Abdul Nikro v Jane O'Sullivan

[2014] ACTCA 12

ABDUL NIKRO v JANE O’SULLIVAN
[2014] ACTCA 12 (8 May 2014)

APPEAL – GENERAL PRINCIPLES – Driving while disqualified – Sentence manifestly excessive – Mitigating factors – Non-conviction order – Appeal upheld

Crimes (Sentencing) Act 2005 (ACT), s 17
Human Rights Act 2004 (ACT), s 25
Magistrates Court Act 1930 (ACT)
Road Transport (Driver Licensing) Act 1999 (ACT), s 32

House v The King (1936) 55 CLR 499

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA - 43 of 2013
No. SCC 8 of 2012

Judges:        Refshauge, Penfold and Ross JJ
Court of Appeal of the Australian Capital Territory

Date:           8 May 2014

IN THE SUPREME COURT OF THE     )          
  )          No. ACTCA - 43 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 8 of 2012
  )          

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ABDUL KARIM NIKRO

Appellant

AND: JANE BRIDGET O’SULLIVAN

Respondent

ORDER

Judges:  Refshauge, Penfold and Ross JJ
Date:  8 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The orders of Nield AJ and Lunney M be set aside.

3. Under s 17 of the Crimes (Sentencing) Act 2005 (ACT), the charge be dismissed.

IN THE SUPREME COURT OF THE     )          
  )          No. ACTCA 43 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 8 of 2012
  )          

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ABDUL KARIM NIKRO

Appellant

AND: JANE BRIDGET O’SULLIVAN

Respondent

Judges:  Refshauge, Penfold and Ross JJ
Date:  8 May 2014
Place:  Canberra

REASONS FOR JUDGMENT

REFSHAUGE J

1. I have had the advantage of reading in draft the reasons and proposed orders of Ross J.  I agree with them.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.

   Associate:

   Date: 8 May 2014

IN THE SUPREME COURT OF THE     )          

)          No. ACTCA 43 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 8 of 2012
  )          

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:ABDUL KARIM NIKRO

Appellant

AND:JANE BRIDGET O’SULLIVAN

Respondent

Judges:  Refshauge, Penfold and Ross JJ
Date:  8 May 2014
Place:  Canberra

REASONS FOR JUDGMENT

PENFOLD J

1. I have read in draft the judgment of Ross J.  For the reasons given by his Honour, I agree:

   (a)that the recording of a conviction against the appellant was manifestly excessive having regard to the automatic consequences of that conviction, but also to the objective circumstances of the offence and the subjective circumstances of the appellant;

   (b)that the appellant must be re-sentenced;

   (c)that the appropriate penalty on re-sentence is a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT) dismissing the charge;

   (d)that even if the appellant were now convicted of the offence concerned he would be entitled to the benefit of the lesser automatic disqualification period (one month) now applicable to that offence; and

   (e)that since the appellant has already served twenty-six days disqualification from driving in respect of this offence, there is no need to impose any further disqualification in conjunction with the making of the non-conviction order.

   I certify that the preceding one (1) numbered paragraph is a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

   Associate:

   Date: 8 May 2014

IN THE SUPREME COURT OF THE     )          

)          No. ACTCA  43 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          No. SCC 8  of 2012
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN: ABDUL KARIM NIKRO

Appellant

AND: JANE BRIDGET O’SULLIVAN

Respondent

Judges:  Refshauge, Penfold and Ross JJ
Date:  8 May 2014
Place:  Canberra

REASONS FOR JUDGMENT

ROSS J

Background

1. On 6 January 2011 the appellant was charged with driving a motor vehicle while his driver’s licence had been suspended.  The matter proceeded to hearing in the Magistrates Court on 30 December 2011.  On 27 January 2012 the Magistrates Court found the offence proven and ordered that the appellant be convicted of one count of driving while suspended.  The Magistrate disqualified the appellant from driving for twelve months and fined him $500.  The appellant then appealed to this Court.  The appeal was heard by Nield AJ on 17 May 2013 and on 4 July 2013 his Honour dismissed the appeal, confirmed the appellant’s conviction, twelve months disqualification and a $500 fine.  The appellant appealed his Honour’s decision both in respect of the conviction and sentence. This decision deals with that appeal.

The Appeal

1. The notice of appeal was amended during the course of the appeal hearing. The essence of the appeal is that his Honour erred in failing to uphold the appeal from the Magistrates’ Court on the basis that the Magistrate erred in declining to make a non-conviction order pursuant to s.17 of the Crimes (Sentencing) Act2005 (ACT) (the Crimes Sentencing Act) and in so doing imposed a sentence which was manifestly excessive.  The recording of a conviction in this matter and the imposition of sentence are inextricably linked.  This is so because upon conviction the offence carries a mandatory disqualification period of twelve months, which was not subject to any discretion by the sentencing Magistrate.  At the relevant time the maximum penalty for driving while suspended, as a first offender, was a fine of $5000, six months imprisonment or both.  Against that maximum penalty the magistrate imposed a fine of $500, from which it may be inferred that the offending was considered to be at the low end, in terms of objective seriousness.

2. In the proceedings before us the Crown concedes that the appeal should be upheld, for the reasons advanced by the appellant.  I return to the Crown concession later.

3. The background to this matter is somewhat unusual and may be shortly stated. In August 2010 an infringement notice of suspension of appellant’s drivers licence was sent by the Road Transport Authority (RTA).  On 18 November 2010 a notice of confirmation of the suspension was sent by the RTA to the appellant.

4. On 6 January 2011, two police officers came upon the appellant at a service station in Braddon. The appellant was standing next to a motorcycle.  Police spoke to the appellant, who, when asked, produced an ACT licence. A check of that licence revealed that it had been suspended in November 2010 for failure to pay a fine. The appellant was charged and the matter proceeded to the Magistrates Court.

5. In the Magistrates Court proceedings the appellant gave evidence that he had not received the infringement notice or the notice suspending his driver’s licence.  It was conceded that the notices had been sent but submitted that the defence of honest and reasonable belief applied.  This defence was put on the basis that the appellant had not received the notices and on 4 January 2011 he had been stopped by NSW police for a random breath test and licence check after which he was told he was ‘right to go’.

6. The Magistrate accepted the appellant’s evidence that he honestly believed that he was licensed at the relevant time but was not satisfied that the appellant’s belief was reasonable as he had changed his place of residence a number of times without informing the RTA and had not taken reasonable steps to check on any mail sent to his previous residences.

7. In the proceedings at first instance counsel for the appellant submitted that the Magistrate consider not recording a conviction.  In aid of that submission counsel pointed to several mitigatory features (none of which were challenged by the Crown), namely:

   (i)        the appellant was a self employed renderer and the mandatory twelve month disqualification would cause him hardship;

   (ii)the appellant was not aware that his licence had been suspended and as such his conduct (in driving while suspended) could be considered negligent or careless, rather than deliberate defiance of the law;  and

   (iii)      the appellant had no previous traffic offences.

8. His Honour rejected this submission but in doing so noted the ‘much more severe impact’ that the mandatory twelve month disqualification would have on the appellant and observed that the appellant was ‘entitled to a great deal of leniency’.[i]

9. Had a non-conviction order been made it would have been open to his Honour to make an ancillary order that the appellant be disqualified from driving for a period which was less than the twelve month mandatory disqualification period that attached to the recording of a conviction.  But no such submission was put to his Honour.

   Consideration

10. As I have noted, the essence of the appellant’s case is that the recording of a conviction led to the imposition of a sentence which was manifestly excessive having regard to the mitigating factors.  The Crown concedes that the appeal should be upheld on that basis.  The Crown concession, while plainly not binding on the court, is a relevant consideration.

11. The appellant does not allege that his Honour made any specific error, rather it is submitted that he made an error of the last kind mentioned in House v The King[ii] in that it was to be inferred from the result that there was a failure to properly exercise the discretion to make a non-conviction order.

12. I agree.  Given the consequences which automatically attached to the recording of a conviction (ie twelve months disqualification) and the strong mitigatory factors in this case the failure to make a non-conviction order was plainly unjust and it may be inferred that the discretion miscarried.  Accordingly, I would uphold the appeal.

13. The appellant has been found guilty of the offence of riding a motorcycle while his licence was suspended, contrary to s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (the RT Act).  As a consequence of the appeal being upheld the sentencing discretion is reopened.

14. Since the appellant was originally sentenced s 32 of the RT Act has been amended. The effect of this amendment is that had it been in force at the time the appellant was sentenced there would be no automatic twelve month disqualification of his licence. Rather the penalty would have been ‘for one month, or for a longer period ordered by the Court’.

15. It is common ground that s 25(2) of the Human Rights Act2004 (ACT) (the Human Rights Act) operates to give the appellant the benefit of the reduced sentence provided by the RT Act.

16. I am satisfied that in the circumstances of this case a non-conviction order, pursuant to s 17(2)(a) of the Crimes (Sentencing) Act, directing that the charge be dismissed, is the appropriate disposition. In deciding to make such an order I have had regard to the considerations set out in s 17(3), that is:

    (a)     the offender’s character, antecedents, age, health and mental condition;

    (b)     the seriousness of the offence;

    (c)     any extenuating circumstances in which the offence was committed.

17. The appellant was twenty-six years old when sentenced at first instance.

18. In terms of antecedents the appellant has a limited, and unrelated, criminal record but no previous convictions for traffic offences.  In 2007 he was convicted of cultivating a traffickable quantity of cannabis and sentenced to twelve months imprisonment, wholly suspended.  There was also some unrelated juvenile offending for which no conviction was recorded.[iii]  The appellant has no relevant health or mental conditions.

19. In terms of the appellant’s character, the Magistrates’ consideration of the appellant’s evidence in the proceedings at first instance is relevant.  The Magistrate said:

    ... I should say I accept his evidence.  I have got no reason to disbelieve the defendant at all.  I accept his evidence that he honestly believed that he was licensed at the time.[iv]

1. As to the seriousness of the offence, driving while suspended is a serious traffic offence.  As a first time offender the offence is less serious than other related offences and the offending itself is at the lower end of seriousness for an offence of this kind (a point conceded by the Crown at first instance[v]).

2. I have referred earlier to the extenuating circumstances in which the offence was committed, namely that the appellant had not received the infringement and suspension notices and had an honest belief that he was licensed at the relevant time.

3. Section 17(4) provides that the court may consider anything else it considers relevant. In this matter it is relevant that as a consequence of the orders made by Nield AJ the appellant has already been disqualified from riding for a period of twenty-six days. This is particularly relevant as s 32(2) of the RT Act now provides that if the appellant was convicted the automatic disqualification period would be one month.

1. For the reasons given the appeal should be upheld, the orders of Nield AJ and Lunney M quashed and a non-conviction order made directing that the charge be dismissed.

   I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Ross.

   Associate:

   Date: 8 May 2014

Counsel for the Appellant:  Mr A Doig
Solicitor for the Appellant:  Kamy Saeedi Lawyers
Counsel for the Respondent:  Mr M Fernandez
Solicitor for the Respondent:  ACT Director of Public Prosecutions
Date of hearing:  14 February 2014
Date of judgment:  8 May 2014 

[i] Appeal book 170 at line 26

[ii] (1936) 55 CLR 499 at 505

[iii] See Appeal Book 178

[iv] Appeal Book 163 at lines 33-35

[v] Appeal Book 168 at line 15