SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Stephanie Snaidero v Brooke Amy Crampton and Bridget O'Sullivan

[2014] ACTSC 262

1. The appeal be allowed to the extent of declaring that one period of periodic detention served by the appellant prior to the institution of the appeal in Snaidero v O'Sullivan [2013] ACTSC 117 be declared to have been taken as service of the order of the Magistrates Court on 29 August 2013.

APPEAL AND NEW TRIAL - Appeal against sentence - Whether learned Magistrate erred in sentencing - No error in not taking pre-sentence supervision into account - Medical condition is one that can be addressed by the Sentence Administration Board - No error in the decision of the learned Magistrate - Periodic detention already served should have been taken into account in re-sentencing the Appellant

APPEAL AND NEW TRIAL - Application for appeal to be struck out for want of prosecution - Considerations for such an application - Appellant's responsibility for the delay not egregious - Delays not caused solely by the Appellant - Application dismissed

Crimes (Sentence Administration) Act 2005 (ACT), s 73

Magistrates Court Act 1930 (ACT), ss 209, 216, Part 3.10

Court Procedures Rules 2006 (ACT), r 5191

Blunden v The Commonwealth [2014] ACTSC 123

Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37

Muto v Faul [1980] VicRp 3; [1980] VR 26

Pettitt v Dunkley [1971] 1 NSWLR 376

R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167

R v Smith (1987) 27 A Crim R 315

Snaidero v O'Sullivan [2013] ACTSC 117

ACT Director of Public Prosecutions (First and Second Respondent)

Case Title: Brooke Amy Crampton and Bridget O'Sullvian v Stephanie Snaidero

1. On 30 November 2011, Stephanie Snaidero, the appellant, was stopped by police while driving on Adelaide Avenue, Yarralumla. She had been disqualified from driving on 29 September 2011. Even though she had appeared in Court on that day, she said that she was not aware that she had been disqualified from holding or obtaining a licence.

2. On 10 February 2012, Ms Snaidero, was intercepted by police while driving on William Slim Drive in Giralang. She remained at that time disqualified from obtaining or holding a driver licence. She was arrested and charged with driving while she was so disqualified.

3. She appeared in Court on 11 February 2012 and bail was refused but she was granted bail four days later. At the time, she had also been charged with three other offences, being two charges of driving while her licence was suspended, similar offences, committed on 7 and 10 August 2011 respectively, and one charge of driving whilst she was disqualified from holding or obtaining a driver licence, committed on 19 January 2012.

4. She appeared for sentence in the Magistrates Court for all these offences and others relating to the use of an unregistered and uninsured vehicle on 21 September 2012 and sentenced to fines and terms of imprisonment to be served by periodic detention. She appealed against the sentence and, on 31 May 2013, the appeal was upheld. See Snaidero v O'Sullivan [2013] ACTSC 117.

5. The reasons for upholding the appeal are extraordinarily brief, give no indication of the basis on which the appeal was upheld and would not comply with the requirements set out in cases such as Pettitt v Dunkley [1971] 1 NSWLR 376. The proceedings were, however, remitted to the Magistrates Court and, on 29 August 2013, Ms Snaidero was re-sentenced to some fines and three terms of imprisonment which, after concurrence and accumulation, was for a total period of twelve months, with the first six months to be served by periodic detention and the balance suspended with a good behaviour order for two years. Ms Snaidero has appealed against two of the sentences of imprisonment.

6. Pt 3.10 of the Magistrates Court Act 1930 (ACT) gives this Court jurisdiction to hear and determine appeals from the Magistrates Court 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 and I apply them in this case.

7. 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 specific error but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.

8. Specific errors may be 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 appropriate, I should dismiss the appeal rather than allowing the appeal and reimposing the same sentence. Even if I cannot identify a 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.

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

10. Ms Snaidero prepared and lodged the Notice of Appeal herself, although she had been represented at the sentencing hearing. It was filed on 26 September 2013. It related only to the offences committed on 30 November 2011 and 10 February 2012. It initially appeared that she may be represented on the appeal but she was not.

11. The Notice of Appeal set out the following grounds:

Periodic detention sentence imposed although medical evidence present.

Error in registrar documentation.

12 months of GBO sentence was served by way of supervision by Corrective Services ACT although sentence was not present due to errors in sentencing.

12. It also indicated that Ms Snaidero wished to put further evidence before the Court.

13. The respondent has now sought to have the appeal brought to an end by having it struck out for want of prosecution.

14. In order to understand the application the following chronology is important.

29 August 2013 Ms Snaidero sentenced in the Magistrates Court.

26 September 2013 Notice of Appeal filed on the last day of the period during which an appeal may be lodged under s 209 of the Magistrates Court Act.

31 October 2013 Matter mentioned in the Appeal Index Hearing List as noted by the Registry on the Notice of Appeal. Ms Snaidero appeared in person and the matter was adjourned to 28 November 2013 so as to deal with a fee waiver and obtaining the transcript.

28 November 2013 Matter mentioned in the Appeal Index Hearing List. Ms Snaidero appeared in person. The fee waiver for the transcript had been submitted on 22 November 2013, only six days before the hearing and the transcript was pending. The schedule of documents from the Magistrates Court had been received and a copy provided to the parties. The matter was adjourned to 12 December 2013.

12 December 2013 Matter mentioned in the Appeal Index Hearing List. Ms Snaidero appeared in person. The transcript had not been provided and the Registry was requested to, "chase up transcript". The matter was further adjourned to 19 December 2013.

19 December 2013 Matter mentioned in the Appeal Index Hearing List. Ms Snaidero appeared in person. Despite efforts by the Registry, the transcript was still not available. The matter was further adjourned to 6 February 2014.

6 February 2014 Matter mentioned in the Appeal Index Hearing List. Ms Snaidero appeared in person. The matter was ready for hearing and the transcript was available. The matter was listed before me on 22 April 2014.

22 April 2014 Matter mentioned before me. Ms Snaidero appeared in person and sought an adjournment to seek legal advice. She had been represented in the Magistrates Court by a solicitor from Legal Aid ACT. Mr R Davies, a solicitor from Legal Aid ACT who happened to be in Court agreed, in the best traditions of the profession, to meet with Ms Snaidero and progress an application for representation. The matter was adjourned to 24 April 2014.

24 April 2014 Matter mentioned before me. Mr Davies appeared and advised that Ms Snaidero's application for legal aid was still being processed. The matter was adjourned to 30 April 2014.

30 April 2014 Matter mentioned before me. Mr Davies appeared but Ms Snaidero was not present. Mr Davies advised that the application for legal aid was still being processed. The matter was adjourned to 12 May 2014 and I indicated that whether aid was granted or not, the appeal should proceed on 14 or 16 May 2014.

12 May 2014 Matter mentioned before me. Mr Davies advised that Ms Snaidero's application had been refused and Legal Aid ACT would not be representing her. Ms Snaidero was not present in Court and I was told that she was interstate. I set the matter down for hearing on 5 June 2014.

5 June 2014 Matter mentioned before me. Ms Snaidero was not present. I expressed concern as to whether she was aware of the date for hearing as she had not been present when the date was set. I noted that the respondent proposed to apply to strike out the appeal and I gave leave for the respondent to list that application on a date arranged through my associate and that the application would have to be served personally on Ms Snaidero. Later that day, an email from a solicitor advised that Ms Snaidero was unaware of the Court matter that day and sought advice as to what occurred. I understand that my associate advised her of the application that was proposed to be made.

17 June 2014 Respondent filed an application for Ms Snaidero to show cause why the appeal should not be dismissed for want of prosecution and, if cause is not shown, the appeal be dismissed. The application was returnable on 26 June 2014.

26 June 2014 Application mentioned before me. Ms Snaidero appeared in person. She advised that she wished to proceed with the appeal. I directed that the application and, if not granted, the appeal, should proceed on 28 July 2014. I directed Ms Snaidero to file and serve any evidence on which she wished to rely on or before 21 July 2014. I also directed her to file submissions at least five days before the hearing.

15. Ms Snaidero did not file and serve the additional evidence. She explained that the material she wished to present had been sent to her electronically but that her laptop had been stolen. The theft had been reported to the police. She had then sought additional copies but her medical practitioner only worked three days a week which added to the delay. She said that she had tried to send a copy to a general email address at the Office of the Director of Public Prosecutions last Friday. Mr M Reardon, who appeared for the respondent, advised that he had not received them. I allowed Ms Snaidero to hand a copy of the papers to Mr Reardon and to hand them to me for consideration.

16. Ms Snaidero did not, as directed, file any written submissions. Despite this, the respondent did file submissions addressing what was understood to be the issues in the appeal.

17. Rule 5191 of the Court Procedures Rules 2006 (ACT) empowers the Court to dismiss an appeal for want of prosecution. It provides that the respondent may apply to the Court to require an appellant to show cause why the appeal should not be dismissed and on the hearing of such an application the court may order that the appeal be so dismissed.

18. In Muto v Faul [1980] VicRp 3; [1980] VR 26 at 31, the Full Court of the Supreme Court of Victoria held that the principles applicable to the dismissal of an action for want of prosecution apply to such an order in relation to an appeal. A number of decisions of this Court have addressed the considerations a court must address when considering whether to strike out proceedings for want of prosecution. See for example, Commonwealth v Australasian Correctional Services Pty Ltd [2013] ACTSC 37 at [36]- [39].

19. More recently, I addressed these issues in Blunden v The Commonwealth [2014] ACTSC 123 at [37].

(a) how long ago the events, the subject of the proceedings, occurred and any delay before the litigation was commenced;

(b) what prospects of success the appellant has on the appeal;

(c) whether there has been disobedience to court orders;

(d) whether the appeal has been characterised by periods of delay;

(e) the degree of responsibility of the appellant for the delay;

(f) whether the litigation between the parties would be concluded by dismissing the proceedings;

(g) whether the respondent would suffer prejudice if the appeal were not struck out;

(h) what preparation the respondent had done towards the hearing of the appeal; and

(i) whether there was a satisfactory explanation for the delay.

21. Much of those matters are dealt with in the chronology and the outline of the factual basis of the proceedings above. It can be seen from the chronology that Ms Snaidero does bear some responsibility for the delay, but there have been some explanations for it and I do not consider that her responsibility for the delay is egregious. Some of the responsibility is to be borne by others than herself. There is no prejudice that has been identified that the respondent may suffer. The respondent has prepared submissions and is ready for hearing of the appeal.

22. Ms Snaidero has not obeyed all court orders but, again, there is some explanation for at least some of her failures. Nevertheless, there has been an unacceptable delay in bringing the proceedings to a head and, were it not possible to proceed today and were that impossibility to be the responsibility of Ms Snaidero, I would have little hesitation in striking the matter out for want of prosecution. In the circumstances, however, the real issue is whether there are prospects of success on the appeal.

23. Accordingly, I considered that I should hear the appeal and this course was not opposed by the parties.

24. The facts of the various offences were not fully available, though they appear to be generally unremarkable versions of the offences involved.

25. In circumstances not discernible from the material before me, Ms Snaidero had her driver licence suspended by law at some time prior to 7 July 2011. She drove her car on that day and was charged with that offence. She was not, however, dealt with for that offence until 29 September 2011, when she was disqualified from obtaining or holding a driver licence for 12 months.

26. Despite her licence being suspended and having been charged for an offence on 7 July 2011, she drove her motor vehicle on 7 August 2011 and was again intercepted by police and charged with that offence.

27. She was again charged with driving on 10 August 2011, while her licence was suspended by law, although at that stage she had not been convicted for any of these offences.

28. On 29 September 2011, however, Ms Snaidero was disqualified from holding or obtaining a driver licence by the Magistrates Court for the offence committed on 7 July 2011.

29. On 30 November 2011, she was intercepted by police while driving along Adelaide Avenue, as I have set out above (at []). She was drawn to police attention when they targeted her number plate through the Recognition and Analysis of Plates Identified (RAPID) system, which is operated through a computer in the police vehicle. There was no manner of driving or other matter that drew her driving, on that occasion, to the police attention.

30. On 19 January 2012, she again drove and was intercepted by police, although I have no details of the offence for reasons that appear below (at [34]). It was said by the learned Magistrate that, at the time, she was subject to bail conditions that prohibited her from driving a motor vehicle or being in the driver's seat of a motor vehicle, but I was not able to confirm that.

31. She then drove again on 10 February 2012, as I have set out above. Again, she was drawn to the attention of police through the use of the RAPID system.

32. As I have set out earlier, she was first sentenced on 21 September 2011 but, following a successful appeal, she was re-sentenced on 29 August 2013. The learned Magistrate imposed fines for the offences committed on 7 and 10 August 2011 and for the other offences imposed the following sentences:

• driving on 30 November 2011 whilst disqualified, three months' imprisonment, discounted by three weeks for her plea of guilty and disqualified from holding or obtaining a driver licence for twenty-four months;
• driving on 19 January 2012 whilst disqualified, six months' imprisonment, discounted by six weeks for her plea of guilty with four months cumulative on the first sentence and disqualified from holding or obtaining a driver licence for twenty-four months;
• driving on 10 February 2012 while disqualified, eight months' imprisonment, discounted by two months for her plea of guilty to be cumulative as to five months on the second sentence and disqualified from holding or obtaining a driver licence for twenty-four months.

33. The total sentence was twelve months' imprisonment and, as earlier noted, the Court set the first six months period of imprisonment to be served by periodic detention and thereafter suspended the term of imprisonment as required also making a good behaviour order with a probation condition for two years from the date of suspension of the imprisonment.

34. As the otherwise accumulation of the disqualification would have resulted in a period of six years and two months, the Court directed that the disqualification for the second of the above offences be wholly concurrent and twelve months of the third period be concurrent, resulting in a total period of disqualification from holding or obtaining a driver licence of three years and two months to commence from the end of the period to which she was then subject.

35. As Ms Snaidero was unrepresented, Mr M Reardon, who appeared for the respondent, very properly submitted that Ms Snaidero should include an appeal against the further sentence of imprisonment for the third additional offence, that is the offence committed on 19 January 2012, and indicated that the respondent would not oppose such an amendment. I permitted Ms Snaidero to amend the Notice of Appeal accordingly. It has, however, not yet been formally amended, but I will take that additional appeal into account. Because of the permitted amendment, I did not have the Statement of Facts for this further offence, but it seems unchallenged that it was simply a case of Ms Snaidero again driving whilst still disqualified and being, again, detected doing so.

36. Ms Snaidero is now nearly twenty-five years old. She first came into contact with the courts on 8 December 2012 in respect of a non-traffic matter. Since that time, however, she has, including these offences, been convicted of sixteen traffic offences including seven charges of driving whilst unauthorised to do so. This was, as the learned Magistrate pointed out, a "horror period" in Ms Snaidero's life.

37. The last traffic offence was the one she committed on 10 February 2012, that is, over eighteen months prior to the date of the sentence. She was, however, dealt with by the Magistrates Court on 21 May 2013 for seven offences of obtaining property by deception between 26 July 2010 and 13 August 2010. She also failed to appear in accordance with a bail undertaking on 16 April 2012, from which date she has been offence free.

38. Ms Snaidero was born in 1989 in Griffith, New South Wales. She moved to Canberra with her family when she was ten and her family have lived in the area since then. Her family is a close one. Ms Snaidero was educated in Griffith and then Canberra, achieving excellent grades and completing Year 12. She then commenced, in 2009, and completed, a four year apprenticeship as an electrician. She has had various periods of employment and a period of unemployment but is now permanently employed. She has been appointed as work supervisor for her employer.

39. A reference from her employer showed that she was originally employed on a temporary basis but because of her hard work and dedication, she was made permanently employed and is now a full-time employee. She is described as having a "strong and successful career path ahead of her". She is required to be "on call" in her job so as to attend situations of fire, flood, change of locks and access to premises. The loss of her driver licence will clearly hamper her employment.

40. She is described as "a vital part" of her employer's team and also head of the firm's social club. Her employer noted that she "has matured in the past few months in an exceptional way where she can handle the strains and pressure of great responsibility".

41. She has had one significant personal relationship of two years but that ended because she says she was so focussed on her career, working long hours, and she and her partner drifted apart. The ending of the relationship seemed to be traumatic.

42. Ms Snaidero drinks little alcohol, and only socially, and does not use illicit drugs. She has a regular income and reasonable financial stability. She has no current mental health problems, though she has shown some moodiness and depression.

43. Her major issue at the moment is her physical health. She has been unwell for some years and, in February 2012, was diagnosed with Type 1 diabetes. She is currently insulin dependent, requiring injections five times a day. This could have affected her mood and depression. This diagnosis had a major effect on her because of her high achievements and success in what she attempted.

44. Ms Snaidero submitted a number of character references. They were uniformly very positive. They described her as "a loyal and selfless friend" who had succeeded in a work environment that was predominantly male. She is, it was said, very conscious of ensuring the satisfaction of her clients. She has supported her friends and continued to work hard despite some significant challenges that her diabetes has had for her work capacity. She was described as, "upfront, open and honest, reliable and able to express herself freely".

45. Clearly her medical condition was an important issue for sentencing. As King CJ said in R v Smith (1987) 27 A Crim R 315 at 317

The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence with which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the correctional services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking, ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a great burden on the offender by reason of the state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender's health.

46. Ms Snaidero's diabetic condition is thus relevant to sentencing but not necessarily determinative of a particular income. The learned Magistrate had a report from the endocrinology Registrar of the Canberra Hospital to her general practitioner setting out the details of her original diagnosis in May 2012. He also had a copy of two reports to Ms Snaidero's lawyers from her general practitioner. The first report addressed a number of relevant issues. It described her medical condition as presently stable. She had at a consultation on 2 July 2012, however, a severe level of stress consistent with a diagnosis of severe depression or anxiety. She has been referred to a psychologist.

47. Ms Snaidero's general practitioner was also asked in the second report about sentencing issues. She was unable to comment on how well her diabetes was then managed but she reported that she "should be able to complete weekend detention of any number at a time without any complications or aggravations of her underlying condition". As to full-time imprisonment, her general practitioner reported that she "should be able to complete full-time imprisonment without complications or aggravations to her condition".

48. The Pre-Sentence Report tendered at sentence stated that inadequate or inappropriate treatment for her condition "could affect thought processes". This matter was subject to an express comment by the learned Magistrate who stated, after referring to the reference and submissions earlier made:

It was not pressed on me in submissions, on that occasion and nor was it pressed on me during submissions on this occasion, that any comments go so far as to establish the existence of some impaired mental function which would reduce your moral culpability or required me to give reduced significance to either general or specific deterrence.

49. Ms Snaidero sought to adduce further evidence. I have set out in Grooms v Toohey (2012) 7 ACTLR 1 at 7-10; [30]-[37] the principles which apply when further evidence is sought to be admitted on appeal.

50. Ms Snaidero first handed up some reports from her general practitioner and counsellor. They did not add anything to the material that was before the learned Magistrate and to what I have already referred above. There was no basis for the admission of this evidence and I rejected it.

51. Ms Snaidero secondly sought to refer, from the bar table, to the period after the first sentencing and prior to the first appeal and what happened when she had been subject to supervision on a good behaviour order. She submitted that the learned Magistrate should have taken that period of supervision into account.

52. It is clear that the learned Magistrate was aware of the earlier proceedings over which he had presided, although it may not be such that he had clear details of the period of supervision or of periodic detention that Ms Snaidero actually encountered during that period. No submissions, however, were made as to how that period should be taken into account, if at all. It is clear from decisions such as R v Webb [2004] NSWCCA 330; (2004) 149 A Crim R 167 at 170; [18] that there is no error in not taking pre-sentence supervision into account, even if that supervision is of a most stringent kind.

53. The learned Magistrate was clearly aware of the earlier progress of the proceedings. I do not consider that this evidence should be admitted on the appeal as it does not meet the conditions for such admission.

54. It is clear, however, that Ms Snaidero did spend one period of detention in periodic detention and it seems to me that this period should be taken into account. No contrary submission was made by the respondent.

55. Ms Snaidero expressed concern that her diabetic condition made the service of periodic detention problematic. This is shown in the fact that it appears she was excused from attendance on a number of occasions because of that condition. This, however, may be addressed by an application to the Sentence Administration Board under s 73 of the Crimes (Sentence Administration) Act 2005 (ACT) which may be made by Ms Snaidero. In the circumstances of the advice to her general practitioner, it seems to me that the learned Magistrate was right to approach the matter as though this was not an issue for him but one that could be taken into account by the Sentence Administration Board.

56. I note that the Pre-Sentence Report assessed Ms Snaidero as suitable to serve a term of imprisonment by periodic detention even though the author was aware of her diabetic condition. This is consistent with the advice from her general practitioner. If an application to the Sentence Administration Board is made and the matter is referred back to the learned Magistrate for reconsideration of sentence, no doubt his Honour will have regard to the periods of detention that were not served by Ms Snaidero because of her medical condition. I do not consider that this matter justifies upholding the appeal.

57. While the delay in disposing of this appeal has been considerable, I am not satisfied that, at the end of the day, it should be struck out for want of prosecution. I do consider, however, that Ms Snaidero has not shown any error in the sentence imposed by the learned Magistrate.

58. There were a significant series of breaches of the law committed by her and which, even allowing for some impairment of her mental processes, were culpable and seriously so. There is, for example, no suggestion that she was unable because of her condition to continue working at her trade during that period.

59. I can see no error in the decision of the learned Magistrate and the appeal must be dismissed save for one minor adjustment to the sentence to which I have already referred.

I certify that the preceding fifty-nine [59] numbered paragraphs are a true copy of the Reasons for Judgment of /his Honour Justice Refshauge.