Crimes (Sentencing) Act 2005 (ACT), ss 17, 61

Magistrates Court Act 1930 (ACT), ss 214(3) and (4)

Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4E, 4F, 32, 35(2)

Road Transport (General) Act 1999 (ACT), s 61B

Criminal Appeal Act 1912 (NSW), s 6(3)

Court Procedures Rules 2006 (ACT), r 6906

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

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

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321

House v The King [1936] HCA 40; (1936) 55 CLR 499

Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665

Lumby v Cooper [2008] ACTSC 53

Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357

Parker v DPP (1992) 65 A Crim R 209

R v Cobb [1999] FCA 158; (1999) 84 FCR 450

Tuckey v Ede [2010] ACTSC 95

1. The appeal is dismissed and the orders of the Magistrates Court are confirmed.

1. Anne Woodlee, the appellant, was charged with Level 4 drink-driving. She had been pulled over by police as she drove along Canberra Avenue just after midnight on 29 January 2011, and a screening test produced a blood alcohol reading of 0.175, a Level 4 reading (Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 4E). She was a first offender for the purposes of section 4F of that Act, and under section 32 of that Act was liable on conviction to be disqualified from driving for a default period of three years, with a minimum disqualification period of six months.

2. The appellant was 53 years old. She had been driving for 35 years and had no prior criminal record. She had pleaded guilty at the first opportunity and had demonstrated remorse and contrition. She had provided impressive character references. There does not seem to be any suggestion that the appellant had come to police attention because of the way she was driving, a circumstance which has been recognised as aggravating an offence of this kind (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 at [146]). At 0.175, her blood alcohol reading was more than marginally above the Level 4 threshold of 0.15.

3. It seems that the appellant had chosen to drive after abandoning an attempt to catch a taxi home from Kingston because of an uncomfortable and threatening incident at the taxi rank, described by her counsel in the following terms:

She had no intention of driving, your Honour, she went to a taxi rank to get a taxi, where she encountered some young men at the taxi rank who began to make - not unless your Honour particularly wants me to use the words, but they began to make overt sexual comments about her person and her ability to perform sexual acts. She felt very threatened and she decided to bolt for her car, your Honour, so that's what she did. My instructions are that she had no intention to drive other than that fact.

4. Police recorded that the appellant was crying when they dealt with her, but it is not clear whether that was a continuing reaction to the incident at the taxi rank or simply a reaction to being pulled over by police at a point when she presumably suspected that her blood alcohol level was excessive.

5. Counsel for the appellant suggested to the sentencing Magistrate that a non-conviction order would be appropriate in the circumstances. The prosecutor said that she did not wish to be heard on sentence.

HER HONOUR: Would you stand up please, Ms Woodlee. Ms Woodlee, I have heard what has been said on your behalf and what is of particular interest to me in terms of how to deal with this matter, your good record both as a citizen and driving, and also the circumstances in which you found yourself driving on that occasion.

I have to weight that against the very significant level of alcohol that was found in your blood and the need to send a message of general deterrence to the community in respect of this office.

Accordingly, what I have determined to do with the matter is the following. You will be convicted and a conviction is recorded.

I determine to deal with the matter by way of a disqualification. I have significantly reduced the disqualification period in light of the circumstances and your prior good driving record. You will be disqualified in the circumstances for the minimum period, which is six months. That will take into account the suspension which has already been in place now for very nearly four months.

I determine not to impose an additional financial penalty on this occasion. Whilst I recognise that a conviction is no doubt significant to you, that is, it seems to me, a fair balance of the very serious nature of the offence and the mitigating circumstances that apply to your situation.

7. The appellant appeals from her sentence, seeking instead a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The notice of appeal identified five grounds, which I do not need to set out since none of them was in fact argued in its original form.

8. In written submissions and also at the hearing, counsel's argument was based on alternative grounds, being that either:

(a) her Honour's reasons "effectively indicated" a view that a non-conviction order would never be available to a person found guilty of a Level 4 drink-driving offence; or

(b) her Honour did not give adequate reasons for refusing to make a non-conviction order.

9. The problem for the appellant is that neither of these submissions appears to be borne out by her Honour's actual sentencing remarks, set out at [6] above.

10. Counsel for the appellant did not identify authority for the proposition that sentencing on the basis that a non-conviction order was not available for a Level 4 drink-driving offence would involve an error of law, but nor did the respondent seek to convince me that such an approach was in fact required by law. In those circumstances I shall assume for the purposes of the current proceedings that there is no such principle of law. On that assumption, if her Honour the sentencing Magistrate had acted on the basis that a non-conviction order is not available to a person found guilty of a Level 4 drink-driving offence, then it would be correct to say that she had fallen into error.

Did her Honour sentence on a wrong principle of law?

11. As is apparent from the sentencing remarks set out at [6] above, her Honour recognised the appellant's good record as a citizen and her good driving record, and noted the circumstances in which she found herself driving. Against that her Honour set the appellant's very high blood alcohol level, and the significance of general deterrence in relation to such offences.

12. Furthermore, her Honour reduced the licence disqualification period to the minimum, and also refrained from imposing any fine, referring in that context to the circumstances of the offence and the appellant's good driving record, noting the significance of a conviction to the appellant, and concluding that the sentence she had imposed seem to her to be "a fair balance of the very serious nature of the offence and the mitigating circumstances that apply to your situation".

13. There is nothing in her Honour's sentencing remarks that could be interpreted as assuming the unavailability of a non-conviction order in the relevant circumstances. Indeed, her Honour's reference to the balance she had sought to strike between the seriousness of the offence and the mitigating circumstances would make no sense if her Honour had believed that the sentence she imposed was in fact the minimum sentence available to her.

14. In relation to the adequacy of her Honour's reasons for sentence, counsel referred me to comments I made in Lumby v Cooper [2008] ACTSC 53 about the need for even a busy Magistrate to provide some explanation for his or her decisions. In that case I said at [19] to [22]:

[19] There is clear authority for both the proposition that sentencing courts must give reasons for their decisions (see, for instance R v Thomson & Houlton (2000) 49 NSWLR 383 at [42]) and the proposition that the proper performance of this obligation in a magistrate's court must be assessed having regard to the environment in which such courts operate. As explained by Kirby P in relation to the NSW Local Courts (Acuthan v Coates (1986) 6 NSWLR 472 at 479), it would be an error for an appeal court to:

[examine] this 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.

[20] I note this caution, but note also that the relaxed nature of the discussion recorded in the transcript suggests that this is not a case in which the pressures of a busy magistrate's court can readily be blamed for any errors that might be found in the sentencing process.

[21] The transcript quoted above shows that the unrepresented appellant expressly asked the learned Magistrate not to record a conviction, and was not sure, until right at the end of the sentencing process, that his request had been refused. Reading the transcript, of course, it is clear that the learned Magistrate had in fact stated at least twice that he was convicting the appellant.

[22] On the other hand, the transcript does not reveal much about the learned Magistrate's reasons for proceeding to convict. Although he said that he would "take everything into account that [the appellant] said", his only comments that are directly relevant to the request for a non-conviction order are as follows:

... now that conviction ... can be attributed to silly errant young behaviour, all right? It should not affect your future prospects in your medical career. You'll know what to say to them if they ask "what the heck is this all about?" all right? ... Put it down to your young age and immaturity.

15. In the event I refrained from finding that his Honour's comments were not adequate as reasons, saying at [23]:

It seems to me arguable that the learned Magistrate's comments were not an adequate statement of reasons for his decision to refuse a non-conviction order, especially since the fact that the appellant was not even sure about what decision his Honour had made implies that he had not understood his Honour's comments as reasons for the decision. However, I refrain from making any such finding, because it seems to me for reasons set out below that the transcript taken as a whole indicates that his Honour fell into error in the process of deciding not to make a non-conviction order, and therefore it is not necessary to decide whether there was also a failure to provide reasons.

16. Lumby v Cooper was decided not on the basis that the sentencing Magistrate had failed to give adequate reasons, but on the basis that his Honour had failed to take account of relevant considerations (being a number of the matters mentioned in s 17 of the Crimes (Sentencing) Act) in refusing to make a non-conviction order. I note also that the offence dealt with in Lumby v Cooper (offensive behaviour constituted by urinating on a pillar near Mooseheads Nightclub at about 4:00am on a Friday morning) was far more minor than a Level 4 drink-driving offence.

17. In contrast to the remarks considered in Lumby v Cooper, the sentencing Magistrate in this case identified, in an organised albeit streamlined way, the matters that she had taken into account in sentencing and, in particular, the matters that she saw as needing to be weighed in the balance in determining a sentencing outcome. In my view, her Honour's reasons made clear her conclusion that the appellant's subjective circumstances justified a lenient penalty, but that the need to deter other members of the community from driving with such high blood alcohol levels was too important for her Honour to determine that the case justified the most lenient penalty available. I cannot conclude that those reasons were inadequate in the circumstances of "a busy Magistrates Court".

Significance of prosecution submissions on sentence

18. Counsel also noted that the prosecution had not sought to be heard against the making of a non-conviction order, and referred to my comments in Tuckey v Ede [2010] ACTSC 95 at [26] to [30]. In that case I upheld an appeal against the recording of a conviction where the prosecution had not spoken against the making of a non-conviction order, saying:

[27] In the current circumstances, the evidence admitted by consent about the agreement between the prosecutor and the appellant's counsel indicates that both the appellant and his partner would have been justified in feeling that something had gone wrong in their encounter with the justice system. The appellant had no right to assume that the Magistrate would make the orders that had been agreed between the parties as appropriate (and presumably had been advised to that effect by his lawyers); however, he was entitled to expect that the prosecution's attitude to a non-conviction order, as indicated to his counsel, would have been articulated during the hearing. He was entitled to expect this because he had agreed to change his plea partly on that basis, and also because, presumably on his instructions, his lawyer had refrained from calling the appellant's partner to give evidence that could have put her in a difficult position having regard to what she had previously told the police. As already mentioned, apart from the agreement about the non-conviction order, the appellant had if anything less to gain from his agreement to plead guilty than either the prosecutor or the complainant.

[28] The appellant's partner, too, might legitimately have felt that a process that until then appeared to have properly balanced her immediate and longer-term needs had suddenly veered off course, leaving her and her partner in an unexpected and unfortunate position.

[29] The appellant might also have been concerned by her Honour's references to the possibility that he had an alcohol problem. In the absence of any evidence to that effect, there is no reason why the appellant's lawyers would have either called any evidence, or made any submissions, to refute the suggestion or to indicate that the appellant had already sought to address the problem. Despite the absence of any finding by her Honour about the relevance of alcohol (a subtlety not necessarily apparent to a layperson such as the appellant), the appellant could reasonably have felt that her Honour's attitude to him and to his lawyer's submissions had been coloured by her suspicions or even assumptions that alcohol had contributed to his offence, and he would not have been reassured by a finding that there was no relevant appellable error in her remarks.

[30] Thus, given the failure of her Honour to invite prosecution submissions on the defence request for a non-conviction order, and the failure of the prosecutor to volunteer the fact that she did not oppose such an order, it is easy to see how the appellant, and his partner the complainant, could have left the Magistrates Court feeling that they had been involved in an unsatisfactory and fundamentally unfair process possibly amounting to a miscarriage of justice.

19. That is, the appellant in Tuckey v Ede had, in my view, a right to expect that the prosecutor would indicate to the sentencing Magistrate her position on the suitability of a non-conviction order. This was because the prosecutor's agreement that a non-conviction order would be a suitable sentencing outcome was an important factor in the appellant's willingness to plead guilty to an assault charge in circumstances in which, as noted at [27] in Tuckey v Ede:

apart from the agreement about the non-conviction order, the appellant had if anything less to gain from his agreement to plead guilty than either the prosecutor or the complainant.

20. It was the prosecutor's silence in court despite the earlier agreement, not the prosecutor's lack of opposition to a non-conviction order, that made the sentencing process in Tuckey v Ede flawed so as to enable the sentencing discretion to be re-exercised.

21. In the current case, there was no apparent connection between the appellant's plea of guilty and the prosecution's views in relation to a non-conviction order, and in fact the prosecutor had explicitly indicated to the sentencing Magistrate that she did not wish to be heard in response to the submission seeking a non-conviction order.

22. In written submissions, counsel for the appellant noted:

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

...

Neither the Learned Magistrate nor the prosecution took any exception to these details being given from the bar table, nor indicated any issue with the veracity of the explanation provided for the offending. In such circumstances those matters should be accepted (Giucci v Serbatoio [2005] ACTSC 132 at [7]). Whilst there is no overt indication that the Learned Magistrate did not accept the explanation, the query by Her Honour [at AB 10.30] as to where the appellant intended to leave the car could possibly suggest an element of doubt on the part of the Magistrate. However, the question was answered immediately and the issue not pursued further. Consistent with Giucci, the explanation should have been fully accepted.

23. This might have been an issue if her Honour's sentencing remarks gave any indication that she had not accepted the explanation given on behalf of the appellant. However, while her Honour's remarks were certainly brief, the reference to "the circumstances in which you found yourself driving", and later to "the circumstances" as part of her Honour's explanation for reducing the disqualification period, suggest that her Honour did accept what had been put to her on the appellant's behalf by way of explanation for the offence.

24. The principles for dealing with an appeal against sentence have been set out in a number of cases in this court in the last few years, but it is useful to restate them.

25. First, the sentence imposed by the sentencing court is not to be overturned simply because the appeal court would have imposed a different sentence in the first instance (Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 at [15]; Markarian v The Queen [2005] HCA 25; (2006) 228 CLR 357 at [28], Gleeson CJ, Gummow, Hayne and Callinan JJ).

26. Secondly, the sentence may be replaced if the original exercise of the sentencing discretion was affected by a specific error, but only if the appeal court considers that a different sentence is appropriate. That is, if error is found but the original sentence nevertheless appears to be appropriate, the proper approach is to dismiss the appeal rather than to allow the appeal and re-impose the same sentence (in some jurisdictions this approach is expressly provided for - see for instance subs 6(3) of the Criminal Appeal Act 1912 (NSW) and AB v The Queen [1999] HCA 46; (1999) 198 CLR 111 at [130], Hayne J; that case involved an appeal from NSW, but Hayne J's comments are in general terms). 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 (House v The King [1936] HCA 40; (1936) 55 CLR 499 at 505 (Dixon, Evatt, McTiernan JJ; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [3], Gleeson CJ and Hayne J; Markarian v The Queen at [25], Gleeson CJ, Gummow, Hayne and Callinan JJ).

27. Thirdly, even if no specific error can be identified, the original sentence may be replaced if the sentence is found to be manifestly excessive or inadequate (depending on which party has appealed), unreasonable, plainly unjust or plainly wrong. In such a case, error may be inferred, given the finding that the sentence is excessive or inadequate, or unreasonable, unjust or wrong (Dinsdale v The Queen at [59] and [60], Kirby J). Furthermore, implicit also in such a finding is the conclusion that a different sentence is appropriate.

28. Fourthly, there is no principle that both specific error and manifest excess or inadequacy must be found before the sentencing discretion is re-opened (AB v The Queen at [160], Hayne J). On the other hand, re-sentencing should not amount to mere "tinkering" with the original sentence (Dinsdale v The Queen at [62], Kirby J; R v Cobb [1999] FCA 158; (1999) 84 FCR 450 at [19]).

29. Further evidence may be admitted on appeal in various circumstances; the circumstances in which further evidence may be admitted on an appeal from a sentence imposed by a Magistrate are set out in ss 214(3) and (4) of the Magistrates Court Act 1930 (ACT). In particular, further evidence may be admitted in some cases for the purpose of considering whether a different sentence is appropriate, but generally only after an error has been identified.

30. Finally, in the context of an appeal against the recording of a conviction, I note that whether or not a conviction is technically part of a sentence, the process of determining whether to convict a person who has been found guilty of an offence is a discretionary decision that is, in the ACT and more generally, dealt with in sentencing legislation (s 17, Crimes (Sentencing) Act 2005 (ACT)), and as a discretionary decision is subject to the same principles as outlined above for sentence appeals generally.

31. In this case, the important aspect of those principles is that an appeal court must not uphold an appeal simply because it would at first instance have imposed a different sentence (at [25] above). I have considerable sympathy for the appellant, and might well have made a non-conviction order if her matter had come before me, but it is clear that this is not a basis on which I can decide this appeal.

32. The appeal is dismissed, and the sentence imposed in the Magistrates Court is confirmed.

33. Counsel noted that in sentencing the appellant, her Honour had made a minor error in recording the sentence that she had articulated in court. Section s 61B of the Road Transport (General) Act 1999 (ACT) provides for a person's licence to be suspended immediately if a police officer suspects a drink-driving offence involving a blood alcohol reading of 0.1 or more. Under s 35(2), Road Transport (Alcohol and Drugs) Act), the period of that suspension is to be set off against the period of disqualification imposed on sentence. Her Honour's annotation on the bench sheet might have incorporated a calculation of the remaining disqualification period that should have been left to the operation of the relevant legislation.

34. Counsel sought a so-called Parker warning (Parker v DPP (1992) 28 NSWLR 282; (1992) 65 A Crim R 209), that is, an opportunity to withdraw the appeal if I was considering dismissing the appeal but correcting the disqualification period.

35. However, I do not propose to take any action in relation to the incorrectly recorded disqualification period. Her Honour's error is, in my view, one that the Crown could have sought to have corrected in the Magistrates Court under s 61 of the Crimes (Sentencing) Act, but it is not clear, in the light of the conclusions I have reached on the appeal and my view of s 61, that there is a basis on which I could correct the error.

36. The relevant provisions of s 61are as follows:

(1) This section applies to a criminal proceeding (including a proceeding on appeal) in which a court has -

(a) made a sentence-related order that is contrary to law; or

(b) failed to make a sentence-related order that is required to be made by law.

(3) The court may reopen the proceeding (on the application of a party to the proceeding, or on its own initiative) and may, after giving the parties an opportunity to be heard, do either or both of the following:

(a) make a sentence-related order that is in accordance with law;

(b) amend any relevant finding of guilt, conviction, sentence or order.

37. My reading of s 61(3) is that it confers the power to re-open proceedings in a court (which may be an appeal court that has made a sentence-related order in dealing with an appeal) on the court that made the inappropriate sentence-related order in those proceedings, rather than on a court hearing an appeal from the court that made the inappropriate sentence-related order. If that interpretation is correct, then s 61 would not empower me to correct her Honour's recording error.

38. Rule 6906 of the Court Procedures Rules 2006 (ACT) also confers a power to correct court certificates on the court whose order or certificate is erroneous, not on a court dealing with an appeal from that court.

39. Nor do I consider that, having declined to find any error by the sentencing Magistrate as claimed by the appellant, it would be appropriate for me to treat the sentencing discretion as re-opened solely to allow me to order a longer disqualification period.

I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Solicitor for the respondent: Director of Public Prosecutions