Supreme Court of the ACT|2009-09-24

Travini v Starczewski [2009] ACTSC 123 (24 September 2009)

[2009] ACTSC 123 (24 September 2009)

CRIMINAL LAW - drink driving - s 19 Road Transport (Alcohol and Drugs) Act 1977 (ACT) - disparity in sentencing - non-conviction orders - s 17 (ACT)

PRACTICE AND PROCEDURE - jurisdiction of the Supreme Court to hear an appeal - whether order "imposed" by the Magistrates Court - s 208(1)(d), Magistrates Court Act 1930 (ACT) - meanings of "an order against the defendant" and "an order on the defendant" - ss 208(1)(c), 113, 114 Magistrates Court Act 1930 (ACT) - whether the disqualification of a driver's licence is such an "order" - s 32 and 33 Road Transport (Alcohol and Drugs) Act 1977 (ACT)

PRACTICE AND PROCEDURE - jurisdiction of the Supreme Court to hear an appeal in against conviction - s 208(b) Magistrates Court Act 1930 (ACT), s 17 Crimes (Sentencing) Act 2005 (ACT) - meaning of "conviction" at common law - reinterpretation of s 208(b) Magistrates Court Act 1930 (ACT) to encompass s 17 Crimes (Sentencing) Act 2005 (ACT) - ss 22(4), 30 of the Human Rights Act 2004 (ACT)

PRACTICE AND PROCEDURE - jurisdiction of the Supreme Court to hear an appeal - whether order "imposes" a penalty - s 208(1)(c) Magistrates Court Act 1930 (ACT) - ss 22(4), 30 of the Human Rights Act 2004 (ACT)

Magistrates Court (Civil Jurisdiction) Act 1982 (ACT)

Court of Petty Sessions Ordinance 1930 (ACT) ss 113, 129

Fox R and Freiberg A, Sentencing: State and Federal Law in Victoria (2nd ed, Oxford University Press, 1999)

George v The Queen [1986] TASSC 19; [1986] Tas R 49

R v Visconti [1982] 2 NSWLR 104

R v Osenkowski (1982) 30 SASR 212

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

Leeth v Commonwealth of Australia [1992] HCA 29; (1992) 174 CLR 455

Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606

Green v Webb [2006] WASC 71

Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295

Barac v Thexton [2008] ACTSC 137

Sparham-Souter and Anor v Town and County Developments (Essex) Ltd and Anor [1976] 1 QB 858

Scott v Wynants [2009] ACTSC 62

Forbutt v Blake (1981) 51 FLR 465

R v Forde [1923] 2 KB 400

Pilkington v The Queen [1955] Tas SR 144

Gower v Ross [1959] SASR 278

Cooper v Pryce (1984) 73 FLR 1

Karoly v Brown and Anor (1988) 91 FLR 15

Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401

Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293

MacAlister v The Queen [1990] HCA 15; (1990) 169 CLR 324

Casey v Alcock [2009] ACTCA 1

R v Fearnside [2009] ACTCA 3

Sleiman v Murray [2009] ACTSC 82

Reid v Howard & Ors [1995] HCA 40; (1995) 184 CLR 1

Talukder v Dunbar [2009] ACTSC 42

Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357

Craft v Diebert [2004] ACTCA 15

Higgs v The Queen [1999] FCA 1562

Morris v East (1988) 83 ACTR 1

Clearihan v East (unreported, ACTSC, Miles CJ, 2 August 1989)

Davis v Conroy [2005] ACTSC 8

Kent v Arley [2007] ACTSC 66

Lumby v Cooper [2008] ACTSC 53

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

3. The fine imposed by the Learned Magistrate be set aside and, in lieu, a fine of $100 be imposed.

4. The order of the Learned Magistrate reducing the period of suspension of the appellant's licence to drive be set aside and the period of licence suspension be reduced to the minimum period of three months.

5. The order for costs made by the Learned Magistrate be set aside and there be no order for costs of the appeal or of the proceedings before the Magistrates Court.

1. On 9 May 2008, the appellant, Mr Travini, who had been driving a car along Baldwin Drive in Giralang in the Australian Capital Territory, was subjected to a breath test to determine whether he had committed an offence against s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act).

2. The subsequently administered breathalyser test returned a reading showing that he had 0.073 grams of alcohol per 100 millilitres of his blood and, therefore, it was alleged that he had been driving with a Level 2 concentration of alcohol in his bloodstream contrary to s 19 of the Alcohol and Drugs Act.

3. The appellant was charged with an offence under that section. He pleaded guilty on 31 July 2008 and was convicted, fined $300 with court costs $59 and a Criminal Injuries Compensation Levy of $50 and the period for which he was automatically disqualified from holding a licence was reduced from 6 months to 4 months.

4. On 1 August 2008, Mr Travini appealed from the decision of the Learned Magistrate. The Notice of Appeal reads in part:

On 31 July 2008, the Magistrates Court of the Australian Capital Territory made the following order:

As a first offender drove a motor vehicle on a public street with Level 2 alcohol in his blood

Convicted and disqualified for a period of 4 months, fined $300 with $50 court costs.

2. The appellant appeals all the order [sic].

The appellant will seek to put further evidence before the Court by way of affidavit containing evidence of his sense of grievance arising from the Learned Magistrates [sic] penalty imposed on another offender for a more serious offence.

5. In argument, the appellant directed his submissions to the grounds of the appeal which were as follows:

(b) The Learned Magistrate erred in his failure to consider and apply any leniency that otherwise might arise due to the appellant's prior good character;

(d) The appellant has a justified sense of grievance arising from the Learned Magistrate's more lenient sentencing of another offender for a more serious offence.

6. The additional evidence sought to be tendered was an affidavit in which the appellant deposed that while he was in court he witnessed the same Magistrate impose a more lenient sentence for the same offence which he thought was a more serious version of the offence. The affidavit did not annexe the sentencing remarks of the Learned Magistrate in that case nor provided anything but the sketchiest details of the facts of that offence and the circumstances of that offender.

7. The respondent objected to the tender of the evidence. It is clear that a single instance of a different penalty even for such a common offence is not usually a legitimate basis for a successful appeal against sentence. As Cox J (as his Honour then was) said in George v The Queen [1986] TASSC 19; [1986] Tas R 49 (at 60):

One cannot, of course, ever place one case against another, and arrive at a mathematically "in line" sentence.

8. As has been pointed out by Richard Fox and Arie Freiberg in Sentencing, State and Federal Law in Victoria (2nd ed, Oxford University Press, 1999) (pp 348-355), there are three forms of disparity which move courts to interfere on appeal with sentences:

1. General disparity, "where the sentence imposed upon a defendant is significantly different from the general pattern of sentences for that type of crime". See R v Visconti [1982] 2 NSWLR 104 (at 107-111). This usually requires some form of statistical or other information on the sentencing patterns for the relevant offence or a conspectus of appellate decisions which, of course, are intended, especially on prosecution appeals, "to enable the courts to establish and maintain adequate standards of punishment for crime": R v Osenkowski (1982) 30 SASR 212 (at 213). No such material was offered in this appeal.

Even in such a case, it is important to bear in mind what Gaudron, Gummow and Hayne JJ said in the High Court in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 (at 605):

... appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons.

2. Structural disparity, where there is "a lack of uniformity in the treatment of federal offenders from state to state". See Leeth v Commonwealth of Australia [1992] HCA 29; (1992) 174 CLR 455 (at 470). This clearly does not apply here.

3. Particular disparity "when different sentences are imposed on co-defendants who have been tried, either separately or together, but for the same offence or offences". See Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 (at 610-611). There is no co-offender here and the sentence sought to be addressed in the affidavit was not that of a co-offender.

9. Accordingly, I rejected the affidavit. Nevertheless, it is a salutary reminder to judicial officers, particularly magistrates, that when dealing with common offences, other offenders may be in the court and that it is important to express in imposing sentence the relevant factors which may differentiate between offenders or versions of the offences so that defendants do not feel that they have been treated differently for no apparent reasons. Of course, such reasons will inevitably be brief, having regard to the circumstances of these courts. See Green v Webb [2006] WASC 71 (at [11]).

10. The third ground of appeal sought to rely on the sense of grievance that the Learned Magistrate's failure to distinguish the two cases had engendered. It needs always to be remembered what Mason J (as his Honour then was) said in Lowe v The Queen (at 610-11):

Just as consistency in punishment - a reflection of the notion of equal justice - is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.

11. The apparent source of the third ground of appeal to which the additional evidence purported to relate may have been the explication of this principle by McHugh J in Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 where his Honour said (at 306):

Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public.

12. It needs to be stated, however, that the ground of appeal here was poorly stated. If there is a ground of appeal based on a sense of grievance the ground must at the very least be on the basis that the appellant has a justifiable sense of grievance; a sense of grievance is not in itself enough. In any event, I doubt whether that is the correct ground; rather it is that there is an unjustified disparity (in one of the senses referred to above) which permits appellate interference. The subjective feelings of the appellant are not determinative, but merely a consequence of the claimed failure to comply with proper sentencing principles, in this case the need to avoid unjustified disparity.

13. I also raised with the parties, and sought additional submissions, on whether there was jurisdiction to entertain the appeal, at least so far as the appeal sought to challenge the result that appellant's licence was suspended for four months.

14. I had earlier expressed the view in Barac v Thexton [2008] ACTSC 137 that there was no jurisdiction for this court to hear an appeal from the decision of a magistrate in respect of the disqualification of a licence at least where the offence does not attract a sentence of imprisonment for which I relied on s 29 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). I do not recant from the view that I expressed there (Sparham-Souter and Anor v Town and County Developments (Essex) Ltd and Anor [1976] 1 QB 858 (at 869)). Nevertheless, I now know I was wrong in three respects.

15. In the first place, I had simply not "read on", a not uncommon problem when counsel finds a supportive passage in an authority and quotes it only to find that the court or his or her opponent shows that a sentence or paragraph later in the passage and which has not been read dilutes the helpful remarks. In this case, s 30 of the Sentencing Act makes provision for combination sentences where no imprisonment is the penalty for the offence in similar fashion to s 29 to which I referred in Barac v Thexton.

16. The second error is more disturbing, for both ss 29 and 30 refer to "an order (however described) imposing another penalty available under any other territory law". See ss 29(1)(j) and 30(1)(g) of the Sentencing Act. The use of the word "imposing" means that the solution I thought existed and which I used in Barac v Thexton did not exist for the automatic disqualification of the licence which was not, as I had considered in that case, imposed by order, as the paragraphs require, but by the statute itself.

17. Thus, these provisions provide no better jurisdiction than s 208(1)(d) of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) which I had found was not a jurisdictional power to consider an appeal from the disqualification in Barac v Thexton.

18. I am firmly of the view that this question about jurisdiction in this respect is almost certainly an inadvertent lacuna and I trust that legislative rectification may soon fill the gap. It seems to me that the whole question of appeals from the Magistrates Court is ripe for a law reform investigation.

19. Neither party suggested that s 208(1)(d) of the Magistrates Court Act was a source of jurisdiction. That must be correct where the court does not reduce the default period of a disqualification (Scott v Wynants) [2009] ACTSC 62 (at [23])) for the disqualification is imposed not by the Court but by ss 32 and 33 of the Alcohol and Drugs Act. The court may reduce the length of the statutorily imposed disqualification (if in its discretion it so decides) and I found in Barac v Thexton that that is not properly described as "imposing" the order. This is the third matter I need to consider and where I now consider I was wrong.

20. There are examples of legislative provisions where a conviction results in legislatively imposed consequences which could not be properly included as a sentence or penalty. For example, where an offender subject to a parole order is convicted of certain offences against a territory law, the parole order is automatically revoked and the court is required to order that the offender be placed in custody: ss 149, 161 of the Crimes (Sentence Administration) Act 2005 (ACT). Neither the legislative cancellation nor the consequential court order could properly be characterised as sentences or penalties which could on appeal against sentence be disturbed.

21. There are other instances in, for example, the areas of firearms legislation and some areas of professional discipline. As in this case, there is also a levy payable on conviction under s 68 of the Victims of Crime (Financial Assistance) Act 1983 (ACT) which, by s 68(2), is expressed not to be part of the monetary penalty for the offence.

22. That, however, is not the end of the matter. There are a number of other issues which need to be decided and which made me decide on my third error, which was to decide that there was no jurisdiction to entertain the appeal.

23. In general terms, s 208 of the Magistrates Court Act, which gives the grounds of jurisdiction to the Supreme Court to hear appeals from the Magistrates Court in its criminal jurisdiction, can be said to be divided into three groups.

1. Appeals against a finding that a person is or is not fit to plead. This is s 208(1)(a) of the Act. Interestingly, there appears to be no appeal from a finding (under s 315A(4) of the Crimes Act 1900) that a person is likely to become fit to plead within the next 12 months.

2. Appeals against conviction. This is s 208(1)(b) and (c) of the Act.

3. Appeals against sentence. This is s 208(1)(d), (e) and (f) of the Act.

24. The appellant argued through his counsel, Mr P Bevan, that there was jurisdiction under s 208(1)(c) of the Act, for it referred there to "an order" under ss 113 or 114 of the Act.

25. At first sight, this has some attraction, though its historical roots are of some concern. It appears these sections are an historical anomaly and, again, suggest law reform review is needed.

26. When one reads these sections, they refer to "an order against the defendant" (s 113) or "an order on the defendant" (s 114). In both cases, it is clear that the option of an order is an alternative to a conviction and not a reference to an order to be made in addition to a conviction. For example, s 114(3) of the Act clearly states:

(3) Having heard each party and the evidence, the court must decide the information and do 1 of the following as justice requires:

(a) convict the defendant;

(b) make an order on the defendant;

(c) dismiss the information.

27. When one looks at the legislation in its original form, that is the Court of Petty Sessions Ordinance 1930 (ACT), the term "order against the defendant" appears only in s 129 which refers to hearings of complaints, which was then within the civil jurisdiction of the court.

28. The phrase "order upon the defendant" appears only in s 113 of that Ordinance which is in the part referring to "Proceedings in Case of Simple Offences", namely those commenced by information. It also offers only the alternatives as now appear in s 114 of the Act, set out above.

29. Some alternatives to the conviction of a defendant or the dismissal of the information, would include an order binding over the defendant to keep the peace (Forbutt v Blake (1981) 51 FLR 465). It would also include a committal for trial or sentence. Whatever it is, it does not appear to me from the context, history or plain words of the provision to be a sentence or an order reducing the period of licence disqualification, especially as this would have to be imposed in addition to the conviction (which is presumably there used in the sense of a finding of guilt and sentence).

30. I suspect, in fact, that this provision was merely copied from s 80 of the Justices Act 1902 (NSW) which no doubt regulated the conduct of magistrates and justices in the Territory after 1913 and before the enactment of the above Ordinance.

31. This NSW section appeared in the division regulating the summary jurisdiction of the court, but combined both the jurisdiction over summary offences (crime) and that over complaints (civil). This can be seen in the terms of s 80, which is as follows:

After hearing what each party has to say and the witnesses and the evidence adduced, the said Justice or Justices shall consider and determine the whole matter, and convict or make an order upon the defendant or dismiss the information or complaint, as the case may require:

Provided that in the case of an information, if upon the close of the case for the prosecution it appears to the Justice or Justices that the offence ought to be dealt with by indictment, he or they shall abstain from adjudication thereon and shall deal with the case for the purpose of committal for trial only.

That combination did not continue in the Magistrates Court Act after the enactment of the Magistrates Court (Civil Jurisdiction) Act 1982 (ACT), but no change was made to the provisions.

32. The references then to orders may be an historical anomaly, where the reference was retained, though the parts in the Ordinance dealing with summary criminal and civil hearings were separated.

33. The reference in s 208(1)(c) of the Magistrates Court Act to s 375 of the Crimes Act 1900 (ACT), which has, in any event, been repealed, is not of much assistance. That section simply permitted certain indictable matters to be dealt with summarily under certain circumstances. That they are dealt with summarily brings into play Pt 3.6 of the Magistrates Court Act, within which ss 113 and 114 fall, but someone clearly thought that the reference to that Part might not catch such matters and that a reference to that particular section should be included.

34. In any event, I am not satisfied that s 208(1)(c) of the Magistrates Court Act assists the appellant in this case.

35. This anomaly may be a further reason for review of the provisions of the Magistrates Court Act relating to appeals.

36. The orders sought in the Notice of Appeal merely sought that the appellant be re-sentenced. It did not specify a particular penalty or address particular parts of the penalty.

37. Nevertheless, the written submissions of the appellant squarely raised the option of a non-conviction order under s 17 of the Sentencing Act. In that sense, the challenge was to the conviction, as indeed might be inferred from the reference to "appeal all the order" in the second paragraph of the Notice of Appeal.

38. The appellant did, however, plead guilty. That is, of course, no bar to an appeal against conviction: R v Forde [1923] 2 KB 400 (at 403); Pilkington v The Queen [1955] Tas SR 144 (at 145-6); Gower v Ross [1959] SASR 278 (at 281); R v Stewart [1960] VicRp 16; [1960] VR 106 (at 108); R v Murphy (1979) 1 A Crim R 398 (at 400); Cooper v Pryce (1984) 73 FLR 1 (at 3); Karoly v Brown and Anor (1988) 91 FLR 15 (at 16-17); R v Liberti (1991) 55 A Crim R 120 (at 121); Hondema v Carroll [2008] WASC 155; (2008) 50 MVR 401 (at 404-6).

39. Of course, the courts have limited the circumstances under which a conviction may successfully be challenged on appeal: R v Coffey [2003] VSCA 155; (2003) 6 VR 543 (at 545-6). In this case, no evidence was sought to be led or submission made to show that the offence was not one known to the law, that the appellant did not appreciate the nature of the charge, that the appellant did not intend to admit he was guilty of it or that there was any other miscarriage of justice. Indeed, on appeal, the appellant maintained his plea of guilty and did not challenge a finding that the offence was proved.

40. Nevertheless, one clear option sought by the appellant was the substitution of a non-conviction order for the conviction.

41. This would, of course, have the effect of nullifying the disqualification of the appellant's licence, since that is effected under ss 32 and 33 of the Alcohol and Drugs Act only where there is a conviction and by virtue of it. If there is no conviction, such as by the imposition of a non-conviction order under s 17 of the Sentencing Act, then the automatic disqualification is not activated.

42. It would also mean that the fine would not be payable since, under s 14 of the Sentencing Act, fines can only be imposed after a conviction.

43. In this sense a conviction is, or at least carries the necessary implication of a sentence. It activates the automatic disqualification provisions of ss 32 and 33 of the Alcohol and Drugs Act. It permits fines to be imposed and so on. In the context of a non-conviction order being available to a judicial officer engaged in the sentencing task, it is an important matter. It represents an element of penalty in itself.

44. Interestingly, however, the entry of a conviction is not expressly provided for in any relevant legislation. Certainly, it is not provided for in any of the parts of the Sentencing Act referred to in s 208 of the Magistrates Court Act.

45. Generally, criminal appeals are commonly divided into appeals against conviction, which challenge the finding that the offence is proved or made out and that the defendant committed it, and appeals against sentence, which challenge the penalty imposed by the court but do not challenge the finding of guilt. Of course, a particular appeal may challenge both conviction and sentence in these senses.

46. The appellant here is prosecuting an appeal against sentence and is not challenging the finding of guilt.

47. The word "conviction", however, which appears in s 208(1)(b) of the Act is defined, rather unhelpfully, in the Dictionary to the Act, as a "conviction by a magistrate for an offence". It is not elsewhere relevantly defined.

48. At common law, the word "conviction" has a wide and somewhat equivocal meaning. As was said by Dawson and McHugh JJ in Maxwell v The Queen (1995) 184 CLR 501 (at 507):

The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked [See Cobaic v Liddy [1969] HCA 26; (1969) 119 CLR 257 at 271]. On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea.

49. See, to the same effect, per Toohey J (at 519) and per Gaudron and Gummow JJ (at 529-30). See also Griffiths v The Queen [1977] HCA 44; (1977) 137 CLR 293.

50. Here the context provides some meaning to the word "conviction". If it were to mean the finding of guilt together with the sentence, then s 208(1)(d) and (e) of the Act would be otiose, since they would already be included in s 208(1)(b) of the Act.

51. Further, the reference in s 208(1)(d) of the Act to an "appeal from a sentence or penalty imposed by the Magistrates Court by a person convicted of an offence" clearly implies that the conviction precedes and is separate from the sentence. This is consistent with what the High Court said in MacAlister v The Queen [1990] HCA 15; (1990) 169 CLR 324.

52. Thus, it seems to me that the general approach, namely that appeals against conviction are different from appeals against sentence, is retained in s 208 of the Act.

53. That, however, does not conclude the matter, for if an appellant wishes to contend that the proper judgment of the court was a non-conviction order under s 17 of the Sentencing Act, then one basis for such an appeal would appear to be under s 208(1)(b) of the Magistrates Court Act; no other paragraph applies.

54. While the challenge would not be to the determination of guilt, the meaning which I suggest the term bears, I do not see why the paragraph should not be wide enough to include the formal act which has an element of sentence about it in the context of a provision such as s 17 of the Sentencing Act. Thus, where an offender who is convicted of an offence seeks, on appeal, that a non-conviction order be substituted, they should appeal against conviction to make it clear what is being challenged.

55. I am reinforced in this interpretation of that paragraph by the need to construe it conformably with s 22(4) of the Human Rights Act 2004 (ACT) which gives a person convicted of a criminal offence a right to have "the conviction and sentence" reviewed by a higher court. To exclude such a construction, when it is available, would not be consistent with the courts' duty under s 30 of the Human Rights Act 2004 (ACT).

56. I pause to note that this approach would probably extend to include an interpretation of "conviction" in the paragraph to include merely a finding of guilt preparatory to the imposition of a non-conviction order, even though there is no actual conviction recorded, for otherwise a person who had been found guilty of an offence but not convicted, though sentenced to a non-conviction order, would have no right to challenge the finding of guilt.

57. These are matters that encouraged my thoughts, as I have expressed above (at [18]), that it may be time to review the grounds on which an appeal may be brought from decisions of the Magistrates Court. The former limited grounds may be too narrow for a court with a wide and increasing jurisdiction.

58. This, however, would only allow me to consider whether to uphold the appeal and overturn the conviction and re-sentence relying on s 17 of the Sentencing Act but, unless there is jurisdiction to do so, I cannot uphold the appeal and interfere with the decision about the period of licence disqualification if I do not set aside the conviction itself.

Reconsideration of section 208(1)(d) of the Magistrates Court Act

59. Having given the matter anxious thought, it does seem to me that I can reconsider my views about s 208(1)(d).

60. While it seems clear that where the Magistrates Court takes no action to reduce the mandatory period of licence disqualification, the Court has not "imposed" a penalty, and while I do not change my views about that, it does seem that with the positive decision by that Court to vary the period, by reducing it, the Court has participated sufficiently in the process of determining the disqualification so as reasonably to be said to have imposed the penalty.

61. After all, it determines, as a discretionary matter, the extent of the period and that is not done by the legislature (save to fix an absolute minimum). Indeed, the Court must determine the actual period to which it has reduced the period and, thus, impose it.

62. I am re-inforced in this interpretation by the need to construe legislation consistently with its purpose in a way that is compatible with human rights: s 30 Human Rights Act 2004 (ACT). Section 22(4) of that Act expresses the right to have convictions and sentences reviewed by a higher court. I do not consider that the perhaps somewhat restricted approach to s 30 in Casey v Alcock [2009] ACTCA 1 or R v Fearnside [2009] ACTCA 3 are inconsistent with my findings.

63. While s 208 does have the effect of limiting the decision that can be the subject of appeal (subject to Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101), it does not seem to me to evince an intention to limit the parts of a sentence that is to be subject to appeal. It seems to me clear that the disqualification is, in a very real sense, part of the sentence. See Scott v Wynants (at [23]). In that, it is different from being a mere consequence. Indeed, the period of suspension is a part of the penalty that the offender suffers.

64. Accordingly, since the Learned Magistrate did reduce the period of disqualification, I have jurisdiction to consider whether it was excessive and to interfere if I do consider it so.

65. I should briefly refer to Kelly v Apps. It would apparently have given this Court jurisdiction and I would not have had to deal with the matter as I have above.

66. I have, however, expressed my doubts elsewhere about this decision: Sleiman v Murray [2009] ACTSC 82, a concern expressed by Connolly J in Evans v Shiels [2004] ACTSC 19; (2004) 185 FLR 1. I noted in Sleiman v Murray, too, that the decision in Kelly v Apps seemed to be inconsistent with what the High Court had held in Reid v Howard & Ors [1995] HCA 40; (1995) 184 CLR 1.

67. The appellant eschewed reliance on Kelly v Apps. I do not resile from my view of the decision at all.

68. The result is, again, a rather strange position where, if I am right, this Court can review a period of disqualification if it is reduced but not if the court decides not to do so. This is a further reason why reform is desirable.

69. The facts of the offence were in short compass. As read to the Learned Magistrate they were as follows:

About 10:05 pm on Friday 9 May 2008, Constable Starczewski was Conducting Mobile Patrol on Baldwin Drive, Giralang in the Australian Capital Territory.

At this time Constable Starczewski saw a silver coloured Holden Commodore bearing NSW registration WFT301. This vehicle was stopped and the driver produced a current ACT drivers [sic] licence. The photograph on the licence was an image of the driver a person now known to be Richard John TRAVINI, the defendant now before the Court.

The defendant underwent a screening test in accordance with directions. This test was conducted with an Alcolizer LE an approved screening device. The result of the screening test was positive and the defendant was taken into custody and conveyed to Belconnen Police Station for the purpose of breath analysis.

The result as shown and recorded by the Breath Analysing instrument used in the analysis of a sample of the defendant's breath was 0.073 grams of alcohol per 100 millilitres of blood.

...

Whilst dealing with the defendant Police observed the defendants' [sic] eyes to be watery, his speech was slow and there was a moderate smell of intoxicating liquor about the person. His walk and balance was fair.

Police formed the opinion that the defendant was moderately affected by intoxicating liquor. The defendant was polite and cooperative with Police at all times.

At the time of the incident, traffic conditions were light, weather was clear, road surface was bitumen in good repair and the area was open.

70. Thus, while the appellant returned a reading of some significance, namely a Level 2 reading (see s 4C of the Alcohol and Drugs Act), and he appeared moderately affected by alcohol, there was no manner of driving that was in evidence which had drawn the attention of the police to the appellant.

71. The circumstances of the offence and the subjective factors were, as is common in the Magistrates Court on a plea of guilty to such matters, given orally from the bar table by the appellant's lawyer. See Talukder v Dunbar [2009] ACTSC 42 (at [17]-[25]).

72. The appellant had, it was submitted, moved into a new house with his family. He had a drink there and then went to a club with his wife where he had 2 schooners of full strength beer within an hour. This would ordinarily have been enough to exceed the blood alcohol concentration limited under the Alcohol and Drugs Act, though the actual reading is perhaps higher than might have been expected.

73. The appellant had apparently been driving for 26 years. He had one prior traffic offence, a speeding fine in 1990 and one other non-traffic matter in 1984.

74. He used his car in the course of his employment and some details were given of the circumstances of his employment. Two impressive character references from people with responsible positions in the community were tendered which attested to the good character of the appellant and that the offence was out of character for him. While it was submitted to the Learned Magistrate that the appellant's record showed that the offence was out of character and that he was "entitled to some leniency on the basis of that character", it was not expressly put that a non-conviction order was appropriate.

75. The Learned Magistrate gave entirely expected and appropriately succinct reasons for judgment. His Honour said:

In relation to the matter the maximum penalty is a fine not exceeding $500 with a default period of disqualification of 6 months. I take into account your good record, I take into account the fact that you've pleaded guilty on the second occasion and it was adjourned on 3 July until today.

76. The adjournment had been sought and granted so that the appellant could obtain the relevant material to make an application for a restricted licence under Div 3.7 of the Road Transport (Driver Licensing) Regulation 2000 (ACT), which requires an order of the Magistrates Court authorising the road transport authority to issue such a licence: see s 45 of the Regulation.

77. The law applying to appeal courts when determining sentence appeals is well-known. As was said by Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 (at 370-1):

As with other discretionary judgments, the inquiry on an appeal against sentence is identified in the well known passage in the joint reasons of Dixon, Evatt and McTiernan JJ in House v The King [(1936) [1936] HCA 40; 55 CLR 499 at 504-505], itself an appeal against sentence. Thus is specific error shown? (Has there been some error of principle? Has the sentencer allowed extraneous or irrelevant matters to guide or affect the decision? Have the facts been mistaken? Has the sentencer not taken some material consideration into account?) Or if specific error is not shown, is the result embodied in the order unreasonable or plainly unjust? It is this last kind of error that is usually described, in an offender's appeal, as "manifest excess", or in a prosecution appeal, as "manifest inadequacy".

See also Craft v Diebert [2004] ACTCA 15.

78. In this case, the appellant says that the sentence is manifestly excessive. He points to no specific error (once his "disparity" argument falls away with the rejection of the additional evidence) thus relying on the ground of manifestly excessive severity which, as noted in the comments in Wong v The Queen cited above (at [8]) must be of a level that permits me to conclude "that there must have been some misapplication of principle".

79. I note that the maximum penalty for the offence is a fine of $500. That is, I also note, the same pecuniary penalty as for an offender who is found driving with a level 1 blood alcohol concentration.

80. The maximum penalty is, of course, an important factor: Markarian v The Queen (at 72). That the same penalty applies to the two levels implies that the penalty for the higher level is likely to be at the upper end of the range, even where the other factors of the offence and the subjective factors of the offender are the same: Barac v Thexton (at [61]).

81. Nevertheless, the fine imposed by the Learned Magistrate was relatively close to the maximum penalty, where, despite the relatively high reading for the level, there was an absence of particular aggravating features, such as the manner of driving, and the presence of some mitigating features, namely the early plea of guilty and the absence of any significant prior convictions (both of which the Magistrate took into consideration) especially for this offence.

82. While there is no principle of law that, especially with such regulatory offences, the maximum penalty can never be imposed, the penalty imposed in this case allows little room for a graduated increase of penalty where more, or more serious, aggravating features are present and where fewer, or no, mitigating features are present.

83. Although any reduction might be regarded as tinkering (R v Cobb [1999] FCA 158; (1999) 84 FCR 450) that cannot be accepted when the range is already so slight, else there would be no room for appeals at all.

84. The question then is whether instead of reducing the pecuniary penalty, the court should exercise its discretion to impose a non-conviction order under s 17 of the Sentencing Act.

85. I have found this a difficult question. On the one hand, as pointed out by the Full Court of the Federal Court of Australia, when it was the appellate court for this court, "[t]he recording of a conviction is the usual result of a guilty verdict or guilty plea to the offence charged, the option being available to the sentencing judge not to take that step, having regard to the matters set out in [the predecessor to s 17]": Higgs v The Queen [1999] FCA 1562.

86. In Morris v East (1988) 83 ACTR 1, Miles CJ refused to exercise his discretion to uphold an appeal seeking the substitution of a non-conviction order for a fine of $200 notwithstanding that the appellant was subject to a random breath test and had 41 years driving experience without ever having been charged with an offence. The reading was a high one, 0.14%, but the limit at that time was 0.08%. The appellant was said to have been slightly affected by the alcohol he had consumed.

87. His Honour was particularly influenced by the reading. He said (at 4):

For myself I must say that, in view of what I consider to be a very high reading relating to the concentration of alcohol in the appellant's blood, the fact that the magistrate declined to proceed without recording a conviction or imposing a penalty occasions no surprise and does not disclose error or manifestly excessive severity.

I fail to see why a person convicted of driving with a breath analysis reading of .14 is justified in feeling a proper sense of grievance by a penalty of a $200 fine and a suspension for the minimum period of three months. That would appear to me to be a lenient penalty, the leniency being explained chiefly by the fact that the offender has had no previous convictions, despite driving experience of some 40 years. I do not think that the fact that the offence occurred without the offender being involved in a collision and without having been observed to be driving erratically, should attract much leniency. I cannot see that a middle-aged man with a good, even excellent, driving record should be entitled to expect that he can drive on the road with a breath analysis reading of .14 and be discharged without conviction so long as he does not cause an accident.

89. Perhaps a little curiously, his Honour then, in a decision a little over 12 months later, did uphold an appeal from a similar matter and imposed a non-conviction order. In Clearihan v East (unreported, ACTSC, Miles CJ, 2 August 1989), his Honour considered an appeal from a penalty of a $1500 fine and the cancellation of a driver's licence for a drink-driving offence where the blood alcohol concentration was 0.11%. The appellant there had a number of prior convictions, including one for drink driving just less than five years before.

90. His Honour held "[o]ffences of drinking and driving are of course serious" (at 5) but accepted that the appellant had specifically not intended to do so and was, so he believed, drinking light beer when, in fact, contrary to his wishes and unknown to him, he was drinking full strength beer at least for part of the time.

91. In any event, the imposition of the non-conviction order was expressly to avoid what his Honour considered (at 5) was the "too drastic a penalty" of cancellation of the appellant's licence which would have been the automatic consequence of the conviction under the then relevant legislation. In imposing a non-conviction order, however, his Honour did make what appears to be orders very similar to those which would normally now be made following a conviction. His Honour made it a condition of the non-conviction recognizance, that the appellant:

(a) refrain from driving a motor vehicle for three months;

(b) be under supervision, including presenting himself "regularly at meetings of Alcoholics Anonymous, the ACT Drug and Alcohol Service and similar organisations, there to participate and assist in their work of alcohol rehabilitation and counselling"; and

I had in mind also to impose a monetary penalty, but as I propose, in the extraordinary circumstances of the case, to order the appellant to pay the respondent's costs of the appeal, I refrain from taking that course.

93. His Honour was clearly affected by what he described as the extenuating circumstances of the unwitting consumption of higher strength alcohol than intended, a matter expressly referred to in s 17 of the Sentencing Act and its predecessors.

94. It is clear, when considering a provision such as s 17, that the court must consider the listed criteria but may consider other matters. Section 17(3) makes this explicit following the construction of earlier provisions: Davis v Conroy [2005] ACTSC 8 (at [17]); Talukder v Dunbar.

95. It is again to be noted that the Learned Magistrate was not asked expressly to consider the proceedings under s 17. The words used by his counsel, "he's entitled to some leniency on the basis of that character" and "he certainly should be given some benefit of that prior good record, that's a matter your Honour could use your discretion" are, if intended to refer to that provision, somewhat elliptical. There is no reason why defence counsel cannot be straightforward and, if seeking the benefit of s 17 for their client, say so explicitly.

96. On the other hand, of course, an experienced judicial officer, as his Honour was, would be expected to know the range of sentencing options available.

97. In Kent v Arley [2007] ACTSC 66, Connolly J upheld an appeal against sentence and made instead a non-conviction order. His Honour noted (at [5]):

The learned Magistrate was not taken to [the suitability of the exercise of a discretion to make a non-conviction order] and was not given the benefit of any submissions in relation to that, which is unusual and does seem to me to amount to a basis for this Court to intervene.

98. If his Honour were suggesting that a failure by an appellant's counsel to make a submission on a possible sentencing option is an appellable error by a Magistrate, then I respectfully disagree. There are many forensic reasons and indeed instructions from clients as to why counsel do not raise particular issues; it is not for judicial officers to seek them out unless they are obvious.

99. That is not to say, of course, that a judicial officer, such as a magistrate, is prevented from or relieved of the duty of considering a proper sentencing option because a litigant or their counsel does not mention it.

100. Sentencing is, however, an exercise in instinctive synthesis (Markarian v The Queen) and a judicial officer is not required to check off all conceivable possibilities before imposing a sentence, though he or she must comply with the statutory ukase in s 10(2) of the Sentencing Act.

101. In Lumby v Cooper [2008] ACTSC 53, Penfold J has set out a useful analysis of s 17 of the Crimes (Sentencing) Act 2005 (ACT) and I gratefully adopt it.

102. I have not found this an easy decision because it seems to me to be quite on the borderline of cases.

103. Had the appellant no prior convictions and had the reading been lower, I would have considered a non-conviction order was appropriate. There are, however, no particular extenuating circumstances and nothing particularly is consequential upon the conviction itself as opposed to the penalties.

104. I note that in Scott v Wynants, Higgins CJ (at [32]) made the important point that the period of disqualification is the "default period" specified by the legislature; it is not a maximum, even though often reduced. As his Honour noted there must be a good reason to vary it. Here, the long driving record of the appellant, the minimal criminal record, especially in relation to traffic offences, his otherwise good character and the circumstances of the offence, which does not appear to have been caused by any manner of driving, despite the reading, justifies a significant reduction in the period of disqualification.

105. I reduce the period of disqualification to the minimum period and reduce the fine to take into account the appellant's circumstances and the circumstances of the offence.

106. The Learned Magistrate also imposed an order for the payment of court costs. I assume that this was under s 244 of the Magistrates Court Act. That provides the court with a discretion. His Honour did not explain what factors were taken into account in making that determination. I do not consider there is a case for an order for costs here.

3. The fine imposed by the Learned Magistrate be set aside and, in lieu, a fine of $100 be imposed.

Travini v Starczewski [2009] ACTSC 123

At a glance

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Judgment (204 paragraphs)

Travini v Starczewski [2009] ACTSC 123 (24 September 2009)

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Legislation Cited (20)

Cases Cited (19)