Barnes v Barratt
[2018] ACTSC 295
•31 October 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Barnes v Barratt |
Citation: | [2018] ACTSC 295 |
Hearing Date(s): | 28 May, 30 October 2015 |
DecisionDate: | 31 October 2018 |
Before: | Penfold J |
Decision: | 1. The appeal will be dismissed. 2. The parties will be heard about any necessary consequential orders. |
Catchwords: | APPEAL AND NEW TRIAL – APPEAL – Criminal law – Appeal against sentence imposed in Magistrates Court – whether sentence manifestly excessive – appeal dismissed |
Legislation Cited: | Court Procedures Rules 2006 (ACT) r 5052 Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 19 Road Transport (Driver Licensing) Act 1999 (ACT) s 32 |
Cases Cited: | 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; 61 NSWLR 305 Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 Veen v The Queen (No 2) (1988) 164 CLR 465 |
Parties: | Peter Luke Barnes (Appellant) Stephen Robert Barratt (Respondent) |
Representation: | Counsel Mr H Jorgensen(Appellant) Mr M Reardon (Respondent) |
| Solicitors Legal Aid ACT (Appellant) Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 78 of 2014 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 27 August 2014 Case Title: R v Barnes Court File Number(s): CC 1083/2013 |
Background
Peter Barnes has appealed against part of the sentence imposed on him in the Magistrates Court in August 2014 for a high range drink-driving offence committed as a repeat offender. At the same time, Mr Barnes was dealt with for two other relatively minor offences committed in the course of the drink-driving incident, being offences of trespass and doing a burnout in a motor vehicle, and for three other offences committed on other occasions after the drink-driving incident Those offences (two offences of driving while suspended and one of failing to appear on a bail undertaking) were also relatively minor, but all indicated a continuing disdain for the law.
As well as recording a conviction on the drink-driving offence, the Chief Magistrate sentenced Mr Barnes to four months’ imprisonment, fully suspended, and he was disqualified from holding or obtaining a driver licence for five years. He has appealed only from the licence disqualification, his sole appeal ground being that the disqualification was manifestly excessive.
I note in passing that I am not sure that it is appropriate, or indeed available, to appeal against only part of a particular sentence, as distinct from appealing against the whole sentence and complaining about a part of it. Any reconsideration of a sentence should presumably involve the total sentence imposed for the offence concerned. The respondent did not, however, object to the form of the appeal, and in the event, this has not become an issue in this case.
The offence
The drink-driving offence was committed late one evening in December 2012. While driving through Conder, an ACT suburb, Mr Barnes undertook a burnout on the roadway, which was said to have lasted for about five seconds and to have produced smoke from the rear of the vehicle. After an altercation with one of his passengers, who objected to his driving but declined to take over because she had been drinking, Mr Barnes drove further through Conder and then into the adjoining suburb of Banks.
In Banks he drove to the street in which an acquaintance lived, and after trying unsuccessfully to enter the acquaintance’s house, he drove his car along the driveway until he hit the side fence, reversed a short distance and then drove forward into the fence again. Mr Barnes then reversed his vehicle across the road and collided with a light pole. Both the fence and the light pole were damaged. Mr Barnes then drove out of the street in a manner described by one of the witnesses and recorded in the police statement of facts as “smoking the wheels all the way down the street, sitting on full throttle”.
Shortly after that, Mr Banks’ vehicle was observed outside a house in another street in Banks. Mr Barnes was revving the engine, and then got out of the vehicle and started swearing loudly. In the course of these events, at least two witnesses had called police, and shortly afterwards police found Mr Barnes’ vehicle stopped in another street in Banks. Mr Barnes submitted to breath analysis, which produced a Level 4 alcohol reading of 0.170 gm (a Level 4 alcohol level is any reading of or above 0.150 gm).
As well as the woman who had complained about Mr Barnes’ driving, her 15-year-old nephew had also been a passenger in the car. Police recorded that weather conditions were good and traffic was light, and estimated that Mr Barnes had driven a distance of about five kilometres.
Other evidence
Mr Barnes, who was 31 at the time of the offences, had an ACT criminal history that, as well as two previous drink-driving offences committed respectively in 2003 and 2004, included offences of unlicensed driving and reckless driving, two assaults, and an unlawful confinement offence (although I note that the magistrate dealt with the 2004 assault and unlawful confinement offences simply by recording convictions and, in the case of the assault, imposing a good behaviour order, suggesting that these offences were relatively minor examples of the offences concerned).
Mr Barnes had also been charged with two offences of driving while suspended in 2013, and had also failed to appear in court on one occasion later in 2013. Those offences were also dealt with on the day of the sentencing challenged by Mr Barnes.
10. In New South Wales, Mr Barnes had been dealt with for several other traffic offences, including a drink-driving offence in 2013, and for an assault occasioning actual bodily harm; having regard to the penalty (a 12 month good behaviour bond) imposed by the New South Wales court for the assault, that was also apparently a relatively minor offence. However, it seems that on 28 November 2011, Mr Barnes had been declared an habitual offender in relation to traffic offences, and had been disqualified from driving for five years from 20 May 2016 (the delayed start of that period apparently reflecting the fact that by then Mr Barnes had already been disqualified from driving in NSW for a period ending on 19 May 2016).
11. To the author of the first pre-sentence report (prepared in September 2013), Mr Barnes described his childhood as good, although reporting that his father was an alcoholic and that Mr Barnes’ experience of working with his father from the age of 19 and sharing in his father’s post-work heavy drinking may provide some explanation for his own alcohol abuse. Mr Barnes left school early and commenced an apprenticeship which, however, he did not complete. Since leaving his apprenticeship he had worked in the construction industry, but as at September 2013 (the date of the pre-sentence report), he had not been employed since moving to Batemans Bay at the beginning of 2013. There was no update of this information in the court duty report prepared in January 2014, which was also before the Chief Magistrate when she sentenced Mr Barnes.
12. Mr Barnes admitted to irregular use of cannabis and other illicit drugs since he was 16, and regular use of alcohol except for several years from the age of 22 when he abstained from alcohol, initially because of probation conditions requiring that abstention. At the time of the drink-driving offence he had resumed alcohol use, and had been drinking around nine standard drinks (of beer) each day after work. By the time he was sentenced in 2014 he claimed to have ceased alcohol use.
13. Although Mr Barnes expressed his understanding that the matter was serious and that he could have killed someone through his drink-driving, the pre-sentence report author assessed him as at medium/high risk of reoffending, noting that Mr Barnes’ employment, accommodation, family/marital and alcohol/drug problems were all risk factors for reoffending.
14. The court duty report said that:
Mr Barnes appeared unwilling to take responsibility for much of his offending behaviour and provided a range of justifications for his actions. He also stated he believes the accounts provided by some of the witnesses are not factual.
15. In particular, he disputed the drink-driving charge, on the ground that he was not actually driving at the time he was apprehended by police (this was apparently true, but irrelevant given the statutory formulation of the offence, which refers to a person having the prescribed concentration of alcohol in his or her blood or breath within a specified period after having driven (s 19, Road Transport (Alcohol and Drugs) Act 1977 (ACT)).
16. An assessment conducted in August 2014 of Mr Barnes’ suitability for the Alcohol Interlock Program assessed Mr Barnes as follows:
Mr Barnes, despite limited treatment interventions, displayed insight into his alcohol and drug use and issues related to them. While he did not identify himself as dependent on alcohol or cannabis he recognised problems his use has caused, in particular the breakup of his relationship and separation from his children. Mr Barnes’ primary personal goal is to keep his relationship and family intact.
Mr Barnes also wishes to re-establish stable employment and is looking to obtain his bobcat licence to assist with this.
Mr Barnes reports an AOD use history that has been significant at times as well as with risk to his health and well-being. Mr Barnes recognises he may benefit from engaging in counselling related to relapse prevention and maintaining positive relationships.
It is recommended that Mr Barnes receive four therapeutic interventions at ACT Health, Moore Street, as per the Alcohol Interlock conditions. If further sessions are warranted, Mr Barnes will be offered the opportunity to attend more sessions as required.
17. Mr Barnes’ oral evidence before her Honour was hardly impressive. He gave the following evidence in chief:
MR JORGENSEN: … And are you currently working Mr Barnes?---My father owns a bricklaying company and I worked for him prior to this incident and I had a falling out with my father because of my relationship breakup and me losing my licence and the situation I was in at the time and so I lost contact with my father and I lost my job and that’s another reason why I moved down the coast. I just needed to get away from the stuff that was happening up here and my relationship at the time and - - -
HER HONOUR: The question you were asked, Mr Barnes, is are you working at the moment?--- No, although I’m filling in when I can, a day - a day here and a day there, but I can’t fully commit myself because I’m still on Centrelink benefits and trying to get some Bobcat tickets through my job network. Yes. I don’t want to – I can’t fully commit myself because I - - -
18. Mr Barnes was not cross-examined about his employment plans.
Sentencing
19. The Chief Magistrate dealt with the six offences in detailed sentencing remarks that had been prepared overnight after the hearing at which Mr Barnes gave evidence.
20. In assessing the objective seriousness of the drink-driving offence, her Honour noted first the circumstances of the incident, pointing out that:
Although it was late at night, it was in a residential street and you had two passengers with you, including a youth in the back seat. The passengers were clearly concerned about your driving because you were asked not to continue, but the other female passenger at the front was unable to drive because she was sensible enough to realise that being affected by alcohol, she would not.
...
In relation to the PCA offence, the level 4, the reading was 0.170, which is well within range, but you’re certainly not the highest levels of the court sees coming before it for that range of events. However, the offence was aggravated by virtue of the driving which was associated with it, which was clearly unsafe and put others at risk, and by virtue of the fact, again, that you had two passengers with you and you put their lives at risk as well as your own, whilst driving in that state.
21. Her Honour then referred briefly to Mr Barnes’ family relationships, noting that he had three young daughters, the younger two of whom had been living with his then current partner, but that at the time of the relevant offences he had been in the process of separating from that partner. The Chief Magistrate went on:
In terms of your employment, you have had employment in the past as a bricklayer for your father who runs a company of that sort. You’re doing a little bit of work for him part-time now and you would like to obtain qualifications as a Bobcat driver. You clearly have some capacity for employment. In terms of your criminal record, it’s a poor one. You have three prior convictions for PCA matters, two at the low range and one at a high range, and the most recent one was at high range.
There are a number of driving offences on your record, including driving unlicensed and driving whilst suspended. You’ve been disqualified in New South Wales during the process of these matters coming to the courts for driving whilst suspended, and you’ve also been convicted of reckless driving. You’re a person who has shown little regard to the safety of others on the road or, as was referred to by the prosecutor, the social contract in relation to the entitlement to [be] licensed to drive.
22. Her Honour then rejected the submission made on behalf of Mr Barnes that “during the period in which these matters have been coming before the court there has been something of a change in [his] behaviour”. She noted that he had “been far from law-abiding” while on bail and referred to the ACT offences committed after the drink-driving offence, as well as to further offending in New South Wales during that period. Her Honour described Mr Barnes’ conduct as “a spree of offending”, and concluded that any concern Mr Barnes had felt about that spree related only to the effect it had had on him. She noted the comments of the Court Duty Officer that Mr Barnes had failed to take responsibility for his actions, and the pre-sentence report author’s report about his continued drug use, which despite Mr Barnes’ denial had been revealed by urinalysis to include methamphetamine and cannabis. Her Honour concluded her summary of Mr Barnes’ personal circumstances as follows:
This doesn’t mean that you are without any prospects of rehabilitation. Clearly you have the capacity to work. It appears that you have the support of your partner, and that would be a positive in terms of keeping you on the straight and narrow. But what you do appear to lack is an honest commitment; that is, I don’t think you’d been honest with yourself and you haven’t been honest with the people around you about the circumstances.
23. Her Honour then referred to relevant sentencing principles, and suggested that deterrence (both personal and general), accountability, and the protection of the community were all significant in sentencing Mr Barnes.
24. The Chief Magistrate imposed sentence for the drink-driving offence in the following terms:
in relation to the driving as a repeat offender with level 4 alcohol, I’m satisfied that the only appropriate sentence is a sentence of imprisonment. I determined it would have been a sentence of six months, but in light of your guilty plea that is reduced to a period of four months. In terms of the disqualification period that will attach to that offence, I see no reason to vary from the automatic or default period of five years, and that period will apply.
25. Other licence disqualification periods, being three months for the burnout and one month for each of the drive suspended offences, were imposed to run concurrently with the drink-driving disqualification.
The appeal
Appellant’s submissions
26. The form of the relevant legislation at the time of this appeal was such that only an order made by the court (as distinct from the operation of an automatic disqualification period) could be appealed (see Burow v The Queen [2015] ACTCA 61; 11 ACTLR 157). Counsel for Mr Barnes submitted that the Chief Magistrate’s statement (quoted at [24] above) constituted the making of an order, and this was not disputed by counsel for the respondent.
27. Counsel for Mr Barnes relied on Mwauluka v Turkich [2013] ACTSC 1 (Mwauluka), which he described as summarising (at [47] and following) “pretty much all of the authorities in relation to this area of the law and in particular in relation to the reduction of the automatic or default disqualification periods”. Counsel noted in particular the reference at [48] to an earlier comment by Higgins CJ that in 2009:
A statistical analysis of previous matters of a like kind (that is, high range repeat offenders) in the ACT Magistrates Court reveals a routine reduction of the default period from five years to between 18 and 24 months.
28. Counsel then identified, as suggesting that the imposition of the full five-year disqualification period was excessive, the Chief Magistrate’s recognition of:
(a)Mr Barnes’ capacity for employment, and his wish to obtain qualifications as a bobcat driver (quoted at [21] above); and
(b)Mr Barnes’ prospects of rehabilitation (quoted at [22] above).
29. Counsel submitted as follows:
[the matters mentioned at [28] above were] all matters that her Honour adverted to … and yet was unpersuaded that those matters warranted a reduction from the automatic or default disqualification period and that is essentially the appellant’s case in a nutshell, that the fact that she recognised those matters and yet sought not to reduce the five year disqualification period we say, given [sic] in mind the authorities that your Honour recognised, in Mwauluka’s case and all of the other authorities and noting [Higgins CJ’s] decision in Scott [v Wynants] and the statistical analysis of where things fell that a five year disqualification period imposed on this particular appellant … was we say manifestly excessive.
30. However, counsel conceded that there had been some aggravating features of the drink-driving offence, including the presence of passengers in Mr Barnes’ car during the relevant period, and that Mr Barnes had come to the attention of police because of the manner of his driving (including the burnout) rather than as a result of random screening.
31. He also conceded that her Honour’s assessment of Mr Barnes’ prospects of rehabilitation as “not hopeless” (counsel’s summary of her remarks) was not particularly supportive, and that there was nothing before the Chief Magistrate about Mr Barnes’ work history, the impact of being unlicensed on his work situation, or his wish to obtain a bobcat licence, except his own oral evidence and the evidence of his intentions as reported to the author of the Alcohol Interlock Program assessment (at [16] above).
32. Counsel submitted that if Mr Barnes had not actually “turned his life around” by the time he came to be sentenced, he had at least “introduced some sense of stability”. He pointed to comments made by the Chief Magistrate which reflected an acceptance of certain positive aspects of Mr Barnes’ position, such as that he appeared to have resumed an apparently supportive relationship with his long-term partner, and his expressed wish to resume stable employment, while conceding that her Honour had reservations about Mr Barnes’ capacity to change his ways.
33. Counsel referred me to comments by Refshauge J made in Newham v Coghill [2012] ACTSC 76 and Sheather v Bishop [2012] ACTSC 77, which I adopted in Mwauluka at [41] and [42], as follows:
41. [Counsel] relied on decisions of Refshauge J, in particular Newham v Cogle[2012] ACTSC 76 and Sheather v Bishop[2012] ACTSC 77 (Sheather) where his Honour expressed the view that it was an error for a sentencer considering a licence disqualification to start from the default disqualification period and then reduce it as if it were a maximum or a tariff. Rather, his Honour said, a sentencer “needs to identify whether there is a sufficient and appropriate reason to reduce the period and, if so, to determine what period, not less than the statutory minimum, is necessary to penalise the offender and protect the public”. In Newham v Cogle, his Honour said:
45. It seems to me that her Honour also appeared to approach the automatic disqualification period incorrectly. It is neither a tariff (that is, a sentence standard: R v Sumner[2007] SASC 376 at [78]) nor a maximum (Scott v Wynants (2009) 4 ACTLR 13 at 18; [32]). The default period can be reduced, to a statutory minimum, for “sufficient and appropriate reason”: Guideline Judgment at 336; [127]. It is inevitable that there will be hardship, but it must be proportionate to the offence and the penalty for it and the need to protect the community. It can take into account various factors, including the nature of the offender’s employment, the absence of viable alternative transport and sickness or infirmity of the offender or another: Guideline Judgment at 340; [146]. As an example, see R v Bennett [2011] SASCFC 68 at [26].
46. To start from the automatic or default period and then reduce it as if a maximum or a tariff is, in my view, an error. A sentencer needs to identify whether there is a sufficient and appropriate reason to reduce the period and, if so, to determine what period, not less than the statutory minimum, is necessary to penalise the offender and protect the public. That the learned sentencing Magistrate did not do and, in my view, her Honour thereby came to a manifestly excessive period.
34. 42. In Sheather, his Honour applied the approach recommended as follows:
46. It is, therefore, necessary to consider whether to reduce the period of disqualification and, if so, to what period I should reduce it.
47. It seems to me that the hardship to Mr Sheather and his employment that will be suffered by his loss of licence is a sufficient and appropriate reason to reduce the period of disqualification. I need, then, to consider the relevant factors, both as to penalty and protection of the community to arrive at an appropriate period.
48. The factors I take into account are:
(i) the level of the reading, above the mid range for Level 3;
(ii) the prior offences, principally, and in this case perhaps only, the earlier drink-driving offence, though committed more than eleven years ago;
(iii) the fact that there was no manner of driving that appears to have drawn Mr Sheather to the attention of police and no evidence of other road users put at risk;
(iv) the significant reliance on his licence for his employment;
(v) the period of two months and nine days of immediate suspension which, as was said in Police v Waller[2011] SASC 232 at [13], can be taken into account, though I consider in the circumstances, that it should be rounded down to two months in this case;
(vi) his plea of guilty at the earliest opportunity;
(vii) the fine of $550; and
(viii) his positive good character.
35. In the references to Refshauge J’s judgments the following factors were identified as relevant to whether a disqualification should be reduced:
(a)the nature of an offender’s employment;
(b)the absence of viable alternative transport;
(c)the sickness or infirmity of an offender or another person;
(d)the level of an offender’s alcohol reading;
(e)the nature and timing of the prior drink-driving offence or offences;
(f)the way in which an offender had come to police attention;
(g)the period of immediate suspension served;
(h)the timing of the plea of guilty;
(i)any fine imposed; and
(j)an offender’s positive good character.
36. Counsel conceded that, in Mr Barnes’ case, very few of the factors mentioned in Refshauge J’s two decisions could be established as relevant in any positive way (being only the two already mentioned, namely some prospects of rehabilitation and a capacity and wish to resume stable work, coupled with a wish to obtain a bobcat licence).
37. Counsel also conceded that Refshauge J’s statement identified a two-stage process, the first stage involving the identification of “sufficient and appropriate reason” for reducing the default disqualification period and the second stage requiring the assessment of the particular factors affecting the offender, in particular the impact of the disqualification, in order to determine the amount of any such reduction in the disqualification period.
38. Counsel also raised, although not in any very specific way, the possibility that the default disqualification period was manifestly excessive in that it was combined with a sentence of four months imprisonment for the drink-driving offence, albeit a sentence which was fully suspended (although, curiously in my view, expressed to run concurrently with a period of two months imprisonment to be served in full-time custody). I cannot see that in this case the particular prison sentence rendered the default disqualification period excessive; more generally, however, I consider it would be problematic to assert that the total sentence for an offence was excessive, but to do so in the context of an appeal apparently structured so as to permit only one method of ameliorating the sentence (in this case, a reduction in the disqualification period rather than in the prison term). See also my comments at [3] above.
Respondent’s submissions
39. Counsel for the respondent said that the issue was whether it was wholly outside the range of appropriate sentences for the Chief Magistrate not to reduce the disqualification period from the default period set out in legislation. Counsel noted that counsel for Mr Barnes had conceded that the reasons advanced for reducing his disqualification period were “marginal” and that any reduction in his disqualification period would not be large.
40. Counsel further said that the evidence about Mr Barnes’ employment plans was “wholly speculative”, and the proposition that this kind of evidence (as distinct, presumably, from evidence of the real impact of a disqualification on existing employment) could be accepted as a basis for reducing the default disqualification period was “completely untenable”. Counsel said that adopting such a proposition would imply that the default disqualification period must be reduced for all offenders except those with no prospects of employment or of rehabilitation.
41. Counsel also submitted, in effect, that there was no basis in this case for suggesting that her Honour had recognised positive factors relating to Mr Barnes but had mistakenly failed to account for them.
42. Counsel referred to the relevant NSW guideline judgment (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; 61 NSWLR 305) in which Howie J (with whom Spigelman CJ, Wood CJ at CL, and Grove and Dunford JJ agreed) said at [146]:
146 In my view the following guideline should be made:
(1) An ordinary case of the offence of high range PCA is one where:
(i) the offender drove to avoid personal inconvenience or because the offender did not believe that he or she was sufficiently affected by alcohol;
(ii) the offender was detected by a random breath test;
(iii) the offender has prior good character;
(iv) the offender has nil, or a minor, traffic record;
(v) the offender’s licence was suspended on detection;
(vi) the offender pleaded guilty;
(vii) there is little or no risk of re-offending;
(viii) the offender would be significantly inconvenienced by loss of licence.
(2) In an ordinary case of an offence of high range PCA:
(i) an order under s 10 of the Sentencing Act will rarely be appropriate;
(iii) a conviction cannot be avoided only because the offender has attended, or will attend, a driver’s education or awareness course;
(iii) the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification:
(iv) a good reason under (iii) may include:(a) the nature of the offender’s employment;
(b) the absence of any viable alternative transport;
(c) sickness or infirmity of the offender or another person.
(3) In an ordinary case of a second or subsequent high range PCA offence:
(i) an order under s 9 of the Sentencing Act will rarely be appropriate;
(ii) an order under s 10 of the Sentencing Act would very rarely be appropriate;
(iii) where the prior offence was a high range PCA, any sentence of less severity than a community service order would generally be inappropriate.
(4) The moral culpability of a high range PCA offender is increased by:
(i) the degree of intoxication above 0.15;
(ii) erratic or aggressive driving;
(iii) a collision between the vehicle and any other object;
(iv) competitive driving or showing off;
(v) the length of the journey at which others are exposed to risk;
(vi) the number of persons actually put at risk by the driving.
(5) In a case where the moral culpability of a high range PCA offender is increased:
(i) an order under s 9 or s 10 of the Crimes (Sentencing Procedure) Act would very rarely be appropriate;
(ii) where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate.
(6) In a case where the moral culpability of the offender of a second or subsequent high range PCA offence is increased:
(i) a sentence of any less severity than imprisonment of some kind would generally be inappropriate;
(ii) where any number of aggravating factors are present to a significant degree or where the prior offence is a high range PCA offence, a sentence of less severity than full-time imprisonment would generally be inappropriate.
43. Counsel relied in particular in Howie J’s comment that “the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification”.
44. Counsel also referred to Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2; 253 CLR 58 (Barbaro), in which the plurality (French CJ, Hayne, Kiefel and Bell JJ) said at [34]:
Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken as, some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts. As the plurality said in Wong v The Queen, "[s]o long as a sentencing judge must, or may, take account of all of the circumstances of the offence and the offender, to single out some of those considerations and attribute specific numerical or proportionate value to some features, distorts the already difficult balancing exercise which the judge must perform" (original emphasis).
(citations omitted)
45. Counsel for the respondent rejected the submission made on behalf of Mr Barnes to the effect that the four-month prison term included in the sentence for the drink-driving offence was also severe, noting that this was the second time Mr Barnes had been given a suspended sentence for a drink-driving offence in the ACT and that it was arguable that on this occasion the sentence should not have been suspended at all.
46. Counsel also referred me to the comments of the plurality in Barbaro at [41]:
As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect. And as each of Buchanan JA and Kellam JA rightly observed in MacNeil-Brown, the synthesis of the "raw material" which must be considered on sentencing, including material like sentencing statistics and information about the sentences imposed in comparable cases, is the task of the sentencing judge, not counsel.
(citations omitted)
47. In conclusion, counsel said that since the Chief Magistrate had found no reason to reduce the default disqualification period in Mr Barnes’ case, her Honour’s order must therefore have been within range and could not be manifestly excessive.
Adjournment and resumption of hearing
48. As a result of discussions during the hearing, counsel for Mr Barnes, who had until then only had access to the transcript of the Chief Magistrate’s sentencing remarks, sought an adjournment to enable him to obtain the transcript of the sentencing hearing on the day before sentence was handed down, in particular the transcript of Mr Barnes’ evidence.
49. After the transcript was made available, the matter was re-listed for further submissions; unfortunately, because I was heavily listed in the months after May 2015, the hearing was not able to resume until five months later.
50. When the matter resumed in October 2015, counsel for Mr Barnes commented on the transcript of the evidence Mr Barnes gave before the Chief Magistrate, but did not seek to rely on anything recorded in that transcript as taking Mr Barnes’ position beyond that discussed in the May hearing.
51. It was only at the resumed hearing of the appeal that the parties discovered, or remembered, that Mr Barnes had been disqualified from driving in NSW until 2021, that under s 32 of the Road Transport (Driver Licensing) Act 1999 (ACT) that disqualification also prevented him from driving in the ACT, and that it would continue to prevent such driving even if he were successful in having his ACT disqualification period reduced. Counsel for Mr Barnes said that he had no instructions about the NSW matter, or about whether there was, for instance, an appeal underway in NSW which might if successful reduce the NSW disqualification period such that the current appeal would have some utility.
Consideration
52. Unlike a maximum sentence specified for an offence, which would only be imposed for the most serious examples of the offence (although not only for an offence such that it is impossible for the sentencing judge to imagine a worse case of the offence) (Veen v The Queen (No 2) (1988) 164 CLR 465 at p 478), the default disqualification period is to apply automatically on conviction for the offence concerned unless there is good reason to reduce it.
53. A determination that a sentence, or part of a sentence, is manifestly excessive reflects, in effect, a conclusion that the sentence is so plainly wrong that, although specific error cannot be identified, there must have been some error of principle by the sentencer in determining the relevant sentence (House v The King (1936) 55 CLR 499 at 505).
54. In this case, her Honour appears to have taken a sympathetic approach to the very limited evidence that could have been called in aid by Mr Barnes in seeking a reduction of the default disqualification period, but she was not persuaded that such evidence reached the threshold described by Refshauge J as “sufficient and appropriate reason” to reduce the default period.
55. The fact that Mr Barnes had in the past held down stable employment, and might in due course return to such employment, was nowhere near sufficient to justify any reduction in his disqualification period. Counsel’s submission that by August 2014 Mr Barnes had “introduced some stability into his life” does not seem to have been based on anything particularly substantial. By that time, he had been unemployed since early 2013, and the most recent assessment of Mr Barnes’ employment status (in the Alcohol Interlock Program assessment) still recorded only a wish to resume stable employment, supplemented by what appeared to be a relatively recent wish to get a bobcat licence.
56. Mr Barnes’ evidence before the Chief Magistrate about his employment status seemed to indicate some difficulty in committing himself to employment because of his Centrelink status, which would have given her Honour:
(a)no reason to expect that he would find and commit to employment in the near future; and
(b)no reason to assume that, if and when he did so, his inability to drive would be unusually problematic for him.
57. As to Mr Barnes’ wish to obtain a bobcat licence, it seems that this was no more than a wish; in particular I note that it was not supported by any evidence that a person with multiple licence disqualifications, in two different jurisdictions, on his record, and a possibly unresolved tendency to abuse alcohol and illicit drugs, would be likely to obtain a bobcat licence even if he were in possession of an ordinary driver licence.
58. Also of relevance was whether Mr Barnes continued to use alcohol or illicit drugs. Her Honour noted that Mr Barnes had not apparently been honest to the pre-sentence report author in claiming abstention from illicit drugs in September 2013 (quoted at [22] above), and she might reasonably have been doubtful about Mr Barnes’ claim, in the course of his Alcohol Interlock Program assessment, of more recent abstention from alcohol and drugs in compliance with his bail conditions.
59. Finally, as noted in Barbaro and quoted at [46] above, the fact that at some point before 2009 it was possible to say that in the Magistrates Court “a routine reduction of the default period [was] from five years to between 18 and 24 months” (Scott v Wynants [2009] ACTSC 62; 4 ACTLR 13 at [14], quoted at [27] above) does not establish either that a 24-month disqualification is the top of the available range of disqualification periods or, more significantly, that the default period must always be reduced to some extent. What the then Chief Justice said was:
It is significant that a statistical analysis of previous matters of a like kind (that is, high range repeat offenders) in the ACT Magistrates Court reveals a routine reduction of the default period from five years to between 18 and 24 months.
60. That is, it is not clear whether his Honour’s proposition was that when the default period was reduced it was routinely reduced to a period between 18 and 24 months, or that the default period was routinely reduced and the reduction was routinely to a period between 18 and 24 months. His Honour’s later comment (Scott v Wynants at [33]) that “It has, clearly enough, been common for the default period to be reduced, usually, to between 18 months and two years” could be read as indicating that the default period was often, but not necessarily “routinely”, reduced.
61. Whether since 2009 default periods have continued to be “commonly” reduced in the Magistrates Court is not the subject of evidence before me. It is worth noting, however, that in general the offenders who come to the Supreme Court seeking reductions in their disqualification periods are those with strong evidence favouring such reductions; Mr Barnes’ circumstances are notable for being almost devoid of any arguable basis on which to find “sufficient and appropriate reason” to depart from the default disqualification period.
62. There is no basis in the material that was before the Chief Magistrate (or indeed before me) on which I could find that her Honour’s order that the default disqualification period should apply to Mr Barnes’ drink-driving offence was manifestly excessive.
Conclusion
63. Since I cannot find that the Chief Magistrate’s order imposing the five-year disqualification period to Mr Barnes was manifestly excessive, the appeal must be dismissed.
64. However, under s 216 of the Magistrates Court Act 1930 (ACT), at least that part of Mr Barnes’ sentence was stayed by his appeal and that stay has, because of the delay in finalising this appeal, continued for some time. As part of finalising the appeal, I may need to make orders under r 5052 of the Court Procedures Rules 2006 (ACT) to address the impact of that stay. Depending on the evidence that is put before me, it may be that the new disqualification period should be specified to expire at the point when Mr Barnes would, but for this appeal, have completed his ACT licence disqualification. I shall hear the parties about that issue.
| I certify that the preceding sixty-four [64] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Penfold. Associate: Date: 31 October 2018 |
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