R v Tony LIRISTIS

JUDGMENT 1In this case I have to decide whether to fine a man who admits to driving his car whilst disqualified from holding a driver licence, or to let him off without a conviction at all. The case comes to me as an appeal from a magistrate who convicted and fined the man. The man's name is Tony Liristis, and I will explain the background to the case and how I come to be presented with this decision to make. 2Tony Liristis was disqualified from driving by a magistrate. The date is unimportant. He appealed from that order disqualifying him to the District Court. He lost that appeal when Judge Syme upheld the disqualification. What happened then is this. Mr Liristis lodged documents to appeal to the Court of Criminal Appeal from Judge Syme's order which had the effect of disqualifying him from driving. Mr Liristis says that he asked officers in the Court of Criminal Appeal section of the Supreme Court of New South Wales whether the driver disqualification order was still current. He asked this question. He had a good basis for this question because when a person appeals from a Local Court magistrate to the District Court, there can be a stay of the Local Court magistrate's order. A stay is another way of saying that the order is suspended until the appeal is determined. Mr Liristis says that he was informed by an officer that the order would be stayed so that his licence would remain current until the appeal to the Court of Criminal Appeal was resolved. 3He continued driving. He was stopped by the police on 23 July 2011. The police pointed out to him that the advice he received was wrong and that their records showed that he was disqualified from driving. Accordingly, he was charged with the offence of driving whilst disqualified, which is an offence against s 25A(1)(a) of the Road Transport (Driver Licensing) Act 1998. Mr Liristis went to the Local Court before Magistrate Rabbidge and defended the case. He lost and was convicted of that offence by Magistrate Rabbidge, who put Mr Liristis on a good behaviour bond. 4As it happened, 23 July 2011 was a Saturday. On the following Wednesday, 27 July 2011, Mr Liristis was driving again. He said he was on his way to court. Police saw him and for some reason pulled him up. It seems it might have been for a random breath test. The dealings between the police and Mr Liristis when he pulled up are all recorded on a video which the police activated from their car. Mr Liristis, it is clear, first gave a false name and address, claiming to be somebody else. The police kept checking the name and came up with a negative. The police officer obviously became suspicious and issued a warning to Mr Liristis that he could be charged for providing a false name and address. Mr Liristis then confessed, and provided the police with his correct name and address. It obviously followed that the police realised that he was disqualified from driving. 5Mr Liristis explained again to the police that he had appealed from the disqualification to the Court of Criminal Appeal and had been told that the disqualification was suspended until the appeal was resolved. The police told him that their records were different and that he was disqualified, so he was charged again with driving whilst disqualified. 6Again he came before the Local Court. This time he came before Magistrate Barkell. Mr Liristis defended his case. Her Honour found that he was guilty and convicted him of the offence. Her Honour then fined Mr Liristis $2000 with court costs. 7Mr Liristis appealed from both magistrates' decisions to the District Court. When a person appeals to the District Court, the District Court judge reads the same material that was before the magistrate, together with any additional evidence which is tendered either by leave or in any event before the judge. The judge takes into account the magistrate's decision and then makes up his or her own mind about the outcome of the case. 8Mr Liristis appealed against both of his convictions. He argued through his barrister, Mr P R Glissan, that he was not guilty of either of the offences. He relied upon the defence which is commonly referred to as the Proudman v Dayman defence and is based upon the judgment of Sir Owen Dixon in Proudman v Dayman (1941) 67 CLR 536. In two separate judgments, I dismissed his appeals, saying that in each case the mistake that he was under was a mistake of law, not a mistake of fact. His argument through Mr Glissan had been that he was under a misapprehension of fact, but I did not agree. Accordingly, I dismissed both of his appeals. 9Mr Liristis also appealed against both of the sentences. I heard his appeal against the sentence imposed by Magistrate Rabbidge of the good behaviour bond earlier this week. I allowed the appeal and set aside Magistrate Rabbidge's good behaviour bond, and instead made an order under s 10 of the Crimes (Sentencing Procedure) Act 1999 that the charge should be dismissed. 10Then I heard the appeal from the second sentence, that was the $2000 fine imposed by Magistrate Barkell. This is the judgment concerning that appeal. I have been ably assisted by both Mr D Robinson, who appears for the respondent to the appeal, who is the Director of Public Prosecutions, and by Mr Glissan in their leading of evidence and cross-examination and submissions. Mr Glissan called his client to give evidence and he was cross-examined extensively and appropriately, and I might add fairly by Mr Robinson. 11Mr Glissan's case is that his client should get the benefit of another order under s 10 of the Crimes (Sentencing Procedure) Act because of his misunderstanding about the state of the law brought about by information he had been given by officers in the Supreme Court. Mr Robinson opposed that and said that the appeal against sentence should be dismissed and the fine permitted to stand. 12I should add some more information which comes from evidence tendered by Mr Glissan in the appeal. It will be recalled that the first time the police pulled him up was Saturday 23 July 2011. Mr Glissan tendered in evidence a copy of a document which became exhibit S5 and is called a transmission verification report, and concerns a fax which I accept Mr Liristis sent to the Court of Criminal Appeal registry on 26 July 2011. That would have been a Tuesday and the day before his second encounter with the police, and three days after his first encounter. He addressed it to an officer called Violetta. The relevant parts of his fax say that he "called you twice yesterday and left two messages to call me back and I have not heard back from you." He then went on to say in the fax that he "was pulled over by police a few days ago and they advised me that my licence was suspended, and this cannot be correct as you advised me when I lodge my appeal there is an automatic stay." He then provided his mobile phone number and asked her as a matter of urgency to "advise me what is going on?" 13I accept that Mr Liristis sent that fax to the Court of Criminal Appeal registry. I also accept, which he said in evidence and is confirmed by the terms of the fax, that he attempted to phone on the Monday. There is evidence also in the form of exhibit S4 which indicates that a fax was sent to a fax number at 9230 8271 from Mr Liristis. Because the Evidence Act does not apply to sentence proceedings, I checked the Law Society diary: many of the phone numbers in the Supreme Court commence with the numbers 9230. 14I also accept that he sent the fax and left the messages, because in the video which was taken of his second encounter with the police he can be heard referring to the Court of Criminal Appeal and to his appeal. I do not think that he has made up this information, although it was not suggested that he did. It was explored but it was not suggested that he made it up. 15Returning now to the arguments. Mr Robinson says that a dismissal under s 10 is not an appropriate course because Mr Liristis had neither an honest nor reasonable belief that he had a current licence from which he had not been disqualified from holding. Mr Robinson argued that it was not honest because he had lied to the police about his name and address, and had provided different reasons for lying to the police. The only reason for the lie, Mr Robinson argued, was that Mr Liristis knew that he was not entitled to drive because he had been told four days earlier, or at least he should have known four days earlier, that according to the police and driving authority records he had been disqualified. In fact his licence had been taken away from him. 16Mr Robinson argued that his belief was not reasonable because all he did was make some phone calls and send a fax to the Court of Criminal Appeal to enquire about the status of his licence. As Mr Robinson said, one cannot just make a couple of phone calls and send a fax and expect to be able to drive on that basis. He should have ascertained the exact status of his licence. He chose to drive despite getting no responses to his phone messages or to his fax. Mr Robinson pointed out that the consequence of a conviction would be an automatic 2 year disqualification because this would be a second and subsequent offence after Judge Syme's order, and it is a serious offence. 17Mr Glissan, on the other hand, argued that his client should benefit from an order under s 10. He took me to the High Court's decision in Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493. That case had been referred to in the arguments on the conviction appeals, but Mr Glissan drew my attention to observations made by some of the justices about the circumstances of that case. It was a case where a man had said that he made enquiries of government officials and had not been provided with answers which assisted him before committing a regulatory offence. The case concerned whether or not a defence similar to the Proudman v Dayman defence was available. Their Honours decided that it was not available. Gleeson CJ and Kirby J pointed out in their joint judgment at 500([2]) that the ignorance of the legal consequences that flow from the existence of facts that constitute an offence "is ordinarily not a matter of exculpation, although it may be a matter of mitigation, and in some circumstances it may enliven a discretion not to prosecute." 18Mr Glissan also took me to the joint judgment of Callinan and Heydon JJ. Their Honours said in a passage at 519([61]) that Mr Glissan referred me to that the "appeal provides an example of the way in which provisions for mandatory penalties can operate harshly and unfairly, and, as has occurred here, generate time consuming and expensive appellate litigation." Mr Glissan argued that the consequence in this case of a 2 year mandatory disqualification would be a harsh and unfair penalty in the circumstances where his client had been misled by a public official. He also referred to what Callinan and Heydon JJ had said at 521([70]) about the prosecution in that case leading to "the imposition of harsh mandatory penalties," and their Honours went on to say in the same sentence that the prosecution "has the appearance of an act of mindless oppression." 19Mr Glissan also referred me to 527 where their Honours said in [84] that it was "impossible not to sympathise with the respondent. On any fair and objective view he was not culpable in any way." 20Mr Glissan referred me to the evidence that his client had attempted to contact the Court of Criminal Appeal, including the evidence of the fax which was sent. He acknowledged that his client had told a lie to the police but had explained that lie in a way which tallied with the facts. He emphasised that his client had explained at the scene that there had been an appeal to the Court of Criminal Appeal and argued that the penalty, the mandatory 2 year penalty, would be harsh and unfair in the circumstances of this case. 21I should add that Mr Liristis's evidence was that in the month following his sending of the fax, he received a telephone call from another officer in the Court of Criminal Appeal telling him that the earlier advice had been wrong and that the order effectively disqualifying him from driving was not in fact suspended until the outcome of his appeal. 22I think that this is a case for the application of s 10 of the Crimes (Sentencing Procedure) Act. It is true, as Mr Robinson points out, that Mr Liristis lied to the police at the scene. However, once it was drawn to his attention that he could get into serious trouble, he owned up and confessed to his real identity. The lie in my opinion was understandable. It was probably the result of panic, of being pulled up yet again. Mr Liristis explained that in fact he was on the way to court and did not want to be late for court. He gave that explanation at the scene as well. No doubt part of the panic was because there was some doubt in his mind about the conflicting information which he had been receiving. The police some days earlier had removed his licence and told him that he was disqualified. On the other hand, he had received advice from an officer in the appellate division of the Supreme Court, or in an appellate court of this State, namely, the Court of Criminal Appeal, to the effect that his licence was not suspended. In those circumstances, it may be understandable that he was panicky and wanted to avoid being confronted with another charge. 23It is true that he, as Mr Robinson points out, took the risk of driving without getting a clear answer back but, on the other hand, he was dealing with a public sector office which no doubt is very busy. Calls are not always returned promptly because of more important commitments which those officers have, nor faxes responded to, but what is clear to me is that Mr Liristis himself had tried to clarify the situation by not only making a phone call or two but by sending a fax to find out whether the advice he received was wrong or not. Mr Glissan pointed out that an order under s 10 may be available because of Mr Liristis's need for a licence. His client gave evidence of a need to drive his ill father for treatment and to assist in the driving of his children. However, I would not regard that as an appropriate basis for making an order under s 10 of the Crimes (Sentencing Procedure) Act. Everyone who drives has a need of some sort or other for a licence. 24I would not regard an appropriate basis the character antecedents of Mr Liristis. He has criminal convictions, including traffic offences, on his record. I would not regard the offence as trivial. He was driving whilst being disqualified. However, the provision which Mr Glissan primarily relied upon, and which I do regard as applicable and one which I will rely upon, are what are described as extenuating circumstances in which the offence was committed. Although, as Mr Robinson pointed out, he was clearly on notice that some official records regarded him as disqualified, he had made proven attempts to clarify this in the few days between the two offences. He produced documentary evidence to that effect. He pointed out at the scene to the police about these steps which he had made. 25However, the point is that, in my view, he had been given misleading information by an officer in the Court of Criminal Appeal and was acting on that information, which was at law, in driving. One could understand that he may have regarded advice from a senior appellate court officer as carrying a good deal of weight compared to public service records. I regard the circumstances of this offence as extenuating sufficiently to give Mr Liristis the benefit of an order under s 10 of the Crimes (Sentencing Procedure) Act. 26The formal order which I make in disposing of this appeal is this. Under s 20(2) of the Crimes (Appeal and Review) Act 2001, I determine this appeal against sentence by setting aside the sentence. Instead of that sentence, under s 10 of the Crimes (Sentencing Procedure) Act 1999, without proceeding to conviction, I find Mr Liristis guilty of the offence and I make an order directing that the relevant charge be dismissed. HIS HONOUR: Are there any other orders that I need to make, Mr Robinson, Mr Glissan? ROBINSON: No, your Honour. GLISSAN: No, your Honour. HIS HONOUR: Thank you both again for your assistance, Mr Glissan and Mr Robinson. APPELLANT: Thank you very much, your Honour.