CRIMINAL LAW - jurisdiction, practice and procedure - judgment and punishment - effect of plea of guilty - need to give reasons for not reducing sentence for plea.

CRIMINAL LAW - jurisdiction, practice and procedure - judgment and punishment - effect of criminal record - where different kinds of offences - where significant break in offending history - need to avoid further punishment for prior offending.

PROFESSIONS AND TRADES - lawyers - prosecutors - duties on sentencing.

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

Road Transport (General) Act 1999 (ACT), s 232(a)

Magistrates Court Act 1930 (ACT), ss 207, 214, 216, div 3.10.2, pt 3.10

Crimes (Sentencing) Act 2005 (ACT), ss 35, 37, 40A, 41, 42

Australian Road Rules, r 300

Road Transport (Safety and Traffic Management Regulation 2000 (ACT), s 8

Lovegrove v Smith (1989) 42 A Crim R 78

Harper v Low [2009] ACTSC 136

Director of Public Prosecutions v Thompson [2009] ACTCA 19; (2009) 236 FLR 336

Saga v Reid [2010] ACTSC 59

Anzac [1987] NTCCA 7; (1987) 31 A Crim R 310

R v Tait (1979) 46 FLR 386

Casey and Wells (1986) 20 A Crim R 191

Glass (1994) 73 A Crim R 299

Carpenter v Purcell [2008] ACTSC 34

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

R v Ahmed Din [1962] 2 All ER 123

R v Rivett (1950) 34 Cr App R 87

R v Matheson [1958] 2 All ER 87

Hall (1988) 36 A Crim R 368

Rogers v Green [2008] ACTSC 75

Taylor v Bowden [2009] ACTSC 13

Tran v Tan [2009] ACTSC 66

Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656

Acuthan v Coates (1986) 6 NSWLR 472

Okwechime v Sindel [2009] ACTSC 162; (2009) 171 ACTR 1

Rees v The Queen [2012] ACTCA 6

AB v The Queen [1999] HCA 46; (1999) 198 CLR 111

W, NJ v Police [2009] SASC 269; (2009) 197 A Crim R 143

Butler v Vickers [2011] ACTSC 134

Cotter v Corvisy (unreported, ACTSC, Refshauge J, SCA 97 of 2007, 12 August 2008)

Clinch (1994) 72 A Crim R 301

Cole v Higgins (1991) 13 MVR 158

Anderson v Heath [2005] WASC 253

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

2. The order of the Magistrates Court made on 12 January 2012, where on charge CC201/8307 of driving whilst disqualified on 25 August 2011 the appellant was convicted and sentenced to four months imprisonment from 12 January 2012, be set aside.

3. The conviction is confirmed but in lieu of the sentence, a new sentence is imposed of six weeks to commence on 12 January 2012, meaning that Ms Westin is to be released forthwith.

1. On 23 February 2012, I upheld an appeal by Amber Joan Westin from the sentence imposed on her in the Magistrates Court. I said I would publish my reasons later. These are those reasons.

2. At about 2.29 pm on Thursday 25 August 2011, police officers on mobile patrol saw Ms Westin driving a motor vehicle on a public street while apparently talking on a mobile phone held up to her left ear.

3. The police officers followed Ms Westin to where she turned into the driveway of a group of townhouses in Page. They followed her along the driveway until she stopped her vehicle and then spoke to her.

4. She said that she had no reason for using a mobile phone while driving, admitted that she had never held a licence, gave a false name and birth date and made an accurate statement as to the owner of the car she was driving.

5. The police officers made brief inquiries and had a further conversation with Ms Westin in which she admitted to providing a false name and then gave her correct name, address and date of birth. She also confirmed that she was disqualified from obtaining or holding a driver licence.

6. It later turned out that she had been driving to the Hawker Pharmacy to collect a dose of methadone which she was then taking in connection with her drug addiction.

7. As a result, she was charged with three offences:

• as a first offender driving whilst disqualified, an offence under s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), which provides a maximum penalty of fifty penalty units (a fine of $5 500) or imprisonment for six months or both;

• driving while using a hand-held mobile phone, prohibited by r 300 of the Australian Road Rules which, under s 8 of the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), attracts a maximum penalty of 20 penalty units, namely a fine of $2 200; and

• stating a false name to a police officer, contrary to s 232(a) of the Road Transport (General) Act 1999 (ACT), which renders her liable for a maximum penalty of twenty penalty units, namely, a fine of $2 200.

8. On 12 January 2012, Ms Westin was sentenced in the Magistrates Court on her plea of guilty to four months' imprisonment for driving whilst disqualified, a fine of $200 for driving while using a hand-held phone and a fine of $300 for stating a false name.

9. On 8 February 2012, she appealed against the sentence of four months' imprisonment for the offence of driving whilst disqualified.

10. Part 3.10 of the Magistrates Court Act 1930 (ACT) regulates appeals to this Court from the Magistrates Court and s 207 gives this Court power to hear such appeals. Specifically, div 3.10.2 applies to and regulates appeals in criminal matters such as this appeal.

11. I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.

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

13. Specific errors may be errors of law, errors of fact, taking account of irrelevant or extraneous considerations or failing to take account of relevant or material considerations. If I find specific error but the original sentence, nevertheless, appears to be appropriate, I should dismiss the appeal rather than allow the appeal and reimpose the same sentence. Even if I cannot identify a specific error I may uphold the appeal and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.

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

1. The Magistrate took into account irrelevant considerations in sentencing the appellant.

2. The sentence was manifestly excessive in the circumstances.

16. At the appeal, the second ground was abandoned. I do not need to consider it further.

17. Three matters said to be irrelevant considerations were raised as follows:

(a) The treatment of the plea of guilty was said not to have been addressed appropriately by the learned sentencing Magistrate. The ground really was that Ms Westin's failure to appear in court was regarded by his Honour as negating any benefit she may derive from her plea of guilty. This may amount really to taking into account an irrelevant consideration, namely, her failure to appear. As argued, the issue also included an assertion that due regard was not had to the plea of guilty, which was said to be a relevant consideration. No point was taken about that inclusion and, in the circumstances, I did not require an amendment to the grounds of the appeal.

(b) Ms Westin's criminal record was said to have been used by the learned sentencing Magistrate to aggravate the sentence.

(c) Ms Westin's drug use and history of drug use was also said to have been relied upon by the learned sentencing Magistrate to exclude non-custodial sentencing options.

18. The Notice of Appeal also referred to Ms Westin seeking to put further evidence before the court.

19. Ms Westin was, when spoken to by police, advised that summonses may be issued to her. Summonses were issued on 14 September 2011, returnable on 4 October 2011. No material in the appeal book showed if and, if so, when the summonses were served on Ms Westin.

20. She did not appear on the return date and the proceedings were adjourned for nine days to 13 October 2011. The court officers were directed to notify Ms Westin of the adjourned date, when she was required to attend or a warrant would issue. No material in the appeal book showed if and, if so, when such notification was sent, to where it was sent and whether it was received.

21. Ms Westin did not appear on 13 October 2011 and the next day a warrant for her arrest was issued. She appeared, presumably as a result of her arrest under the warrant, on 19 October 2011 and was granted bail to appear on 9 November 2011. On that date the proceedings were further adjourned to 16 November 2011 when Ms Westin entered pleas of guilty to each of the charges. The proceedings were then adjourned for sentence to 12 January 2012 and a pre-sentence report was ordered.

22. On 12 January 2012, Ms Westin adhered to her pleas of guilty and the sentencing proceedings were heard and concluded. The author of the pre-sentence report was called to give oral evidence and to be cross-examined briefly. Submissions were made by the prosecutor and Ms Westin's counsel and the learned sentencing Magistrate imposed the sentence referred to above (at [8]).

23. A comprehensive pre-sentence report was tendered. Although not noted on any of the bench sheets included in the Appeal Book, it was probably ordered, as it has to be under s 41 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), on 16 November 2011 when the pleas of guilty were entered.

24. Under s 42 of the Sentencing Act, a pre-sentence report "must address ... each pre-sentence report matter ... stated in the court order for the report; and ... any other pre-sentence report matter ... that, on investigation, appears to the assessor to be relevant."

25. Section 40A of that Act set out what are defined as the "pre-sentence report matters" as follows:

For this part, each of the following is a pre-sentence report matter in relation to the offender:

(a) the offender's age;

(b) the offender's social history and background (including cultural background);

(c) the offender's medical and psychiatric history;

(d) the offender's educational background;

(e) the offender's employment history;

(f) the extent to which the offender is complying, or has complied, with any sentence;

(g) the offender's financial circumstances;

(h) any special needs of the offender;

(i) any courses, programs, treatment, therapy or other assistance that is available to the offender and from which the offender may benefit;

(j) any risk assessments made of the likelihood that the offender will commit further offences or of things (including circumstances) that may make the offender more likely to commit further offences;

(k) the opinion of the assessor preparing a pre-sentence report for the offender in relation to an offence, and the basis for the opinion, about the following:

• (i) the offender's attitude to the offence;
• (ii) the need to protect victims of the offence from violence or harassment by the offender;
• (iii) anything that may make the offender more likely to commit further offences:

1. dependence on alcohol or a controlled drug
2. a gambling addiction
3. association with particular people

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(iv) the likelihood that the offender may commit further offences;

(v) whether it would be appropriate to refer the offender for restorative justice under the Crimes (Restorative Justice) Act 2004.

26. As can be seen, the list is quite comprehensive.

27. It has been my experience that the orders made by courts under s 41 of the Sentencing Act rarely state the pre-sentence report matters that should be addressed as required under s 42, but that the Reports take a standard format always addressing matters

(a)-(e), (g) and (i)-(k) where these matters are known. They also regularly address the alcohol and other drug history of the offender. I call these the standard issues. The other matters are, of course, addressed where the offender has been involved in other sentencing ((f)), or has special needs ((h)).

28. In this case, the pre-sentence report addressed the standard issues and Ms Westin's response to earlier sentences. There was no indication in the appeal book that the order for the Report had identified any issues that the court required to be addressed.

29. The Report showed that Ms Westin's parents separated when she was seven years old and that she had limited contact with her father thereafter as he was an alcoholic. She experienced a difficult relationship with her mother, exacerbated by her own behavioural issues and her mother's cannabis use and mental state which Ms Westin described as "bi-polar". Ms Westin left home at 12, thereafter living with her sister and friends until she moved in with a partner and his father when she was 14.

30. Her partner spent several periods in custody. They had one daughter together who was, at the time of the Report, six and a half years old. Her partner now has full custody of the daughter, but she spends weekends with Ms Westin.

31. Ms Westin had a reasonable education until aged 14 and had completed a short hospitality course. She has had virtually no employment.

32. In particular, the Report addressed Ms Westin's drug and alcohol history. While relevant in a general sense to her history and background, it was not directly relevant to these offences. She was not said to be under the influence of alcohol or other drugs while offending. That she was driving to collect her regular dose of methadone, a treatment for illicit drug addiction, was incidental rather than central or critical to her offending. It was not offered as an excuse by her counsel, nor as a risk factor by the prosecution.

33. The Report noted that she was not undertaking counselling for her drug issues and that she was still smoking cannabis, though there was no information suggesting any other drug use.

34. Similarly, the Report referred to her mental health, that she had been receiving treatment for mental health issues and that she had recently been admitted to the Psychiatric Unit (presumably of The Canberra Hospital). Again, this was generally relevant to her background but not directly relevant to the offending behaviour for which she was to be sentenced.

35. The author assessed Ms Westin as having been initially positively affected by the birth of her daughter, but had subsequently returned to drug use. She noted that Ms Westin acknowledged the seriousness of the offences but appeared "to have little insight into her offending behaviour". The author's assessment was that "[h]er thought process in relation to determining pro-social and acceptable behaviours appear to be distorted."

36. There can be no criticism of the author of the pre-sentence report for it was no doubt helpful, as such Reports usually are in sentencing, and compliant with s 40A and standard procedure. However, its use, as I note below, was not necessarily appropriate.

37. Is is invariably required in sentencing proceedings, that any prior criminal record of an offender be tendered. A copy of Ms Westin's criminal record was in the Appeal Papers but there was no indication that it was formally tendered. This seems to happen in the Magistrates Court and it is undesirable. In any event, it was before me. It showed that she had a number of offences recorded against her dating back some years, the majority if which were dishonesty offences, probably related to her illicit drug use.

38. She had six traffic offences but they all related to one occasion of driving on 14 November 2006 when she was convicted of culpable driving causing death. At the time she was an unlicensed driver, and the vehicle she was driving was unregistered, had no third party insurance policy issued in respect of it, had the wrong number plates attached and a registration label affixed which was for another vehicle and also convicted of those offences.

39. For the offence of culpable driving she was sentenced to a period of imprisonment which was partly to be served by periodic detention and then suspended. A good behaviour order was made for the period of the suspended sentence and for all the other offences. That order included a period of supervision. She was disqualified from holding or obtaining a licence for 10 years.

40. I refer to these two matters for they featured prominently in the sentencing proceedings.

41. When the author of the pre-sentence report gave evidence, her attention was directed to a comment that the circumstances of the current offence and the traffic offences in 2006 were "similar". She answered that this was because on both occasions Ms Westin was returning from "picking up her methadone."

42. At sentencing in the Magistrates Court, Ms Westin's counsel, Ms H Cory, asked what Ms Westin's response was to the supervision under the good behaviour order and the evidence was that "she did attend and her attendance was satisfactory and she did successfully complete that order".

43. When sentencing submissions were sought, Ms Cory submitted that Ms Westin had entered a plea of guilty "at an early time". The learned Magistrate interrupted and noted that Ms Westin was served with the summons on 15 September

2011, returnable on 4 October 2011, when she did not appear and the matters were adjourned to 13 October 2011. She was sent a notice to appear on the adjourned date but still did not appear and a warrant issued. She was before the court on 19 October 2011 and then represented by a solicitor from Legal Aid ACT, but the matters were further adjourned to 9 November 2011. She was again represented and the matters were adjourned for plea to 19 November 2011 when she pleaded guilty.

44. Thus, there were three court appearances before a plea was entered, but that date was only one month from her first appearance in court, though a little over two months from the service of the summons. It was clear from the transcript that, during the sentencing hearing, Ms Westin wished to give instructions to her counsel as to why she had not appeared. Those instructions were that she had a medical certificate which she said confirmed that she was medically unfit to appear on 4 October 2011. She had given it to police. His Honour simply dismissed that issue by asserting that there was no certificate on the file. He did not ask the prosecution whether there was any dispute about that matter.

45. Ms Cory relied on the fact that, despite the breach of the disqualification of her licence, Ms Westin's driving was of lower culpability because there was no accident, no police chase and no harm or injury caused to anyone as a result. She made a wrong choice.

46. Ms Cory also referred to the arrangements between Ms Westin and her partner with respect to their child. She had some casual work with her landscaper partner assisting him from time to time.

47. She relied on the fact that she had not breached the good behaviour order so far as supervision was concerned. I do note however that on 12 June 2007, she was convicted of possession of cannabis which amounted to a breach of the good behaviour order and a term of imprisonment was imposed.

48. The prosecutor, Mr Mansfield, noted, as was appropriate, that the offence was a serious one. He suggested that there was a continuing attitude of disobedience to court orders and the law, both by driving in breach of the disqualification and by using a mobile phone while doing so.

49. He suggested that there was a link between the driving and Ms Westin's treatment plan for her drug use though it was clear that she was no longer participating in the methadone program. Ironically, this must reduce her risk of re-offending in this particular way, whatever it does in respect of her drug use and its consequences.

50. He also relied on the fact that there was no current treatment for her drug addiction and submitted that she appeared unwilling to engage in such treatment.

51. He further acknowledged that the plea of guilty was at an early stage.

52. The learned sentencing Magistrate gave, as would be expected, an immediate ex tempore decision. His Honour had, however, relevant authorities at hand to which he referred.

53. His Honour set out the facts and the course of the proceedings. He referred to Ms Westin's prior record. He then referred to the remarks of Bollen J in Lovegrove v Smith (1989) 42 A Crim R 78 at 80, deciding that imprisonment is to be imposed for those who breach orders disqualifying them from driving, and to my decision in Cotter v Corvisy (2008) 1 ACTLR 299, where I referred to the inevitable consequence of contumacious offending in such cases as requiring imprisonment for such offenders.

54. His Honour found Ms Westin's driving to be contumacious. He considered that no other sentence than imprisonment was appropriate. He considered whether it should be served by periodic detention and decided it was not appropriate. His Honour's reasons seemed to be as follows:

The defendant has been given every opportunity and particularly from the horrific circumstances of her previous conviction to ameliorate her ways. She has failed to do so. She has failed to address her drug habit. In view of the matters set out in the pre-sentence report, words stated, her thought process in relation to determining pro-social and acceptable behaviours appears to be distorted and it is considered that until Ms Westin addresses these, she remains at risk of further offending.

55. The sentences referred to above (at [8]) were then imposed.

56. On appeal, Ms K Archer, who appeared for Ms Westin, raised the issues I have referred to above (at [17]).

57. The medical certificate obtained by Ms Westin which was referred to in the course of the proceedings (see [44] above) was tendered to me. It seemed to me, in the circumstances, to have been admissible under s 214(4) of the Magistrates Court Act.

58. As with such certificates these days, it was opaque: it merely certified that the medical practitioner had "examined Amber Westin [on 4 October 2011], and I confirm that she will be unfit for work from 4/10 to 7/10 2011 inclusive."

59. While it raises questions, it provides an excuse for her failure to appear in court on 4 October 2011. There is no explanation, however, for her failure to appear on

13 October 2011. The letter said to have been sent from the Magistrates Court was also tendered. It appeared to be admissible under s 214(3) of the Magistrates Court Act. Whether it was actually received by Ms Westin, I cannot say.

60. In any event, her failure then to appear resulted in her arrest and detention until her appearance in court on 19 October 2011, not a long time after the warrant was issued on 14 October 2011 and this arrest was a detriment in itself. She was apparently not difficult to locate. Of course, she committed no offence by failing to appear on 13 October 2011.

61. Both the prosecutor and Ms Westin's counsel submitted that her plea should be taken into account as an early plea.

62. While the matter was not mentioned in his Honour's reasons, that would not itself amount to an error if it were clear from the sentencing submissions that it had been addressed: Harper v Low [2009] ACTSC 136 at [39]. Insofar as the plea of guilty was concerned, his Honour's only reference was in the course of the history he recounted, to which I have referred to above (at [43]), and his Honour considered it was not entered at an early opportunity but appeared also to consider that no weight could be given to it because of her failure to appear in court

63. It is, of course, to be accepted that expressions of opinion during argument are not normally to be regarded as judicial pronouncements, unless they involve some ruling or are explicitly incorporated into a judgment: Director of Public Prosecutions v Thompson [2009] ACTCA 19; (2009) 236 FLR 336 at 338; [8].

64. That is not to say that it cannot be inferred that, especially in a busy Magistrates Court, where sentencing remarks are inevitably truncated and brief, a reference to a matter in argument is sufficient to show that a matter was taken into account on sentence.

65. Certainly, his Honour did not comply with the obligation under s 37 of the Sentencing Act if he did take it into account: Saga v Reid [2010] ACTSC 59 at [121].

66. The respondent, represented by Mr T Jackson, submitted that as Ms Cory had not mentioned the need to exercise discretion to mitigate the penalty because of the plea of guilty, the learned sentencing Magistrate could not be criticised for not referring to the issue. Reliance was placed on what fell from the Court of Criminal Appeal of the Northern Territory in Anzac [1987] NTCCA 7; (1987) 31 A Crim R 310 at 320 as to the duties of defence counsel on sentence.

67. I note, however, that in Anzac, the Court also said, at 319:

It can also properly be required of a Crown Prosecutor that he [sic] deal in his [sic] address with any special sentencing principles applicable to the particular case, and with the proper weight to be attributed to the objective and subjective facts and inference if any to be drawn therefrom (citation omitted).

See also R v Tait (1979) 46 FLR 386 at 389, approved in Casey and Wells (1986) 20 A Crim R 191 at 195.

68. In particular, as Hunt CJ at CL said in Glass (1994) 73 A Crim R 299 at 305, "[t]he traditional role of the Crown Prosecutor in the ordinary sentencing procedure is ... to ensure that the judge is not led into appealable error". With these remarks, I respectfully agree.

69. In this case, of course, the prosecutor did refer expressly to the plea of guilty, making it a relevant issue, stating that "the prosecution acknowledges the defendant's plea of guilty at an early stage." Clearly, both counsel were of like mind on this issue. The learned sentencing Magistrate was entitled to make up his own mind about the issue, but had to address the unanimous submissions of counsel on an important sentencing factor. He did not do so and gave no relevant reasons.

70. Mr Jackson further complained that no legislation or authority was referred to by Ms Cory. This seems to me a hollow submission. There was no real need to refer to such. Certainly, the passage in Anzac to which he referred was no authority for such a proposition. It would be odd if an experienced Magistrate, as his Honour was, needed such references in relation to an issue a common as the relevance of the plea of guilty.

71. Mr Jackson then pointed out in his submissions that the discount for a plea of guilty is discretionary. Following Carpenter v Purcell [2008] ACTSC 34 at [18], this must be correct. He also relied on the strength of the prosecution case, which must be acknowledged to be so and which, under s 35(4) of the Sentencing Act, reduces the discount that can be given.

72. Ms Cory had submitted that Ms Westin had successfully completed her obligations under the good behaviour order imposed in 2006. That is not quite correct; she did complete her obligations under a probation condition to the order. She did, however, re-offend thereby breaching a condition, but that was dealt with severely by a seven month term of imprisonment.

73. Mr Mansfield referred to Ms Westin's record, but to show that she was flouting the law and court orders.

74. His Honour made some reference to her record but then referred to what he said were chances to "ameliorate her ways." He said that she had been given every opportunity, adding, somewhat curiously, "particularly from [sic] the horrific circumstances of her previous conviction". This was clearly a reference to the charge of culpable driving causing death and other offences to which I have earlier referred.

75. Mr Archer acknowledged that the period of disqualification related to a very serious offence. He submitted, however, that the gravamen of the instant offence was the breach of the court order, and that Ms Westin should not be further punished for the earlier offence.

76. In response, Mr Jackson submitted that the record was apt to show the offending to be contumacious, especially as there were no issues of necessity or urgency.

77. He further submitted that Ms Westin's history made it clear that she had not taken the opportunities for reform that had been offered to her.

[t]he Learned Magistrate (and obviously the prosecutor) felt that the Court was precluded from considering other sentencing options because the appellant had failed "to ameliorate her ways" and because the appellant "had failed to address her drug habit."

79. He pointed to the fact that she had been offence free for five years. He also submitted that Ms Westin's drug history was not causatively relevant to this offence.

80. Mr Archer challenged the finding in the pre-sentence report that, as the earlier offence of driving and this offence "occurred in circumstances [that were] similar", Ms Westin had "little insight into her offending behaviour".

81. He described the logic of that as difficult to follow. It was, he submitted, "obscure .. as to what could be relevantly drawn from the factual similarity."

82. As he submitted, Ms Westin's drug taking justified a conclusion that she was at a heightened risk of re-offending in the future but not that such offences would be traffic offences, which were the instant offences.

83. If that was so, then the relevance of the history could only be, he submitted, to punish her again for the previous offence in 2006. This would, of course, be to contravene an important sentencing principle established in Veen v The Queen (No 2)

[1988] HCA 14; (1988) 164 CLR 465 at 477.

84. In response, Mr Jackson submitted that, as there had been no cross-examination of the author of the pre-sentence report on these matters, they "became established facts for the purpose of sentencing". That, of course, is not so. Evidence which is not subject to cross-examination can be rejected by the judge of the facts, whether jury, Judge or Magistrate: R v Ahmed Din [1962] 2 All ER 123. It has been said that it is for the jury and not for the witnesses to determine the ultimate issue: R v Rivett

(1950) 34 Cr App R 87 at 94. Of course, evidence cannot be rejected capriciously and where evidence is unchallenged and there is no other evidence it can be accepted the more confidently: R v Matheson [1958] 2 All ER 87 at 89. See also Hall

(1988) 36 A Crim R 368 at 370-1. These principles apply to the pre-sentence report: Roger v Green [2008] ACTSC 78 at [22].

85. The challenge, however, was not so much to the acceptance of the evidence, but to its relevance and Mr Jackson submitted that it had been used by the learned Magistrate as showing that there was no capacity for "sentence amelioration on the basis of rehabilitation prospects."

86. In my view, the challenges to the learned Magistrate's reasons for sentence as including error were made out.

87. As to the plea of guilty, my view is that the fact Ms Westin failed to appear in court on a timely basis is of only limited impact on the utilitarian value of the plea. It must be accepted, however, that time and effort was wasted in bringing her to court through the adjournments and the issue and execution of the warrant.

88. In any event, there was, at least initially, an excuse for her failure to appear and this was not challenged by the prosecution.

89. So far as remorse is concerned, her failure to appear may have diluted the reliance that could be placed on that but, in any event, that was not a ground on which Ms Cory placed much, if any, reliance upon during her sentencing submission.

90. It is clear from cases such as Taylor v Bowden [2009] ACTSC 13 at [16] and Tran v Tan [2009] ACTSC 66 at [12], that, even where the case against a defendant or an accused is strong, the utilitarian value of a plea entitles the defendant or the accused to have the court consider whether a discount on the sentence should be given. That applies here. The thought that all defendants could, without any consequence such as a likely increase in their sentence, plead not guilty is too frightening to contemplate. A plea of not guilty cannot aggravate a sentence, there is no doubt about that: Siganto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at 663-4; [22]. That a plea of guilty can mitigate is beyond doubt and the value of that to the criminal justice system is important and well-recognised: Cameron v The Queen (2002) 209 CLR 339 at 343; [11]-[13].

91. In any event, the learned sentencing Magistrate did not really address why he was not prepared to allow any leniency on account of the plea. In Carpenter v Purcell

[2008] ACTSC 34, Penfold J said (at [18]) of s 35 of the Sentencing Act:

There is no obligation to reduce a sentence because of a guilty plea, but I consider that the section does require a court to advert to the issue where it is considering imposing a sentence of imprisonment on a person who has pleaded guilty.

92. His Honour did not address this matter. It seems to me that this is an error.

93. Magistrates, like other sentencing officers, are required to give reasons for their sentences and, if they do not mention a matter as central as a plea of guilty, it can be assumed that it has not been taken into account: R v Thomson (2000) 49 NSWLR

383 at 394; [42], 395; [46]. Of course, this is subject to the circumstance under which they have to conclude their hearing.

94. As Kirby P (as his Honour then was) explained in Acuthan v Coates

(1986) 6 NSWLR 472 at 479, in respect of the Local Court of NSW, it would be an error for an appeal court to examine the

unedited and unpunctuated record of ex tempore remarks in a busy magistrate's court, as if the transcript were a document to be construed strictly. It is the substance of what the magistrate said and did that the court is concerned with. Any other approach would impose an intolerable burden on magistrates.

95. Thus, his Honour was bound to give reasons why he rejected the unanimous submissions of counsel in the proceedings that the plea was entered at an early stage, which were clearly submissions that the plea was to be taken into account and result in a discount. It seems to me that the failure to give reasons for this approach was an error in itself. See, for example, Harper v Low at [9]-[41] and Okwechime v Sindel [2009] ACTSC 162; (2009) 171 ACTR 1 at 12-13; [45]-[51].

96. As to Ms Westin's criminal record, the position is a little less clear. The rather odd reference to "the horrific circumstances of her previous conviction" supports a finding of error rather than the opposite. It is not at all clear how his Honour was using the reference. It followed immediately upon his Honour's articulation of a view that Ms Westin "has been given every opportunity" but it sits uncomfortably with that.

97. Certainly the earlier offence was serious; it was horrific in the sense that it resulted in a death. Certainly one would expect that the experience would have caused Ms Westin to be affected and her behaviour to have been influenced not to drive in the same way again. The problem is that she was not driving in a similarly problematic way, save for the not insignificant fact that she was driving whilst using a mobile phone. From my observation of driving around Canberra, however, this is a regrettably common phenomenon.

98. The actual position was that Ms Westin had only one series of traffic offences recorded against her arising out of the one incident. Thus, it is not at all clear that, in the circumstances, Ms Westin had "been given every opportunity", a phrase redolent of continued offending. That was simply not so in respect of the kind of offence for which the learned Magistrate was dealing with her. That she has committed different offences was relevant but not strongly predictive of further offending of the instant kind.

99. In any event, Ms Westin had not committed any offence since 1 June 2007 and that was a minor offence for which she was fined $75, the penalty showing the seriousness with which the court viewed it. Nevertheless, that offence triggered a breach action in respect of the good behaviour order, which resulted in a custodial sentence.

100. That this offence occurred nearly five years after her earlier traffic offences and over four years after her most recent offence is highly relevant and entitled Ms Westin to some leniency: see, eg, Rees v The Queen [2012] ACTCA 6 at [2].

101. It does seem to me that the learned sentencing Magistrate erred in the way in which he took into account Ms Westin's criminal record.

102. Finally, and related, is the reliance on her drug history. That was not directly relevant to her offending behaviour in this instance. The only conceivable relevance is that while she was using methadone as a method of addressing her drug addiction, it had on two occasions led her to drive though not licensed to do so. The fact was, however, that at the time of sentencing she had ended her participation in the methadone program. Thus, insofar as that may have been a relevant factor precipitating further offending, it was no longer relevant. Otherwise, her drug addiction and associated criminal behaviour was not directly relevant.

103. There is, it must be said, no bright line which shields traffic offences from being included with other offences; all are criminal offences. Some offences, such as minor traffic offences, may be of lesser significance (as with other similar regulatory offences) in determining that an offender has, as it was put in Veen v The Queen

(No 2) at 477, "manifested ... a continuing attitude of disobedience to the law."

104. Certainly, Ms Westin's drug and drug related offences are hardly relevant to whether she was likely to commit further traffic offences.

105. That she has battled drug addiction and from time to time failed is hardly relevant, at least insofar as any material was placed before his Honour, as to whether she was likely to re-offend in the same or a similar way. That she may commit other offences is, so far as sentencing for a different kind of offence is concerned, of limited relevance.

106. In all the circumstances, I cannot be satisfied that the learned Magistrate did not take her drug history inappropriately into account.

107. Accordingly, on the basis of these errors, I formed the view that the sentence should be set aside.

108. Once I have set aside the sentencing, I must exercise the sentencing discretion myself. As Hayne J said in AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at 160; [130]:

[O]nce an appellate court identifies an error, the sentence imposed below must be set aside and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed.

109. In order to assess whether the appeal should be dismissed or another sentence imposed, I need to consider the relevant facts and subjective circumstances. The facts have been set out above (at [2]-[6]). The learned Magistrate found the offence was an example of contumacious driving.

110. I set out in Cotter v Corvisy at 307-8; [36]-[38], some general observations about the nature of the offence of driving whilst disqualified. In particular, I referred to the fact that when the driving was contumacious it should be regarded as a serious offence for which the punishment is ordinarily imprisonment.

111. More recently, Sulan J has in W, NJ v Police [2009] SASC 269; (2009) 197 A Crim R 143 at

146-9; [17]-[26], considered in more detail the nature of contumacy in respect of the offence of driving whilst disqualified. I respectfully adopt his Honour's helpful analysis. His Honour held at 148; [22], that "for offending to be contumacious, it must exhibit an attitude of defiance." His Honour further noted that "one factor which is relevant in considering whether conduct is contumacious is the mental state of the offender at the time."

112. In this case, there was no relevant evidence as to the mental state of Ms Westin. What I do see is that she was driving for her own convenience for a not inconsiderable distance, namely from Hawker Shops to Page, that she was using a mobile phone while driving and for no relevant reason, and that she was clearly aware that her driving was illegal because of her provision of a false name when intercepted by police. In my view, she was driving because it was convenient and she knew she was disqualified. This, it seems to me, exhibits a sufficient degree of defiance to amount to contumacious driving.

113. In these circumstances, a term of imprisonment is ordinarily to be imposed. She had the earlier traffic offences to which I have referred. The earlier offence of driving unlicensed was, of course, not an offence of driving whilst disqualified; it was of driving as an unlicensed driver. While the factual substratum of the two offences is similar, they are offences which are different and exhibit different culpability: Butler v Vickers [2011] ACTSC 134 at [34]-[37]. Nevertheless, the earlier traffic offences limited, but did not entirely cancel, the leniency that could be given her.

114. I take into account Ms Westin's subjective circumstances as summarised above

(at [29]-[34]) and set out in the pre-sentence report.

115. It seems to me, however, that a period of imprisonment was appropriate. The question, however, is how long that should be and how it should be served.

116. I had no real information about the approach of the Magistrates Court in this jurisdiction where these offences are usually heard and determined. In Cotter v Corvisy (unreported, ACTSC, Refshauge J, SCA 97 of 2007, 12 August 2008), I sentenced Mr Cotter to nine months and two days imprisonment for driving whilst disqualified where he had seven prior offences and five offences of driving without a licence.

117. Even accepting, as I do, that one needs to take into account that the severity of a sentence increases exponentially with its length (Clinch (1994) 72 A Crim R 301 at 306), this would not justify a sentence of four months imprisonment for this offending.

118. There have been some assessments of the tariff for such an offence, but in other jurisdictions. In South Australia, Legoe J said in Cole v Higgins (1991) 13 MVR

158 at 162, of a sentence for a first offender who was driving whilst disqualified, for which the penalty was the same as in this jurisdiction:

There was some argument addressed to me that the sentence of 28 days was in itself manifestly excessive. A number of decisions of this court are referred to in the outline of argument presented to me by counsel for the appellant which indicate a number of cases in which sentences of 6 weeks and 4 weeks or thereabouts have been reduced to quite short periods. However, on the other hand, it also appears from the appellant's outline of argument that the crime statistics indicate an average custodial sentence for all offences under s 91 of approximately 6 ½ weeks' imprisonment. What the average is for first offenders may be somewhat difficult to determine from the statistics, and I accept that is probably lower and may be quite a bit lower than 6 ½ weeks. Be that as it may, I can see nothing in the circumstances as a whole or the evidence in this case in particular which would warrant me finding that the period of 28 days was in itself manifestly excessive.

119. In Western Australia, Le Miere J referred in Anderson v Heath [2005] WASC 253 to an analysis of sentences for the equivalent offence but for which the maximum penalty was a fine of between $1 000 and $4 000 or 18 months imprisonment or both, thus considerably more severe than the offence of which Ms Westin was convicted. Nevertheless, his Honour found (at [9]):

Counsel for the respondents usefully referred to authorities in relation to the offence of driving whilst under suspension. The authorities established a range of 2 to 6 months' imprisonment as an appropriate disposition in most cases under the old sentencing regime which would equate to a range of 6 weeks to 4 months under the new sentencing regime.

120. Having regard to this information, I formed the view that the period of imprisonment of four months, particularly in the light of the maximum penalty of six months, to be excessive. Thus, I do not consider that I should dismiss the appeal.

121. In my view, Ms Westin's behaviour justified a term of imprisonment. Her plea of guilty entitled her to a modest but identifiable reduction in sentence. The offence was of contumacious driving, but not at the upper end of seriousness for such an offence. A sentence of one month would have not have been inadequate. I do not, however, consider it should have been suspended. I was not asked to consider periodic detention.

122. In the circumstances, I considered that the six weeks she had spent in custody pending the appeal was at the upper end of what was appropriate. Had she pleaded not guilty, I would have sentenced her to seven weeks imprisonment.

123. Because of the effect of s 216 of the Magistrates Court Act, I ordered that she was to be released immediately, taking into account the period of imprisonment prior to the filing of the Notice of Appeal and the period of custody pending the appeal.

I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

Solicitor for the appellant: Legal Aid ACT

Solicitor for the respondent: ACT Director of Public Prosecutions