R v Bell [1999] VSCA 223

Court of Appeal (Vic)|1999-12-07|Before: TADGELL, CALLAWAY and BATT, JJ.A.

The applicant pleaded guilty on arraignment. He admitted nine prior convictions from three appearances in the Magistrates' Court. One was strictly not a conviction: he received a traffic infringement notice for driving a motor vehicle while exceeding the speed limit by more than 30 kilometres per hour but less than 40 kilometres per hour, for which he was sentenced to pay a fine of $200 and his licence was suspended for one month. The others were for later offences of dishonesty. In respect of the conviction for one of them, the applicant was on 18 September 1995 given a sentence of imprisonment for 14 days which was wholly suspended for 24 months. After an order had been made upon breach of that suspended sentence and a successful appeal taken from that order to the County Court, the position was that the original suspended sentence remained, with the consequence that the offence now in question and also an intervening theft were committed during the two-year operational period for the suspended sentence.

On 8 June and 26 July 1999, his Honour heard a plea in mitigation of penalty on behalf of the applicant. The applicant's employer gave impressive evidence about the applicant's work history as an apprentice electrician and on the second day the applicant's father gave further impressive evidence about the applicant's background and the effect which the offence had had upon him in the amendment of his ways and the gaining of maturity. The material before his Honour showed that the applicant had left school in Year 11 and come from Perth to Melbourne in the circumstances of the breakdown of his parents' marriage. He commenced an apprenticeship as an electrician with his father's brother-in-law, who sold the business to the applicant's then current employer. The latter's evidence revealed the applicant's responsible attitude, reliability, skill and good relations with customers in his employment by the employer and the fact that the employer was considering offering him a partnership after he completed his apprenticeship. In reliance on the applicant's achieved and prospective rehabilitation, his youth and his plea of guilty, counsel for the applicant sought from his Honour a disposition in the form of a wholly suspended term of imprisonment. He put it that such a sentence was a powerful general and, as I understand it, specific deterrent and that it was better for society that the applicant should not be exposed to the undesirable effects of imprisonment but should continue working in the community. His Honour pointed out, correctly in my view in the light of of the , that the submission involved a concession that a sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of that Act.

On 6 August 1999 his Honour sentenced the applicant to be imprisoned for nine months and declared that 11 days' pre-sentence detention was to be reckoned as already served under the sentence. His Honour further ordered that all driver licences held by the applicant be cancelled and that he be disqualified from obtaining any licence for a period of two years. In the course of his sentencing remarks his Honour took into account in the applicant's favour the fact that he had gone to the police, his age, the evidence of his employer and his father and his plea of guilty in the aspects of both remorse and avoidance of a trial. He noted the delay in bringing the matter before the court and that the delay was not in any way due to the applicant, and he took it into account in his favour. His Honour stated, however, that the nature of the applicant's reckless conduct required him to have regard to both specific and general deterrence whilst not ignoring the applicant's rehabilitation. He said that he was unable to accept the submission that he should impose a wholly suspended sentence, remarking, with obvious reference to s.27(1) of the Sentencing Act, that he was not "satisfied that it is desirable to do so in the whole of the relevant circumstances of the offence and the offender". After imposing the sentence of imprisonment he said:

"I am required to suspend your licence and have a more general discretion in that regard. I cancel any licence you may have and disqualify you from obtaining any licence under the relevant legislation for a period of two years."

The applicant now seeks leave to appeal on the ground or grounds that the sentence of a term of imprisonment of nine months is "manifestly excessive and against the evidence and the weight of the evidence in relation to" insufficient weight being given to (i) the applicant's youth; (ii) the evidence of rehabilitation subsequent to the offence; (iii) the guilty plea; and (iv) the delay between the offence and the plea. Despite the ungrammatical nature of the actual ground or grounds and the breadth of the words which I have quoted, the numbered items were argued in two ways only, first as matters to which his Honour had given insufficient weight and secondly as particulars of the ground that the sentence was manifestly excessive. No argument was addressed that the sentence was against the evidence. The Registrar granted the applicant leave to amend by adding what was expressed to be "ground V", which was amended this morning so that it now reads:

"The learned sentencing judge erred in the exercise of his sentencing discretion when he cancelled the applicant's driver licence and disqualified him from being re-licensed for two years in that he failed to have any or any sufficient regard to the principle of rehabilitation."

Despite its numbering, this ground cannot be a particular of the earlier ground or grounds, for it relates to a different part of the sentence. Indeed Mr Haag agreed this morning that the matter of licences was quite separate from that of imprisonment. I am content to proceed on the basis of that agreement.

I take first the term of imprisonment. It was submitted for the applicant that, as to each of the matters of youth, rehabilitation, plea of guilty and delay, the sentencing discretion was vitiated because the sentencing judge gave insufficient weight to it. It was separately submitted, by reference to those matters cumulatively, that the sentence was manifestly excessive. So far as the argument as to weight is concerned, it was acknowledged - the contrary could not have been asserted - that his Honour accepted the evidence as to each matter and took it into account, but it was said that the severity of the sentence of imprisonment, when compared with the strength of the evidence, showed that his Honour had not given sufficient weight to the matter. Mr Haag this morning made what was a powerful address, demonstrating by reference to the evidence the actual rehabilitation achieved by the applicant by the time of sentencing, besides the further potentiality for rehabilitation, and stressing the desirability, on the ground of youth, of giving rehabilitation paramouncy amongst sentencing purposes. He also emphasised the effect of delay upon the applicant, urging the Court not to interrupt his client's rehabilitation and maturing any further.

Nevertheless, despite the power of Mr Haag's address, I cannot accept this submission in relation to any of the four matters. I agree with the submissions for the respondent that there is nothing in the sentencing remarks to indicate that any of them was not accorded sufficient weight. His Honour did not, in my view, confine his consideration of rehabilitation to that which was prospective as opposed to achieved. It is notoriously difficult to make out a ground complaining simply as to the weight (whether excessive or insufficient) given to a relevant factor in the absence of identifiable or manifest sentencing error. It must be remembered that a sentence is a discretionary determination and that the question is not what weight an appellate court would itself have given to the factor. As regards youth, I would add - and this is relevant also to the ground of manifest excessiveness - that it seems necessary to state again that the general propositions accepted in R. v. Mills [1998] 4 V.R. 235 at 241 are just that - general propositions. They are, as their terms show, not of universal or automatic application. True it is that they may apply not infrequently, but each case depends upon its own circumstances, including, it is to be noted, the circumstances of the offence as well as those of the offender. Youth cannot in all cases keep an offender from gaol. In this case, the applicant was not a first offender. Furthermore, the conduct constituting the offence in question is conduct that is prevalent amongst young men and the applicant was at the time, and is, a young man: R. v. Chaffey [1999] VSCA 12 at [15]. The case is therefore one where, subject to any particular considerations, besides rehabilitation general deterrence and specific deterrence must bulk large in informing a sound discretionary determination.

I turn now to the question whether the sentence of imprisonment was manifestly excessive. As has been said many times, this ground does not admit of much argument. The question is not whether this Court would have imposed the sentence that was imposed but whether that sentence was within the range of sentences properly available to his Honour. It will be recalled that the primary and virtually sole disposition sought from his Honour was a wholly suspended term of imprisonment and that that proceeded on the basis that a sentence of imprisonment, if unsuspended, would be appropriate in the circumstances having regard to the provisions of the Sentencing Act. In my judgment, it was open to his Honour to conclude, as the submissions below necessarily conceded, that a sentence of imprisonment was appropriate in the circumstances of the offence and the offender having regard to the principles enunciated in the Act and, furthermore, open to him not to be satisfied that it was "desirable ... in the circumstances" within s.27(1) to suspend the term of imprisonment in whole or in part. In my judgment also, the length of the term of imprisonment adopted by his Honour was open to him.

In expressing those views I have borne in mind, besides the factors relied upon for the applicant, the central feature of the reckless and wild nature of the applicant's driving over a considerable distance on a public highway, the maximum penalty prescribed for the offence, the need for the sentence to seek to effectuate the purposes of general and specific deterrence and the fact that the offence was committed during the operational period of a suspended sentence of imprisonment. In the latter regard, that is, as to the commission of offences during the operational period, as Tadgell, J.A. pointed out during argument, disposition by way of a suspended sentence has not proved successful with the applicant, for he has twice offended during the operational period of the suspension. Particularly in that circumstance, I do not consider that the sentencing judge was bound to offer "one last chance" of avoiding imprisonment to an offender who had already been given that opportunity and failed properly to accept it. For the applicant, reliance was placed upon the fact that the prosecutor below agreed with the defence submission that a wholly suspended sentence of imprisonment was within the range of appropriate dispositions for the offence. As to that, two observations may be made. First, agreement that one disposition is open is not agreement that some other disposition is not open, which is what the applicant must show on appeal in order to succeed on this ground. Secondly, whilst relevant, the attitude of the Crown with regard to sentence is not decisive or binding upon the sentencing judge: Postiglione v. The Queen [1997] HCA 26; (1997) 189 C.L.R. 295 at 310 per McHugh, J. and 318 per Gummow, J. (both, I recognise, in dissenting judgments); Malvaso v. The Queen [1989] HCA 58; (1989) 168 C.L.R. 227 at 233; R. v. Storey [1998] 1 V.R. 359 at 373; and D.P.P. v. Bulfin [1998] 4 V.R. 114.

I come finally to the added ground concerning the order with respect to cancellation and disqualification, and more particularly disqualification. This ground is far more debatable. Though evidence relevant to the point had been led, there had been no discussion between his Honour and counsel for the applicant on this question, and the prosecutor had done no more than draw his Honour's attention to the mandatory terms of s.28(1)(a)(ii) of the Road Safety Act 1986, read with Schedule 5 to that Act. The question is as to his Honour's exercise of discretion under s.28(1)(b) to cancel all driver licences and disqualify the applicant from obtaining one for such time as the judge thought fit. It is not surprising, having regard to its lesser importance in the scheme of things and its consequential nature, that his Honour did not deal with the matter at length. But he merely remarked that he had a more general discretion in regard to the licence. The authorities show that where an offence consists in the driving of a motor car protection of the community and punishment of the offender are the principal considerations bearing upon the exercise of the discretion as to the length of disqualification. But the authorities also show that, in considering punishment, rehabilitation of the offender and the proportionality of the length of cancellation to the length of incarceration must be taken into account.

There is a difference in kind, as Callaway, J.A. mentioned in argument, between the other grounds argued for the applicant, where his Honour clearly said that he was taking the factors into account, and this ground, where there was no mention by his Honour of rehabilitation or the relevant facts, by which I mean facts bearing upon rehabilitation in the sense of reintegration into society. Although this very experienced judge had mentioned rehabilitation only four sentences earlier, I have concluded, after studying his remarks and taking into account the facts, including in particular the absence of argument on the point and the obvious and proven effect that the lack of a licence would have upon the applicant's lawful conduct of his trade, which was elaborated upon by Mr Haag this morning, that his Honour did not (in the context of licences) have regard to rehabilitation in the sense of the applicant's reintegration into society or, if he did have regard to it, that he gave it quite insufficient weight. As to rehabilitation, in the sense in which I am now using the word, I refer to what was said in R. v. Bazley (unreported, Court of Appeal, 21 August 1997) at 7 and 9. I recognise, however, that the present case, unlike that case, is one where it is relevant at least to consider the protection of the public.

Although, in my opinion, his Honour did not have regard to rehabilitation or, if he did, had quite insufficient regard to it, the sentencing purpose of punishment, in my view, nevertheless requires that the period of disqualification should be longer than the period of imprisonment. Bearing in mind the circumstances of the offence and the facts on which Mr Haag relied as to the effect of the absence of a licence upon the applicant's conduct of his trade, I would substitute a period of 12 months' disqualification for his Honour's two years, that substitute period dating from the date of his Honour's sentence, meaning that there will be a period of three months beyond the nine months period of imprisonment during which the applicant will be disqualified from obtaining a licence.

It remains to note that this afternoon Ms Sexton drew the Court's attention to s.89(1) of the Sentencing Act, which provides that, if a person is found guilty of manslaughter arising out of the driving of a motor vehicle or an offence under s.24 of the Crimes Act 1958 in respect of serious injury arising out of the driving of a motor vehicle or an offence under s.318 of the Crimes Act, that is, culpable driving causing death, the court must, if the offender holds a driver licence, cancel it and, whether or not the offender holds a driver licence, disqualify the offender from obtaining one for such time, not being less than 24 months, as the court thinks fit. Ms Sexton suggested that in arriving at the 24-month period of disqualification which he imposed, his Honour might have had in mind s.89(1). The maximum penalty for an offence against s.24 of the Crimes Act is 5 years' imprisonment, whereas, as I have already mentioned, that for an offence against s.22, to which the applicant pleaded guilty, is 10 years. But, although s.22 has a higher maximum penalty, it does not share with the offences listed in s.89(1) the common feature of the causing of either death or serious injury. An offence may, as this case shows, be committed against s.22 without any direct physical effect upon another person. So, the absence of a reference to s.22 in s.89(1) is explicable. Furthermore, whilst Parliament has shown in, for instance, ss.57 and 58 of the Road Safety Act that it can, if it wishes, cover the whole field of Subdivision (4) of Division 1 of Part 1 of the Crimes Act, it has in s.89(1) of the Sentencing Act deliberately refrained from including s.22 and has thereby limited the sentencing court's discretion, no doubt in recognition of the width of the circumstances to which s.22 applies. For those reasons, I do not consider that s.89(1) stands in the way of the conclusion which I have drawn as to his Honour's approach to the period of disqualification or the substitute period of disqualification which I have put forward.

For the foregoing reasons, I am of the opinion that this application should be granted as regards the order for disqualification and that a period of 12 months' disqualification should be substituted, and that otherwise the sentence imposed by his Honour should be confirmed.

I also agree. I differ with reluctance from the learned and very experienced sentencing judge, but I am persuaded that it is our duty to intervene to the limited extent that Batt, J.A. has proposed.

The relevant objectives, including punishment and general and specific deterrence, are satisfied by a sentence of nine months' imprisonment and a further period of three months before the applicant, who is an apprentice electrician, will be able to obtain a licence again. A period of 24 months' disqualification would, in my respectful opinion, jeopardise the rehabilitation that he has achieved during the period of some two-and-a-half years since the commission of the offence: cf. R. v. Bazley (unreported, Court of Appeal, 21st August 1997), especially at 7 and 9, and R. v. Tantrum (1989) 11 Cr.App.R.(S.) 348 at 349.

The judgment of the Court will be in accordance with the following minutes:

1. Application for leave to appeal against sentence granted.

2. Direct that the appeal be treated as instituted and heard instanter and allowed.

3. Order that the custodial sentence imposed below be confirmed.

4. Order that the order cancelling all driver licences held by the applicant under the Road Safety Act 1986 be confirmed.

5. Order that the order disqualifying the applicant from obtaining any driver licence under the said Act be varied with effect from 6 August 1999 by substituting a period of one year for the period of two years.

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