CRIMINAL LAW - appeal against sentence - whether sentence manifestly inadequate - whether conviction required

Crimes (Sentencing) Act 2005 (ACT) s 17

Magistrates Court Act 1930 (ACT) ss 207, 208

Road Transport (General) Act 1999 (ACT) s 63(2)(a)

Road Transport (Safety and Traffic Management Act) 1999 (ACT) s 6(1)(b)

Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

R v Flowers [2014] ACTCA 13

1. This is a Crown appeal against a sentence imposed by the Magistrates Court on the grounds of manifest inadequacy and specific error on the part of the Magistrate.

2. On 14 February 2014 the Magistrates Court sentenced the respondent for the offence of negligent driving causing grievous bodily harm, contrary to s 6(1)(b) of the Road Transport (Safety and Traffic Management Act) 1999 (ACT). This offence carries a maximum available penalty of a fine of $14,000 and/or imprisonment for one year.

3. The respondent pleaded guilty after the matter was listed for hearing, and about seven weeks before the scheduled hearing date. The Magistrate did not indicate the discount that he allowed for the plea of guilty, but it can be inferred that he allowed some discount for the plea. The Magistrate imposed a good behaviour order for a period of 12 months, without proceeding to conviction. In other words, his Honour made a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

4. Part 3.10 of the Magistrates Court Act 1930 (ACT) regulates criminal appeals to the Supreme Court and ss 207 and 208 are of particular relevance. The appeal is by way of rehearing or review. Many decisions have accepted that, before an appeal court can re-exercise the sentencing discretion, error must be found. Even if no specific error can be identified, if the sentence is manifestly excessive, unreasonable, plainly unjust or plainly wrong, error can be inferred and intervention may be warranted.

5. An appeal by the Crown should be brought only in exceptional cases to establish a point of principle: R v TW (2011) 6 ACTLR 18. In Bui v Director of Public Prosecutions (Cth) [2012] HCA 1; (2012) 244 CLR 638, it was held that in relation to Commonwealth matters, the principle of double jeopardy no longer applies. In the ACT, that approach has been followed in R v Flowers [2014] ACTCA 13 at [80] and in other cases.

6. This afternoon, I granted leave to amend the notice of appeal. As a result, the grounds of appeal are:

(a) The sentence is manifestly inadequate as the Magistrate placed too much weight on subjective features and the potential effect of a conviction, and too little weight on the objective seriousness of the offence and the victim's injuries.

(b) The Magistrate erred by considering the absence of an intention to cause grievous bodily harm.

(c) The Magistrate erred in taking into account an irrelevant consideration, the effect of automatic disqualification from driving, in deciding to make a non-conviction order. Pursuant to s 63(2)(a) of the Road Transport (General) Act 1999 (ACT), automatic disqualification from driving for at least three months follows from a finding of guilt as well as from a conviction.

7. The circumstances of the offence are that, at about 11.30 am on 9 September 2012, the respondent caused a collision with the victim's bicycle when the respondent failed to give way at a roundabout. At the time, the respondent was travelling at about 15 kilometres per hour. The victim rode his bike from the right side to the left side, across the front of the respondent's vehicle. The respondent's vehicle hit the back wheel of the victim's bicycle. The respondent heard the victim call out "mate" several times prior to the collision, in an attempt to warn the respondent, but the respondent did not appreciate the source of the warning or the reason for it. The victim suffered significant injuries, including multiple fractures to the right side of his body. There are permanent consequences, including ongoing pain, scarring, and an increased risk of arthritis.

8. The respondent was employed by ACTION Buses. He led evidence that, if disqualified for three months, he would have to spend up to a year on a probationary licence, which would exclude him from operating a bus. It was "extraordinarily unlikely" that his employer would grant him leave without pay for that period. Consequently, he was likely to lose his employment.

9. In his reasons for sentence the Magistrate noted that the mens rea for the offence was negligence; that the offence had very tragic consequences; that the respondent had a relatively good driving record; that there was no suggestion of speed, intoxication or other aggravating features, and that the offence had been caused by momentary inattention. The Magistrate considered that the recording of a conviction would result in automatic disqualification and the likely loss of employment. That finding seems to have been central to his Honour's decision to impose a non-conviction order. The Magistrate also referred to the respondent's antecedents, age, character, and what his Honour considered to be the relatively minor nature of the offence.

10. The appellant contended that there is an inescapable inference that the Magistrate considered that the absence of actual intention to cause grievous bodily harm or recklessness in that regard reduced the seriousness of the offence; whereas in fact the absence of intention or recklessness cannot reduce the seriousness of such an offence because, had there been intention or recklessness, a more serious charge would have been laid. The appellant submitted that, in that context, the Magistrate failed to pay sufficient regard to the seriousness of the offence, having regard to the legislated maximum penalty, as is required by Markarian v R [2005] HCA 25; (2005) 228 CLR 357.

11. It would appear that the Magistrate did place inappropriate relevance on the absence of intention or recklessness in relation to causing grievous bodily harm.

12. However, I do not need to decide whether that, of itself, amounts to an error, because the Magistrate made what was a clear error in relation to the law. The Magistrate was of the mistaken impression that, while a conviction would result in automatic disqualification and the almost inevitable consequence of loss of employment, a finding of guilt and the recording of a non-conviction would have a different consequence. In that, his Honour was wrong because automatic disqualification flows, whether or not a conviction is recorded.

13. In order to "level out the playing field" and avoid the onerous consequences that he thought were attached to a conviction order, the Magistrate proceeded under s 17 of the Sentencing Act. That was a specific error for the reasons that I have indicated. As the error lay at the heart of his Honour's decision to proceed under s 17, prima facie it justifies the intervention of this Court.

14. The respondent contended that, in the exercise of its overriding discretion, the Court should not intervene because the sentence of a good behaviour order associated with a non-conviction order was well within the range of appropriate sentences. That submission is based on the assertion that s 17 was appropriate in the context of what the respondent described as the very low culpability of the respondent, being momentary inattention.

15. In relation to the objective seriousness of the matter, two aspects must be considered. First, the nature of the negligent conduct must be considered. Second, the Court must consider the nature of the grievous bodily harm that was caused.

16. In relation to the conduct, I would not characterise it as being of "very low culpability". It is true that it is not at the mid to upper end of the spectrum in terms of objective seriousness, but the respondent's conduct involved significant negligence. The incident occurred at a roundabout, a location at which drivers need to pay particular attention. The bicycle passed in front of the vehicle. In other words, there was plenty of opportunity to observe it. The victim attempted to alert the respondent by calling out, "Mate, mate." While the level of culpability was not high, it was certainly significant.

17. As far as the grievous bodily harm is concerned, again, it is not the most serious grievous bodily harm because grievous bodily harm encompasses harms short of death. By the same token, serious injuries were occasioned to the victim and, within the range of injuries that may amount to grievous bodily harm, they were significant.

18. Taking into account those two factors, the objective seriousness of the offence was low, but certainly not at the lowest end of the range.

19. Section 17 of the Sentencing Act applies if an offender is found guilty of an offence. The court has a discretion to make a non-conviction order with or without a good behaviour order. In relation to that decision, the court is to take into account the matters in s 17, which provides that:

(3) In deciding whether to make a non-conviction order for the offender, the court must consider the following:

(a) the offender's character, antecedents, age, health and mental condition;

(c) any extenuating circumstances in which the offence was committed.

(4) The court may also consider anything else the court considers relevant.

20. In relation to s 17(3)(a), there were some matters to be considered in the respondent's favour, but many persons who commit offences of this nature are of prior good character. This is the type of offence where the sentencing court needs to send a strong message of general deterrence.

21. Second, although this particular example of the offence was towards the lower end of objective seriousness, all offences of this type are serious matters. The seriousness of the particular offence, as well as the general seriousness of offences of this type, are matters that can be considered when deciding whether a s 17 order should be made.

22. As to the extenuating circumstances "in which the offence was committed", no extenuating circumstances relating to the offence, as opposed to the consequences for the offender, have been identified.

23. The Magistrate's consideration of the impact of disqualification on the respondent could only be characterised as a matter that arises under s 17(4), i.e. "anything else the court considers relevant." However, the respondent's licence would have been suspended regardless of whether or not a non-conviction order was imposed under s 17.

24. There is nothing about this case that justifies the maintenance of a non-conviction order. Many people who commit driving offences face automatic disqualification, and many of those face loss of employment as a consequence, or face other serious consequences, such as the inability to attend medical appointments or the inability to transport children. I see no reason that I should exercise my discretion and decline to intervene.

25. I come to the question of resentencing. In relation to resentencing, there is no reason to do other than proceed in the ordinary way; that is, to impose a conviction. A finding of guilt will, in the usual course, result in a conviction. Offences of this type are serious matters by their very nature. Sentencing purposes such as general deterrence, denunciation, accountability and recognition of harm to the victim are very important when sentencing for offences of this type.

26. Despite the fact that the respondent is a person of prior good character and despite the other matters advanced on his behalf, I do not consider that any matter, including the loss of employment, justifies the imposition of a non-conviction order.

27. The appeal is allowed. The orders of the Magistrates Court are set aside. In lieu, the respondent is convicted, and I order that the respondent enter into a good behaviour order requiring him to sign an undertaking that he will comply with good behaviour obligations for a period of 12 months. He is to give security of $500 for non-compliance with the order.

I certify that the preceding twenty seven [27] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell.