Munro v Brack [2000] VSC 229

11. On the same day he was convicted of two counts of driving whilst his blood alcohol content exceeded the prescribed limit. On one occasion his blood alcohol content was .130%; on the other occasion .270%.

14. In respect of the first count he was fined $750 and disqualified from obtaining a licence for a period of 26 months. In respect of the second count he was sentenced to a term of two months' imprisonment. However the sentence was wholly suspended for a period of two years. On that count he was disqualified from obtaining a licence for a period of five years.

17. On 20 November 1996 the plaintiff was convicted of driving whilst disqualified and was fined the sum of $750.

20. On 5 January 2000 the plaintiff was charged with breaching an intervention order, driving whilst his blood alcohol content exceeded the prescribed limit and driving whilst disqualified.

23. The plaintiff appeared before the Magistrates' Court at Frankston on 15 March 2000 and pleaded guilty to the three charges. He was convicted and fined $300 in respect of the breach of the intervention order and was sentenced to one month's imprisonment on each of the driving offences. The sentences were made concurrent.

26. The plaintiff appealed to the County Court against the penalties imposed in respect of the driving offences.

29. The appeals came before his Honour Judge Robertson on 12 April 2000.

32. His Honour set aside the orders made by the Magistrates' Court as he was required to by s.86(a) of the Magistrates' Court Act 1989 and then heard a plea made on the plaintiff's behalf by his counsel.

35. At the conclusion of the plea his Honour retired to his chambers for a short while to consider the matter.

38. On his Honour's return to the bench his Honour proceeded to re-convict the plaintiff on each of the driving charges and to sentence him to a term of three months' imprisonment in respect of each charge. His Honour ordered that the sentences be served concurrently.

41. In his affidavit of 23 May 2000 counsel who appeared for the plaintiff has sworn that before imposing the sentences he did his Honour made the following observations:

"9.1 We as a community are remarkably tolerant and each person has freedoms. We have rules and laws for good order and governance and these include road rules. The main thrust of these rules is to ensure the safety and protection of the community. 9.2 You have seen fit not to comply with those rules and have placed at risk yourself and others. 9.3 Your prior convictions relate to driving. You have two prior convictions for exceeding the prescribed concentration of alcohol and one for driving whilst disqualified. 9.4 You not only breached the highway rules but have done so when not permitted to drive. Courts expect compliance with their orders and those who breach them can expect to be punished. 9.5 You have driven whilst disqualified and had a blood alcohol level of 0.168, three times the legal limit. 9.6 In respect of exceeding the prescribed concentration of alcohol you are sentenced to 3 months imprisonment, you are disqualified from driving for 3 years commencing from 15 March 2000. In respect of the drive whilst disqualified you are sentenced to 3 months imprisonment, to be served concurrently. The total effective sentence is 3 months. 9.7 I note your health and direct that a copy of the medical report be sent to the authorities."

45. At the time counsel swore his affidavit no transcript of his Honour's reasons was available. Since that time a video of the proceedings before Judge Robertson has been obtained from his Honour's Associate. I have watched the video tape and am able to say that counsel's affidavit accurately reflects what his Honour said before imposing sentence.

48. All I would add is that in observing that persons who breach court orders can expect to be punished his Honour used the words "can expect to be sternly punished".

51. The grounds upon which the plaintiff seeks to quash the orders made by Judge Robertson are stated in his originating motion and read:

"(a) In sentencing the Plaintiff the Second Defendant erred in law in failing to take into account the following relevant considerations: (i) The maximum penalty prescribed for the offences (s.5(2)(a)); (ii) Current sentencing practices (s.5(2)(b)); (iii) The Plaintiff's culpability and degree of responsibility for the offences (s.5(2)(d)); (iv) The Plaintiff's plea of guilty to the offence and the stage in the proceedings at which the Plaintiff did so (s.5(2)(e)); (v) The Plaintiff's previous character (s.5(2)(f)); (vi) The presence of mitigating factors concerning the Plaintiff (s.5(2)(g)); (vii) The fact of and practical effect of the earlier sentence imposed upon the Plaintiff in relation to these matters by the Magistrates' Court sitting at first instance on 15 March 2000. (b) The Second Defendant failed to provide reasons for: (i) The imposition of the sentences imposed; (ii) Increasing the terms of the sentences imposed by the Magistrates' Court at first instance. (c) In imposing the sentence that it did the Second Defendant erred in making a decision that was wholly unreasonable in all the circumstances."

55. The scope of certiorari was dealt with by the High Court in Craig v. The State of South Australia[1]. At p.175 the Court said:

"Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the 'record' of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record."

59. It is clear in the present case that in convicting the plaintiff and imposing the sentences he did, his Honour Judge Robertson made no jurisdictional error in the matter. Indeed, it was not suggested on behalf of the plaintiff that he did.

62. Nor were the proceedings before his Honour, the convictions, or the sentences tainted by fraud.

65. It was argued that in failing to warn the plaintiff of the fact that he may well impose sentences of imprisonment upon the plaintiff significantly higher than those which had been imposed on the plaintiff by the Magistrates' Court his Honour failed to observe some applicable requirement of procedural fairness. In my opinion, having regard to the introduction of s.86(1AA) into the Magistrates' Court Act 1989 by Act No. 10 of 1999 such an acquiescence can no longer be successfully maintained.

"(1AA) Despite any rule of law or practice to the contrary, the County Court is not required, on the hearing of an appeal under section 83, to warn the appellant before making a sentencing order of the possibility of a sentencing order being made, or of its intention to make a sentencing order, that is more severe than that made by the Magistrates' Court."

72. See my decision in West v. Cressey & Anor.[2] and on appeal, the unreported decision of the Court of Appeal delivered 27 April 2000[3].

75. Is there then any error of law on the face of the record?

78. By virtue of the provisions of s.10 of the Administrative Law Act 1978 the record in the present case includes not only the register of the County Court but also his Honour's reasons for decision.

81. Does the register or do his Honour's reasons disclose error of law?

84. Clearly the register does not. But what of the reasons?

87. It was argued by counsel for the plaintiff that the reasons of his Honour are deficient in the following respects:

(1) His Honour has made no reference in them to the provisions of s.5(2) of the Sentencing Act 1991. That section reads:

"5. Sentencing guidelines (2) In sentencing an offender a court must have regard to - (a) the maximum penalty prescribed for the offence; and (b) current sentencing practices; and (c) the nature and gravity of the offence; and (d) the offender's culpability and degree of responsibility for the offence; and (da) the personal circumstances of any victim of the offence; and (db) any injury, loss or damage resulting directly from the offence; and (e) whether the offender pleaded guilty to the offence and, if so, the stage in the proceedings at which the offender did so or indicated an intention to do so; and (f) the offender's previous character; and (g) the presence of any aggravating or mitigating factor concerning the offender or of any other relevant circumstances."

92. It was argued that in the circumstances of this case his Honour's failure to specifically advert to the matters spelled out in s.5(2) is sufficient of itself to justify the conclusion that his Honour did not have regard to them in arriving at the penalties he proposed to impose on the plaintiff. That view of the matter is reinforced so it was said, by the fact that his Honour tripled the penalty imposed by the Magistrates' Court and insofar as the charge of driving whilst the plaintiff's blood alcohol content exceeded the limit was concerned, imposed the maximum penalty.

(2) His Honour made no reference in his reasons to the factors which caused him to impose the penalties he did in circumstances where he was required to do so.

96. It was submitted therefore that as his Honour cannot have considered the matters he was required to consider by s.5(2) and that his failure in that regard constituted an error of law on the face of the record sufficient to justify bringing the orders up into this court and quashing them.

99. There is no absolute duty upon a judge to state his reasons. However it is difficult to conceive of a case in which a County Court judge, after hearing evidence on an appeal from the Magistrates' Court, would not be required to give reasons. See R. v. Arnold[4].

102. Expressed another way, a case must be exceptional for a judge not to have a duty to state reasons. See Soulemezis v. Dudley (Holdings) Pty. Ltd.[5]

105. See also Powter; re Powter[6]; and Farrugia v. The County Court of Victoria & Anor[7].

108. But there is no obligation on a judge dealing with an appeal of the nature of the appeal in this case to give elaborate reasons for his decision let alone incumbent upon him to state in those reasons that he has given consideration to the various matters he is required to by s.5(2) of the Sentencing Act 1991.

111. His Honour would be well aware of those requirements and I consider that one is entitled to assume that he gave consideration to them in arriving at the sentences he did in the matter. That is reinforced by the fact that the plaintiff's counsel, who is quite experienced in dealing with such appeals and who in my view, put to his Honour everything which could be said on behalf of the plaintiff, did not consider it necessary to draw his Honour's attention to the provisions of s.5(2) and the matters enumerated in the sub-section during the course of his plea.

114. It must also be remembered that his Honour was dealing with the penalty to be imposed on the plaintiff in respect of his fourth conviction for driving whilst the blood alcohol content of his blood exceeded the prescribed limit. On each of the first and second occasions a monetary penalty had been imposed on him. On the third occasion, he had been sentenced to two months' imprisonment.

117. True it is that the sentence had been totally suspended for a period of two years. Nevertheless it should have demonstrated to the plaintiff the serious view courts took of repeat offenders and that he could not expect to persist with such behaviour without being dealt with severely by the court.

120. Add to that the fact that the plaintiff had previously been convicted of driving whilst disqualified, had now committed the same offence again, and that the penalty for a second offence is imprisonment for not less than one month and not more than two years, the plaintiff could have been under no illusion as to the penalty which might be imposed upon him.

123. Further nothing which occurred during the course of the hearing before his Honour lulled the plaintiff into a state of false confidence. See R. v. Mantini[8] and Dicorrado v. His Honour Judge Gebhardt[9]. The plea made on his behalf would have been conducted in the same fashion it was even if his Honour had warned the plaintiff of the fact that he had the power to increase the penalty to be imposed upon him and was considering doing so.

126. The fact of the matter is that the plea before his Honour lasted little more than 30 minutes. His Honour then retired for a short time to consider the penalties he should impose on the plaintiff. When he returned to Court he made it clear that he took a serious view of the plaintiff's behaviour and then proceeded to sentence the plaintiff to the two periods of imprisonment.

129. In my opinion in failing to go into more detail in his reasons his Honour made no error of law in the matter.

132. The proceeding will be dismissed with costs to be taxed, including reserved costs and paid by the plaintiff to the first defendant.

[1] [1995] HCA 58; (1995) 184 C.L.R. 163

[2] Unreported 18 January 2000 - [2000] VSC 5

[3] [2000] VSCA 80

[4] [1998] VSCA 34; [1999] 1 V.R. 179 per J.D. Phillips, J.A. at p.182

[5] (1987) 10 N.S.W.L.R. 247 per McHugh, J.A. (as he then was) at p.279

[6] (1945) 46 S.R.(N.S.W.) 1 per Jordan, C.J. at p.4

[7] Unreported 19.1.2000 - [2000] VSC 11

[8] [1998] 3 V.R. 340

[9] Unreported 22 February 1999 - [1999] VSC 35