have been drawn in part from the approach of the New South Wales Court of Criminal Appeal in Application by the Attorney General (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 (Guideline Judgement), it is to be noted that there are differences between the provisions in that State for such offences and those in this Territory. Firstly, the penalties are different. Secondly, under s 188 of the Road Transport (General) Act 2005 (NSW), offences for mid-range or high range prescribed concentration of alcohol may attract not merely the automatic disqualification and a reduction, though not below a minimum, but also an increase - a disqualification for a longer period. The latter is not available in this Territory. Here, a court may only reduce the period of disqualification other than in the extreme case where, after the period of disqualification, orders may be made under s 65 of the Road Transport Act that, in addition, the offender not be granted a driver licence until a court orders it.

45. The circumstances that are the focus of this appeal are that Ms Hugg is a single mother with two children, currently developing her career as a Teacher's Aide for primary school. She also operates a stall at certain markets each week to supplement her income. Notwithstanding this workload, she volunteers her time at her eldest child's canteen twice a week and is a parent helper for children learning to read. These activities all realistically require her to drive her car.

46. What was put in support of the single ground of Appeal is that her Honour failed to take into account the hardship likely to be suffered by a single mother with two children and a job, without a car.

47. In part, it was submitted that this was because the course of the sentencing submissions distracted her Honour from pursuing the inquiry of Ms Hugg about what effect the penalty, including licence disqualification, may have. Although not directly in point, what was said by Gray J in Thomas v Police (SA) [2010] SASC 18; (2010) 55 MVR 76 at 78-80; [11]-[16] is relevant. It is necessary for the Court to ensure, particularly with an unrepresented defendant, that she or he addresses that issue for, as Doyle C J observed in Reeves v Police [1997] SASC 6711; (1997) 70 SASR 451 at 453,

disqualification has the capacity to adversely impact on a person's livelihood and ... before such an order is made, the defendant ought to be given the chance to be heard on that matter.

48. That appears to have been in circumstances where disqualification was not automatic. Given that here, however, there was a discretion as to the length of the disqualification and Ms Hugg was unrepresented, it seems to me that the basis of the reasoning there also applies here.

49. Her Honour gave Ms Hugg credit for the plea of guilty. She noted that it was reinforced by the fact that Ms Hugg's honesty also led to her actually being charged. Her Honour also referred to the prior offence of stealing. No penalty appears to have been imposed as the court took a very lenient view of the offence; in any event, it was a very different kind of offence.

50. Her Honour made no reference to the effect that the loss of her licence would have on Ms Hugg. That was, as I noted in Barac v Thexton (at [39]), a very relevant matter. Even without further submissions, the material outlined above (at [45]), though also calling for inquiry, could be used reasonably to infer that there would be hardship and disruption in her life. While, of course, hardship is an expected consequence of the penalties to be imposed (see Guideline Judgment at 336; [128]), it is not that no hardship is to be visited upon the defendant, but rather that it be proportionate and fairly imposed.

51. It may be that her Honour's reference to the period of 18 months being "a 50% discount on the 3 years which otherwise would have applied" distracted her Honour from the relevant task.

52. As a mathematical fact, that percentage is clearly correct. The reference to it, however, may have hidden an error. That is to say, the question is not what mathematical discount should be allowed from the disqualification. That bespeaks the error so trenchantly criticised by the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611-12; [76]. The focus should be on what was required by the Guideline Judgement (at 336; [127]), namely, that there be good reason for reducing the default period of disqualification. What is then required is an assessment, having regard to the principles that underpin that imposition of a licence disqualification, as set out in Boeyen (at 484-5) as to the matters such as the economic dependency of Ms Hugg on her possession of a licence, and then determination of the correct length of disqualification required to meet those principles.

53. This becomes an important issue, too, when it is understood that the disqualification is part of the penalty and so it must be within proper range so as to balance the other parts of the penalty, not to "trade-off" one from another, but so as to ensure the proper relationship between them as referred to in Barac v Thexton (at [55]) and in the cases there cited.

54. As a result, I consider that Ms Hugg has made out a case for error and the disqualification must be set aside.

55. Having set aside the disqualification, it is now necessary to re-sentence Ms Hugg or to determine the appeal on the basis that the sentence imposed was, as an independent exercise of my discretion, appropriate. See AB v The Queen

56. Ms Hugg gave evidence before me. She gave me some personal history not all of which I need to recount. She was born in Tasmania. She explained that she came to Canberra in 2006 with her then husband as this was where his family is. Shortly after that, the marriage broke down and she returned to Tasmania.

57. She and her ex-husband, however, reconciled and, after 18 months, she returned to Canberra. The reconciliation did not last and she and her husband separated in 2010. She now cares fulltime for their two daughters, aged four and six, though they see her ex-husband every second weekend. She is, thus, staying in Canberra away from her family home in Tasmania.

58. She sensibly pursued employment and has gained it but it requires her to travel to various locations throughout Canberra. Since she received the immediate suspension notice, she was unable to drive and has had to rely on friends and catch taxis.

59. She explained the difficulties in getting the two children to school and childcare and then getting to work on time. This, as she has set out, cannot be achieved by bus. It costs her about $30 for a taxi fare one way and $45 to the markets at the weekend.

60. Ms Hugg was clearly remorseful. She had no prior traffic offences. Her honesty with police showed an acceptance of responsibility that was important for the assessment of her risk of re-offending and, therefore, the need for protection of the public.

61. While many people suffer from hardship when they are disqualified from driving, and this is not only expected but an inevitable consequence of the disqualification, a single mother with minimal family support suffers particularly. Perhaps not insignificantly, it places stress on her children and the family unit.

62. As I said in R v McLaughlin (Unreported, Supreme Court of the ACT, Refshauge J, 7 August 2009):

I have to take into account also the fact that Ms McLaughlin is the carer for her children. Section 11 of the Human Rights ACT 2004 (ACT) as well as s 33 of the Crimes (Sentencing) Act 2005 (ACT) both mandate that I have regard to these matters and that I take into account what was said by the Constitutional Court of South Africa in M v The State [2007] ZACC 18, namely that there is a right for the interests of the children to be taken into account even in cases of serious offending.

63. I note that the fine is not a small one and, indeed, is greater than a number that have been imposed for this offence, even where there was a higher reading or where there had been an accident.

64. The reading was not insignificantly above the bottom of the range for level 4. The driving was erratic; indeed, it was said she moved onto the wrong side of the road into oncoming traffic and collided with the gutters on the side of the road.

65. Ms Hugg is now 33. She has, presumably, been driving for about 15 years or so. This is her first traffic conviction.

66. I note her plea of guilty at the first opportunity. The case depended on her admissions when she was first spoken to by police.

67. I also note that she was suspended from driving from 13 May 2011 to 13 July 2011 when she was convicted, a total of two months.

68. In my view, it would be appropriate to reduce the disqualification to nine months, which is a reasonable period to mark the seriousness of the driving, the time properly needed to protect the community and yet to give credit for the other matters in her favour.

69. As the Notice of Appeal was lodged on 19 August 2011, Ms Hugg has already been disqualified for the period from 13 July 2011 to 19 August 2011. Accordingly, the disqualification will now expire on 26 November 2012. I shall make a declaration accordingly to ensure that the records of the Roads and Traffic Authority accurately reflect the position.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the respondent: ACT Director of Public Prosecutions

Australian Capital Territory (Self Government) Act 1988(Cth)

Transport (Alcohol and Drugs) Act 1977

Crime (Financial Assistance) Act 1983

(Sentencing) Act 2005

Transport (General) Act 1999

Transport (Driver Licensing) Act 1999

Capital Territory (Self Government) Act 1988

Administration Act 1953

Transport (General) Act 2005

Procedures Rules 2006

Australian Capital Territory (Self Government) Act 1988(Cth)

Transport (Alcohol and Drugs) Act 1977

Crime (Financial Assistance) Act 1983

(Sentencing) Act 2005

Transport (General) Act 1999

Transport (Driver Licensing) Act 1999

Capital Territory (Self Government) Act 1988

Administration Act 1953

Transport (General) Act 2005

Procedures Rules 2006

At a glance

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Cases Cited (12)