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[2016] ACTSC 159
Supreme Court of the ACT
2016-07-11
Refshauge J
Original judgment source is linked above.
HUMAN RIGHTS ACT 2004 (ACT)
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
APPEAL - JURISDICTION, PRACTICE AND PROCEDURE - Appeal from Magistrates Court - Appeal against conviction - driving whilst disqualified - repeat offender- notice of disqualification not received - strict liability offence - excuse of honest and reasonable mistake - offender misunderstood period of disqualification - automatic period of disqualification - mistake of law - conviction confirmed
APPEAL - JURISDICTION, PRACTICE AND PROCEDURE - Appeal from Magistrates Court - Appeal against sentence - driving whilst disqualified - repeat offender - failure to consider offender's honest belief that he was licensed - not driving with contumacious disregard for disqualification - sentence miscarried
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and punishment - resentencing - driving whilst disqualified - repeat offender - bad driving record - impact of disqualification on offender's business - impact of disqualification on offender's family - good character - offender's honest belief that he was licensed - non-conviction order
EVIDENCE - JURISDICTION, PRACTICE AND PROCEDURE - Further evidence - reasonable explanation for the failure to adduce
Crimes (Sentencing) Act 2005 (ACT), ss 7, 17, 33, 33(1)(o)
Evidence Act 2011 (ACT), s 4(2)
Human Rights Act 2004 (ACT), s 25
Magistrates Court Act 1930 (ACT), ss, 214, 216, Pt 3.10, Div 3.10.2
Court Procedures Rules 2006 (ACT), r 5193
Balthazaar v The Queen [2012] ACTCA 26
Charnock v Coady & Ors [2010] ACTSC 26
Cotter v Corvisy [2008] ACTSC 64; (2008) 1 ACTLR 299
Davis v Bates (1986) 43 SASR 149
Denton v Bodycoat [2000] WASCA 424
Egerton v Taylor (1996) 90 A Crim R 186
Grooms v Toohey [2012] ACTSC 28; (2012) 7 ACTLR 1
Illich v Young [2000] WASCA 383; (2000) 32 MVR 354
Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1
McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975)
McKechnie v Jones (1976) 13 SASR 184
McKellar v Woolcock [2013] ACTSC 225
Minear v Rudrum [2001] WASCA 10
Pallett v Paul [2007] WASC 290
Peverill v Crampton [2010] ACTSC 79
Pilkington v Elliott (Unreported, Supreme Court of Victoria, Coldrey J, 6419 of 1991, No 652 of 1991, No 6421 of 1991, 27 September 1991)
Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150
Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536
Proud v Sladic (2014) 67 MVR 485
R v Ang [2014] ACTCA 17
R v DK [2016] ACTCA 7
R v EL (No 2) [2016] ACTSC 71
R v Hunter [2011] NSWCCA 141
Selles v Bailey [2000] ACTSC 111
Shires v Edwards [2011] ACTSC 132
Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Thomas v The King [1937] HCA 83; (1937) 59 CLR 279
Tsolacis v McKinnon (2012) 38 VR 260
Wroblewski v Starling [1987] WAR 233
1. On 19 December 2013, the appellant, Craig Kenneth Poole, was stopped by police as the vehicle in which he was driving did not have any registration plates displayed. He had, in fact, a permit to be driving the vehicle without the plates.
2. On request, Mr Poole produced a NSW driver licence and, because ACT Policing Operations was busy at the time, the police were unable to check on Mr Poole's details. The police officers then permitted him to drive off.
3. Subsequently, before Mr Poole was out-of-sight, ACT Policing Operations made contact and advised that Mr Poole had been disqualified by Magistrate Dingwall on 31 January 2013 from holding or obtaining a driver licence for twelve months. His car was again intercepted and he was arrested.
4. I note that Mr Poole had his 15 year old daughter with him. She started walking away from the car but was stopped by a female police officer. The evidence records that the police officer informed the girl "that her father wouldn't be driving anywhere today". The evidence does not record any assistance provided to the girl who was otherwise, it appears, left stranded without apparent means of transport.
5. In any event, Mr Poole was charged with, being a repeat offender, driving whilst disqualified, an offence contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT).
6. Mr Poole defended the charge but, on 11 August 2014, was found guilty of the offence. On 22 September 2014, he was convicted and sentenced to a 3 year Good Behaviour Order and disqualified from holding or obtaining a driver licence for 2 years.
7. He has now appealed from the conviction and sentence.
8. This Court has jurisdiction to hear appeals from convictions and sentences entered and made by the Magistrates Court under Pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates those appeals.
9. I have described in Peverill v Crampton [2010] ACTSC 79 at [24], the principles applicable to appeals from convictions, where I said:
10. See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Lukatela v Birch [2008] ACTSC 99; (2008) 223 FLR 1 and Charnock v Coady & Ors [2010] ACTSC 26.
11. I should perhaps add that, when a sentence is also challenged, the following additional principles apply:
• The sentence must not be overturned simply because the appellate court would have imposed a different sentence at first instance. A legal, factual or discretionary error must be found in the decision of the lower court, such as where that lower court has taken into account irrelevant considerations, or failed to take account of relevant consideration, made an error of law, acted on a wrong principle or mistaken the facts.
• The error may, however, not be a specific error that can be identified, but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error is inferred given that the sentence is excessive, unreasonable, unjust or wrong. It is necessary, however, that an inference can be drawn that a different sentence is appropriate and, if not, the appeal should be dismissed.
12. Mr Poole lodged a Notice of Appeal himself on 17 October 2014. Under s 216 of the Magistrates Court Act, the lodging of the Notice of Appeal stays the conviction and sentence the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
13. Later Mr Poole retained a lawyer and, on 1 July 2015, Mr Poole's lawyer was granted leave to amend the Notice of Appeal.
14. The Amended Notice of Appeal gave notice of an intention to adduce further evidence under s 214 of the Magistrates Court Act.
15. It then set out the following grounds of appeal (omitting the extensive and helpful particulars of them):
16. In accordance with r 5193 of the Court Procedures Rules 2006 (ACT), an application was made by Application in Proceedings, returnable at the hearing, for the admission in the appeal of certain further evidence, details of which were included in an affidavit filed in support of the application.
17. The receipt of further evidence is regulated by s 214 of the Magistrates Court Act. I have described in Grooms v Toohey [2012] ACTSC 28; (2012) 7 ACTLR 1 at 8-10; [35]- [37], the principles applicable to the admission of further evidence and, at 10-12; [41]-[52], the principles as to the effect that the admission of such further evidence has on the appeal.
18. In summary, the principles as to admission of the evidence are as follows.
19. The evidence must be admitted if it is necessary or expedient to do so in the interests of justice or the parties consent or if credible and there is a reasonable explanation as to the failure to adduce it in the Magistrates Court, unless the court is satisfied that it would not afford any ground for allowing the appeal.
20. In this case, the evidence consisted of a medical report from Mr Poole's mother's medical practitioner about her medical condition and Mr Poole's support of her, three paragraphs of an affidavit made by Mr Poole about his prior experience of driving without registration plates displayed and about his earlier court appearance, his bank statements setting out his mortgage liability and payments, the court documents from the earlier hearing before Magistrate Dingwall, emails from the court registry about court procedure and an additional reference.
21. The respondent consented to the admission of the court documents presented to the earlier hearing and the medical report (but only for the appeal against sentence), so I admitted them.
22. The emails which set out court procedure, the respondent submitted, could have been provided to the court below. On the other hand, Mr Poole was not represented at that hearing and it is a little unrealistic to suggest that he would have been likely to understand the need for such evidence to be able to get it easily. In my view, that is a reasonable explanation for the failure to adduce that evidence and I admitted the emails.
23. The bank statements did not seem to me to be admissible on any reasonable basis. The amount of the mortgage debt, to which issue they were directed, was mentioned, and apparently accurately so, to the learned Magistrate and no objection was taken or challenge made to it. I declined to admit them.
24. As to the affidavit, I declined to admit the evidence in two of the three paragraphs of Mr Poole's affidavit as there was no explanation for the failure to adduce the evidence they contained and, again, there was, in any event, some evidence of these facts before the learned Magistrate, which was not challenged in cross-examination.
25. So far as the further reference is concerned, I only admitted it if the appeal against sentence were to be upheld and the sentencing discretion re-enlivened so that it would then be relevant. Otherwise, it seems to me that it would not be admissible.
26. So far as the effect of the admission of the evidence is concerned, the principles, in summary, are as follows. If the evidence is admitted on the appeal against conviction, the court must decide on the whole of the evidence, including the further evidence, as to whether the conviction can be sustained or whether there has been an error of the kind that requires the court to intervene. If the evidence is admitted on the appeal against sentence, then the court must consider whether, in the light of the further evidence, a different sentence should have been imposed and, if so, the sentencing proceedings must be re-opened and the sentencing discretion is enlivened.
28. Mr Poole's driver licence was apparently suspended under s 18 of the Road Transport (Driver Licensing) Act after he had accrued 12 demerit points under Div 2.3 of that Act. During that period of suspension, he drove a motor vehicle on 7 September 2012. He was charged with an offence against s 32(2)(a) of that Act for driving whilst his licence was suspended.
29. He was, on 31 January 2013, convicted of the offence and the Court made a Good Behaviour Order for six months and disqualified him from holding or obtaining a driver licence for twelve months, the minimum period of disqualification applicable at the time for a person convicted of such an offence.
30. I pause to note that the disqualification was for twelve months from the date of conviction, which was 31 January 2013. The message from ACT Police Operations to the police who intercepted Mr Poole was that the disqualification was until 31 January 2014. It was, of course, until 30 January 2014. This is a small, but significant error and the Court hopes that better and more accurate record keeping will prevent such errors which could result in people being incorrectly charged or even arrested.
31. At the time of being intercepted by police, Mr Poole was somewhat peripatetic, living between houses, and had given his address to police as that of his mother in Monash, ACT. In January 2013, he was, however, living at Burra, NSW, when he obtained the NSW driver licence.
32. Mr Poole said that, while he had signed the undertaking required for the Good Behaviour Order at the court, he had not then had to sign anything for the disqualification.
33. Thus, the notice of disqualification from the court was sent to his mother's address at Monash. His mother, unfortunately, was suffering from Alzheimer's Disease and it appears the notice was not passed on to him or drawn to his attention. The court procedure in the Magistrates Court registry, at the time, was that when a defendant is subject to a Good Behaviour Order and a disqualification from holding or obtaining a licence, he or she signs the Good Behaviour Order at the Bail Office of the Court and receives a copy there. If there is a licence disqualification (or, indeed, a fine), notice is not given to the person at the time but is sent to the last address given by the defendant to the Court. There was no evidence to suggest that Mr Poole was or would be told that the disqualification order would be posted to him.
34. A copy of the notice of Mr Poole's disqualification was on the Magistrates Court file for the earlier hearing on 31 January 2013 and the address on the court document on the file was at Monash.
35. It appears, also, that Mr Poole's youngest brother is hostile to him. They have been in dispute for some time and Mr Poole suspects that he may have withheld mail from him.
36. Mr Poole had attended at the Road Traffic Authority on three occasions to obtain a permit for the car in which he was driving in order to arrange for its registration. While he did not make any inquiry about his licence, as he believed he was licensed, no-one told him that he was not then licensed.
37. Mr Poole had driven in the past in vehicles on which the registration plates were not displayed and said that, on each occasion, he had been intercepted by police. He said that he knew he was likely to be stopped by police during this occasion of driving.
38. Mr Poole said that he believed that his disqualification from holding or obtaining a licence had been for the same term as the Good Behaviour Order, namely six months. He said that he honestly believed that the licence disqualification had ended on 30 July 2013, when the Good Behaviour Order ended.
39. He acknowledged that this was a mistake and did not contest that he was driving at the time police apprehended him, nor that, in fact, he was then disqualified from holding or obtaining a driver licence.
40. He relied, for his mistake, on the fact that he was unrepresented at the hearing before Magistrate Dingwall and that he had received no notice of the disqualification.
41. He also relied on the fact that, in driving a motor vehicle for which the registration plates were not displayed, he was aware that he was highly likely to be stopped by police as support for the honesty of his mistaken belief that the disqualification period had ended.
42. He denied ever seeing the disqualification order made by Magistrate Dingwall on 31 January 2013. He admitted that he was in court when the orders were made but was adamant that he had misunderstood that there were different periods for the Good Behaviour Order and the disqualification.
43. He could not recall whether he clarified with anyone, including the Road Transport Authority, the length of the period of disqualification, even though, it was suggested to him, it would have been easy to do. As he explained, he considered that he knew what the length of the period of disqualification was, so he did not need to query it; he said he did not think that he "had any reason to clarify it". He did not make any note of the orders that had been made by Magistrate Dingwall.
44. The learned Magistrate recited the facts of the disqualification of Mr Poole from holding or obtaining a licence (though her Honour described it inaccurately but colloquially as "disqualified from driving"), facts that had not been challenged.
45. Her Honour concluded that the offence was one of strict liability but noted that this still meant that Mr Poole could raise the excuse that he had a mistaken but reasonable belief about facts which, if any existed as he believed, would mean that the conduct committed would not have been an offence. See s 36 of the Criminal Code 2002 (ACT).
46. This matter is substantially similar to the excuse provided at common law, established by the High Court in Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536.
47. Although her Honour described it as "a defence", it seems to me that this is not correct. It is, in fact, a matter of excuse. I see no reason why the approach to this equivalent provision in the Griffith Code (Criminal Code Act 1899 (Qld)), namely s 24 of the Code, should not apply. As Hasluck J said in Pallett v Paul [2007] WASC 290 at [58]- [59]:
48. Nevertheless, her Honour then briefly summarised Mr Poole's evidence and concluded:
The defendant has indicated that he could not recollect whether he was told that his disqualification was for 12 months, but that he assumed that in any event where he was subject to a Good Behaviour Order for six months, at the expiry of that order the disqualification would also end. That is a mistake of law, not a mistake of fact.
The defence does not apply. I find the offence proved.
49. Unfortunately, counsel for Mr Poole did not address at all on the appeal the issue on which the learned Magistrate made the finding that Mr Poole was guilty of the offence in the light of the way that the case was conducted.
50. Mr Poole's counsel referred to Proudman v Dayman (though regrettably not citing the authorised report) and submitted that the excuse did apply in this case but made no submissions as to whether the mistake was a mistake of fact or a mistake of law.
51. It is only in rare circumstances that an offence is one of absolute liability when even the excuse of honest and reasonable mistake does not apply. The offence under s 32(1)(a) of the Road Transport (Driver Licensing) Act is not such an offence.
52. Her Honour was correct to find that it was a strict liability offence, that is, there is no mens rea or fault element to the offence. See Davis v Bates (1986) 43 SASR 149 at 150-1. In that event, the excuse of honest and reasonable mistake was open and, if Mr Poole discharged the evidential burden of showing a basis for the mistake, the prosecution must negative the excuse. See Egerton v Taylor (1996) 90 A Crim R 186 at 189.
53. The nature of the mistake is critical, however, for a mistake as to the law will not excuse an act which contravenes the law. See McKechnie v Jones (1976) 13 SASR 184 at 187.
54. Regrettably, Mr Poole's counsel made no submissions as to whether the mistake that Mr Poole said he made was one of fact or one of law.
55. The respondent's counsel contended that her Honour was correct and that the mistake was one of law.
56. Having given the matter some thought, it seems to me that her Honour did come to the correct conclusion but not for the reasons her Honour gave, which were incorrect.
57. Mr Poole knew that his licence had been suspended, he simply did not know for how long as he mistook that the disqualification was co-extensive with the term of the Good Behaviour Order.
58. That he had made no inquiry seems to have been suggested by the prosecution to have shown that any mistake was unreasonable. That, in my view, is not correct, for it very much depends on the circumstances. As Rowland J said in Wroblewski v Starling [1987] WAR 233 at 235, when allowing an appeal and acquitting the appellant:
One usually deals with [the excuse of honest and reasonable mistake] on the premise that the person who seeks to support the 'mistaken belief in the existence of a state of things' has in fact turned his mind to the matter of facts in issue. This is not that situation. The appellant's case is that he knew that he had a licence that had just been, or was about to be, renewed. His case is really that there was nothing to cause him to question whether or not the licence was still of full force.
59. In this case, if Mr Poole honestly believed that he had been disqualified from holding or obtaining a licence for six months, there was no occasion for him to make inquiry and that cannot necessarily undermine his excuse.
60. So far, however, as to whether the mistake was of law or fact, it does not matter that the orders were made by a court. See Thomas v The King [1937] HCA 83; (1937) 59 CLR 279.
61. In this case, however, the actual situation, to which the learned Magistrate did not advert, had another element that was, in my view, determinative. That is to say, s 32(5) of the Road Transport (Driver Licensing) Act provided, at the time (it has since been amended and renumbered as s 32(6)), as follows:
If a court convicts a person of an offence against subsection (1), (2) or (3), the person is automatically disqualified from holding or obtaining a driver licence -
(a) for a first offender - for 12 months or, if the court orders a longer period, the longer period.
62. Thus, whatever a court may otherwise do, Mr Poole was disqualified for twelve months by operation of law.
63. This matter, not mentioned by the learned Magistrate, seems to me to make the difference. There is a long line of cases, particularly in Western Australia, that make it clear that, when the suspension of licence or disqualification of a person from holding or obtaining a licence is made automatically by virtue of the provisions of legislation, a mistake about that matter, which seems to me to include both the fact of suspension or disqualification or the statutory length, is a question of law, ignorance of which is no excuse. See McCaskie v Bagby (Unreported, Supreme Court of Western Australia, Wallace J, Library No 1534, 18 April 1975), Wroblewski v Starling at 235, Minear v Rudrum [2001] WASCA 10. See also, relevantly, Illich v Young [2000] WASCA 383; (2000) 32 MVR 354.
64. As Roberts-Smith J said in Denton v Bodycoat [2000] WASCA 424 at [39]:
The salient point which may be derived from those authorities is that where a license disqualification is discretionary and it depends upon a court or an administrative decision whether or not a disqualification is made and if so, the duration of it, those are matters of fact. On the other hand where the disqualification is effectively automatic by operation of law, then any mistake by a defendant about it is a mistake of law...
65. Accordingly, in my view, the mistake that Mr Poole made was one of law but not for the reasons mentioned by the learned Magistrate, but because the disqualification was automatically imposed by the statute.
66. Thus, the appeal against conviction must be dismissed.
67. Having been unrepresented at the hearing of the offence, Mr Poole was represented by a lawyer from Legal Aid on a duty basis of the sentencing hearing. Given that the matter was somewhat complex, the Legal Aid lawyer did an impressive job of mastering the issues and putting forward some helpful submissions, though some were a little creative.
68. Rather unusually for a sentencing hearing in the Magistrates Court, Mr Poole gave sworn evidence and was cross-examined. This was, in part, because the learned Magistrate considered that the submissions from the bar table apparently required more substantial credit if they were to be accepted.
69. In setting out what was presented to the Court, I shall not, unless particularly relevant, distinguish between the sworn evidence and the submissions which, not inappropriately, included factual matters. See Talukder v Dunbar [2009] ACTSC 42; (2009) 194 A Crim R 545 at 549-50; [22]- [25].
70. Mr Poole was, at the time of sentence, fifty-two years old. He is a self-employed appliance repairer. He has conducted that business for about twenty years. He is the only full-time employee of the business, but he has recently asked his step-daughter to assist him in the administrative side of the business as he is rather disorganised and the administration job is a bit of a mess.
71. The business is dependent on referrals from real estate agents but with some private clients and some charities. Mr Poole tendered, without objection, a reference from a real estate agent who confirmed the business relationship which was admitted into evidence. The author knew of Mr Poole's offence. He explained that Mr Poole had always met the agency's maintenance needs in a timely manner at competitive prices. The author of the reference also indicated that, when confronted by a client with an issue, Mr Poole had shown "calmness, conciliation and understanding in working the resolution through".
72. The author of the reference also stated that, were Mr Poole to be disqualified from holding or obtaining a licence, it "would put his livelihood and community work in serious jeopardy".
73. Mr Poole said that the effect of the loss of his driver licence would be the effective loss of his business. His work covers the whole of Canberra. He carries tools, spare parts and equipment with him. It would be financially unfeasible to use taxis and logistically unfeasible to use buses to attend on his customers.
74. Further, he has currently started to work on Sundays as well as the rest of the days in the week. He said that he travels about 300 kilometres a day, often being required to work at night as well.
75. A further reference from the manager of some serviced apartments where he repairs and services the company's white goods in the apartments was also admitted into evidence. In it, Mr Poole was described as "co-operative, an extremely hard-worker, honest, reliable and continually shows the upmost [sic] integrity whilst performing his services".
76. Another property manager made similar statements, in a reference also admitted into evidence, and described Mr Poole as "prompt, reliable and reasonable with his service cost's [sic]". The manager stated that he would have no hesitation in recommending him to others.
77. Individual clients also provided references to the same effect so far as his business was concerned. They were also admitted into evidence.
78. During the previous period when Mr Poole's licence was suspended, his business did suffer.
79. Mr Poole owns a home for the purchase of which he had borrowed money, of which about $225,000 was owing. It was secured by a mortgage. He also had child support commitments, though this seems to be paid directly rather than through the Child Support Agency. He also had some business debts to the Yellow Pages and to the ACT Government, totalling about $13,000.
80. The learned Magistrate was concerned about Mr Poole's living arrangements. The licence he produced to the police was a New South Wales licence which showed an address at Burra, NSW. When giving evidence at the first hearing, he gave an address at Chisholm, ACT. He said that the house he owned was at Wanniassa.
81. His explanation was that he had lived at Burra for only a relatively short time as it was, apparently, not viable for his business. He then returned to live at Wanniassa but his stepson needed to re-establish himself, especially to regain custody of his and his partner's children. He let them live, temporarily, in his house to gain stability which, fortunately, led to employment. While that happened, he moved to a friend's house in Chisholm. That tenancy, however, was coming to an end because his friend was moving to Bribie Island in Queensland.
82. He was asked about mechanisms to assist him while he was without a licence. He said that previously he had had help from the son of a friend who could drive him around. The son had, however, now obtained a full-time job and was no longer available. In addition, he had some ad hoc assistance but this meant that he could not provide reliable service.
83. He also said that his mother had been able to assist with some bills, but that she was now suffering from dementia and subject to guardianship which had caused difficulties with his family. That financial assistance previously provided could no longer be forthcoming. His daughter had only just turned sixteen.
84. He was asked about alternative employment and explained that he was not trained for any other work. Most appliance repairers are self-employed, he said, and have no place for someone who cannot drive. That would, he said, be the same for the two appliance repairer companies operating in Canberra which would require him to be able to drive.
85. Mr Poole has a criminal history dating back some years. Apart from an offence of larceny many years ago, two offences of drunkenness in 1980 and 1983, offensive behaviour in 1987, handling stolen goods in 1992 and resisting police and hindering police in 1993, all the offences are traffic offences. Some are serious, such as dangerous driving and drink-driving, many are more regulatory offences. All in all, however, there are thirty-nine traffic offences. The most recent was the offence of driving while his licence was suspended, which showed he had accumulated twelve demerit points for non-payment of infringement notices. Prior to that, he was convicted of two offences in 2012, one in 2010. He had also been convicted of one offence in 2004, one in 2003 and, before that, the more recent offence was in 1994. Thus, while the record is very poor, it has shown periods when few charges had been preferred and a significant period of ten years when he was not charged with any offences.
86. While the cross-examination of Mr Poole did probe his residential arrangements and the assistance provided by his family when he was without a licence, it was not suggested to him that the consequences to him or his business would not be as he described it.
87. It was, however, suggested that he should have "taken some care" to ensure that he was licensed. It was also suggested that he should have applied for an ACT licence once he returned to live in Canberra.
88. While it was suggested that he would be able to obtain a job that did not require driving, he pointed out that all appliance repairers are required to be able to drive and was not challenged about that.
89. When he was asked about his intentions to seek another job he said:
I don't know what to do. I wouldn't have a clue. I've got no idea what to do. That's what I do. That's what I've done for so long and I do a massive amount of driving. I'm not a bad driver, as you can see. When I was young I was a bit of a naughty boy, going back over 20 years ago.
90. The submissions of Mr Poole's counsel focussed on the imminent loss of Mr Poole's business and the effect of that on his daughter. It was also submitted that, as the penalty for a suspension had drastically reduced since Mr Poole had been dealt with by Magistrate Dingwall from an automatic twelve month suspension to an automatic one month suspension, some amelioration of punishment was appropriate.
91. It was further submitted that he would be unlikely to maintain his mortgage payments, which would result in hardship to him and his daughter.
92. A submission was made in reliance on s 25 of the Human Rights Act 2004 (ACT) but I do not need to address that, as it does not seem to me to be maintainable.
93. The learned Magistrate recited the history of the defended hearing where the excuse of honest and reasonable mistake was submitted and dismissed.
94. Her Honour then addressed the issues on sentence. Her Honour referred to the offences as falling "within the mid-range for the one offence of its type".
95. This seemed to be assessed because there was "nothing particularly aggravating, nor anything particularly extenuating". The latter description is meaningful, though, as I address it below, may have been wrong. The former description of "mid-range" is, it seems to me, unhelpful, as it does not provide any useful assessment of what sentences may be appropriate. It is not as if there were a statutory need to make such an assessment as there is in New South Wales because of the regime of sentencing there: s 54A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
96. Her Honour pointed out, perfectly correctly, with respect, that, ordinarily, a conviction follows from a finding of guilt. See Balthazaar v The Queen [2012] ACTCA 26 at [53].
97. Her Honour then referred to Mr Poole's subjective circumstances and his residential situation. Her Honour expressed uncertainty as to who was paying his mortgage.
98. Her Honour then referred to the references, noting that only one had expressly mentioned that they knew of the offence of which he had been found guilty. Mr Poole interrupted her Honour's sentencing remarks to say that they all knew.
99. Such references are admissible unless the court has directed that the rules of evidence apply: s 4(2) of the Evidence Act 2011 (ACT). If such a direction is made, their admissibility depends on the usual rules of evidence about hearsay and documentary evidence.
100. References written before the commission of the offence or which do not disclose on their face that the author knows of the offence (and, indeed, preferably the offender's criminal history) are obviously of some concern and are likely to be given less weight by the sentencing court than those that express an opinion of the offender's character from an acknowledged complete history of the offence and prior history. The weight to be given to references is a matter for the sentencer.
101. Her Honour, however, noted that the reference that did disclose knowledge of the offence was consistent with the other references and concluded that Mr Poole was "a person who is committed to his work and who is good at it and who goes above and beyond and is community spirited".
102. Her Honour then referred to Mr Poole's prior criminal history and concluded that he had a "poor driving history", though acknowledging that it was "more in the past" and that it "has improved", but with continued offending over the years. Her Honour made reference to the more recent offence of driving while suspended.
103. Her Honour acknowledged that Mr Poole had driven more than the average person but that, in context, he still had a poor driving record.
104. Her Honour then turned to the impacts of the conviction. Her Honour referred to the mortgage payments and commented that it was "not before [her Honour] as to whether or not that could be re-negotiated for a period of time" but did recognise that it would have a financial impact. Her Honour inferred also to Mr Poole's dependents and the negative effect the loss of licence would have on his daughter.
105. Her Honour referred to the business and the effect an earlier disqualification had on it. Her Honour commented on the fact that the references had not mentioned that, inferring that Mr Poole had nevertheless kept the business going and how he was able to do so and said "[t]here is nothing before me to indicate why such an arrangement could not be made in the future". This appears to have ignored, forgotten or discounted in an unexplained way the clear evidence Mr Poole gave of how he had managed with assistance which was no longer available to him. That evidence was effectively unchallenged.
106. Her Honour dismissed the suggestion that some account should be taken of the change in penalty for the offence of driving whilst suspended to which Mr Poole had been subject when before Magistrate Dingwall. That was, with respect, correct.
107. Her Honour acknowledged that it was speculative as to the alternative arrangements that could be made for continuation of the business and accepted that disqualification would have "a significant impact", but considered that the extent and possible amelioration remained speculative. That seems inconsistent with the evidence.
108. Her Honour then suggested that Mr Poole had "obvious talents" which suggested that he "may well be employable on the open labour market" a matter of entire speculation, which seemed also to ignore or discount in an unexplained way the evidence that had been given by Mr Poole.
109. Her Honour considered that there was a need for specific deterrence "in the light of ... [his] poor regard for the driving laws", general deterrence and "[a] message to the community about complying with the law in respect to driving".
110. Her Honour rejected the submission that a non-conviction order should be made, with an indirect reference to Proud v Sladic (2014) 67 MVR 485.
111. Given the fact that this meant that a conviction would be recorded and that the two year disqualification of Mr Poole from holding or obtaining a licence would follow, her Honour considered that there was no need for a further financial penalty but that a Good Behaviour Order for three years was appropriate.
112. The sentencing submissions largely dealt with grounds that the learned Magistrate had given "insufficient weight" to a number of factors, especially those relevant to an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) as those required to be considered by s 33 of that Act. These included Mr Poole's character, age, driving record, the absence of aggravating factors, the lack of seriousness of the offence and other factors, such as his mortgage debt.
113. As explained by the Court of Appeal in R v Ang [2014] ACTCA 17 at [22], the challenge to a sentence by suggesting that insufficient weight has been given to a particular factor is not to assert an error which would justify an appellate court overturning a sentence.
114. There must either be a specific error, such as the failure to consider a relevant consideration at all, or a complaint that the sentence is manifestly excessive.
115. The Court of Appeal did point out in R v DK [2016] ACTCA 7 at [22]:
In asserting that a sentence is just wrong, it will often be necessary for an appellant to point out the aspects of the case that could lead the appeal court to accept that submission, but it is unnecessary and unhelpful to frame these factors as specific errors by the sentencing judge, and especially as specific errors constituted by having inadequate regard to or placing inappropriate weight on, particular factors. See also R v Williams [2014] ACTCA 30 at [17] to [19].
116. Nevertheless, Mr Poole's counsel did refer to the failure of the learned Magistrate to consider the circumstances of the offending, particularly Mr Poole's belief that he was licensed.
117. The respondent submitted that earlier decisions in South Australia, such as Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150, had held that "in the ordinary case" an offender who drives while disqualified from holding or obtaining a licence should be sentenced to a term of imprisonment. That is not quite how the court actually framed its view, however, for it was said at 171, that the agreed approach was:
... that the punishment should be imprisonment 'in the ordinary case of contumacious offending by a first offender, but the circumstances of the offending or the offender or both may dictate some less severe form of punishment ...' ...
118. That is rather different. In any event, that approach has not been accepted in any literal sense either in principle or in practice in this Territory. See Selles v Bailey [2000] ACTSC 111 at [21]- [22], Cotter v Corvisy [2008] ACTSC 64; (2008) 1 ACTLR 299 at 317; [88]- [91].
119. The respondent also submitted that, in fact, her Honour had carefully considered the relevant factors both so far as the consideration of s 17 of the Crimes (Sentencing) Act and also required to be considered by s 33 of that Act is concerned.
120. The learned Magistrate did give a comprehensive consideration to a number of the submissions made to her and canvassed all, save one, of the issues raised by Mr Poole.
121. Given the instinctive nature of the synthesis that is sentencing, it is not possible to assess "inadequate weight" in the way that the submissions made on behalf of Mr Poole suggests. Either a factor has been considered or it has not. If, having regard to all the factors, the sentence is manifestly excessive, then there has been some failure of the sentencing process. This may have been caused by an inadequate weighting of a particular factor but that cannot be gleaned from the sentence; it can only be assessed that the sentence is wrong by being excessive or inadequate, which bespeaks of unidentified - and unidentifiable - error.
122. In this case, however, as mentioned by the appellant, there was an important factor to which, it appears, the learned Magistrate gave no weight at all. Indeed, apart from mentioning the issue in the context of the finding of guilt, her Honour did not address it at all.
123. This was the fact that Mr Poole had an honest belief that he was licensed to drive at the time he did because he believed that the period of his disqualification from holding or obtaining a licence was co-extensive with the period of the Good Behaviour Order, a copy of which he took away with him from the hearing.
124. There seems no doubt that Mr Poole genuinely believed that he was licensed at the time of his driving. This was not challenged in the hearing, though he was criticised (perhaps unfairly in the light of authority to which I have referred earlier (at [58])) for not making inquiry about his licence. The circumstances of his driving, namely without registration plates displayed, virtually inviting the police to notice him, is strong evidence supporting a finding that he had that belief.
125. While the learned Magistrate found that his mistaken belief was one of law and not fact, a finding with which I agree but not for the wrong reasons on which her Honour made the finding, her Honour did not make any finding that Mr Poole did not honestly believe that he has served and completed the period of disqualification. Indeed, on the evidence, no other finding than that he honestly held that belief was open.
126. Where such a belief is not such as to justify an acquittal, it may still be relevant to sentence. See Tsolacis v McKinnon (2012) 38 VR 260 at 289; [110]; Pilkington v Elliott (Unreported, Supreme Court of Victoria, Coldrey J, 6419 of 1991, No 652 of 1991, No 6421 of 1991, 27 September 1991) at p 19.
127. Indeed, the belief must also take the offending outside the description of contumacious. Mr Poole was not driving with contumacious disregard to the disqualification earlier imposed. This is an important factor which, in the circumstances, should have been considered and weighed heavily in the sentence to be imposed.
128. In my view, the sentence miscarried because of the failure to consider this very relevant consideration.
129. I have regard to the principles of sentencing as set out in s 7 of the Crimes (Sentencing) Act. In this case, the circumstances of the offending do mean that specific deterrence and general deterrence do not play a high part.
130. Nevertheless, some element of specific deterrence is appropriate. I do not criticise Mr Poole for not making inquiry when there was, in the words of Rowland J, "nothing to cause him to question" his belief. He had not received the notice of disqualification. Nevertheless, a cause of this was that he failed to keep the relevant authorities apprised of his residential situation, which he was obliged to do under s 74 of the Road Transport (Driver Licensing) Regulation 2000 (ACT), the failure to do that being an offence in itself: R v EL (No 2) [2016] ACTSC 71 at [7].
131. I have regard to the fact that Mr Poole did not deny the offence in the performance of his conduct but simply challenged the offence on the basis of the excuse, the facts of which were made out but which did not constitute an excuse because his mistake was one of law and not fact.
132. I also have regard to the circumstances of the offending which, as I have noted, was neither contumacious nor a contumelious disregard for the order of disqualification made by Magistrate Dingwall.
133. I accept that, while Mr Poole does have a bad driving record, it is improving more recently, being less serious and less extensive in more recent times, which shows that he has greater regard for the driving laws.
134. I accept that a disqualification will have a very significant effect on Mr Poole's business and that the evidence shows that this will be quite difficult to manage for him, leading to problems also for his daughter. In my view, this is a factor that is also very relevant to be taken into account. See Shires v Edwards [2011] ACTSC 132 at [82].
135. While it is unusual to make a non-conviction order for someone who has a poor record, there is no principle of law preventing that, if the circumstances are such that it is appropriate.
136. I accept that Mr Poole has generally a good character and that the description the learned Magistrate gave which I have quoted above (at [101]), is accurate. I have regard to the further reference which shows his significant assistance to the disadvantaged in the community.
137. I have referred to Mr Poole's criminal record which reduces, but does not eliminate, any leniency that can be afforded him. See R v Hunter [2011] NSWCCA 141 a [17]. Indeed, to treat him fairly will, hopefully, encourage his driving recognition that the traffic laws are to be obeyed.
138. I note Mr Poole's age. While his expertise is likely to mean that he has some skills for re-employment, the reality of the current times is that it will be very difficult for him were he to be deprived of the current employment. Any suggestion to the contrary, without particular evidence, is entirely speculative.
139. There are no relevant issues of physical or mental health that I need to consider.
140. I have regard, too, to the care that he is required to provide to his mother. This was set out in the letter from her medical practitioner. The effect of a sentence on the offender's family is a matter relevant to sentence: s 33(1)(o) of the Crimes (Sentencing) Act.
141. The offence is one of seriousness. As the courts have said, to minimise such offences is to risk putting at nought the sanctions for breach of the road rules designed to ensure safety on the roads from the lethal weapons that motor vehicles can become. Nevertheless, it is not so serious that a non-conviction order cannot be considered. See, for example, McKellar v Woolcock [2013] ACTSC 225 at [19].
142. In my view, the circumstances under which the offence was committed clearly amount to extenuating circumstances on the basis of the facts as found.
143. That, together with the other matters to which I have referred, means that a non-conviction order under s 17 of the Crimes (Sentencing) Act is appropriate and I will proceed accordingly.
I certify that the preceding one hundred and forty-three [143] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge.
Poole
Edwards [2016] ACTSC 159
(2008) 1 ACTLR 299
(1986) 43 SASR 149
(2012) 7 ACTLR 1
(2000) 32 MVR 354
(2008) 223 FLR 1
(1976) 13 SASR 184
(1997) 69 SASR 150
(1941) 67 CLR 536
(2014) 67 MVR 485
(1937) 59 CLR 279
(2012) 38 VR 260