Valencic v Jordan [2017] ACTSC 120 (26 May 2017)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2017] ACTSC 120

1. The appeal is dismissed except to the extent necessary to vary the disqualification period from the period specified by the Magistrate.
2. The Magistrate's disqualification order is varied to disqualify the appellant from driving for the period from 26 May 2017 to 4 May 2019.

APPEAL - appeal from the Magistrates Court - appeal against sentence - whether Magistrate erred in not making a section 17 non-conviction order - whether the Magistrate rejected the evidence relied on by the appellant - whether Magistrate's failure to hide frustration with appellant amounted to a sentencing error - whether Magistrate paid sufficient attention to likely impacts of licence disqualification on appellant's family - sentence not "obviously wrong" - sentencing outcome cannot be relied on to show otherwise undetectable specific error in sentencing process - establishing specific error re-opens sentencing discretion whether or not specific error affected outcome - re-exercise of sentencing discretion by appeal court -different sentence may be imposed unless appeal court considers original sentence appropriate.

Crimes Act 1914 (Cth), s 16A(2)(p)

Crimes (Sentencing) Act 2005 (ACT), ss 17, 18, 33(1)(o), 34, 35

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 20(1), 34(2)

Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 (8 September 2004)

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cameron v The Queen [2002] HCA 6; 209 CLR 339

Craft v Diebert [2004] ACTCA 15

Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24

Ghoubriel v The Queen [2016] ACTCA 66

House v The King (1936) 55 CLR 449

Kentwell v The Queen [2014] HCA 37; 88 ALJR 946

R v Hinton [2002] NSWCCA 405; 134 A Crim R 286

R v Latona and McCabe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012)

Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23

Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545

1. On 7 September 2016, the appellant was sentenced in the Magistrates Court for an offence, committed on 9 January 2016, of driving a motor vehicle with a prescribed drug in his oral fluid. The appellant was a "repeat offender" because of a previous drink-driving offence in 2009 involving a Level 3 blood alcohol reading. For the current offence he was fined $500 and disqualified from driving for two years.

2. I note that on the appellant's record there is also an offence of driving while suspended, dealt with before the drink-driving offence but apparently committed after that offence.

3. The offence was detected when the appellant was subjected to random alcohol and drug testing in the industrial suburb of Fyshwick, in the early afternoon of Saturday, 9 January 2016. He returned a negative result to the alcohol test, but tested positive to a drug subsequently identified as methylamphetamine.

4. The offence is created by s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). For a repeat offender, the maximum penalty for that offence is 25 penalty units (then equal to $3,750) and three months imprisonment; under s 34(2) of that Act, the licence disqualification period is five years, or a shorter period, but at least 12 months, set by the court. That is, the disqualification period set by her Honour was three years shorter than the "default" disqualification period and only one year longer than the minimum disqualification period for a person convicted of the offence. Counsel described the sentence as "not prima facie a lenient one", and it was not the most lenient sentence available, but nor is it obviously a severe sentence.

5. The appeal grounds set out in the amended notice of appeal were as follows:

(a) the sentence appealed from is manifestly excessive;

(b) the sentencing magistrate had regard to an irrelevant matter, being the appellant's initial plea of not guilty;

(c) the magistrate erred in rejecting evidence as to:

• (i) the reason for the appellant's late plea of guilty; and
• (ii) the appellant's belief that at the time of the offence no illicit drug would be in his system;

(d) the magistrate had no regard to the effect of the sentence upon the appellant's dependants.

6. At the hearing, the appellant disclaimed reliance on the claim of manifest excess.

7. As discussed at [65] below, all the appeal grounds seem to be premised on the proposition that the sentence actually imposed by the Magistrate was not as lenient as might have been expected.

8. Before the Magistrate, defence counsel had sought an order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (a non-conviction order), which allows a court to decline to record a conviction but to make certain other orders, in particular a good behaviour order. In the current case, the main significance of this application was that, if no conviction were recorded, the appellant would not have been subject to the automatic licence disqualification attaching to a conviction for the offence concerned, although a licence disqualification order could have been made (s 18 of the Crimes (Sentencing) Act).

9. Counsel made submissions before me on the basis that a non-conviction order would have been an appropriate disposition. Much if not all of the appeal submissions seemed, however, to be premised on the assumption that a non-conviction order was not only an appropriate disposition but also the only appropriate disposition.

The Magistrate's approach to the not guilty plea

10. Section 34 of the Crimes (Sentencing) Act says that a court must not increase a sentence because an offender chose to plead not guilty.

11. Counsel also submitted that the heading to s 34 of the Crimes (Sentencing) Act ("Sentencing-irrelevant considerations") should be interpreted as establishing that the entry of a plea of not guilty is in any circumstances an irrelevant consideration and that, therefore, the reference by her Honour to the early not guilty plea of itself established the error of having regard to an irrelevant consideration.

12. After the offence was detected in January 2016, the appellant was summonsed to appear in the Magistrates Court on 26 April 2016. He appeared that day without legal representation, pleaded not guilty, and was remanded to appear on 5 August 2016 for a hearing.

13. On 5 August 2016, the appellant appeared, again unrepresented, and pleaded guilty. The facts and his criminal history were agreed, and the matter was adjourned to 31 August 2016 for sentencing. Before that date, the appellant had apparently obtained legal representation, and the matter was further adjourned to 7 September 2016. The appellant was then represented at the sentence hearing, in the course of which counsel asked the Magistrate to make a non-conviction order.

14. Before the Magistrate, defence counsel from the bar table reported his understanding of the appellant's explanation for his initial plea of not guilty, which was that the appellant had believed that he had been charged with driving under the influence of a drug, rather than with an offence constituted simply by having traces of the drug in his system. The transcript records the following exchange:

MR EDMONDS: Your Honour, my instructions are and I don't have the benefit of the bench sheet that your Honour has but my instructions are that the defendant had been unrepresented for much if not all of that period, that he had your Honour understood that as some people do your Honour, that this is a driving under the influence of a drug offence, which of course it's not. And it was on that basis alone your Honour that he had pleaded not guilty because he understood and the evidence would tend to confirm it your Honour, that he was not under the influence. But when that was explained to him, your Honour by the magistrate at the hearing, he freely accepted that he had done the wrong thing and pleaded guilty, so your Honour it was not a case of him not accepting responsibility per se, whilst there was some court time wasted, that has to be accepted your Honour. Again, your Honour he has not been in a position to have a lawyer until very recently, his financial position is obviously not terrific but your Honour that is as much of an explanation as I can provide on his behalf.

HER HONOUR: All right.

15. In the hearing, the Magistrate noted that there had been a long delay since the matter was first before the Court, and the following exchange took place between her Honour and counsel for the appellant:

HER HONOUR: Thank you. And the delay, I mean there has been a long delay since the matter was first before the court, the offence relates to - goes back to the 9 January ---

MR EDMONDS: Yes. Thank you, your Honour.

HER HONOUR: --- he pleaded not guilty.

MR EDMONDS: Yes, so if I could ---

HER HONOUR: It was set down for hearing ---

MR EDMONDS: --- seek to ---

HER HONOUR: --- and he pleaded guilty on the hearing date.

MR EDMONDS: If I can seek to explain that your Honour.

HER HONOUR: So that doesn't go well for him ---

MR EDMONDS: My instructions ---

HER HONOUR: --- either, in my view.

16. It is worth noting that her Honour's comments, without interruptions, were as follows:

Thank you. And the delay, I mean there has been a long delay since the matter was first before the court, the offence relates to - goes back to the 9 January --- he pleaded not guilty. It was set down for hearing and he pleaded guilty on the hearing date. So that doesn't go well for him either, in my view.

17. In her sentencing remarks, the Magistrate said:

Very little leniency can be granted to you. You pleaded not guilty; you stretched the whole matter out for a long time. You could have - if you pleaded guilty at the start, you could have had the matter over and done with and be halfway through your pain, if not longer by now. But you didn't. So you pleaded not guilty, you pleaded guilty on the - on the hearing day, why the - why the matter wasn't sentenced on that day, I don't know. Maybe you do, but it was adjourned again and yet another delay followed. So a section 17 disposition is totally out of the question.

18. I accept that s 34 precludes a court from imposing a more severe sentence on an offender because the offender has defended the charges. I am not convinced that s 34 has any particular significance in relation to a person who does not in the end defend a charge, but who enters not guilty pleas on one or more occasions before eventually pleading guilty.

19. Where an offender ultimately pleads guilty, one of the issues in determining the appropriate plea of guilty discount is whether the offender pleaded guilty at the first reasonable opportunity. In Cameron v The Queen [2002] HCA 6; 209 CLR 339 at [22], the plurality said:

The remarks of Ipp J in Atholwood reflect what has earlier been said in relation to the rationale for the rule that a plea may be taken into account in mitigation, namely, that, leaving aside remorse and acceptance of responsibility, the operative consideration is willingness to facilitate the course of justice. And once that rationale is accepted, the respondent's suggestion that the extent to which a plea of guilty may be taken into account in mitigation may vary according to whether it was or was not a "fast-track" plea must be rejected. Rather, the issue is to what extent the plea is indicative of remorse, acceptance of responsibility and willingness to facilitate the course of justice. And a significant consideration on that issue is whether the plea was entered at the first reasonable opportunity.

20. Clearly, the initial entry of a not guilty plea, and any reasons for that plea that are available to a court, will be relevant in the court's assessment of whether the guilty plea was entered at the first reasonable opportunity.

21. As well, the utilitarian value of a guilty plea may be affected by any delays in finalising the matter, and more generally by the time and effort that is required of the prosecution and others during the period in which the matter is still subject to a not guilty plea and is therefore moving towards a trial. That is, the entry of a not guilty plea that is later replaced by a guilty plea is routinely a relevant fact in determining the appropriate sentencing discount for that guilty plea.

(a) a reference to earlier not guilty pleas in the context of determining a plea of guilty discount or any other significance to be attributed to a guilty plea; or

(b) any associated conclusion that a relatively late guilty plea following one or more not guilty pleas entitles an offender only to a relatively small plea of guilty discount or other form of leniency;

could, as such, be found to amount to punishing an offender for defending the charge as described in s 34.

23. For essentially the same reasons, a court's mention of an initial not guilty plea in the context of an eventual guilty plea could not of itself be identified as the court having regard to an irrelevant matter in sentencing.

24. Nothing that the Magistrate said about the initial not guilty plea could be interpreted as showing that her Honour went beyond any legitimate consideration of the progress of the matter and the timing of the guilty plea. This appeal ground therefore fails.

Rejection of evidence about circumstances of offence

(a) whether her Honour was required to accept the information given from the bar table about this matter, and the effect to which her Honour was required to accept it; and

(b) how her Honour actually treated that information, and its impact in the sentencing.

26. Counsel referred me to the case of Talukder v Dunbar [2009] ACTSC 42; 194 A Crim R 545 in which Refshauge J said about the material before a court in a sentencing hearing:

20. Of course, when assertions of fact are made "from the bar table", they become evidence that is admitted unless there is an objection to it. This accords with the general approach that in relation to evidence, not admissible means "not admissible over objection": R v Reid [1999] NSWCCA 258 at [5]. As Gleeson CJ said in R v Meier (unreported, NSWCCA, Gleeson CJ, Dowd and Hidden JJ, 21 May 1996) at 19: "Indeed, as a practical matter, much of the evidence given at criminal or civil trials is technically inadmissible. It is received because nobody has an interest to object to it".

21. The notion of waiver of the rules of evidence is dealt with in s 190 of the Evidence Act. In this case, however, where that Act does not apply, it is dealt with by the common law. That has been the subject of careful consideration by Mr M Weinberg, "The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases" [1978] MelbULawRw 5; (1978) 11 MULR 408. It was there concluded after a survey of the recent cases that although the general assumption was that failure to object to inadmissible evidence in criminal cases does not constitute waiver, at least so as to debar an appeal point being taken, there was a line of conflicting authority; R v Reid would appear to be a more recent strong conflicting view in addition.

22. I do not have to, and do not propose to, resolve this issue. It seems to me that in sentencing proceedings judicial officers are entitled to rely on assertions of matters, including matters of fact, made from the bar table unless they are challenged. As was said by Winneke P, Brooking and Hayne JJA and Southwell AJA in at 371:

27. I accept that, in accordance with [24] quoted above, defence counsel was entitled to assume that the Magistrate had accepted his submissions, and that the appellant could rely on them, except to the extent that they were challenged by the respondent or her Honour.

28. However, I do not consider that it necessarily follows that a court is obliged to give unchallenged assertions of fact from the bar table any particular weight or any particular significance in determining the issues before the court. Among other things, the reception of evidence from the bar table means that, at the time that evidence is given, there may not be any rigorous examination of the actual relevance of the evidence to the issues before the court.

29. The Magistrate's treatment of the appellant's relatively late guilty plea is set out at [15][17] above. There is nothing in her Honour's comments that suggests that she rejected the appellant's explanation for his late guilty plea. Her Honour's immediate response to counsel's submissions was "All right". Her Honour in due course simply indicated that the late guilty plea would not justify the significant leniency inherent in the making of a non-conviction order in the case of this offender.

30. The claim that her Honour had rejected the "evidence" given from the bar table that the appellant's late guilty plea had resulted from his misunderstanding of the nature of the charge does not seem to go anywhere. Counsel expressly disclaimed any suggestion that her Honour had not had proper regard to the plea of guilty. His complaint seemed to be that her Honour relied on the late guilty plea "to disentitle [the appellant] to any leniency at all". This does not, however, seem to accord with the relative leniency of the sentence actually imposed.

31. I note also in passing that s 35 of the Crimes (Sentencing) Act does not as such apply unless a term of imprisonment is contemplated by the court. This does not mean that a guilty plea is irrelevant in any sentencing where imprisonment is not available or not contemplated; on the other hand it may be that for offences for which guilty pleas are routine (eg modern drink-driving offences where the certified breath or blood test result, without more, generally makes out the offence), guilty pleas as such are of relatively little significance in attracting any particular leniency.

Belief about presence of illicit drug at time of deciding to drive

32. In the Magistrates Court, defence counsel reported his instructions that the appellant had used the drug on the Friday night before the offence when it was offered to him by a friend, that this was a one-off experimentation with the drug, and that by early Saturday afternoon he had not realised that there would be any trace of the drug in his system. He said:

My instructions are your Honour that on the Friday night, a friend had offered him the drug which he tried as a case, a one off case of experimentation. It was not something that he had sought out but a very grave lapse on his part to accept that offer and to take the drug. But again, your Honour the similarities with the morning after type matter, if I can attempt to put it this way, your Honour, are that again there is nothing at all to suggest here, as with typically a morning after case, particularly if it is a low reading say, it's nothing to suggest that the defendant's manner of driving was affected. And equally, your Honour, we would say again somewhat similarly to a morning after-type offence, although here of course it is the afternoon after, it is not a case where your Honour, for example, someone has just taken a pill, or some other drug or just finished a number of glasses of wine or beers and then immediately gets in to the car in full knowledge that they will be over the limit, it will be unsafe for them to drive.

In this case, your Honour the defendant has made a very serious error and mistake but your Honour it was a situation where he did not - he was not aware that the drug would still be in his system the next day.

33. The submission on appeal was that the Magistrate had rejected the appellant's claim not to have been aware that at the time of the offence he could have had an illicit drug in his system, and that her Honour had concluded that the appellant had been reckless in his approach to the offence.

34. This finding of an aggravating factor (being the inferred recklessness), counsel said, implied that her Honour had rejected the evidence of the absence of an aggravating factor.

Explanation for offence and description of appellant's state of mind

35. The remarks relied on to show her Honour's allegedly erroneous approach to the information before her about the circumstances of the offence and the appellant's state of mind were as follows:

HER HONOUR: He is 26 and he has lost his licence twice. I am not surprised that he is trying to do whatever he can to avoid losing his licence again but if he is careless about his licence, why should the court care? If he doesn't seem to care and value his licence, the court doesn't care. You know, you value it; you're the one who has to respect it. Don't expect everybody else to say, it's important for you to have your licence. You have to understand that and you don't. And the fact that you have been before the court twice before and you have lost your licence twice before for traffic offences shows that you are very blasé about whether you have a licence, don't have a licence, have drugs in your system or have alcohol in our system. You drive anyway. And that's not a good - that is not a good message.

36. Specifically, counsel asserts that the use of the word "blasé" amounts to a finding of recklessness. I note that the Macquarie Dictionary Online (2017) () gives the following meanings for "blasé":

adjective 1. indifferent to and bored by pleasures of life.

2. (sometimes followed by about) unmoved or unperturbed; indifferent: to be blasé about the amount of work to be done.

37. Presumably her Honour was using the second meaning, and suggesting that the appellant was, in effect, indifferent, among other things, to the risk of driving some 12 or more hours after he had used a drug with which he had no prior experience.

(a) the appellant's claim was that, having taken methylamphetamine as a "one-off experiment" the night before, he did not know the drug would still be in his system on the Saturday afternoon;

(b) her Honour concluded that the appellant was reckless about whether there were drugs in his system;

(c) therefore, her Honour must have rejected the appellant's claim about his state of mind.

39. I am satisfied that complete acceptance of evidence to the effect that a first-time, experimental user of methylamphetamine chose to drive the following day because he was not aware that there would be any trace of the drug in his system is not inconsistent with a finding that he was reckless (or, at lease, blasé) about putting his licence at risk. That is, her Honour's finding that the appellant was blasé about that risk does not imply rejection of the evidence put on his behalf, only a reasonable analysis of it.

40. In any case, the transcript does not suggest that her Honour rejected the appellant's explanation so much as that she did not see it as a ground for the leniency sought.

41. The appellant had pleaded guilty, and was not raising a defence of mistake of fact under s 36 of the Criminal Code 2002 (ACT), namely that he was under a mistaken but reasonable belief about the facts of the offence. Whether he had the claimed belief, and whether it was reasonable, therefore does not seem to have had any particular relevance, especially having regard to the difficulties in that evidence as discussed below.

42. In those circumstances, it is not clear what counsel expected her Honour to make of the claim about his belief. There is no basis to conclude that her Honour rejected the appellant's claim, but also, given the relatively lenient sentence imposed, no basis to conclude that if the claim was rejected the appellant was disadvantaged by any such rejection.

43. I note in passing the NSW Guideline Judgment about high-range drink-driving offences (Application by the Attorney General under Section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment Concerning the Offence of High Range Prescribed Concentration of Alcohol Under Section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) [2004] NSWCCA 303 (8 September 2004) (the Guideline Judgment)). That judgment is not directly relevant to this case for many reasons, including because it relates to drink-driving offences which, unlike the drug-driving offence relevant here, do not involve a total prohibition on having alcohol in one's blood or breath while driving.

44. However, it is worth noting that the list of characteristics of an "ordinary case of the offence of high range PCA" set out by the NSW Court of Criminal Appeal included that "the offender drove ... because the offender did not believe that he or she was sufficiently affected by alcohol". Recklessness about whether the offender was affected by alcohol is not mentioned in the list of aggravating factors set out in the judgment. Under an approach of the kind taken in the Guideline Judgment, a lack of belief that the drug was still present in the offender's system would not have taken him outside the "ordinary case" into an aggravated version of the offence.

Inconsistencies in relevant evidence from the bar table

45. I note in passing that the bar table evidence about the two matters raised in this ground of appeal may be inconsistent.

46. The bar table evidence about the late guilty plea was to the effect that the delay in entering that plea arose from the appellant's belief that he had been charged with an offence of driving under the influence of a drug, rather than an offence of having the drug in his oral fluid (although the original summons clearly showed that the charge involved "having a prescribed drug in his oral fluid", and there was no claim that he had not received the proper paperwork in relation to the charge).

47. The bar table evidence about the risk taken by the appellant in driving early on Saturday afternoon was that he "was not aware that the drug would still be in his system the next day". As such, this is simply a claim of irrelevant ignorance. In particular, it is not a claim of a positive belief that he did not have the drug in his system at the relevant time.

48. However, counsel for the appellant pointed to this evidence as evidence that, if accepted, would have addressed her Honour's suggestion that the appellant was blasé, among other things, about whether he had drugs in his system. It is implicit in the reliance on that evidence that the appellant claimed to have considered (separately from any consideration of whether his ability to drive was affected) whether he would return a positive result to a drug test.

49. If the appellant's claim was that on the Saturday afternoon in question he had considered whether he would, if tested, return a positive result to a drug test, then his separate claim that he believed for several months thereafter that he had been charged with an offence of being under the influence of the drug is somewhat unconvincing.

50. The other relevant bar-table evidence (at [32] above) was that, at the point when the appellant used the drug, it was a "one-off" experimentation with a drug he had not previously used. This also seems to undermine any implied claim that, at the point when he chose to drive, the appellant had actively made what he believed to be an informed assessment of whether he might have any of the drug left in his system, and had rejected that possibility.

51. In summary, I cannot see any basis for concluding that her Honour rejected the evidence relied on by the appellant, only that she did not see it as a basis for imposing an even more lenient sentence than she ultimately did.

52. This ground of appeal is not made out in respect of any of the bar table evidence said to have been rejected by the Magistrate.

Effect of the sentence on the appellant's dependants

53. At the sentencing hearing, material was tendered and admitted, and submissions were made, to the effect that the offender would lose his job if he were disqualified from driving for any significant period, and that this would be a problem, directly and indirectly, for a number of people who are dependent on him (specifically his partner and her two teenage children and his disabled brother who was, among other things, unable to obtain a driver licence as a result of his disabilities).

54. Her Honour responded to these submissions with a conspicuous lack of sympathy. Specifically, she said to the appellant:

HER HONOUR: All right. Thank you. It is - Mr Valencic it's always very difficult when people come before this court charged with drink driving offences or drug driving offences and they stand there with the prospect of losing their licence for a period of time, that is the most difficult hardship for people, particularly people who need their licence to drive. A lot of people in this - to work rather. They need to drive to work. Many people in this community can get by a lot easier than others without a licence because they don't have to carry tools, they don't have to be on building sites or other areas of employment at all sorts of hours of the morning. They can catch public transport and they can have other - make other arrangements such as have lifts from colleagues or family members or anybody else.

But you know - but the whole point of this is, people who drive for a living and people who need their licence to live, not just for the sake of convenience to drive kids to sport and do shopping, but just who need their licence to earn their living, have to respect it and you don't. You know the fact that you are standing there three times, how old? Twenty-six. You are 26 and you are standing there before this court three times charged with serious traffic offences. Serious traffic offences. So you haven't learnt your lesson. You didn't learn your lesson and value your licence the first time you lost it, which I think was for a period of 12 months. You didn't value it after you lost it the second time for a period of six months and now you are standing there through Mr Edmonds begging that the court have compassion for you. There is only so much that the court can do. You have taken on a lot of responsibility for everybody else. The court has a responsibility to all those people on the road, who you endanger by the fact that you drive when you have got alcohol in your system, and you drive when you have a drug in your system. That is the responsibility this court has.

And that is a greater responsibility than to your partner and her two kids and to your brother and to your work colleague and to anybody else in your life. Tell these people to go and stand on their own two feet, including your brother. You know, let him get other support mechanisms in place, tell your partner to go out and get a job to help pay for the bills that might come in. That's what you should do. Tell these people to stand on their own two feet; don't expect this court to have sympathy for these people if you don't respect what you have. And you haven't. You haven't, otherwise you wouldn't be standing there three times.

55. I accept counsel's submission that the tone of the Magistrate's remarks was inappropriate (especially to the extent those remarks concerned members of the appellant's family rather than the appellant himself), and would have been better avoided, but that is not to say that her underlying message was inappropriate.

56. One can understand the frustration of the Magistrate in the circumstances of this case. Her Honour was faced with a plea for leniency from an offender who, apparently in the absence of any knowledge of the properties of the illicit substance in question, had taken the risk of driving less than 24 hours after "experimenting" with a substance that is, these days, widely known to have significant and generally negative mind-altering effects. Furthermore, the offender had taken this risk despite a history of two previous periods of licence disqualification and, it appears, despite the importance to him and his various dependants of maintaining his driver's licence and his employment.

57. I do not consider that the Magistrate's failure to hide her frustration amounted to sentencing error. The more significant question is whether her Honour fell into error in her treatment of the appellant's claims about the impact on his family of losing his licence.

58. In Craft v Diebert [2004] ACTCA 15, Crispin P and Connolly J said:

9. In this case, as his Honour observed, the respondent suffered from clinical depression and was the primary carer of a teenage son with attention deficit hyperactivity disorder. Mr Refshauge SC argued that issues of this kind should be considered only in exceptional cases. Whilst acknowledging that s 342(1)(j) of the Crimes Act required sentencing judges or magistrates to have regard to "the probable effect that any sentence or order under consideration would have on any of the person's family or dependents", he submitted that it would be appropriate for this Court to follow the decision of the Western Australia Court of Criminal Appeal in R v Sinclair (1990) 51 A Crim R 418 at 430. This decision suggested that a similar provision in the Commonwealth Crimes Act was not intended to change the common law principle that the effect on dependents would not be taken into account save in exceptional circumstances. With very great respect to their Honours, we must say that we are quite unable to accept that a legislative requirement to take such a factor into account can be transliterated into a prima facie requirement to ignore it merely because that would reflect the approach previously recognised at common law. A similar issue arose for consideration by the Queensland Court of Criminal Appeal in the subsequent case of R v Tilley (1991) 53 A Crim R 1 at 3 where, after referring to the aspects of retribution, deterrence and rehabilitation, Thomas J referred to the hardship that would result if the respondent were to be parted from her two and a half year old daughter and explained:

Courts, of course, take account of such matters in a number of ways but are not overwhelmed by them. It is well recognised that very often a prison sentence will result in equal hardship to persons other than the offender. In the case of a male, his wife and children may be the ones who suffer because they lose a father and a person who provides financial support. In the case of a female, it may mean the temporary loss of a mother. It is common that hardship and stress is shared by the family of an offender but that may be an inevitable consequence if the offender is to be adequately punished. An offender cannot shield himself under the hardship he or she creates for others, and courts must not shirk their duty by giving undue weight to personal or sentimental factors. . . .

59. In R v Latona and McCabe (Unreported, Supreme Court of the Australian Capital Territory, Penfold J, 19 November 2012), I considered inconsistent approaches in the ACT and in NSW to s 16A(2)(p) of the Crimes Act 1914 (Cth), which refers to "the probable effect that any sentence or order under consideration would have on any of the person's family or dependents"; the question addressed in Regina v Togias [2001] NSWCCA 522; 127 A Crim R 23, R v Hinton [2002] NSWCCA 405; 134 A Crim R 286 and Director of Public Prosecutions v Ka-Hung Ip [2005] ACTCA 24 (Ka-Hung Ip) was whether this provision should be read as applying only in exceptional circumstances.

Were it necessary to choose between these two approaches, I would follow the approach of the ACT Court of Appeal [in Ka-Hung Ip], agreeing with the view of that court [at [60]] that "there is ... no warrant for a sentencing court to presume judicially to qualify the clear parliamentary command", but also with the Court's comment [at [61]] that the weight to be given to each factor expressed to be relevant to sentencing is a discretionary matter, and that "In many cases, it will not be possible to give a family's suffering much or any weight".

61. I accept the proposition that s 33(1)(o) of the Crimes (Sentencing) Act obliges a sentencing court to take account of material before it concerning the effect of a sentence on an offender's family or dependents. However, I see no basis for accepting the proposition implicit in counsel's submissions that a sentencing court must provide a sentencing discount, or otherwise reduce a sentence, because there is evidence before it that a particular sentence will impose hardship on an offender's dependents.

62. I also note counsel's submission that, because of s 33(1)(o), a sentence imposed for a particular offence on a single person with no dependents should routinely be more severe than a sentence imposed for the same offence committed in objectively equivalent circumstances by a person who is the sole breadwinner for several other people. I cannot see any basis in the authorities that have been raised in this context for such a conclusion, which appears to reflect a view that sentencing involves some kind of points system in which the appropriate sentence to be imposed is indicated by the final score resulting after points are given or deducted for various aspects of the circumstances of the offence or the offender.

63. I note also that in this particular case, except in relation to the appellant's disabled brother, the evidence does not go beyond establishing that the appellant, to his credit, has provided significant financial and other support to his partner and her children and that such support may not be so readily available during any period of licence disqualification. In relation to the appellant's brother, I note that her Honour did enquire about how the appellant and his brother had managed during the appellant's two previous periods of licence disqualification: that is, her Honour clearly took notice of this issue and sought to tease out the real implications of the material before her.

64. I am satisfied that her Honour paid considerable attention to the likely impacts of a licence disqualification on the appellant's family, and I cannot see that she fell into error in concluding that those impacts did not justify protecting the appellant's licence by declining to record a conviction or even by reducing the disqualification period to the minimum 12 months.

Attempt to infer error from inadequately lenient (but not manifestly excessive) sentence

65. As already noted, the real difficulty for the appellant in this case is that all the appeal grounds seem to be premised on the general proposition that the sentence actually imposed by the Magistrate was not as lenient as might have been expected, with specific reliance placed on the claim that a non-conviction order would have been an available and appropriate disposition (at [9] above).

66. I do not exclude the possibility that a person who had already been twice convicted for motor traffic offences, including for a serious drink-driving offence, could in appropriate circumstances persuade a court to make a non-conviction order in respect of an offence of the kind committed in this case.

67. However, I do not consider that an offender coming before a court with such a history could reasonably expect such a lenient disposition. It is thus unsurprising that counsel did not pursue the appeal ground alleging that the sentence was manifestly excessive.

68. The appellant, however, seems to rely on the unsuccessful application for a non-conviction order to found the argument that the sentence imposed in the Magistrates Court, namely a $500 fine (from a maximum fine of $3,750) and disqualification from driving for two years (rather than the default disqualification period of five years), was not a lenient sentence but an unduly severe sentence having regard to the matters raised in the three grounds of appeal, and must therefore reflect one or more of the several errors attributed to her Honour in her dealing with the appellant.

69. In other words, the appellant asserts specific errors that are not apparent from her Honour's explicit remarks, and then seeks to establish, by reference to what the appellant says was a relatively severe sentence, that at least one of those errors must nevertheless have been made. For example, in written submissions about the significance of the appellant's claimed belief about the likely presence of the drug in his system when he drove, counsel said:

Given that the appellant's stated belief, if accepted, would at least have pointed to the absence of an aggravating fact, i.e. that he knowingly drove with an illicit drug in his system, this Court could not be satisfied that such an error may not have affected the ultimate sentence, given it was not prima facie a lenient one.

70. This seems to reflect a misunderstanding of the categories of errors identified in House v The King (1936) 55 CLR 449, or at least a misunderstanding of how those errors reveal themselves and how they are to be dealt with.

71. It is well established that House v The King identified two kinds of errors that may affect discretionary decisions, namely:

(a) specific errors affecting the process of making a discretionary decision (described in House v The King as error of fact, error of law, failure to take account of relevant considerations, taking account of irrelevant considerations); and

(b) errors that are inferred from the conclusion that the result of the process is simply and obviously wrong (in sentencing appeals, usually described as manifestly excessive or manifestly inadequate).

72. In recent years the High Court has made it clear that the second kind of error, the inferred error, is not established by pointing to alleged errors that the court might have made in determining a sentence that is said to be simply wrong (being errors that do not fall within the categories of specific error identified in House v The King), but by setting out the material that indicates that the sentence is simply wrong (see Ghoubriel v The Queen [2016] ACTCA 66 at [7] to [16], and cases cited therein, in particular Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [24] and [53]).

73. If a sentence is not "obviously wrong" (excessive or inadequate) so as to permit the second kind of error to be inferred, then the sentencing process can only be re-opened if the first kind of error, a specific error in that process, can be identified, usually by reference to the sentencing remarks but occasionally by reference to the course of the sentencing proceedings.

74. In the current case, the appellant seeks to establish that specific errors of the kind identifiable in the appeal grounds must have been made, even though they are not apparent from the Magistrate's comments, including the sentencing remarks, as reflected in the transcript. I am satisfied that the first kind of error, specific error, can rarely if ever be established by pointing to the end result of the sentencing process. If the end result of the sentencing process is not obviously wrong (in this case, manifestly excessive), then there is no sensible basis for trying to rely on that end result (which is by definition not obviously wrong) to establish that a specific but otherwise undetectable error has been made.

75. The other misunderstanding implicit in counsel's submission quoted at [69] above is about the significance of establishing a specific error in a sentencing process. If a specific error can be established, the question whether the error affected the ultimate sentence need not be asked. Establishing the specific error itself re-opens the sentencing discretion, which must be re-exercised by the appeal court, although this will not necessarily result in the imposition of a different sentence if the appeal court considers that the original sentence is nevertheless appropriate (Kentwell v The Queen [2014] HCA 37; 88 ALJR 946, at [42]).

76. Finally, I note an aspect of the submissions made by counsel for the appellant that was not relied on to establish any specific error but was mentioned in anticipation of the re-sentencing that would follow a successful appeal, and seems to have been intended to support the general submission that the appellant's sentence was not as lenient as could have been expected. Counsel repeatedly referred to the appellant's drug-driving offence as the "first in time" offence. He explained these references as alluding to the fact that this was the first time that the appellant had been convicted of this particular offence (drug-driving), and that although he was, as required by law, being sentenced as a repeat offender because of his previous drink-driving offence, he could have expected more leniency than if he had in fact committed the same offence for a second time.

77. The implication of these comments, that an offender may continue to expect "first offender's" leniency as long as he continues to commit different offences, strikes me as very odd. It is true that a sentencing court may take different attitudes to prior offending of the same kind and prior offending of a very different kind, but that does not seem to me to justify counsel's submission, especially when that submission is made in relation to two other offences of the same general nature (being traffic offences specifically involving the offender driving when he should not have been driving).

78. In summary, the appellant says that, having regard to the severity of the sentence that the Magistrate has imposed on him, her Honour must have fallen into one or more of the following errors:

(a) her Honour must have erred in her approach to the appellant's original plea of not guilty (either by punishing him for that plea or simply by having regard to it in determining the sentence or, more specifically, by not concluding that his ultimate plea of guilty entitled him to a non-conviction order);

(b) her Honour must have rejected the appellant's claims about the circumstances of the offence and his state of mind (rather than accepting them but considering that they did not justify a non-conviction order);

(c) her Honour must have failed to take account of the relevant consideration that was the needs of the appellant's dependants (rather than taking proper account of those needs, and giving what her Honour saw as appropriate weight to those needs, by reducing the licence disqualification period from the default period of five years to the much shorter period of two years).

79. The appellant's reliance on this hybrid version of the approach to error described in House v The King cannot succeed. The appeal must be dismissed, except to the extent necessary to vary the Magistrate's disqualification order to take account of the period from the date of the Magistrate's decision until the date on which the appeal was filed, during which the appellant did not drive, and the stay of the disqualification order from that date until today.

I certify that the preceding seventy-nine [79] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold.