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:

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

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abdul Nikro v Jane O'Sullivan

Details

AGLC: Abdul Nikro v Jane O'Sullivan [2014] ACTCA 12
Case: [2014] ACTCA 12
Decision Date: 8 May 2014

CaseChat Overview and Summary

This case concerned an appeal by Abdul Nikro against a sentence imposed by the Magistrates Court of the Australian Capital Territory for the offence of riding a motorcycle while his licence was suspended. Jane O'Sullivan was the respondent. The appellant argued that the recording of a conviction for this offence resulted in a manifestly excessive sentence, particularly given the mitigating factors present.

The primary legal issue before the court was whether the sentencing magistrate had erred in failing to make a non-conviction order under the *Crimes (Sentencing) Act 2005* (ACT). The appellant contended that such an error could be inferred from the outcome, constituting an error of the last kind as described in *House v The King*, meaning the discretion to make a non-conviction order had not been properly exercised. The court was also required to consider the impact of subsequent amendments to the *Road Transport (Driver Licensing) Act 1999* (ACT) and the operation of the *Human Rights Act 2004* (ACT) on the sentencing discretion.

The court found that the failure to make a non-conviction order was unjust, given the automatic twelve-month disqualification that attached to a conviction and the strong mitigating factors in the appellant's case. These factors included his age (twenty-six at the time of sentencing), a limited criminal record with no prior traffic offences, and no relevant health or mental conditions. The court noted that if a non-conviction order had been made, it would have been open to the magistrate to impose a disqualification period less than the mandatory twelve months. The Crown conceded that the appeal should be upheld on this basis.

Consequently, the appeal was allowed, and the orders of the lower court were set aside. Pursuant to s 17 of the *Crimes (Sentencing) Act 2005* (ACT), the charge was dismissed, meaning no conviction was recorded.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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