Ring v Beath [2009] ACTSC 19

4. A summons was issued to the appellant on 19 September 2007, and on 18 December 2007 he was sentenced in the Magistrates Court to 9 months imprisonment for the offence of driving while disqualified.

5. The appellant began his period of full-time imprisonment immediately on being sentenced, and lodged his appeal on 21 January 2008. He remained in custody until I released him on 24 April 2008, having served 4 months and 6 days of his sentence.

6. The appellant relied on a single ground of appeal, that the sentence was manifestly excessive in all the circumstances.

7. Counsel for the appellant sought to lead further evidence, namely a number of medical records; this is addressed in connection with my consideration of the appellant's physical and mental health problems at [37] to [42] below.

8. On an appeal against sentence, an original sentence may be replaced if the exercise of the learned Magistrate's sentencing discretion was affected by a specific error. As well, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be (in the context of an appeal by the offender) manifestly excessive, unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive, unreasonable, unjust or wrong (Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321) (Dinsdale) at [59]. That is, no specific error need be shown to justify a finding that the sentence is "manifestly excessive", and if specific error is shown then there is no need to argue manifest excess.

9. Furthermore, as Gleeson CJ and Hayne said in Dinsdale at [6]:

Manifest inadequacy of sentence, like manifest excess, is a conclusion. A sentence is, or is not, unreasonable or plainly unjust; inadequacy or excess is, or is not, plainly apparent. It is a conclusion which does not depend upon attribution of identified specific error in the reasoning of the sentencing judge and which frequently does not admit of amplification except by stating the respect in which the sentence is inadequate or excessive. It may be inadequate or excessive because the wrong type of sentence has been imposed (for example, custodial rather than non-custodial) or because the sentence imposed is manifestly too long or too short. But to identify the type of error amounts to no more than a statement of the conclusion that has been reached. It is not a statement of reasons for arriving at the conclusion.

10. Despite the claim of manifest excess, counsel argued the appellant's case as if it were necessary for him to identify errors by the sentencing magistrate. Most of the asserted errors covered matters that could be relevant to the claim of manifest excess, and I therefore address each of them in the context of my consideration of the claim of manifest excess.

11. The courts have noted that manifest excess or its counterpart, manifest inadequacy, almost by definition, are difficult to argue. For instance, in DPP (Vic) v Raddino [2002] VSCA 66; (2002) 128 A Crim R 437, Chernov J, with whom other members of the Victorian Court of Appeal agreed, said at [30]:

This Court has often said that a ground of manifest inadequacy does not admit of a deal of argument. Once the relevant circumstances are ascertained, then the sentence upon its face appears manifestly inadequate or it does not.

12. The relevant circumstances to be drawn to the court's attention include the objective and subjective features of the offence and the offender. These matters will be particularly useful in a "manifest excess" inquiry if they can be placed in the context of different penalties imposed in cases that are recognisably similar or where the penalties are similar but the objective and subjective features of the offence and the offender are recognisably different. These comparisons may be useful in considering whether, having regard to the features of the particular case, the sentence imposed on the appellant was outside the appropriate range for that offence committed by that appellant in those circumstances.

13. The matters raised by counsel that seemed relevant to the "manifest excess" inquiry in this case were:

(a) the objective seriousness of the offence committed by the appellant;

(b) the appellant's criminal history;

(c) the plea of guilty;

(d) the fact that the appellant had not previously been sentenced to a term of imprisonment; and

(e) the appellant's physical and mental health.

14. Section 32 of the Road Transport Act creates offences that can be committed by suspended drivers, disqualified drivers, those whose licences have been cancelled or those whose licence applications have been refused. The offences consist of either driving in spite of, or applying for a licence without mentioning, the suspension, disqualification, cancellation or refusal. In each case, different penalties are imposed for first offenders and repeat offenders, but for each class of offenders the same penalties apply to all offences. The appellant, as a repeat offender (see subs 32(8)), was liable to imprisonment for up to 12 months or a fine up to 100 penalty units. The sentence of 9 months imprisonment was, at three-quarters of the maximum term, at the higher end of the range.

15. Counsel for the appellant argued that the appellant's conduct was not a particularly serious example of the relevant offence, having regard to his motive, namely that he was chasing someone who he believed had tried to break into his girlfriend's car. Counsel submitted that the appellant's actions could be viewed as either "not a wanton breach", or "a wanton breach but for a specific purpose and in response to a specific situation that had arisen". It was also noted that no aggravating circumstances - such as negligent or dangerous driving - were present.

16. Assuming that the appellant's only plan was to identify the offenders or their location and pass this information on to the police, his motive could be seen as some kind of mitigating factor to the extent that it shows the offence as a one-off, ill-considered reaction to what the appellant apparently saw as an emergency, rather than, for instance, part of a routine disregard of his legal obligations simply to avoid inconvenience. There was no evidence suggesting that the appellant's intentions went beyond locating the offenders.

17. On this basis it is appropriate to treat the appellant's actions as not being one of the most serious examples of the offence. The learned Magistrate may have been distracted in her assessment of the seriousness of the particular offence by her comments to the appellant to the effect that he was unreasonable in expecting police help when he was the victim of crime despite at other times committing offences himself.

What do you expect the police to do with somebody like you? It's people like you who want the help of the police when you want the help but otherwise you're committing offences. You're an antisocial person and you're a criminal person ...

18. Counsel for the appellant conceded that his criminal history was not impressive. It included seven prior offences, committed over a period of 8 years, which were breaches of s 32 of the Road Transport Act or equivalent provisions, as well as assorted other traffic offences and several assault charges.

19. In an attempt to minimise the seriousness of the criminal history, counsel suggested that some of those prior breaches of s 32 were less serious than the current one, basing his argument not on the facts of the particular offences but on the proposition that the s 32 offences are "not offences of equal seriousness", and consequently "it does not necessarily follow that in each instance the offending conduct is necessarily as serious as another". In support of the first proposition, he cited Ibbs v R [1987] HCA 46; (1987) 163 CLR 447 (Ibbs). In that case, the court, consisting of Mason CJ and Wilson, Brennan, Toohey and Gaudron JJ, said at [4]:

The inclusion of several categories of sexual penetration within the offence described as sexual assault carries no implication that each category of sexual penetration is as heinous as another if done without consent. When an offence is defined to include any of several categories of conduct, the heinousness of the conduct in a particular case depends not on the statute defining the offence but on the facts of the case.

In a case of sexual assault, a sentencing judge has to consider where the facts of the particular case lie in a spectrum at one end of which lies the worst type of sexual assault perpetrated by any act which constitutes sexual penetration as defined.

20. The sexual assault provisions considered in Ibbs, namely ss 324D and 342F of the Criminal Code (WA), covered a range of different behaviour in a single offence provision, which was relevantly structured in the same way as the current ACT offence (see Crimes Act 1900 (ACT), s 54 and the definition of "sexual intercourse" in s 50). It is not clear to me that this approach is in fact the same as creating a series of different offences with identical penalties. Where the legislature has chosen to cover a range of different behaviours in one offence, the courts, in sentencing, must assess the respective seriousness of the different behaviours, just as they assess the respective seriousness of different examples of a single behaviour that constitutes an offence. The fact that sexual intercourse is defined to include a range of sexual penetrations is in relevant respects no different from the fact that assault can be committed in a variety of different circumstances and for a variety of motives; it is apparent that in each case the seriousness of the particular conduct depends on its own nature and circumstances.

21. On the other hand, when the legislature creates multiple offences relating to similar kinds of behaviour, imposing identical maximum penalties, the court's starting point must be that no hierarchy of seriousness is being established among the various offences. A particular example of one of the offences may be more or less serious than any particular example of another one of the offences, but it cannot be said that offences covered by one provision are inherently more serious than those covered by a similar provision with an identical penalty.

22. Counsel suggested that the offence of driving while disqualified (subs 32(1)) should be regarded as the most serious of the s 32 offences because it involved a contravention of an order of a court. It is understandable that a court might take such a view, but counsel did not point to anything in the legislation or elsewhere to suggest that, despite giving them identical penalties, the legislature intended the several offences to be treated as having different levels of seriousness. On the basis that each offence is aimed in general terms at deterring unlicensed drivers from using public roads, it is hard to see why, as a matter of policy, any of the offences should be regarded as inherently more or less serious than any of the others.

23. Accordingly, I reject the appellant's contention that the several offences created by s 32 with identical penalties are not, in the abstract, offences of equal seriousness. I agree with the other element of his argument, namely that a particular offence under one of the provisions of s 32 may be more or less serious than a particular offence under one of the other provisions, but am not convinced that this furthers his argument in any useful way. Counsel's suggestion that some of the appellant's previous s 32 offences were less serious than the current one may have been made out by evidence of the nature and circumstances of the particular offences, but no such evidence was offered. In the absence of any such evidence, I make no finding that any or all of those previous offences were significantly less serious than the current offence or that they were, individually, significantly less serious than her Honour considered them to be.

24. On the other hand, I do accept that the appellant's criminal record was not as bad in total as her Honour considered it to be.

25. First, the driving offences are not so frequent as to indicate the most serious or constant disregard for the orders of the court. The first three of them occurred during a period of less than a year during which the appellant turned 19, and the other four were committed in the 7 years before the current offences.

26. Secondly, the learned Magistrate incorrectly asserted that the appellant had "breached every single good behaviour order that's ever been imposed on the suspended sentence of imprisonment, five sentences of imprisonment". She went on to comment on his "appalling record", and "shocking disregard for court orders". In fact it seems that the appellant had breached two good behaviour orders imposed in 2005, but had not breached any of the three orders imposed in 2000. The criminal history is set out in a way that could obscure the fact that these latter orders were all made on the same day, and could in turn suggest that the second and third offences in 2000 were breaches of the good behaviour orders imposed in respect of the first 2000 offence - this may explain her Honour's confusion.

27. On the other hand, counsel for the respondent submitted, and I agree, that Mr Ring's criminal history entitles him to no leniency, because, in counsel's words:

... the continuing offending behaviour for these types of offences is a continuing disobedience of the law and therefore retribution, deterrence and protection of society are important factors which the magistrate needed to take into account when imposing a penalty.

28. However, an offender whose record entitles him to no leniency is not therefore automatically liable to a significantly high penalty irrespective of the nature and circumstances of his particular conduct then under consideration; see Veen v The Queen [No. 2] [1988] HCA 14; (1987) 164 CLR 465, in which Mason CJ and Brennan, Dawson and Toohey JJ said at 477:

... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: [reference omitted]

29. The significance of the appellant's plea of guilty in the context of an appeal based on manifest excess is that the sentence actually imposed must be assessed taking account of that plea. In this case counsel for the DPP conceded that the appellant pleaded guilty at an early stage, and that the plea was mentioned in passing by the sentencing Magistrate. I am prepared to assume that her Honour did take account of the plea, and furthermore that, in the absence of any reasons for discounting the value of the plea, she gave more than a nominal discount. While the ACT has no legislatively-specified level for this sentencing discount, it is common for discounts in the range of 20-30% to be given. Even where a prosecution case is very strong, it is recognised that a plea of guilty may be taken into account as indicating remorse, an acceptance of responsibility and a willingness to facilitate the course of justice (Cameron v R (2002) 209 CLR 339 at 343, per Gaudron, Gummow and Callinan JJ).

30. Assuming, then, that the sentencing Magistrate did provide some discount for the plea of guilty, the starting sentence must have been higher than the 9 months actually imposed. The 9-month sentence would represent a 10-month sentence with a 10% discount, or a 12-month sentence with a 25% discount. Accepting that a discount was given, it seems likely that the original sentence started at 10 months or more where the maximum sentence was 12 months.

31. The fact that an offender has not previously served a sentence in full-time custody may be relevant in assessing the sentence imposed.

32. In McDonald v The Queen [1994] FCA 956; (1994) 48 FCR 555 (McDonald), an appeal from a single judge of this Court to a Full Court of the Federal Court, Burchett and Higgins JJ, with whom Spender J generally agreed, referred at 563-564, in the context of the totality principle, to the view that:

... the accumulation of sentences ... ought not to result, unless there is no alternative, in a total which is a crushing first period of imprisonment. If possible, justice should especially avoid placing such a person where, in Milton's words, "hope [can] never come [t]hat comes to all" (Paradise Lost, 1:66-67). In a case of this kind, a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of account when its length is fixed. ... It is only just to observe, too, that a first time in gaol, for a person of previous good character, is likely to be a severer punishment than the same period would be for a hardened criminal, or even when suffered for the second time.

33. It is true that these comments were made in relation to a person "of previous good character" (in that case an accountant who had defrauded his clients out of several hundreds of thousands of dollars). It is true that the appellant in this case could not be described as a person of previous good character. It is true that having previously served some time in periodic detention, the appellant would have had some idea of the nature of full-time custody, of the people he was likely to meet in such custody, and of the multifarious restrictions on his general enjoyment of life that would be imposed by full-time custody (although given that periodic detention at least in the ACT involves 2 days custody at a time and, generally, some kind of work, he might not have realised the extraordinary boredom that is often associated with a period in full-time custody).

34. Accepting that the appellant's understanding of the realities of full-time custody might be more informed than that of an accountant of previous good character, this does not, in my view, deprive the appellant of a claim to some judicial restraint in sentencing on the basis that he had not previously served a prison term. Where an offence objectively demands a substantial term in prison, the fact that this will be a first imprisonment for the offender may be of little or no significance. However, where an offence is of itself reasonably minor, I consider that a court should be careful in interpreting the actions of a repeat offender. If that offender has no personal experience of a full-time custodial sentence, his repeat offending should not necessarily be interpreted as signifying an informed choice to act undeterred by the prospect of a prison sentence.

35. In Moutrage v Haines [2008] ACTSC 36 (8 May 2008), a matter more similar than McDonald to the current one, I said at [40]:

The fact that an offender has not previously been to prison cannot be used to keep him out of prison forever if he continues to re-offend. However, that fact may appropriately lead a court to decide that the first custodial sentence imposed should be a relatively short custodial sentence, at least where the offences concerned are relatively less serious. This approach may be founded on a hope that a short custodial sentence might be sufficient to persuade the offender to change his ways, without exposing him for too long to those aspects of prison life that could have a negative rather than a positive effect on his long-term rehabilitation.

36. On this basis, while her Honour could legitimately have concluded that the appellant had exhausted his chances of escaping a full-time custodial sentence, it is not so clear that a sentence of 9 months imprisonment, close to the maximum for the offence, was justified in this case. It is clear that, within the range of sentences suitable by reference to the objective seriousness of an offence, the need for personal deterrence will sometimes drive a sentencing court towards the severe end of that range of suitable sentences. However, it is not at all clear that behaviour that is not objectively a serious example of the offence will ever justify a penalty close to the maximum penalty, irrespective of repetition (Veen v The Queen [No. 2] [1988] HCA 14; (1987) 164 CLR 465).

37. Counsel for the appellant submitted that the appellant's physical and mental health made him an inappropriate subject for general deterrence, and that if the learned Magistrate had properly taken those matters into account the penalty imposed would have been different.

38. The Pre-Sentence Report prepared for her Honour indicated that the appellant suffered long-standing depression and possibly other mental health problems. He was also in recovery from testicular cancer and receiving medication for pain arising from a back injury.

39. At the appeal hearing, counsel sought to tender evidence from the appellant's doctors about his medical problems, mainly his physical problems although there is a passing reference to proposed treatment for depression. This evidence was admitted, with the consent of counsel for the DPP because the appellant had been unrepresented in the Magistrates Court, under par 214(3)(b) of the Magistrates Court Act 1930 (ACT). However, since all the evidence did was to confirm, and provide more medical details of, matters already covered in the Pre-Sentence Report, the further evidence as such was of little or no significance to the appeal.

40. The Pre-Sentence Report does not suggest that any of the appellant's health problems provided any kind of excuse or explanation for his offending behaviour. Nor is there sufficient material in that report or in the new material about the appellant's mental health to justify excluding general deterrence from the aims of the sentencing process.

41. Her Honour, justifiably in my view, told the appellant that he couldn't use his medical problems as an excuse for committing offences. She said:

I've considered all of the relevant factors including your own personal current health issues, you're regarded as being unsuitable to do community service and I accept that, and also to do periodic detention, not that I would regard those sentences as being appropriate sentences in any case, even if you were regarded suitable I would not impose those sentences. You've gone well and truly past that. ... you've breached every single recognizance attached to a suspended sentence.

And I can say that you breached all of those recognizances attached to all of those suspended sentences at a time when you didn't have the current medical issues that you have now, so you can't use your current medical problems as an excuse for committing offences. You've been committing offences without any medical issues. They cannot be an excuse to you, and your medical issues may prevent you from attending periodic detention, but apparently they're not so severe as to prevent you from re-offending.

42. However justifiable her Honour's impatience at the use of medical problems as an excuse for offending, this does not mean that the appellant's medical problems were irrelevant to penalty. The material does indicate grounds for giving careful consideration to the impact on the appellant of different sentencing options. The appellant's physical health problems, in particular his back problems which apparently rendered him unsuitable for periodic detention, would presumably also have made a custodial sentence more onerous than it would have been for a healthier person. However, I agree with counsel for the respondent that the material was not sufficient to completely rule out imprisonment as a sentencing option.

43. In this case, "manifest excess" was the only ground of appeal, and in considering it I concluded that:

(a) the appellant's conduct, while undoubtedly foolish and demonstrating an inappropriate disregard for both the law and the directions of a court, was not a particularly serious example of the prohibited conduct and was brought to an end quickly;

(b) the appellant, who had not previously served any period of full-time custody, could not be seen to have broken the law with any real understanding of what full-time imprisonment would involve; and

(c) the appellant's criminal history did not suggest quite such a flagrant disregard for the law, and nor was his previous attitude to driving restrictions imposed on him quite as cavalier, as the learned Magistrate suggested in her sentencing remarks.

44. Having regard to those conclusions, to the appellant's physical and mental health difficulties (which would make a sentence of imprisonment particularly onerous), to his plea of guilty, and to the maximum penalty of 12 months imprisonment, I considered that the sentence of 9 months full-time custody after any reduction for a plea of guilty was excessive, such that error on the part of the learned Magistrate could be inferred, and that the imposition of another sentence was warranted.

45. Accordingly, the appeal was upheld and the appellant was re-sentenced to a term of 5 months imprisonment backdated to 18 December 2007 to reflect time served. By this stage the appellant had served 4 months and 6 days in prison, and the remaining sentence (amounting to 23 days) was immediately suspended subject to a 12 months good behaviour order.

I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the appellant: Legal Aid Office (ACT)

Solicitor for the respondent: ACT Director of Public Prosecutions