Crimes (Sentencing) Act 2005 (ACT), ss 9, 10, 13, 17, 18

Road Transport (General) Act 1999 (ACT), ss 61B, 61F, 61G, 68

Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of high range prescribed concentration of alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305

Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

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

R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd r 182

R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425

Shires v Edwards [2011] ACTSC 132

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

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. That the appeal is dismissed, noting that the licence disqualification, the conviction and the monetary penalties imposed in the Magistrates Court are therefore revived.

2. Under s 68 of the Road Transport (General) Act 1999 (ACT), that the licence disqualification is to take effect from 1 January 2013, noting that it will be reduced by the 39 days of licence suspension initially served by the appellant, which means that the licence disqualification will end on 22 May 2013.

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. Graham Patton was charged with Level 3 drinkdriving and appeared in the Magistrates Court. He pleaded guilty, and the Magistrate proceeded to convict him, impose a fine of $550 plus court fees, and disqualify him from driving for six months. Mr Patton now appeals that conviction, and apparently the rest of the Magistrate's order.

2. It is necessary to set out the relevant facts before attempting to explain and deal with the appeal.

3. Mr Patton was stopped during random breath testing on Athllon Drive in Canberra at about 6.25 pm on a Thursday night, 22 March 2012. He had planned to drive a distance, identified in the police statement of facts as about 10 km, through Canberra suburbs. Mr Patton returned a blood alcohol reading of 0.124 and his licence was immediately suspended. Police formed the view that he was moderately under the effect of alcohol.

4. On the day of the offence, Mr Patton, who was an IT worker in a government department, had worked from 2.00 am until 11.00 am with some colleagues to resolve a difficult IT problem. Having solved the problem, Mr Patton had, in counsel's words, "some glasses of beer" and then went home to sleep.

5. After a brief sleep, he went to the shops, where he happened to meet some of the colleagues with whom he had worked through the night, and had further drinks with them, before realising that he needed to go home with the things he had bought. It was on his trip home that he was required to undergo random breath testing.

6. Mr Patton's counsel said that this was a one-off error of judgment rather than a situation where Mr Patton deliberately left home planning to drink with some friends and then drive home.

7. Mr Patton's reading fell within the middle of the Level 3 range of readings, which extends from 0.08 to 0.149. Mr Patton was a repeat offender, because he had been convicted in 1973 for offences of refusing a breath test and refusing breath analysis. This meant that the maximum fine for Mr Patton's offence was $1,100.The minimum disqualification period was six months, and the default disqualification period was three years.

8. Mr Patton was thus fined half the maximum fine and disqualified for the minimum period.

9. Apart from Mr Patton's age and long clean driving record, Mr Patton provided two character references, including one that noted his long-standing work as a Salvation Army doorknock volunteer.

10. Mr Patton's appeal apparently had its genesis in the fact that, while waiting for his matter to be heard in court, he had observed another defendant being sentenced for a drinkdriving offence. That defendant was given the benefit of s 17 of the Crimes (Sentencing) Act 2005 (ACT), in that the Magistrate declined to record a conviction on the offence.

11. Mr Patton's grounds of appeal, as set out in the notice of appeal, can be summarised as follows:

(a) The Magistrate had shown bias in refusing to exercise the s 17 discretion in favour of Mr Patton when he had exercised it only 15 minutes earlier in favour of another defendant. This also made Mr Patton's sentence manifestly excessive and "plainly unjust or inequitable in the mind of the appellant".

(b) The Magistrate took into account an irrelevant consideration in noting that he had previously granted an application made by Mr Patton for his licence suspension to be stayed pending the hearing of the charge.

(c) The Magistrate did not give adequate weight to the appellant's age, 65 years, or his 38 years of driving without a conviction since the 1973 offence.

(d) The Magistrate gave excessive weight to the fact that the charge was a Level 3 PCA charge, and gave inadequate weight to the appellant's work needs.

12. It is unfortunate that, although the appellant filed his submissions on 10 September 2012, more than a month before the hearing date, no submissions in reply were filed by the respondent. Counsel for the respondent apologised for this and indicated that this had been the result of a problem in his office which had led to him receiving the file from the original counsel for the respondent on the last working day before the hearing.

13. This meant that counsel for the appellant did not have the benefit of the respondent's submissions, and if counsel for the appellant had sought an adjournment to allow for the filing of written submissions by the respondent, and consideration of those submissions by the appellant, I would have granted such an adjournment, but no such application was made.

14. In oral argument, Mr Patton's appeal grounds were reframed to some extent, but even as teased out in court, the arguments made on behalf of Mr Patton do not stand up to much scrutiny.

15. First, I deal with the significance of the Magistrate's earlier sentencing of another offender. After an abortive attempt by counsel for Mr Patton to identify the bias mentioned in the appeal ground, the suggestion that the Magistrate's different treatment of another offender showed bias was not pursued in that form.

16. Instead, the submission was framed as a claim that Mr Patton had a "legitimate expectation" to be treated in the same way as the offender whose sentencing he had observed while waiting in the court.

17. I note, first, the almost complete absence of information before me about that other offender. The information provided on appeal about the earlier sentencing exercise was that the other defendant was younger and unrepresented and had "only 24 years of good behaviour driving". No transcript or indeed any other material from the earlier sentencing exercise was available.

18. Counsel for Mr Patton initially said that he had not considered that the transcript was necessary, because there had been no Crown response to his submissions about legitimate expectation, and he took this as an indication that the respondent did not dispute those submissions.

19. He then said that he had sought to obtain a transcript of the earlier sentencing but had been told that the transcript provider was not permitted to provide that transcript to him because he was not involved in the relevant matter. I do not know whether the transcript provider was correct in making such a statement.

20. The absence of any transcript, however, meant that there was no information about whether the previous offender was being sentenced for Level 3 drinkdriving, whether he was a repeat offender, the circumstances of his offending, or the offender's personal circumstances.

21. There are authorities requiring a form of consistency in the sentencing of co-offenders (see Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 at 609 and R v Reid [2004] NSWCCA 301; (2004) 148 A Crim R 425 at 431), and authorities about the significance of sentencing ranges identified through an examination of previous sentences (see, for instance, Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195 at [54]).

22. I am not, however, aware of any authority to the effect that an offender has any entitlement to be treated in accordance with an expectation that he might develop in the course of a few minutes observing a particular Magistrate dealing with one or even several matters.

23. In Shires v Edwards [2011] ACTSC 132, Refshauge J said that a newspaper report of a particular sentencing exercise and an affidavit by a solicitor, setting out opinions about sentencing ranges that he had formed over some period of appearing and observing in the Magistrates Court, were of limited use in establishing that a particular sentence was excessive.

24. Clearly, observation of a single case, and the raising of that single case with almost no information about the specifics of the case, is even less useful in identifying a sentencing range or any other basis on which the appellant's sentence might have been said to be excessive.

25. However, the appellant's case did not seem to be put on the basis that the previous sentencing contributed to the identification of an appropriate sentencing range for the appellant's offence. Rather, counsel suggested that the issue was directly the expectation that the appellant had formed as a result of observing the previous sentence.

26. His argument could fairly be summarised as follows:

It is legitimate for an offender, through observing sentencing in a court, to form an expectation about how he is likely to be dealt with when he is sentenced in that court and, if that expectation is disappointed, the offender has a ground of appeal against the sentencing.

27. There may be many cases in which an expectation in relation to a particular matter formed by observing sentencing processes in a court would, in fact, be consistent with the advice about the likely sentence in the particular matter that might be given to an offender by a lawyer who is familiar with sentencing outcomes of that court, or who has examined the records of such sentencing outcomes.

28. There is nothing novel about that proposition, given that although sentencing involves the exercise of a discretion, the discretion must be exercised within a well-recognised, if not always coherent, framework, and having regard to such things as sentencing practices within the relevant jurisdiction. That is, sentencing may be discretionary, but it is not, in general, random or arbitrary.

29. However, this is quite different from suggesting that any given offender is able to appeal a sentence on the ground that the sentence imposed did not match his expectation of that sentence, whether that expectation was formed on the basis of observing one previous matter, on the basis of a careful study of sentencing practice within the relevant jurisdiction, or on the basis of advice received from competent and experienced counsel.

30. It may be true that the more sound and rational the basis of the expectation, the greater the likelihood that a sentence that does not match the expectation may be found on appeal to be erroneous. In such a case, however, the sentence may have disappointed a soundly-based expectation because it was affected by error. It is not affected by error because it disappoints the offender's soundly-based expectation.

31. There are well recognised grounds of appeal against sentences. A sentence may be appealed on the ground that the sentencing officer has fallen into specific error in imposing the sentence. The relevant kind of errors, conveniently referred to as process errors, are errors of fact, errors of law, taking into account irrelevant considerations, or failing to take into account relevant considerations (see House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505).

32. A sentence may also be appealed, even if a process error cannot be identified, on the ground that the outcome of the sentencing process is such as to suggest that there must have been error in the sentencing process. The relevant ground of appeal in the case of an erroneous outcome is commonly identified as that the sentence is manifestly excessive or manifestly inadequate.

33. Disappointing the expectations of an offender, as such, does not appear to fall into any of these categories of error, although, as noted, many cases in which a sentencing officer has fallen into error will have the incidental result that the offender's expectations are disappointed.

34. There is no basis to uphold Mr Patton's appeal by reference to his Honour's earlier sentencing of another offender.

35. The appellant's next ground of appeal related to the sentencing Magistrate's involvement in staying the appellant's licence suspension some time before his matter was heard. Again, the argument set out in the appeal grounds was substantially reframed in court.

36. An immediate licence suspension after returning a relevant blood alcohol reading generally operates for 90 days, unless the matter is earlier dealt with in court (Road Transport (General) Act 1999, s 61B(5)). Within that 90 day period, Mr Patton applied under s 61F of the Road Transport (General) Act 1999 (ACT) for a stay of the suspension, and this stay was granted by the same magistrate who, in the end, as a result of subsequent listing changes in the Magistrates Court, also dealt with Mr Patton's hearing and sentence.

37. The appellant did not provide any further evidence or information about the grant of the stay, and since stay applications do not generally involve the Office of the Director of Public Prosecutions, counsel for the respondent prosecutor was also unable to provide any information about the grounds on which his Honour had granted the stay. This did not prevent counsel for Mr Patton attempting to draw some conclusions from the grant of the stay.

38. Section 61G(2) of the Road Transport (General) Act requires that exceptional circumstances be shown before such a stay can be granted, and under s 61G(3), the matters that must be taken into account when deciding the application are the risk to the safety of other road users, the applicant's need for a licence, the matters contained in the suspension notice, and any other matter that the court considers relevant.

39. Section 61G(4) makes it clear, however, that deciding on a stay application must not involve a decision about the guilt or innocence of the person for the offence to which the suspension notice relates, or about the imposition or level of a penalty for the offence.

40. Counsel for the appellant said that in another case, no citation for which was provided, Chief Magistrate Burns had held that the likelihood of an offender receiving a non-conviction order could amount to exceptional circumstances justifying the granting of a stay.

41. Counsel sought to argue from this unchallenged proposition that the granting of a stay by the sentencing Magistrate, some time earlier, therefore implied that the sentencing Magistrate had formed a view that a non-conviction order would be appropriate in the appellant's case.

42. This again reflects a failure of logic on counsel's part. Counsel is assuming that if the proposition "if A then B" is a true proposition then the converse proposition "if B then A" must also be true. A moment's thought should put that assumption to rest. Compare, for instance, "if it is Monday there will be matters listed in the Supreme Court" with "if there are matters listed in the Supreme Court it is Monday".

43. Under s 61G(3) of the Road Transport (General) Act, the likelihood of a non-conviction order being made is not required to be taken into account in deciding whether to stay a suspension; having regard to the suggestion in s 61G(4) that consideration of likely penalties should not play a central role in considering whether to grant a stay, that matter may be a relatively rare basis for making such a finding.

44. Certainly, the likelihood of a non-conviction order is not the only basis for finding exceptional circumstances. Thus, even if it could be said that if a non-conviction order is likely to be made a stay will be granted, it cannot be said that if a stay is granted a non-conviction order must have been seen as likely.

45. There is, of course, a further problem with any argument based on the sentencing Magistrate's earlier involvement in granting a stay. As noted, the decision to grant a stay should not involve the magistrate determining guilt or innocence or the likely penalty. Even if the sentencing Magistrate had, in fact, formed the view that a non-conviction order was possible when the applicant for the stay, that is, the current appellant, came to be sentenced, I do not see that his Honour could, in the sentencing hearing, be held to that preliminary view, given that the material available to him on the stay application and the submissions made must necessarily have been different from, although no doubt overlapping with, the material and the submissions available on sentencing.

46. There is no basis to uphold Mr Patton's appeal by reference to the sentencing Magistrate's involvement in staying Mr Patton's suspension before his Honour heard and determined the drinkdriving charge.

47. Several arguments made on behalf of Mr Patton in fact amounted to challenges to the weight given to various factors by the sentencing Magistrate. In sentencing Mr Patton, his Honour specifically referred to Mr Patton's good character, his fine working history, his good driving record and the prior conviction, which his Honour described as "very, very old", and the fact that Mr Patton was generally a civic-minded person and a good citizen.

48. His Honour noted that Mr Patton had been stopped for random breath-testing rather than because his driving was obviously erratic, and also noted the early plea of guilty. His Honour said that neither the prior conviction nor the fact that the offence involved a Level 3 drinkdriving offence influenced him significantly, but that what did influence him significantly was the absence of any extenuating circumstances surrounding the commission of the offence.

49. His Honour noted that Mr Patton had made a conscious decision to join his colleagues and consume alcohol to a level of 0.124, at which level, his Honour said "consumption of alcohol is such that a person either must have known that they were over the level appropriate for driving or at least must have known that there was a risk that that was the case," but that Mr Patton had still made a conscious decision to drive.

50. Counsel said that the Magistrate had focused too much on the absence of extenuating circumstances for Mr Patton's offence, and had given inadequate weight to his age, his 38 years without any driving offences, the fact that he found Mr Patton not to be a risk to the public, and the fact that Mr Patton had not intended to drive very far.

51. It seems to me that when a sentencing officer has clearly adverted to a particular sentencing factor and has indicated his attitude to that factor, it is very difficult to make out error based simply on the claim that the sentencer gave too much or too little weight to the particular factor, absent a suggestion that, for instance, the sentencer was mistaken about the factual aspects of the factor, was in error in taking it into account at all, or overlooked one of the purposes of sentencing by discounting the factor.

52. Weighing the various factors relevant to sentence is one of the fundamentally discretionary aspects of the sentencing task. Certainly I can see no error in his Honour's explicit focus on the lack of extenuating circumstances in deciding whether to make a non-conviction order.

53. Counsel for Mr Patton also appeared to be suggesting that, because his Honour had noted several things in Mr Patton's favour and only one thing against him, being the lack of extenuating circumstances for the commission of the offence, a weighing of the various matters should have seen the multiple favourable factors outweigh the single unfavourable factor. There was mention of five favourable factors to be set against the one unfavourable one.

54. I am not sure where counsel acquired the idea that sentencing, either in general or specifically in relation to deciding on a non-conviction order, is a process of counting up factors for and against an offender and subtracting one figure from the other to give a sentencing outcome.

55. Yet again, a moment's rational thought should be enough to put that view to rest. Consideration of volumes of sentencing decisions, including many from the High Court, would be a slower but even more convincing way of reaching the same conclusion (see Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 611 and Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 at 375).

56. Counsel for Mr Patton also made specific submissions to the effect that his Honour did not pay proper regard to Mr Patton's need for a licence for the purposes of his employment. The evidence put before his Honour as to Mr Patton's working arrangements seems to have consisted of the following comments:

(a) that Mr Patton's home was in Weston in the ACT;

(b) that "he drives from New South Wales as an IT project manager, and where he's licensed to drive in ACT and meet his work requirement at various government offices within ACT";

(c) that "the unanticipated consequence of not having a licence was that it makes it very onerous to meet his daily official movement and to make arrangements in line with circumstances to keep his work in Canberra and his family together in New South Wales..."; and

(d) that a non-conviction order would enable Mr Patton to still use his driving licence to be able to complete his work while he is in the ACT.

57. I note first that there was no necessary connection between the granting of a non-conviction order and Mr Patton's disqualification from driving.

58. Certainly, the recording of the conviction meant that Mr Patton was facing a minimum disqualification of six months. However, even if his Honour had declined to record a conviction, s 18 of the Crimes (Sentencing) Act permits a licence disqualification order to be made as a condition of a good behaviour order imposed instead of a conviction, or simply as an ancillary order to a non-conviction order dismissing the charge, and such disqualification would not apparently have been limited to the minimum six months imposed on conviction.

59. It is clear enough from the evidence I have recited at [57] above that Mr Patton was working in the ACT, although the question of where he was living is more obscure. Nevertheless, presumably at least in part in reliance on this evidence, his Honour reduced the disqualification period from the automatic period of three years to the minimum period available, being six months, which would be further reduced by the period of suspension that Mr Patton had already served.

60. Counsel for Mr Patton then asked his Honour to defer the commencement of the disqualification until 1 July this year, a month away, to enable Mr Patton to retire from his job, so that he would no longer need to drive from New South Wales to Canberra to work.

61. In reliance on s 68 of the Road Transport (General) Act, his Honour accordingly deferred the commencement of the disqualification period until 1 July.

62. I cannot see that there is any basis for a suggestion that his Honour gave inadequate consideration to the impact of his order on Mr Patton's employment needs or arrangements.

The circumstances giving rise to a non-conviction order

63. Finally, an argument not explicit in Mr Patton's appeals grounds was raised by counsel. Counsel sought, apparently, to establish sentencing error by directing my attention to authorities that made it clear that neither Mr Patton's age nor his status as a repeat offender barred him from the benefit of a non-conviction order (see Application by the Attorney General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of high range prescribed concentration of alcohol under section 9(4) of the road transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303; (2004) 61 NSWLR 305 and R v Brown; Ex parte Attorney-General (Qld) [1994] 2 Qd r 182).

64. I do not understand there to be any dispute about this proposition as found in the authorities cited, but it does not advance Mr Patton's case. Mr Patton's argument appears to be that if a discretionary order is not barred by legislation or authority it is erroneous not to make it.

65. Apart from entirely mistaking the nature of a discretionary order, the argument is clearly nonsense. It is nonsense as a matter of logic, but it is easier in this case to demonstrate that it is nonsense by considering the practicalities of the proposition.

66. A note to s 9 of the Crimes (Sentencing) Act lists 11 sentencing and non-conviction options available to a court sentencing an adult offender under the Act, ranging from full-time imprisonment to fines, non-association orders, and licence disqualifications.

67. For one of the sentencing options, namely good behaviour orders, s 13 of the Crimes (Sentencing) Act lists six specific kinds of conditions which may be included in such an order, as well as giving power to include other appropriate conditions, five examples of which are listed.

68. Even accepting that many offences do not carry an imprisonment penalty, and that, for many offences that do carry such a penalty, imprisonment will be excluded in a particular case (by the requirement in s 10 of the Crimes (Sentencing) Act that such a sentence may only be imposed where no other penalty is appropriate), this leaves a multitude of possible sentencing orders technically open to a sentencing officer in any matter.

69. The suggestion that, for each of those orders, it is an error not to make it, or even that it is an error not to make any particular one of those orders simply because it happens to be available, is clearly untenable.

70. In short, the fact that Mr Patton is not barred from being granted a non-conviction order does not mean that such an order must be made, or that it is an error not to make such an order. The Magistrate's failure to make a non-conviction order that was probably open to him was not an error on his Honour's part.

71. The appellant has established neither specific error in the exercise of the sentencing discretion nor an outcome, being a manifestly excessive sentence, that suggests an unidentifiable error, and the appeal must accordingly be dismissed.

(b) that the order dismissing the appeal is stayed until Monday 29 October 2012, at which point I will make the orders consequential on the dismissal of the appeal.

73. The Court re-convened on 29 October 2012, and the following further orders were made:

(b) the convictions and monetary penalties are confirmed, noting Mr Patton's advice that he has already paid the fine and other costs;

(d) under s 68 of the Road Transport (General) Act the licence disqualification is to take effect from 1 January 2013, noting that it will be reduced by the 39 days of licence suspension initially served by Mr Patton, and to end on 22 May 2013.

I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Ray Swift Moutrage & Associates

Solicitor for the respondent: Office of the Director of Public Prosecutions