CRIMINAL LAW - traffic offences - Road Transport (Driver Licensing) Act 1999 (ACT)

s 32(1) - words and phrases - meaning of "repeat offender" - Reynolds v McTernan [2012] ACTMC 3 not applicable - principle of statutory construction not displaced - accused must have been convicted of the first offence before the commission of the second offence to be a "repeat offender" - appellant not a repeat offender

CRIMINAL LAW - general principles - obligation to give reasons - reasons must set out relevant factors and articulate essential grounds of decision - reasons should address significant issues raised in submissions

CRIMINAL LAW - jurisdiction, practice and procedure - sentencing - amending sentence to resolve inconsistency - procedure to be used - R v Gorman [2009] ACTSC 7

CRIMINAL LAW - sentencing - sentence of imprisonment to be served by full-time custody - relevant factors - hardship to offender's family - where children at risk of being unsupervised - Crimes (Sentencing) Act 2005 (ACT) s 33(1)(o) - Human Rights Act 2004 (ACT) s 11

Crimes (Sentencing) Act 2005 (ACT), ss 10(2), 11(1)(b), 33(1)(o), 40A, 44, 78(6)(a), 116A

Crimes (Sentence Administration) Act 2005 (ACT), s 116ZP

Human Rights Act 2004 (ACT), s 11

Magistrates Court Act 1930 (ACT), pt 3.10, div 3.10.2, s 216

Road Transport (General) Act 1999 (ACT), ss 44, 69

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 4F

Road Transport (Driver Licensing) Act 1999 (ACT), s 32(1)

Court Procedures Rules 2006 (ACT), rr 5137-9

Explanatory Statement, Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 (ACT)

Hostettler, J, Sir Edward Coke: A force for freedom (Universal Law Publishing Co, 2006)

Aldridge v The Queen [2011] ACTCA 20

Attorney General v Tichy (1982) 30 SASR 84

Australian Crime Commission v Stoddart [2011] HCATrans 44 (1 March 2011)

Belcher (1981) 3 A Crim R 124

Boyle (1987) 34 A Crim R 202

Carter v Denham [1984] WAR 123

Christie v Britnell [1895] VicLawRp 9; [1895] 21 VLR 71

Craft v Diebert [2004] ACTCA 15

Edwards v Marinos [2010] ACTSC 57

Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178

Farrington v Thompson [1959] VicRp 49; [1959] VR 286

Fraser (1985) 20 A Crim R 4

JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18

Markovic v The Queen (2009) 30 VR 589

Mawson v Nayda [1995] NTSC 113; (1995) 5 NTLR 56

Moore v Fingleton (1972) 3 SASR 164

Mwauluka v Turkich [2013] ACTSC 1

O'Connor v Bini [1908] VicLawRp 79; [1908] VLR 567

O'Hara v Harrington [1962] Tas SR 165

R v Gorman [2009] ACTSC 7

R v Licensing Justices for the County Borough of South Shields [1911] 2 KB 1

R v Mangano [2006] NSWCCA 35; (2006) 160 A Crim R 480

R v Savundranayagan [1968] 1 WLR 1761

R v Wirth (1976) 14 SASR 291

Riviera v Maher [1992] TASSC 54; (1992) 17 MVR 370

Robinson v The Queen [2004] ACTCA 1

Sherrow v Hinton [2010] ACTSC 73

Soulemenzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

T (1990) 47 A Crim R 29

Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465

Warry v Hill (Unreported, ACT Magistrates Court, Burns M, 14 March 2003)

Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The convictions for all offences are confirmed.

3. The following orders of the Supreme Court on 12 December 2012 in relation to the payment of fines are confirmed:

a. The appeal is upheld in respect of the granting of time to the appellant to pay the fines imposed by the Magistrates Court on 2 May 2012.

4. The sentences imposed by the Magistrates Court are otherwise set aside.

a. For the offence of driving whilst disqualified on 14 May 2012 (CC2012/4510), he is sentenced to three months' imprisonment to commence 31 August 2012 and end 30 November 2012.

b. For the offence of driving whilst disqualified on 31 August 2012 (CC2012/7658), he is sentenced to four months' imprisonment to commence on 1 December 2012 and end 31 March 2013, that is to be wholly cumulative on the first sentence.

c. From today, the balance of the sentence is to be served by periodic detention.

d. The first period of detention is to commence at 7.00pm on 21 December 2012, when the appellant is to report to the Symonston Periodic Detention Centre.

1. Although offences against the road rules and the road transport legislation are generally and rightly described as traffic offences, they are still criminal offences and can attract severe penalties including imprisonment. Though many of them are regulatory offences, they are all designed to regulate the movement of vehicles. Moving vehicles have the potential to compromise the safety of those in them and others around them, leading to serious injury or even death; hence the need for regulation and the obligation of the courts to ensure that the regulations are enforced.

2. On 14 May 2012, the appellant, Paul Edward Scheele, was driving a motor vehicle in Fyshwick when he parked it at a service station. Police approached him and he confirmed that he had been driving the car. Police ascertained that he was currently disqualified from holding or obtaining a driver licence which, of course, he was required to hold in order to be allowed to drive on a public street. Mr Scheele was arrested and charged with various offences including driving whilst disqualified. He was granted bail and appeared in court on 31 May 2012 when he was granted further bail with the condition that he not be in the driver's seat of a motor vehicle.

3. On 31 August 2012, police saw Mr Scheele driving a motor vehicle on a public street in Narrabundah. Mr Scheele was recognised by the police who followed him. They eventually intercepted him and approached him. He admitted that he did not have a licence and was arrested and charged with driving whilst disqualified and other offences. He appeared in the Magistrates Court on 1 September 2012, bail was refused.

4. On 19 September 2012, he was sentenced in relation to the various charges. On the first charge of driving on 14 May 2012 whilst disqualified (CC2012/4510), he was convicted and sentenced to three months' imprisonment commencing on 31 August 2012 and disqualified from holding or obtaining a driver licence for 12 months.

5. On the second charge of driving on 31 August 2012 whilst disqualified (CC2012/7658), he was convicted and sentenced to six months' imprisonment commencing 31 December 2012 and disqualified from holding or obtaining a driver licence for 24 months. Under s 69 of the Road Transport (General) Act 1999 (ACT) (General Act), those periods of disqualification are cumulative on each other and any other extant disqualification.

6. On the other charges Mr Scheele was fined various amounts and given 24 months to pay them. Mr Scheele has appealed against the sentences imposed.

7. The power of this Court to hear and determine appeals from the Magistrates Court is set out in pt 3.10 of the Magistrates Court Act 1930 (ACT). Division 3.10.2 regulates appeals in criminal matters such as this appeal. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.

8. Those principles are, in summary, that the sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate and that I am not merely tinkering.

9. Specific errors maybe errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence.

10. Even if I cannot identify specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

11. Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty, the subject of the appeal. That often has to be addressed at the conclusion of the appeal.

12. On 15 July 2002, Mr Scheele was convicted of a drink-driving offence and was disqualified by the Queanbeyan Local Court from holding or obtaining a driver licence for nine months. On a date in 2003 that is otherwise unclear on the appeal papers, but probably 30 May 2003, he was convicted of two offences of driving whilst disqualified. He was further disqualified from holding or obtaining a licence for two years from 30 May 2003.

13. The record is not clear, but one of the offences that led to these convictions is said to have been committed on 8 December 2002, the other said to be committed on 8 December 2003 which is, of course, impossible for a hearing of the charge in May 2003. I assume it is a typographical error for 8 December 2002 also; that is, two offences on the one day. I do not have details of those matters.

14. He was later charged with a further offence of driving whilst disqualified committed on 29 November 2003. He was sentenced to six months' imprisonment from 19 April 2005. His licence was cancelled until 18 April 2008.

15. The police statement of facts, however, asserts that he was further disqualified from holding or obtaining a driver licence until 30 May 2018. The criminal record in the appeal papers does not confirm this. On 20 July 2004 he was convicted of being an "unlicensed driver/rider" and released on a good behaviour reconnaissance for two years. On 4 August 2006, Mr Scheele's ACT driver licence was suspended, apparently under s 44 of the General Act, for non-payment of fines imposed when he was served with an infringement notice for parking offences.

16. Thus, his record for complying with his obligation to have authority to drive before driving is not a good one.

17. The first offence the subject of this appeal was committed on 14 May 2012. Mr Scheele was seen by police to be driving in Fyshwick in a car which had no registration plates. Police followed the car and, after losing sight of it, found it in the car park of a service station. Mr Scheele left the service station and walked towards the car. As police got out of their vehicle, Mr Scheele changed course, probably evincing a consciousness of guilt, but was stopped by police.

18. He provided identification and admitted driving the car from Gowrie Court. He said he was driving "[t]o get smokes from the servo". He admitted that the car was unregistered, saying that he had just bought it and was going to get it registered. When asked whether he knew that he was disqualified from holding or obtaining a licence, he said he thought his licence had been suspended. Mr Scheele was arrested and apparently bailed to appear in court on 31 May 2012. It appears that he was further bailed with a condition of his bail that he not be in the driver's seat of a motor vehicle.

19. The second offence occurred on 31 August 2012. Police speaking to a member of the public in Narrabundah saw Mr Scheele driving a car in the suburb and signalled him to pull over. Mr Scheele stopped and reversed the vehicle he was driving. Police again signalled for him to stop but, although acknowledging the police by a nod and pointing to a car park, as if to indicate that he was going to park there, Mr Scheele continued to reverse the vehicle, turned it around and then drove away, again, apparently showing that he knew he was committing the offences charged.

20. Police lost sight of the vehicle but drove in the direction it had taken and later caught sight of the vehicle. They activated the lights and siren of the police vehicle they were in and signalled for Mr Scheele to stop. He did so. He informed police he did not have a licence. He said that he wanted to make sure that the car was right for his sick partner as he was expecting to go jail. He also said he knew that he was not supposed to be driving. His vehicle was also unregistered and uninsured.

21. Mr Scheele was arrested and appeared in the Magistrates Court the next day. He was refused bail and remanded in custody. As well as the offences of driving whilst disqualified he was charged with offences of using an unregistered vehicle and using an uninsured vehicle on each occasion. He was also charged with using a numberplate issued for another vehicle on 31 August 2012. He pleaded guilty to all charges at the sentencing proceedings.

22. He was sentenced on 19 September 2012. I did not have the transcript of the sentencing proceedings but I did, of course, have the sentencing remarks of the learned magistrate. Annexed to an affidavit filed in support of a bail application referred to below (at [34]), however, was a portion of that transcript being the oral evidence of the author of the Pre-Sentence Report about Mr Scheele prepared for and tendered in the sentencing proceedings.

23. Her Honour found that the offending was "completely wilful and for [his] own convenience". The second offences were aggravated because they were committed whilst Mr Scheele was on bail for the first offences. Her Honour acknowledged, however, that, to his credit, he did not engage in the risky behaviour of causing a police chase. Her Honour noted his unenviable criminal history, including similar offences, which denied him much leniency. Her Honour made no reference in the sentencing remarks to whether there were appropriate alternative to imprisonment, especially periodic detention, and, if so, why she rejected them: Crimes (Sentencing) Act 2005 (ACT) s 10(2) (Sentencing Act).

24. Her Honour then imposed the prison sentence referred to above (at [4]-[5]). In doing so, her Honour noted that Mr Scheele was, in her opinion, a repeat offender in respect of the second offence for which a higher maximum penalty was provided, hence the length of the second prison sentence. On the other charges, her Honour fined him $250 on each charge, except for the charge of using numberplates issued for another vehicle for which he was fined $150. Her Honour then considered giving Mr Scheele time to pay these fines totalling $1 150 and granted him 24 months within which to pay.

25. It appears that her Honour's attention was not drawn to s 116ZP of the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act), which provides that if a fine defaulter is imprisoned, the time served in prison is to count towards reducing the amount of any outstanding fines. A fine defaulter is a person who defaults in paying a fine. The effect of the grant of time to pay means that for 24 months - well beyond the end of his time in custody - Mr Scheele would not become a fine defaulter until after he has been released from custody. Had her Honour given Mr Scheele no time to pay he would have reduced the whole of the fines, reducible at the rate of $300 per day under s 116ZP(3), in four days. Her Honour did not articulate any reason for not proceeding in that way and then requiring Mr Scheele to pay the fines after he left prison.

26. Having lodged his Notice of Appeal, it became possible that Mr Scheele's appeal would not be heard until a good portion of his sentence would have been served. Accordingly, he made a bail application which was returnable before me on 7 December 2012. As it happened, a trial that was listed before me had resolved and I had time available the following week and listed the hearing of the appeal then.

27. This prevented the possible and undesirable outcome that, were he granted bail but his appeal dismissed, he would have had to return to custody. This means I appreciated that the usual pre-appeal procedures, such as filing submissions such as under rr 5137-9 of the Court Procedures Rules 2006 (ACT), could not be prepared and filed. It also meant that counsel may not have been able to review fully the appeal papers before the hearing.

28. An issue arose about the dates applicable to the sentences. The sentences orally expressed by her Honour were as follows:

In relation to the first offence of driving while disqualified, as I've indicated, that is an offence, given all the circumstances, that only a period of imprisonment is appropriate. Therefore I sentence you to a period of three months' imprisonment. That period of imprisonment will be served by full time custody. The dates of that will be from the 31st of August 2012 to the 30th of December 2012.

In relation to driving whilst disqualified on 31 August, in relation to that matter you are convicted, you are sentenced to a period of imprisonment of six months; that period of imprisonment to commence on the 31ts of December 2012 and conclude on the 29th of June 2013. That is also to be completed by way of full-time custody.

Of course, three months from 31 August 2012 does not end on 30 December 2012 but on 30 November 2012.

29. It appears from the bench sheets that the dates orally articulated were initially written on them. The bench sheets, however, have been amended to show the correct dates because, of course, the orally pronounced orders would have meant that the first sentence was of four months duration, not three months, and the second was continuous with the first. The formal orders shown in the appeal papers are consistent with the amendments made to the bench sheets. The parties were not aware of any amendment, and it is a pity that this was not addressed at the time the sentence was pronounced.

30. That the sentence was able to be amended to resolve the inconsistency is not in doubt. See R v Gorman [2009] ACTSC 7. That it was done without advice to the parties is not permissible. I set out in Elson v Ayton [2010] ACTSC 70; (2010) 241 FLR 178 at 192-4; [81]-[93] the proper approach to amending sentences.

31. Even judicial officers are human and many are not so mathematically adept that mistakes will never happen. That is unfortunate but not a matter for condemnation, although of regret. The correction, however, must be done with the full knowledge of the parties and preferably in their presence. Such a failure can amount to an error justifying the setting aside of the sentence: Elson v Aton at 194; [93]. I do not consider it does so in this case.

32. Mr Scheele appealed against all the sentences, that is the sentences of imprisonment and the fines imposed. There was, however, only one ground of appeal, namely, that "[h]er Honour failed to properly consider the suitability of the appellant for periodic detention, notwithstanding that the pre-sentence report author in oral evidence recommended his suitability for periodic detention."

33. The written Pre-Sentence Report does record that Mr Scheele was assessed as not suitable for periodic detention, "due specifically to childcare obligations."

34. Annexed to the affidavit of his solicitor in support of the application for bail, as noted above (at [22]), is an extract from the transcript of the sentencing hearing which records the evidence of the author of the Pre-Sentence Report. In that evidence she outlined the circumstances of Mr Scheele's partner and her medical condition. She recounted a summary of a conversation she had had the previous day with the general practitioner treating Mr Scheele's partner. In particular, this had changed her view in relation to periodic detention and she said:

Given what the doctor said yesterday, in his professional opinion that the partner would be able to look after the child of a weekend if Mr Scheele were to receive periodic detention assessment, we would reassess that at this point in time if he consented to say he'd be suitable for that option now.

35. At the hearing of the appeal it became clear that there were two other important grounds that should be addressed. Mr R Livingston, who appeared for Mr Scheele, submitted that, under the relevant legislation, Mr Scheele was not, in respect of the second offence of driving whilst disqualified, a repeat offender and that issue should be agitated on the appeal. In addition, there was the question of the time to pay for the fines and whether in fact that should be re-agitated. He sought leave to amend the notice of appeal to add these two grounds. Mr M Thomas, who appeared for the respondent, very properly consented to the amendment of the Notice of Appeal. An amended Notice of Appeal has now been filed.

36. Mr Scheele is 48 and the only child of his parent's relationship. His parents separated prior to his birth and his mother remarried, a marriage that lasted for 10 years. Mr Scheele and his mother then lived with his maternal grandparents with whom he had a good relationship, as he did with his mother. It was a happy and loving childhood and adolescence.

37. Mr Scheele was educated to Year 10 and started and gained a motor mechanic's apprenticeship which he is said to have completed.

38. He gained employment as a motor mechanic and truck driver but has been unemployed for a number of years. He is dependent on a disability support pension and, after paying rent, utilities and other living expenses, has about $270 per fortnight disposable income.

39. Mr Scheele married when he was 24 but the marriage only lasted two years. He commenced another relationship in 1990; this lasted for seven years and they had two children who live with their mother. He commenced his current relationship about six years ago and describes it as "great". They have a daughter now aged four. [Deleted for legal reasons]

40. Mr Scheele consumes little alcohol but has a long and entrenched history of illicit drug use. He started using amphetamines when he was 24. His drug of choice is now heroin. He says, however, that he has not been using heroin recently. He stated that he has only used it once in the last two years. He does, however, smoke up to six "cones" of cannabis a day.

41. Mr Scheele has had some health concerns in the past including a hospital admission of 27 days for endocarditis and multiple pulmonary abscesses. He has also been diagnosed with depression after witnessing two homicides while in prison compounded by [deleted for legal reasons]. He has, in the past used, but is not currently using, antidepressant medication.

42. Mr Scheele has an extensive criminal record with convictions dating back to 1990. It consists of 57 offences dealt with in 26 court appearances. The offences range from dishonesty offences (including some fraud offences) such as burglary and theft, common assault, drug offences and many traffic offences. There are, too, a number of other offences. They show a pattern of relatively low level but continual criminality and relevant to these proceedings are three offences of driving under the influence of alcohol or other drugs, four offences of driving whilst disqualified, and eight other traffic offences.

43. As noted above (at [24]), the learned magistrate fined Mr Scheele a total of $1 150 for five of the offences, two each of using an unregistered motor vehicle and using an uninsured motor vehicle and one of displaying numberplates issued for another vehicle.

44. As also noted above (at [25]), the learned magistrate did not give consideration to the question of whether the fines should be subsumed within the sentence of imprisonment under the regime established by Sentence Administration Act s 116ZP. There are a number of issues that arise out of this question.

45. In the first place, there is a general resistance by the courts to the imposition of a fine when imprisonment is also imposed, especially if the offender does not have means to pay: Fraser (1985) 20 A Crim R 4 at 12. This may be different if the purpose of the fine is to enforce the disgorgement of any fiscal benefits derived by the offender from the offence: Belcher (1981) 3 A Crim R 124 at 126-7.

46. In the second place, the offences here are part of the same incident and while it is not inappropriate in all cases to require a fine to be paid in the case of additional regulatory offences, the issues of totality and the associated issue of concurrency or accumulation are relevant, especially as fine default may result in additional imprisonment: R v Savundranayagan [1968] 1 WLR 1761 at 1766; Belcher at 128; Fraser at 11.

47. This does not apply directly here for there are many steps before imprisonment is imposed for non-payment of a fine and the court does not set a default period. Nevertheless, the principles of the "one incident" or a "continuing episode" as outlined in Attorney General v Tichy (1982) 30 SASR 84 at 93 are applicable.

48. Thirdly, it seems to me from s 116ZP that the intention of the legislature is that persons who are imprisoned should have any outstanding fines, even those on other matters, reduced while in prison. This is clear from the terms of the section. It refers to "any outstanding fines ... for which the defaulter is liable". The words are clear; the commentary and the Explanatory Statement for the Bill which became the Act that included the provision in the Sentence Administration Act is equally clear.

49. This is not to say that there will not be occasions when there is a proper reason for imposing a fine in addition to a prison sentence, though such occasions will be rare and should be explained.

50. The learned magistrate did not offer any reason for making the fines, in effect, cumulative on the sentence of imprisonment. This was particularly relevant when the reduced means of Mr Scheele was information before her Honour in the Pre-Sentence Report. The offender's financial circumstances is a pre-sentence report matter under s 40A of the Sentencing Act.

51. When this matter was raised during the hearing of the appeal on 12 December 2012, I was satisfied from the absence of reasons that there was no basis for requiring Mr Scheele to pay the fines as well as serve the periods of imprisonment.

52. Accordingly, I then set aside the order granting him time to pay and ordered that he be given no further time to pay. That made him a fine defaulter within the meaning given to that term in s 116A of the Sentencing Act. After four days in custody the whole of the fine would be reduced. Those four days have now been served.

53. It is convenient next to refer to the additional ground of appeal that complains that the learned Magistrate erred in treating Mr Scheele as a repeat offender in respect of the offence on 31 August 2012 of driving whilst disqualified.

54. After Mr Scheele had been convicted and sentenced for the earlier offence of driving whilst disqualified, the prosecutor sought leave to amend the information for that second offence so as to allege that Mr Scheele was a repeat offender. Her Honour said she was not inclined to do that and said:

As I understand it there's no need to amend the charge in those circumstances because it's an operation of law rather than as a matter of charging. He was properly charged as a first offender.

There is a recent case about it ... There was a decision by Magistrate Mossop recently on point, and he concluded that there was no need to amend but by operation of law that it was a repeat offence and he could properly sentence on that basis. Having read his reasons on that I accept that that's the case, and it seems that the defence have no issue with that.

55. It appears that the decision to which her Honour was referring was Reynolds v McTernan [2012] ACTMC 3, decided on 2 August 2012. It was submitted by Mr Livingston that the decision was not applicable to the decision that I faced. I agree.

56. Reynolds v McTernan involved the interpretation of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), and, in particular, s 4F of that Act

(1) A person who is convicted or found guilty of a disqualifying offence is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.

(2) A person who is convicted or found guilty of a disqualifying offence is a repeat offender in relation to the offence if -

(a) the person has been convicted or found guilty of a relevant offence committed at any time before the disqualifying offence was committed (whether or not the person had been convicted or found guilty of the relevant offence when the person committed the disqualifying offence); or

(b) the person is convicted or found guilty of 1 or more relevant offences concurrently with being convicted or found guilty of the disqualifying offence, and 1 or more of the relevant offences were committed before the disqualifying offence.

57. The Explanatory Statement for the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2010 (ACT), which became the Act that inserted the provision, explains in detail the reasons for doing so. It states (at 10):

The inclusion of the words 'whether or not the person had been convicted or found guilty of the relevant offence' in section 4F(2) and 'concurrently with being convicted or found guilty' in section 4F(2)(b) are intended expressly to exclude a common law principle of statutory construction for repeat offender provisions. The essence of the principle is that a law which imposes a higher penalty on repeat offenders should be interpreted as applying only to offences committed after being convicted the first time.

The principle is sometimes known as Lord [sic] Coke's canon of statutory construction and is said to date from the seventeenth century. The principle has been considered and applied judicially in Australia, including in the ACT Magistrates Court decision in Warry v Hill CC 2002/9296-9297.

Lord [sic] Coke's principle of construction is apparently based on the deterrent effect of a conviction and is as follows:

The theory is that the appropriate lesson will have been learnt on the first or subsequent occasion upon which the offender is dealt with by the court, and he or she, having suffered the punishment, will then be deterred from offending in like manner again. The objective of deterrence, based upon escalating periods of actual imprisonment, would be open to grave doubt, if when before a court for the first time, an offender would be liable to incarceration for a period in excess of that applicable for a first finding of guilt, simply because he or she then stood charged with more than one property offence which happened to be joined on separate informations. The justification for increasing the term of imprisonment on the second finding of guilt would be missing as the offender would not have been previously subjected to punishment aimed at deterrence. There would be no opportunity for the multiple offender, not previously charged, to become aware of the certainty of the severity of punishment for the proscribed criminal behaviour. (See Schluter v Trenerry [1997] NTSC 102).

In the seventeenth century, when there were no means of mass communication or ready access to the law by means such as the Legislation Register to inform the community of its legal rights and obligations, it may well have been the case that there was little opportunity for people to become aware of the severity of punishment if a person reoffended. The deterrent effect of repeat offender provisions may have depended very largely on their impact on the particular offenders to whom they applied (specific deterrence) rather than their effect on the community at large (general deterrence). The situation is very different these days, as community access to information about legislation and sentencing generally has improved markedly even in the thirteen years since Schluter was decided. Awareness that drink driving is an offence is an essential part of the knowledge test for all learner drivers and the penalties for drink driving offences are well publicised.

I pause to note that Sir Edward Coke was never raised to the peerage and never was Lord Coke: John Hostettler, Sir Edward Coke: A force for freedom (Universal Law Publishing Co, 2006) xi. This is a frequently made mistake, as noted in argument in Australian Crime Commission v Stoddart [2011] HCATrans 44 (1 March 2011) at 54-79.

58. In Reynolds v McTernan, Magistrate Mossop accepted that the new section had abrogated the rule of statutory construction as articulated in O'Connor v Bini [1908] VicLawRp 79; [1908] VLR 567 at 572 as follows:

It has been held - and as far as I know invariably held since Lord [sic] Coke's time - to be a general rule in regard to Statutes of this kind that where the Statute only fixes one penalty for the first offence and another penalty for a second offence the accused must have been convicted of the first offence before the commission of the second offence in order to justify a conviction and penalty as for a second offence.

This rule has been followed many times: Christie v Britnell [1895] VicLawRp 9; [1895] 21 VLR 71, R v Licensing Justices for the County Borough of South Shields [1911] 2 KB 1; Farrington v Thompson [1959] VicRp 49; [1959] VR 286 at 288-9, O'Hara v Harrington [1962] Tas SR 165; Carter v Denham [1984] WAR 123, Riviera v Maher [1992] TASSC 54; (1992) 17 MVR 370.

59. With respect, that must be right. The amendment was, as noted, expressly intended to overcome the decision in Warry v Hill (Unreported, ACT Magistrates Court, Burns M, 14 March 2003). In that decision, Magistrate Burns, as his Honour then was, applied the above stated principle of construction to find that, having convicted the defendant of committing, on the same day, three offences of an "aggravated burn out", and for which convictions were entered on the same day, did not give the Court power to deal with the defendant for two of the charges as a repeat offender.

60. The difficultly for this case is that the relevant provision is quite a different one from that in the Alcohol and Drugs Act. The provision is s 32(1) of the Road Transport (Driver Licensing) Act 1999 (ACT) which provides:

A person who is disqualified by a court in Australia or under the law of any jurisdiction from holding or obtaining an Australian driver licence must

(a) drive a motor vehicle on a road or road related area during the period of disqualification except in accordance with a restricted licence issued to the person; or

(b) apply for a driver licence during the period of disqualification and in, or in relation to, the application omit to mention the disqualification.

(a) for a first offender - 50 penalty units, imprisonment for 6 months or both; or

(b) for a repeat offender - 100 penalty units, imprisonment for 1 year or both.

61. It seems to me that this provision is quite different from that in the Alcohol and Drugs Act which has been expressly inserted in order to overcome the principle of statutory construction to which I have earlier referred (at [58]).

62. Section 32 is, instead, to be construed in accordance with that well known canon of statutory construction that requires a conviction at least for an earlier offence to be entered before the commission of the offence said to constitute the repeat offence.

63. This did not happen here. Her Honour erred in considering that the offence on 31 August 2012 was a repeat offence and that, for that offence, Mr Scheele should be punished as a repeat offender. The sentence for this offence must accordingly be set aside.

64. As noted above (at [33]), the Pre-Sentence Report recorded that Mr Scheele had been assessed as unsuitable for periodic detention. The reason was that he had childcare obligations.

65. Periodic detention cannot be considered unless the offender is to be imprisoned: Sentencing Act s 11(1)(b). There is something curious about finding that periodic detention is unsuitable for an offender because of childcare obligations, leaving the court to impose full-time custody which must interfere even more seriously with such obligations. See the comments of Marshall J in Edwards v Marinos [2010] ACTSC 57 at [1]. Nevertheless, that may in fact be the case from time to time.

66. The position here, however, was different for the assessment had been changed because of new information provided by the assessor. As noted above (at [34]), the Report author changed her mind and assessed Mr Scheele as suitable for periodic detention. I note that this was not part of the written report, but reports can be given orally or in writing (Sentencing Act s 44) and when dealt with in the way it was here I consider the oral evidence to be part of the Report. This meant that her Honour was obliged to record reasons for not setting a periodic detention period under s 78(6)(a) of the Sentencing Act. Her Honour did not do so.

67. Indeed, her Honour did not address periodic detention at all. The nearest the sentencing remarks came to such a reference was in the references to the imprisonment being "served by full-time custody" and "completed by full-time custody." In my view there is no compliance with the legislation. Nevertheless, failure to comply with the delivery of reasons does not necessarily invalidate the sentence.

68. Perhaps more importantly there is, as Spigelman CJ pointed out in R v Thompson (2000) 49 NSWLR 383 at 394; [41]-[42], an obligation on sentencers to give reasons for their decisions.

69. The Court of Appeal addressed this issue in Robinson v The Queen [2004] ACTCA 1, where the Court addressed the nature of the reasons required. The Court (at [18]) acknowledged the observations of McHugh JA, as his Honour then was, in Soulemenzis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 280, that the reasons need not be "lengthy or elaborate." They need, however, to explain the relevant issues. The Court quoted with apparent approval what had been said by Fitzgerald JA, with whom Whealey and Howard JJ agreed, in JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18 at 21; [19]:

The sentencing judge must explain his or her decision. That might require discussion of some other sentencing options with reasons why those options were not adopted. ... However, it is obviously unnecessary for every possibility to be discussed in every case. For example, it is unnecessary to explain why community service is not an appropriate sentence for a murderer.

For a further recent example, see Mwauluka v Turkich [2013] ACTSC 1 at [35].

70. This approach, is, of course, to be adapted to the need to recognise, as was noted in Sherrow v Hinton [2010] ACTSC 73 at [33], that in a busy Magistrates Court the sentencing remarks may often incorporate, though preferably by reference, such as by expressly referring to the fact that an issue has been addressed in argument and during submissions, the matters referred to in submissions or tendered material such as Pre-Sentence Reports. It seems to me to be important, however, that the reasons address issues of significance that have been raised, especially during submissions such as, in this case, periodic detention.

71. The reasons need not be detailed, complex or extensive. They must set out the relevant factors under consideration and articulate the essential ground or grounds of the decision. Often the test is stated that the reasons must permit, as Kirby J pointed out in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 627; [116], "the persons affected, a court to which appeal may lie and the community [to be] aware of the essential chain of reasoning that brought about the judgment".

72. So far as periodic detention is concerned, there was no such reasoning that can be evaluated or can explain the decision in her Honour's sentencing remarks. Indeed, the absence of reasons in such a case may suggest that the issue was not considered by the Court. In the absence of a reference to an important matter, the inference can be drawn that the matter was not taken into account or addressed. See R v Mangano [2006] NSWCCA 35; (2006) 160 A Crim R 480 at 493; [51]. See also Craft v Diebert [2004] ACTCA 15 at [69].

73. In my view it can be said that her Honour erred in failing to address the question of whether a term of imprisonment must be served by periodic detention. Accordingly, this ground has succeeded and the appeal must be allowed.

74. Having decided that the appeal would be allowed, I permitted Mr Scheele to call oral evidence.

75. Mr Scheele called his mother, who is 72 years old. She described Mr Scheele's partner, who had been diagnosed with breast cancer and who had already had a mastectomy. There was, his mother said, a diagnosis of secondary tumours in her lungs, though the evidence of the Pre-Sentence Report author, who had spoken to her general practitioner, suggested that there was some uncertainty about that diagnosis.

76. Mr Scheele's mother said that she herself was only able to give limited help because of degeneration of her spine which, for example, meant that she could not lift the four year old child of Mr Scheele and his partner. She is able, however, to look after the child for about one day a week. She said that Mr Scheele's partner could look after the child but that she was very stressed and was not coping well and would probably only be able to continue to provide such care for a limited period of time. She said that Mr Scheele's partner was labile and quite depressed.

77. This was confirmed also by the evidence of the Pre-Sentence Report author who reported that she had been told by Mr Scheele that his partner could cope for several days but would struggle. The author said he put the maximum period that she could cope with as being two to three days at a time. Mr Scheele also brought his daughter to one appointment with the author of the Pre-Sentence Report so that she was able to confirm, from observation, the interaction between them.

78. Mr Livingston submitted that this was a case where family hardship would be a particularly relevant factor. It was an exceptional circumstance.

79. The offences were serious examples of driving whilst disqualified, though there were some differences between the two incidents.

80. In the first incident, Mr Scheele said he was driving to get cigarettes from the service station. That he was driving for mere convenience renders the offence somewhat more serious.

81. In the second incident, he explained that he recognised, presumably because of the first incident, that he was likely to be sentenced to prison and wanted to be sure that the vehicle he left for his ill partner would be serviceable. Nevertheless, he was also driving contrary to a bail condition and committing an offence while on bail, both aggravating factors. The driving was described by the learned Magistrate as "completely wilful and for your own convenience." That is certainly accurate for the first offence and, while wilful, I would not describe the second as completely for his own convenience.

82. Although in the first incident he thought his licence was only suspended, it still left him without a right to drive and, for the purposes of assessing culpability, there is little difference. In the second incident, his behaviour in seeking to avoid the police and admitting that he had been disqualified was more serious. It seems to me that the offending here was contumacious as I have discussed in Cotter v Corvisy (2008)

1 ACTLR 299 at 307-8; [36]-[38], namely, that it was driving in defiance of the order of the Court that he not be permitted to drive and that he knew his status and deliberately flouted the prohibition.

83. As a result, a term of imprisonment was clearly appropriate. The question arises as to how that should be served. It clearly was not appropriate to suspend the whole of the sentence. Indeed, the offences, having regard to his record for such offences, though he cannot be punished for them (Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 at 477), probably do not justify any part of the sentence being suspended. On the other hand, there is a real question as to whether the sentence, or part of it, should be served by periodic detention.

84. Ordinarily, it is accepted by the courts that imprisonment will cause hardship to others as well as the offender but that is the inevitable consequence of serious offending. See, for example, Moore v Fingleton (1972) 3 SASR 164 at 168-70. That position has moderated somewhat over the years and the courts have recognised that there are appropriate exceptions where the hardship of the family is a relevant factor that, in an exceptional case, can moderate what would otherwise be appropriate punishment. Thus in Boyle (1987) 34 A Crim R 202 at 205, Burt CJ referred to the departure from the general, although not absolute, rule "in exceptional circumstances, particularly, it seems, when imprisonment will result in children being left to fend for themselves best they can without parental supervision and support". See also R v Wirth (1976)

14 SASR 291 at 296; T (1990) 47 A Crim R 29 at 40; Mawson v Nayda [1995] NTSC 113; (1995) 5 NTLR 56 at 57. For a recent detailed examination of these issues see Markovic v The Queen (2009) 30 VR 589.

85. The circumstances here are probably not as extreme as have been described in many of the cases as necessary to meet the exception from this ordinary rule, but in my view, approach it.

86. There are, however, three matters that are relevant. In the first place, s 33(1)(o) of the Sentencing Act expressly requires the court to take into account the probable effect of a sentence on an offender's family. In the second place, many of the decisions involve a curial choice between custody and a non-custodial sentence such as a suspended sentence whereas, in this Territory, there is a midway disposition, namely, periodic detention. Thirdly, s 11 of the Human Rights Act 2004 (ACT) requires the rights of children for proper protection to be respected and this is relevant to sentence as I noted in Aldridge v The Queen [2011] ACTCA 20 at [34].

87. I also note that in Markovic v The Queen, the Victorian Court of Appeal referred to hardship on the offender as a separate relevant matter saying (at 595; [20]):

The effect on the offender of hardship caused to family members by his/her imprisonment is a quite separate matter. An offender's anguish at being unable to care for a family member can properly be taken into account as a mitigating factor-for example, if the court is satisfied that this will make the experience of imprisonment more burdensome or that it materially effects the assessment of the need for specific deterrence or of the offender's prospects of rehabilitation. These are conventional issues of mitigation and they are not subject to the 'exceptional circumstances' limitation (footnote omitted, emphasis in original).

88. For these reasons, it seems to me that a reasonable portion of the sentence could properly be served by periodic detention to ameliorate the hardship on Mr Scheele's family and Mr Scheele.

89. Accordingly, I will confirm the convictions for all the offences and confirm, as I did at the hearing of the appeal on 12 December 2012, the fines but otherwise set aside the orders of the Magistrates Court.

90. Having confirmed the fines on 12 December, I then varied the order of the Magistrates Court and gave Mr Scheele no time to pay the fines.

91. As to the two convictions for driving whilst disqualified, I will set aside the orders of the Magistrates Court and resentence Mr Scheele to three months' imprisonment for the offence of 14 May 2012, to commence on 31 August 2012, and four months' imprisonment for the offence of 31 August 2012, to commence on 1 December 2012, that is to be wholly cumulative on the earlier sentence. I will direct that from 17 December 2012, that is today, the balance of the sentence until 1 April 2013 be served by periodic detention, the first such period to commence at 7.00 pm on 21 December 2012 when he is to report to the Symonston Periodic Detention Centre.

I certify that the preceding ninety-one (91) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Crown: ACT Director of Public Prosecutions

Solicitor for the accused: Craig Lynch and Associates