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Ms T Warwick (Respondent)

Solicitors

Director of Public Prosecutions (ACT) (Appellant)

Ben Aulich & Associates (Respondent)

File Number(s):

ACTCA 88 of 2013

Decision under appeal:

Court: Supreme Court

Before: Refshauge J

Date of Decision: 25 November 2013

Case Title: Sladic v Proud

Citation: [2013] ACTSC 232

THE COURT:

Background

1. The appellant appeals against the decision of a single judge of the Supreme Court, (the primary judge) who upheld an appeal against a decision of the Magistrates Court (the sentencing court), whereby the sentencing court declined to exercise its discretion to record a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act).

2. On 25 April 2013, the respondent consumed alcohol with a friend and the two men discussed the respondent’s serious personal concerns. When driving home, the respondent was required to undertake a random breath test. As a result, he was charged with driving with the level 2 prescribed concentration of alcohol in his blood. Level 2 concerns blood alcohol levels in the range 0.05 grams of alcohol per 210 litres of breath to 0.08 grams of alcohol per 210 litres of breath. The respondent’s blood alcohol level was 0.064 grams of alcohol per 210 litres of breath. Because he was driving on an unrestricted driver’s licence, level 2 was the lowest level applicable to the respondent.

3. At the earliest reasonable opportunity, the respondent pleaded guilty to committing an offence against s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT).

4. The maximum available penalty for such an offence is a fine of $550. The default disqualification period is six months, and the minimum disqualification period is two months.

5. In the preceding two decades, no criminal or traffic matters had been recorded against the respondent. At an earlier time, he had incurred a significant number of traffic infringements and had been convicted of other criminal matters. He had never been convicted of a drink-driving offence.

6. The respondent asked the sentencing court to impose a non-conviction order under s 17 of the Sentencing Act. The Decision of the Magistrates Court

7. On 2 July 2013, the sentencing court declined to impose a non-conviction order and convicted the respondent. The sentencing court imposed a fine of $220 and disqualified the respondent from driving for the minimum period of two months.

8. In the course of its reasons, the sentencing court referred to the respondent’s early plea of guilty, the maximum available penalty, the facts of the offence, the respondent’s good character references and community involvement. The sentencing court went on to say: You’ve been driving for 47 years, 46 of those in Australia, and you have no prior convictions for an offence of this type. You do, however, have prior convictions of different types, some for dishonesty, and some offences in relation to gambling and some offences in relation to the use of your driving licence. In terms of the offence itself, it’s not particularly aggravated or particularly mitigated by the circumstances. The presence of a passenger is generally seen as a somewhat aggravating feature. The circumstances in which you found yourself to be drinking which were put before the court, that of personal stress, it seems to me are not particularly mitigating. We all have personal stressors and it’s no excuse to not be cognisant of the level of alcohol that one is consuming. I’ve considered whether or not there is a basis for me to exercise my discretion pursuant to section 17 of the Crimes (Sentencing) Act and I’ve determined that there is not. As the prosecutor has quite rightly pointed out, general deterrence is a particular factor in relation to offending of this type. Your driving record, in the sense that you haven’t driven before with alcohol in your breath, is something which is very much in your favour. That is one factor in support of this approach but it seems to me that it’s offset by the other convictions which do appear on your record. So you’re not a person generally of good character except in more recent years but also of the need for general deterrence. There is no specific detriment to you that has been put before the court as to the loss of licence. Exercising that balancing process, I’ve determined that I’m not going to exercise my discretion not to record a conviction. The Proceedings in the Supreme Court

9. Pursuant to ss 208 and 214 of the Magistrates Court Act 1930 (ACT), the respondent appealed to the Supreme Court, claiming that he should have been dealt with by way of a non-conviction order under s 17 (2)(a) of the Sentencing Act. Relevantly, the grounds of appeal asserted that the sentencing court had erred in that it: (a) Failed to take the plea of guilty into account adequately or at all. (b) Failed to take into account adequately or at all the appellant’s lack of recent criminal and traffic offences and his otherwise positive good character. (c) Imposed a sentence that was unreasonable or plainly unjust.

10. The primary judge upheld the appeal.

11. At [6]–[12], the primary judge articulated his task on the appeal in terms that are uncontroversial. On this appeal, there was no challenge to the way in which the primary judge expressed the task. His Honour observed that he could not set aside the sentence simply because he considered that a different sentence would have been more appropriate. He was entitled to set aside the sentence only if satisfied that it was affected by a specific error (an error of law, an error of fact, the taking into account of an irrelevant consideration or the failure to take into account a relevant consideration), or if error could be inferred from the fact that the sentence was manifestly excessive, unreasonable, plainly unjust or plainly wrong.

12. The Court notes that, on an appeal of the type described by the primary judge, a complaint about failure to take “adequate” account of a matter is, in reality, a complaint about the weight that has been attached to that matter, and complaints about weight are not properly the subject of such an appeal. Plea of Guilty

13. At [60], the primary judge acknowledged that the sentencing court had taken the plea of guilty into account and that a Magistrate cannot be required to give unreasonably complex reasons. The primary judge found that there was no specific error in the manner in which the sentencing court took into account the plea of guilty. Good Character

14. At [73], the primary judge expressed concern at the reference by the sentencing court to the fact that the respondent was “not a person generally of good character except in more recent years”. The primary judge accepted that the sentencing court proceeded on the basis that the respondent was currently a person of good character.

15. However, the primary judge found that the sentencing court had erred by failing to give any weight to the respondent’s current good character: at [75]. Extenuating Circumstances

16. At [76], the primary judge characterised the treatment by the sentencing court of the respondent’s personal stress (arising from the difficulties of a family member) as “rather dismissive”.

17. The primary judge considered that such personal stress could explain (although not excuse) the respondent’s offending behaviour and was relevant to culpability. The primary judge found that it was an “extenuating circumstance” within the meaning of s 17(3)(c). Current Sentencing Practice

18. At [81] – [89], the primary judge referred to comparable decisions of the Supreme Court and the Magistrates Court without drawing any firm conclusions about whether, in the subject circumstances, a conviction fell outside the appropriate sentencing range. General Deterrence

19. At [91] the primary judge said that if, by the comment “general deterrence is a particular factor in relation to offending of this type” the sentencing court meant that general deterrence was a bar to a non-conviction order, then that was an error. At [92], the primary judge went on to make an affirmative finding that there was such an error.

20. The reference to general deterrence as a “bar” derives from Hevesi-Nagy v Sarhan [2013] ACTSC 124, in which Higgins CJ rejected the notion that general deterrence could operate as a bar, saying at [3]: if general deterrence is to be a bar to the imposition of a s 17 non-conviction order, then it is difficult to see any circumstance in which a s 17 order could be granted where the circumstances involve a lengthy period of trouble free driving and a person of good character.

21. At [102]–[105], the primary judge surmised that, when considering general deterrence, the sentencing court may have been affected by the prosecutor’s submission that there was a “growing prevalence of drink-driving in the community”. The primary judge noted that, while some older cases suggested prevalence could be the subject of judicial notice, it was his view that, before prevalence could be taken into account as an aggravating feature, it had to be established beyond reasonable doubt on the basis of evidence. However, those reflections did not inform the outcome. Discretion

22. When considering whether the imposition of a conviction was an unreasonable exercise of the sentencing discretion (in the sense that it was plainly unjust or plainly wrong), his Honour took into account the objective circumstances of the offence, general deterrence, the respondent’s good character and the extenuating circumstance of personal stress.

23. After “anxious consideration” and “not without some hesitation”, the primary judge decided that appellate intervention was warranted and that a non-conviction order should be made. The Appeal

24. The appellant’s grounds of appeal fall into two categories.

25. First, the appellant asserts that the primary judge erred in finding that the original sentence was manifestly excessive. Among other things, the primary judge confused specific error and manifest excess, failed to find relevant specific errors, failed to identify a proper basis for finding manifest excess, misapplied the requirements of s 17 and failed to identify a proper basis for finding that the sentencing court had misapplied its discretion under s 17.

26. Second, the appellant asserts that the primary judge made specific errors. First, the primary judge erred in finding that the sentencing court had made specific errors by finding that general deterrence was a bar to a non-conviction order and by finding that the sentencing court had given no weight to the respondent’s good character. Second, the primary judge erred in finding that the respondent’s personal stress was an “extenuating circumstance” within the meaning of s 17(3). Section 17

27. Section 17 of the Sentencing Act provides: (1) This section applies if an offender is found guilty of an offence. (2) Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order ): (a) an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender; (b) a good behaviour order under section 13. (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; (b) the seriousness of the offence; (c) any extenuating circumstances in which the offence was committed. (4) The court may also consider anything else the court considers relevant.

28. Section 17 confers a very broad discretion upon a sentencing court; when considering whether to impose a non-conviction order, the sentencing court must consider the three mandatory considerations in s 17(3) but, under s 17(4), “may also consider anything else the court considers relevant”.

29. In deciding how an offender should be sentenced (including whether it is appropriate to proceed under s 17), the sentencing court must consider relevant sentencing purposes in s 7 of the Sentencing Act (including general deterrence) and relevant matters in s 33 of that Act (including a plea of guilty, remorse, and the reasons why the offender committed the offence). Consideration of Alleged Specific Errors by the Primary Judge

30. It is apposite to recall the caution given by Kirby J in Minister for Immigration and Ethic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 291: The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287.

31. In this context, it should be noted that the sentencing court is a busy court of summary jurisdiction, the decision was given ex tempore and the proceedings occupied only 19 minutes. General Deterrence

32. The primary judge erred in deciding that the sentencing court had found that general deterrence was a bar to a non-conviction order. There was no proper basis upon which the primary judge could characterise the sentencing court’s findings in that way. A fair reading of the sentencing court’s decision is that general deterrence was one consideration that was taken into account when considering the appropriate sentence and, in that context, whether to make a s17 non-conviction order. Good Character

33. The primary judge erred in finding that the sentencing court gave no weight to the respondent’s good character. The sentencing court referred both to the respondent’s criminal and traffic history and to the character references that attested to other aspects of his good character. Extenuating Circumstance of Personal Stress

34. It seems to the Court that the primary judge did not find that there was a specific error by the sentencing court in the way in which it dealt with personal stress.

35. On the resentencing exercise the primary judge treated personal stress as an extenuating circumstance. The appellant argued that the primary judge erred in doing so. Because of the Court’s conclusion that there was no error on the part of the sentencing court, strictly speaking, it is not necessary for the Court to deal with this submission.

36. However, we make the following observations. The appellant emphasised that, when s 17(3)(c) speaks of an extenuating circumstance, it speaks of an “extenuating (circumstance) in which the offence was committed” (emphasis added). The appellant submitted that, in the present case, the personal stress suffered by the respondent was merely a background fact to be taken into account as part of the overall subjective circumstances, and it could not be elevated to an “extenuating (circumstance) in which the offence was committed” (emphasis added).

37. In RLG v Donnelly [2012] WASC 230 at [39], Beech J considered the equivalent Commonwealth provision, observing: 39. “Extenuating circumstances” have been said to mean circumstances which “excuse in some appreciable degree the commission of the offences or lessen the appellant’s guilt”...

38. For the purposes of argument, it may be accepted that, in order to constitute a s 17(3)(c) extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence that was committed. In the present case, there was such a relationship. The respondent’s legal representative submitted that the respondent’s serious personal stress had caused an uncharacteristic lapse of judgment, as a result of which the respondent committed the offence. The asserted connection was not contradicted.

39. However, the discussion is barren. When considering whether to exercise its discretion under s 17, a sentencing court may consider an offender’s personal stress either under s 17(3)(c) (if there is a direct link between the personal stress and the offence) or as “anything else the court considers relevant” under s 17 (4) (regardless of whether there is a direct link between the personal stress and the offence). If the primary judge’s sentencing discretion was enlivened, he was entitled to take the respondent personal stress into account under s 17(4), if not under s 17(3)(c). Consideration of Primary Judge’s Approach to Manifest Excess

40. There was no proper basis for the primary judge to find that the sentencing court had misapplied its discretion under s 17 and imposed a sentence that was manifestly excessive.

41. The primary judge referred to comparable cases, but he did not refer to the ACT Sentencing Database. Although statistics must be approached with caution (Hili v The Queen (2010) 242 CLR 520 at [48]) and the material in the Database is displayed in a manner that is unhelpful for present purposes (in particular, it does not clearly distinguish levels of drink-driving offences or enable the identification of offenders who have no prior convictions), what is plain is that the vast majority of offenders who come before the Magistrates Court for an offence against the relevant provision are convicted and punished by way of a fine.

42. One would expect that to be so. The ordinary consequence of a finding of guilt is the recording of a conviction: Balthazaar v The Queen [2012] ACTCA 26 at [53]. The failure to record a conviction is an exceptional outcome: Stark v Plant [2010] WASCA 74 at [18].

43. The material before the primary judge did not support a finding that no reasonable magistrate could have declined to exercise the s 17 discretion and proceed to record a conviction. The sentencing court outcome was by no means “so dramatically inappropriate that error of some kind must be inferred”, the expression used in R v Ang [2014] ACTCA 17 at [24].

44. It is not necessary to go further. However, for the sake of completeness, the Court notes a further submission that was advanced on the appeal.

45. The appellant relied upon RLG v Donnelly at [40] and submitted that, in order to be a relevant extenuating circumstance, the circumstance had to take the case out of the ordinary. The appellant submitted that, because the respondent’s personal stress was nothing out of the ordinary, the primary judge should not have relied upon it to justify the imposition of a non-conviction order.

46. In Roseby v Harman [2014] ACTSC 125, after discussing the authorities, Refshauge J said that it is unnecessary to identify an exceptional consideration before a sentencing court can proceed under s 17. Rather, a non-conviction order may be justified by having regard to the whole of the relevant circumstances, no one of which is exceptional. At [85], his Honour said: neither singly nor in combination are the circumstances required to be remarkable; the court must simply address the relevant factors and determine whether they lead to the court’s view that the discretion should be exercised in the particular circumstance.

47. Support for this approach can be found in the terms of s 17. The provision mandates the consideration of three matters and, impliedly, those three matters may, in combination, justify the imposition of a non-conviction order. Section 17 says nothing about the need for exceptional circumstances.

48. The appeal is allowed and the judgment of the primary judge is set aside.

I certify that the preceding forty-eight [48] numbered paragraphs are a true copy of the Reasons for Judgment of the Court of Appeal.

Associate:

Date: 6 August 2014

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