Supreme Court of the ACT|2010-05-17|Before: Refshauge J, Sheds J

Stevce Apolevski v Damien Kinnane [2010] ACTSC 43 (17 May 2010)

[2010] ACTSC 43 (17 May 2010)

APPEAL - appeal from Magistrates Court of the ACT - section 208 Magistrates Court Act 1930 (ACT) - principles to conduct appeals.

CRIMINAL LAW - sentencing - motor traffic offences - whether "contumacious" - relevance of remorse.

Fox, R "When Justice Sheds a Tear: The Place of Mercy in Sentencing" (1999) 25 Monash University Law Review I

Ledson v Taylor, Robison & Brown [2010] ACTSC 42

Barac v Thexton [2008] ACTSC 137

Campbell v Fortey (1987) 85 FLR 462

Charnock v Coady, Tootal, Watson, Lester, Thomas and Coutts [2010] ACTSC 26

Talukder v Dunbar [2009] ACTSC 42

R v Storey [1998] 1 VR 359

Neil v Steel (1973) 5 SASR 67

Moh v Pine [2010] ACTSC 27

Markovic v The Queen [2010] VSCA 105

R v Niketic [2002] NSWCCA 425

Spatolisano v Hyde [2009] ACTSC 161

Council of the City of Greater Wollongong v Cowan [1955] HCA 16; (1955) 93 CLR 435

ON APPEAL FROM DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE DECISION OF THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The sentence of the Magistrates Court is set aside.

3. In lieu, Mr Apolevski is sentenced to imprisonment for 4 months from 7 April 2010 until 7 August 2010.

4. On 20 May 2010, the sentence is to be suspended for 18 months.

5. Mr Apolevski is ordered to sign an undertaking to comply with the offenders' good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of 18 months from 20 May 2010 with the following additional conditions:

(a) That for 18 months from 20 May 2010 he be subject to supervision by the delegate of the Chief Executive and obey all reasonable directions of the person delegated to supervise him; and

(b) That he perform 120 hours of community service within 12 months of 20 May 2010.

1. Driving without a licence because the driver has been disqualified by a court from holding one, or his or her licence has been suspended by the ACT Road Transport Authority appears to be relatively prevalent offences. The Courts must play their part in deterring offenders from engaging in such behaviour.

2. I have recently in Ledson v Taylor, Robison & Brown [2010] ACTSC 42 (at [71]-[73]) set out the basis and rationale for this offence. I adhere to and adopt what I there said.

3. In this case, the Appellant, Stevce Apolevski, appeals from a decision of the Magistrates Court of 7 April 2010 in which he was convicted of the charge that he, a first offender, drove whilst disqualified on 14 January 2010.

4. That offence is contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) which provides:

(1) 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 not -

(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;\

(a) for a first offender - fifty penalty units, imprisonment for six months or both ...

(8) In this section -

(a) a person who is convicted of an offence against this section (the current offence) is a repeat offender in relation to the current offence if the person has been convicted, or found guilty, of an offence against this section within 5 years before being convicted of the current offence; and

(b) a person who is convicted of an offence against this section is a first offender in relation to the offence if the person is not a repeat offender in relation to the offence.

5. On 7 April 2010 in the ACT Magistrates Court, Mr Apolevski was convicted for that offence and sentenced to four months imprisonment to commence on 7 April 2010 and end on 6 August 2010 and was disqualified from holding a driver's licence until the court orders otherwise.

6. On 29 April 2010, Mr Apolevski filed, through his solicitors, a Notice of Appeal from the sentence. The grounds of the appeal were:

(a) Her Honour failed to give adequate weight to the early plea of guilty;

(b) Her Honour made a factual determination as to suitability for periodic detention on the basis of evidence that did not support that conclusion;

7. Mr Apolevski also sought to put further evidence before the court.

8. The Appellant did not comply with r 5193 of the Court Procedures Rules 2006 (ACT) which regulates the procedure for the admission of further evidence on appeal under s 214 of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). This requires an Application be supported by an Affidavit setting out the grounds of the application, any evidence necessary to establish the grounds of the application and the evidence that the Applicant wants the Supreme Court to receive. That Affidavit is to be filed not later than 21 days before the day set for the hearing of the appeal.

9. As I said in Barac v Thexton [2008] ACTSC 137 (at [26]):

The reasons for such a provision are clear. It gives the other party a proper opportunity to consider its attitude to the adducing of that evidence and prepare for any argument if it seeks to oppose it, knowing what the evidence will be. It also permits the other party an opportunity to make any necessary inquiries that may be required in respect of that evidence. Finally, it allows the other party the opportunity to have prepared its submissions knowing the full extent of the evidence that will be before the Appeal Court.

10. The circumstances in which the appeal came to be heard, however, are somewhat unusual. As is noted above, the sentence was imposed on 7 April 2010 and the Notice of Appeal was filed, within time, on 29 April 2010. An Application for Bail was made on 4 May 2010. It came before me and, although I granted Mr Apolevski what is sometimes called "day bail" to attend the funeral of his grandfather the next day, I was disinclined to grant him bail pending the appeal because of the real likelihood that the appeal would not be successful.

11. Nevertheless, the relatively short sentence meant that, in the ordinary course, it was unlikely that the appeal would be heard before the expiry of his sentence. This would, ordinarily, be a good ground for granting bail.

12. As it happened, however, because of the vacation of certain appeals before the Court of Appeal, hearing days became available in the week following the bail hearing. As a result, it became possible to have the appeal heard on short notice. This was, in very large part, due to the co-operation and assistance of the Respondent, particularly Ms N Werner of the Office of the ACT Director of Public Prosecutions, whose assistance made the appeal hearing at short notice possible and whose contribution to that should be acknowledged with appreciation.

13. Part 3.10 of the Magistrates Court Act regulates appeals to the Supreme Court from decisions of a Magistrate. This appeal is brought under s 208(1)(e)(i) of that Act which gives the court jurisdiction to hear and determine appeals against sentences of imprisonment imposed under Pt 3.2 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) which is the sentence imposed upon Mr Apolevski.

14. Once the appeal has been instituted, the orders of the Magistrates Court are stayed under s 216 of the Magistrates Court Act. That section provides the availability for bail although, as noted above (at [10]) , bail was not granted to Mr Apolevski in this case. Therefore, the Appeal Court must bear in mind that Mr Apolevski's present custody will not, absent an appropriate order of this court, count as part of the sentence to be served, at least from the filing of the Notice of Appeal on 29 April 2010.

15. An appeal under these provisions is by way of re-hearing: Campbell v Fortey (1987) 85 FLR 462 (at 464-5).

16. In Charnock v Coady, Tootal, Watson, Lester, Thomas and Coutts [2010] ACTSC 26, I set out (at [61]-[63]) the nature of an appeal by way of re-hearing. I adopt what I said there. I also set out in Ledson v Taylor, Robison & Brown, as follows, the principles upon which such appeals from sentences are to be conducted, as I discerned that from the authorities. I said (at [46]):

The principles on which such appeals are to be conducted seem, on the basis of the authorities, to be as follows:
1. The Court should only exercise its powers to intervene where, having regard to all the evidence before it, including any further evidence admitted on the appeal, the order appealed from is demonstrated to result from some legal, factual or discretionary error.
2. In finding the facts, the appellate court is in as good a position as the lower court, to decide the proper inferences to be drawn from the undisputed facts where no oral evidence is given in the court below, or the Trial Judge's findings based on oral evidence are not challenged. The appellate court must, however, give respect and weight to the conclusion of the Magistrate, although, once having reached its own conclusion, must give effect to it.
3. The sentence imposed must not be overturned simply because the appellate court would have imposed a different sentence at first instance but error must be found in the decision of the lower court.
4. A legal, factual or discretionary error may be found where the lower court, inter alia, has taken into account irrelevant considerations or failed to take account of relevant considerations, made an error of law, acted on a wrong principle or mistaken the facts.
5. The error may not be a specific error that can be identified but that the sentence is manifestly excessive, unreasonable or manifestly inadequate. In such a case, error may be inferred, given that the sentence is excessive, unreasonable, inadequate, unjust or wrong. From that inference, of course, there must be able to be drawn the conclusion that a different sentence is appropriate.
6. Despite the finding of error, it is still necessary to show that the sentence is manifestly excessive, unreasonable or manifestly inadequate and, in the event that this is not shown, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence.

17. The facts are that, on 14 January 2010, police were on mobile patrol in Hawker, a suburb in Canberra, when they were using an automatic numberplate recognition system known as RAPID (Recognition and Analysis of Plates Identified).

18. As I understand it, that system identifies a numberplate and, if it is linked to a driver whose licence has been suspended or who has been disqualified from holding a licence, will draw that to the officer's attention.

19. The vehicle was stopped and the driver identified as Mr Apolevski. When the police officer asked whether Mr Apolevski had his licence on him, Mr Apolevski replied "No, I haven't got one [sic] I've been disqualified". He was then identified, arrested and charged. It was discovered that Mr Apolevski had been disqualified from obtaining or holding a licence for a period of two years from 23 February 2009 by the Queanbeyan Local Court for an offence of driving whilst disqualified from holding a licence.

20. At the hearing before the learned Sentencing Magistrate, Mr Apolevski's counsel sought to explain the background of the offences. He was interrupted by the learned Sentencing Magistrate and it appears never resumed that explanation. Nevertheless, a Pre-Sentence Report (under Pt 4.2 of the Sentencing Act) had been prepared and explained as follows:

The offender stated that the current offence occurred after he had missed his pre arranged transport to work and was running late. He stated that he 'had to be at work' so he drove.

21. As I explained in Talukder v Dunbar [2009] ACTSC 42, facts are, especially in a busy Magistrates Court, usually given in sentencing by submissions from counsel at the Bar Table or in documents such as the Pre-Sentence Report. That is not only permissible, but inevitable.

22. I there referred to what was said by Winneke P, Brooking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 (at 371):

Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by calling of appropriate evidence.

Thus, defence counsel can be reasonably confident that appropriate submissions, including assertions of fact, can be made from the bar table and will be accepted by the court and relied upon in the sentence unless challenged, either by the prosecution or the court. Of course, this leaves us somewhat flexible the extent to which such assertions may go before a challenge would be expected and for which defence counsel or, mutatis mutandis, prosecutions should be ready to prove in the usual way.

24. It may be that where the offence is so serious that evidence beyond mere unchallenged assertion is required. See, for example, Police v Hill [2005] SASC 458; (2005) 93 SASR 307 (at 313). Counsel appearing for defendants in the Magistrates Court should ensure that, where appropriate, medical certificates, letter from employers and similar material is available. It may even be appropriate in, perhaps, the unusual case, for oral evidence to be called.

25. In this case, no such challenge was made to those assertions although it has to be said that her Honour did note:

There are taxis available and he has a wife who was at home to drive him. That is absolutely not excusable. You know it wouldn't be excusable if he said he had to rush his wife to hospital, you know, that's been found not to be an excuse. To be late for work, that's - the responsibility is on him. When somebody hasn't got a licence to drive they have to be vigilant and they have to be very careful about what they do with their life to make sure that they can get around. That is lame, absolutely lame and that's not an excuse that I would accept as a legitimate excuse ...

26. I am not entirely certain of what her Honour was there saying. If she was saying that a person who drives whilst disqualified when "rushing his wife to hospital" would not have a valid defence to the charge, then that may not be correct. I do not know and have been unable to find the case to which her Honour was apparently referring, but I do note that in R v Martin [1988] EWCA Crim 2; [1989] 1 All ER 652, the UK Court of Appeal held that in extreme circumstances, the English law does recognise a defence of necessity. The case was one of driving whilst disqualified. The court said (at 653):

Most commonly this defence arises as duress, that is pressure on the accused's will from the wrongful threats or violence of another. Equally however it can arise from other objective dangers threatening the accused or others. Arising thus it is conveniently called 'duress of circumstances'.

Second, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionately in order to avoid a threat of death or serious injury.

Third, assuming the defence to be open to the accused on his account of the facts, the issue should be left to the jury, who should be directed to determine these two questions: first, was the accused, or may he have been, impelled to act as he did because as a result of what he reasonably believed to be the situation he had good cause to fear that otherwise death or serious physical injury would result; second, if so, would a sober person of a reasonable firmness sharing the characteristics of the accused, have responded to that situation by acting as the accused acted? If the answer to both those questions was Yes, then the jury would acquit; the defence of necessity would have been established.

27. In any event, even were the facts not sufficient to make out the defence, those facts would be relevant to show whether the driving whilst disqualified was contumacious or not. Perry J said in Sheean [1999] SASC 187; (1999) 106 A Crim R 38 (at 41-42):

In that respect, I remain of the view ... that the necessary element of defiance may properly be found to exist if the evidence discloses a deliberate act of driving by a person who well knows that he or she is disqualified from driving, which is a significant act of driving in the sense that it involves a more than momentary passage or episode of driving, and 'is not ameliorated by reference to circumstances such as an emergency or some other form of duress'. I have emphasised the words 'such as' to make it plain that I was not suggesting that the particular circumstances of emergency or duress were to be taken as exhaustive. Other circumstances may well serve to ameliorate the seriousness of the passage of driving, so that it might then cease to be 'contumacious' in the relevant sense.

Defiance is, after all, an attitude of mind.

28. Perhaps the most significant matter in this case is that Mr Apolevski has a history of traffic offences. His criminal history commenced in 2002 when he was sentenced to a period of periodic detention by the Sutherland Local Court for twelve drug offences. It is to be noted that, since then, he has had no offences involving illicit drugs.

29. Later in 2004 and 2005 he was dealt with by New South Wales Courts in relation to some dishonesty offences which related in a fine and a good behaviour bond.

30. Apart from that, his offences are traffic offences. There is one drink-driving offence, but most significantly a large number of offences of driving without a licence. In 2002 he was dealt with for a driving whilst suspended and between 2006 and 2009, he was dealt with for six offences of driving whilst disqualified. In 2006, he was given a suspended sentence. In 2007 that sentence was activated and he was sentenced to an additional period of imprisonment for a further offence which had caused the activation of the earlier suspended sentence, resulting in a total period of nine months imprisonment with a non-parole period of six months.

31. In 2009, he was given a further suspended sentence. It is not clear from the record why, after the earlier sentence of imprisonment, a further offence resulted in a suspended sentence.

32. Thus, he came before the court with a long record of the same offences.

33. Mr Apolevski was born in Sydney and lived with his family until he was 17 years old. He had a positive and supported upbringing. When he left home he moved to Canberra and told the author of the Pre-Sentence Report that "[a]s a teenager he made some bad choices and was associating with a peer group who were getting into trouble with the law". That is clear from the criminal record to which I have referred. This, he said, was one of the reasons why he left Sydney and, this is broadly consistent with the criminal record.

34. About a year after he moved to Canberra, he met his current partner and they commenced cohabiting. They have been in a relationship for approximately eight years and have a three year-old son.

35. This most recent offence, however, has put strain on the relationship and his partner told the author of the Pre-Sentence Report that she had made it clear to Mr Apolevski that "[i]f he were to receive a custodial sentence or his offending behaviour continued she 'would not wait around for him'".

36. Mr Apolevski commenced employment soon after leaving school. He initially worked as a builder's labourer but then gained employment in the hospitality and retail industries and later obtained machine operator work leading to his current employment as an excavator operator with a waste management company. He only drives in the yard because, of course, the absence of a driving licence would not permit him to drive on the streets.

37. Mr Apolevski's employer indicated that he was a valued employee and his employer was aware of his current licence disqualification. Mr Apolevski does not work at weekends.

The offender presented as remorseful for his actions and displayed insight into the effects his offending may have on the community. He further expressed his disappointment in himself due to the effect his continued loss of license (sic) has had on his partner and their child. He stated that his inability to drive has placed pressure on his partner because she is required to transport him and their son to all appointments.

The offender also expressed concern and remorse for the offence because his partner has indicated that if he was to receive a custodial term she may not 'wait around for him'.

He expressed motivation to cease offending and stated that he has sold his vehicle so he cannot drive if tempted and he intends on re-locating his family to a rental property closer to his employment in the near future.

39. The learned Magistrate was very critical of Mr Apolevski.

40. She noted that he had pleaded guilty, a matter to which I will return. She noted his age and his record suggesting that "[t]his man has absolutely no respect for the law. He is a prolific offender".

41. Her Honour noted the maximum penalty, namely six months imprisonment and noted, with respect quite correctly, that the six prior offences in New South Wales cannot be ignored. She then commented, "... his record offers him absolutely, or offers absolutely no room for any leniency". Her Honour then referred to the Pre-Sentence Report and said:

It says that he's remorseful and that he shows insight. I have doubts about the fact that he is remorseful and also doubts about the fact that he shows any insight.

42. Her Honour then made extensive reference to Cotter v Corvisy (2008) 1 ACTLR 299 and the principles set out in it. Her Honour then noted:

... this is a view that's held, I say, by courts in this Territory and courts everywhere else, that the offence was a serious offence, it's a prevalent offence, deterrence is a predominant factor in sentencing. And that it is an offence which ordinarily warrants a sentence of imprisonment.

43. She noted the relatively early plea of guilty but that "he was caught red-handed in the commission of the offence, so therefore he is not entitled, in my view, to any significant reduction in the sentence".

44. Her Honour then referred to the fact that he has a child and commented:

He, (sic) it's clear from his criminal history and the prolific way in which he disobeys court orders, that he just fails to obey court orders. He served sentences imprisonment and he wasn't deterred by sentences of imprisonment. He was placed on, he's been placed on four suspended sentences of imprisonment and that hasn't deterred him either. And his record shows that he also breaches good behaviour bonds and orders.

45. Her Honour then determined, I might say with respect, quite appropriately, that imprisonment was appropriate. Her Honour then referred to options for the way in which the imprisonment should be served, she said:

Periodic detention is not appropriate, in my view, because of the seriousness of the offending and also I have severe doubts that he will not comply with any orders that he would need to comply with under a periodic detention sentence.

He says that he would do periodic detention, but quite frankly I do not believe him. He needs to have a very strong message of deterrence and a very strong sentence of deterrence imposed upon him.

He is sentenced to four months imprisonment. If it hadn't been for his plea of guilty, I would have sentenced him to four months and one week, so he gets a discount of one week. Four months imprisonment, the sentence to commence today, being 7 April and he is disqualified from driving until the court orders otherwise.

47. I shall deal with each ground on appeal in turn.

48. It appears from what was said above (at [43]) that the head sentence her Honour proposed to impose was four months and one week. Whilst, of course, a sentencer may impose whatever appropriate sentence seems proper. It is quite odd to think of a sentence being imposed of that particular length. It is almost universal for sentences, other than those where "time served" leads to a period of weeks or days in addition to some months, to be imposed for a period of months.

49. Reference to such a period has the very unfortunate consequence that it appears as though the period might be an afterthought.

50. Section 35 of the Sentencing Act provides that a court must consider the fact that an offender has pleaded guilty, when the offender did so and other matters. The court is then empowered, but not required, to impose a lesser penalty than it would have otherwise have imposed if the offender had not pleaded guilty to the offence. It is, however, almost universal practice for courts to reduce sentences because of pleas of guilty. There are good criminological and policy reasons for that: see Cameron v The Queen (2002) 209 CLR 339.

51. Section 35(4) further provides:

However, in deciding a lesser penalty, the court must not make any significant reduction for the fact that the offender pleaded if, based on established facts, the court considers that the prosecution's case for the offence was overwhelmingly strong.

52. In this case, it is clear that the prosecution's case was overwhelmingly strong. For the most part formal records (unlikely to be challenged) would make it clear that Mr Apolevski had no driving licence and the police had apprehended him in the act of driving.

53. I see no error in a modest reduction of sentence in this case. A week is not unreasonable in all the circumstances. It would seem to me, however, that rather than use the apparently artificial suggestion of a head sentence of four months and one week, it would have been somewhat more realistic to impose a sentence of four months and then reduce that by one week to take account of the plea of guilty. That, would, however, be tinkering and not justify my intervention in this sentence.

55. The Pre-Sentence Report had assessed Mr Apolevski as suitable for periodic detention.

56. Her Honour had, quite correctly, determined that no sentence other than imprisonment was appropriate. I have set out above (at [45]) her Honour's reasons for determining that periodic detention was not appropriate.

57. Reading the transcript and her Honour's reasons for sentence, one has the impression that her Honour was almost personally offended by the actions of Mr Apolevski in driving so often such as to breach the disqualification that had been imposed and having a record of seven prior similar offences. There was a degree of absolutism in the expression of her Honour's reasons that may have resulted in her Honour overlooking matters that were relevant in the assessment of the circumstances of this particular offence and of Mr Apolevski in particular at this time.

58. I note what Bray CJ said in Neil v Steel (1973) 5 SASR 67 (at [70]):

Irrelevant denunciation should be avoided. Suspicion without evidence has no place in judicial pronouncements.

59. In addition, statements which might be regarded as overstated or hyperbole might, apart from not being grounded in evidence, be seen as infecting the decision on sentence. See Moh v Pine [2010] ACTSC 27 (at [29]).

60. For example, her Honour used the word "absolutely" on, so far as I could determine, at least four occasions. For example, she said:

So therefore his record offers him absolutely, or offers absolutely no room for any leniency.

61. Whilst, of course, a record as bad as that of Mr Apolevski is significant and needs to be given full weight, sentencers must be astute to be aware that there is always a residual discretion as to mercy. As Professor R Fox made clear in his very helpful article entitled "When Justice Sheds a Tear: The Place of Mercy in Sentencing" [1999] MonashULawRw 1; (1999) 25 Monash University Law Review 1 (at 13):

The true privilege of mercy is to be found in the residual discretion invested in each sentence which allows a downward departure from the principles of proportionality outside the principles of mitigation. It can be utilised in exceptional circumstances to allow weight to be given to factors which are ordinarily not regarded as relevant mitigating considerations. It allows sentencers to give effect to significant but as yet unaccepted, circumstances which, in their opinion warrant leniency.

62. Of course, as Professor Fox says, there are limits on the availability of such a residual discretion: see Markovic v The Queen [2010] VSCA 105 (at [15]).

... Looking at his criminal history he's not a person who is a very honest and honourable man. So, not somebody, at his age, who can have this type of criminal history, he is not somebody who should be readily believed irrespective of what he says.

64. I have set out in summary form Mr Apolevski's criminal history above (at [28]-[31]). It is true that he has committed dishonesty offences, but that was some five years ago and there is explanation for them in the Pre-Sentence Report, an explanation that was not challenged by either the prosecution or the court. Whilst prior driving offences, particularly drive whilst disqualified, are serious, it is entirely unclear to me how they show that the offender is unbelievable or dishonest. It seems to me that such a finding was made without relevant evidence. The significance of this finding is, of course, that her Honour held that she did not believe him when Mr Apolevski said he would undertake periodic detention. The basis for that disbelief is shaky to say the least.

65. Her Honour was also dismissive of the Pre-Sentence Report. In this jurisdiction, we are very fortunate that Pre-Sentence Reports are prepared very professionally and for the most part provide insightful and helpful information.

You see, again, these Pre-Sentence Reports are based purely on what the - the author of the Pre-Sentence Reports just records and writes, pretty much, what the subject of the Pre-Sentence Report tells him. He says, he's expressed remorse but that doesn't mean that he is remorseful and I'm sure that the person writing the Report has no special method of deciding.

67. This echoes what was said in Qutami [2001] NSWCCA 353; (2001) 127 A Crim R 369 by Smart AJ (Spigelman CJ agreeing) (at 377):

[58] There is one further general observation. In this case, reliance appears to have been placed on statements made by the prisoner to psychiatrists and the psychologist. While those statements are admissible in evidence, very considerable caution should be exercised in relying upon them when there is no evidence given by the prisoner. In many cases, only very limited weight can be given to such statements.

[59] There has been a noticeable and disturbing tendency of more recent years for prisoners on a sentence hearing not to give evidence and to rely on statements made by experts. Prisoners should realise that if this course is taken great caution will be exercised in respect of the weight if any given to those statements.

See also R v Palu [2002] NSWCCA 381 and R v Niketic [2002] NSWCCA 425.

68. While this is a salutary reminder of the material on which a sentence is based, the statutory regime in this jurisdiction, unlike New South Wales, provides detailed provisions for the preparation and content of Pre-Sentence Reports in Pt 4.2 of the Sentencing Act.

69. It is further to be noted that it is unlikely that it would be realistic for defendants to give evidence in the Magistrates Court on all sentence hearings where Pre-Sentence Reports are prepared to confirm what is said in the Pre-Sentence Report and expose themselves to cross-examination. Further, while much of the contents of Pre-Sentence Reports are self-report, the authors of the Reports in this jurisdiction do take special efforts to confirm what they can as, indeed, was to some extent the case here.

70. I address what I suggest is, in any event, a misreading of the Pre-Sentence Report below (at [75]).

71. As a result, it seems to me that, insofar as her Honour decided that she could not make a direction that some or all of the period of imprisonment should be served by periodic detention on the basis that Mr Apolevski was dishonest and unable to be believed, it seems to me that there was no evidence on which she could reasonably have come to that view beyond reasonable doubt.

72. While, then, this ground is made out, I do note that her Honour also found that the seriousness of the offence made periodic detention an inappropriate response. Thus, the success of this ground does not alone justify re-sentencing.

73. Her Honour rejected the material in the Pre-Sentence Report that Mr Apolevski was remorseful.

74. I have set out at [38] above what was said in the Pre-Sentence Report.

75. Doing the best I can, it appears to me that the first sentence quoted is an expression of opinion by the author of the Pre-Sentence Report and not simply a recounting of what he was told. The author of the Pre-Sentence Report was an experienced Probation and Parole Officer and his opinion on this issue would be admissible and relevant.

76. In addition, there were specific actions on which, no doubt, the author of the Pre-Sentence Report relied to come to his view. In particular, Mr Apolevski had sold his vehicle so he could not drive easily, even if tempted, and he had expressed an intention to relocate his family to a rental property closer to his employment to save the problem. These actions themselves disclose an insight and a commitment to addressing his offending behaviour which justify the opinion expressed by the author of the Pre-Sentence Report.

77. It would, however, be surprising if an offender did not feel sorry for himself in the predicament that he faced. That, of course, is not a form of remorse that can mitigate a sentence much if at all. As Winneke P said in Cooper [1998] VSCA 39; (1998) 103 A Crim R 51 (at 55):

A distinction must always be carefully drawn between true regret for wrongdoing and regret engendered by concern for the position in which the offender finds himself.

78. That this form of regret forms part of the expression of remorse, however, does not deprive that expression of the recognition, if it is also included, of the regret that an offender has breached the law because it is the law, or of an insight into the nature, causes and options for prevention of the offending behaviour and, where appropriate, concern for and appreciation of the harm caused to the victim. These elements are a good indication of true regret for wrongdoing and are, therefore, proper to be taken into account and, where appropriate, to mitigate sentence.

79. It seems to me that there were here significant elements of Mr Apolevski's expressions of remorse as recounted in the Pre-Sentence Report. That he has come to that view, admittedly finally after a long and reprehensible period of offending, is significant and requires a sentence to give it due weight.

80. Accordingly, it seems to me that this ground is also made out.

81. As noted above, an application was made for further evidence to be admitted.

82. This is governed by provision in s 214 of the Magistrates Court Act, the relevant sub-section being as follows:

(3) In an appeal to which this section applies, the Supreme Court must -

(a) If it considers it necessary or expedient to do so in the interests of justice -

(i) Order the production of a document or anything else that was an exhibit in, or was otherwise connected with, the proceeding out of which the appeal arose and that appears to it to be necessary to produce for deciding the appeal; and

(ii) Order any person who was, or would have been if the person had been called, a compellable witness in the proceeding to attend for examination before the Supreme Court; and

(iii) Receive the evidence, if tendered, of any witness; and

(b) Receive evidence with the consent of the parties to the appeal.

(4) If evidence is tendered in an appeal to which this section applies, the Supreme Court must, unless satisfied that the evidence would not afford any ground for allowing the appeal, receive the evidence if -

(a) It appears to the Supreme Court that the evidence is likely to be credible and would have been admissible in the proceeding out of the [sic] which the appeal arose on an issue relevant to the appeal; and

(b) The Supreme Court is satisfied that the evidence was not adduced in the proceeding and there is a reasonable explanation for the failure to adduce it.

83. In Spatolisano v Hyde [2009] ACTSC 161, I said (at [34]-[40]) of these provisions:

In this Territory there are specific legislative provisions which regulate the admission of further evidence on appeal. In particular, s 214(3) and (4) of the Magistrates Court Act 1930 (ACT) provides for the admission of evidence on appeal which was not before the learned Magistrate...
Under s 214(3), the further evidence is admissible if the court considers that its admission is "necessary or expedient ... in the interests of justice". As Miles CJ described it in Campbell v Fortey (at 465):

I come to the conclusion that the discretion to allow further evidence on an appeal under s 214(3) is unfettered and not circumscribed by any consideration that the appellant must show that the magistrate was in error on some question of law or fact or that special circumstances exist. Further, the [Act] does not distinguish between appeals against conviction and appeals against sentence, and a person appealing against penalty does not have to show, for the purpose of adducing further evidence, error or exceptional circumstances.

This approach was followed in Bond v MacFarlane (1990) 102 FLR 38 (at 42).
The determination of what is in the interests of justice would, of course, be heavily influenced by the notion of a miscarriage of justice as explained by the High Court.
Under s 214(4), however, the court is obliged to receive the evidence but only if the requirements of the sub-section are satisfied, namely that the evidence is likely to be credible and to have been admissible in the proceedings below and that it was not adduced in those proceedings but that there is a reasonable explanation for that. This is very close to a statutory enactment of the common law test, but makes admission of the evidence mandatory on fulfilment of the pre-conditions rather than a matter of discretion.
In Campbell v Fortey [(1987) 85 FLR 462], however, Miles CJ held (at 466) that the sub-section does not apply to evidence of events which have occurred subsequent to the proceedings out of which the appeal arises.

84. Thus, tests such as laid down in Council of the City of Greater Wollongong Corporation v Cowan [1955] HCA 16; (1955) 93 CLR 435 do not apply. The tests encompassed in the legislation must, as noted in CDJ v VAJ (1998) 197 CLR 172, be based on the construction of these provisions, which are designed to ensure that the proceedings do not miscarry rather than being based on the need for finality in the litigation.

85. Here, the additional evidence related to the work situation of Mr Apolevski. A senior officer of a related company operating out of his workplace gave evidence of the frustration that Mr Apolevski's employer had expressed at absenteeism, albeit of other workers, and his intention to terminate the employment of workers who did not attend for work.

86. I also received a copy of an invitation to the wedding of Mr Apolevski's brother, for which it was submitted that Mr Apolevski was to be his brother's best man. I have to say that, having received that, it seems to me ultimately to be of no relevance to the appeal.

87. In my view, the evidence of the circumstances of Mr Apolevski's workplace situation was material that it was expedient to receive in the interests of justice. As noted above (at [20]), the explanation for the driving on this occasion was never quite put clearly before the Learned Sentencing Magistrate. There was no real blame for this, but that material was clearly relevant to the proceedings.

88. As Ms Werner properly submitted, a court needs to be vigilant when admitting such evidence to ensure that the original hearing does not become merely a rehearsal for the appeal where gaps or responses not filled or given in the Magistrates Court are rectified.

89. It seems to me that the evidence shows that Mr Apolevski is not entitled to leniency because of his record and that imprisonment was the only proper sentence available.

90. Nevertheless, it did seem to me that the driving on this occasion was primarily motivated by the threat to his employment and the need to appear and not be late. This did differentiate the driving from the ordinary circumstances of contumacious driving, as a defiance to a decision made by a court of competent authority withdrawing the privilege of his holding a licence.

91. Further, Mr Apolevski was finally showing some understanding of the need to comply with the traffic and licence regulation to which he was subject. The value to him of his relationship was clearly also an important factor here and that may well have motivated a change of mind. It is, when considering the sentence to be imposed, a relevant factor that, if, consistent with a proper sentence, this factor can be respected and preserved, it should. Be.

92. Accordingly, it seems to me there is a basis to interfere with the sentence on appeal because of the matters I have identified and that a different sentence is appropriate.

93. Accordingly, I will allow the appeal and set aside the sentence.

94. It seems to me that a four month term of imprisonment comprising one month of full-time imprisonment followed by three months of periodic detention would have appropriately balanced the need for specific and general deterrence, denunciation, punishment and rehabilitation. Regrettably, that could not have been imposed and cannot now be imposed. It could not have been imposed because, taking into account the one week discount for the plea of guilty, the period left for periodic detention would be one week less than the statutory minimum period of three months: ss 11(3)(b) of the Sentencing Act. It cannot now be imposed because Mr Apolevski has already spent more than one month in full-time imprisonment and there is less than three months left of a four month sentence.

95. It is, of course, quite improper to extend a sentence because of the relative leniency of periodic detention: Ledson v Taylor, Robison & Brown (at [81]).

96. It is, however, permissible to provide a combination of sentences, otherwise allowance which is different from what I have identified as the appropriate one if that cannot, for other reasons, be imposed.

97. I note that the Pre-Sentence Report has assessed Mr Apolevski as suitable for a community service work condition of a good behaviour order. I am also satisfied that such work is suitable for Mr Apolevski and it is appropriate for him to be required to perform it.

98. Accordingly, in my opinion a slightly longer period of full-time imprisonment, most of which has already been served, followed by a suspended sentence which must be

accompanied by a good behaviour order and then in which is included a community service condition will achieve the balance referred to in [94] above.

I certify that the preceding ninety - eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the Respondent: ACT Director of Public Prosecutions

Transport (Driver Licensing) Act 1999

Procedures Rules 2006

(Sentencing) Act 2005

(Sentence Administration) Act 2005

Transport (Driver Licensing) Act 1999

Procedures Rules 2006

(Sentencing) Act 2005

(Sentence Administration) Act 2005

Stevce Apolevski v Damien Kinnane [2010] ACTSC 43

At a glance

Court

Decision date

Before

Source

Judgment (164 paragraphs)

Stevce Apolevski v Damien Kinnane [2010] ACTSC 43 (17 May 2010)

Parties

Legislation Cited (10)

Cases Cited (8)