Barnes v Entresz
[2018] TASSC 45
•2 October 2018
[2018] TASSC 45
COURT: SUPREME COURT OF TASMANIA
CITATION: Barnes v Entresz [2018] TASSC 45
PARTIES: BARNES, Alisha
v
ENTRESZ, Aaron Richard
FILE NO: 1038/2018
DELIVERED ON: 2 October 2018
DELIVERED AT: Hobart
HEARING DATE: 2 July 2018
JUDGMENT OF: Geason J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Driving with more than prescribed concentration of alcohol in breath or blood – Sentence and penalty – Whether sentence manifestly inadequate.
Aust Dig Traffic Law [1158]
Criminal Law – Sentence – Sentencing orders – Discretion to record conviction – Relevant considerations.
Aust Dig Criminal Law [3411]
REPRESENTATION:
Counsel:
Applicant: S Thompson
Respondent: G Stevens
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: G Stevens
Judgment Number: [2018] TASSC 45
Number of paragraphs: 42
Serial No 45/2018
File No 1038/2018
CONSTABLE ALISHA BARNES v AARON RICHARD ENTRESZ
REASONS FOR JUDGMENT GEASON J
2 October 2018
The respondent pleaded guilty to driving with an excessive concentration of alcohol in his blood, contrary to s 6(1) of the Road Safety (Alcohol and Drugs) Act 1970 (The Act). Magistrate G A Hay fined him $650 and imposed six months' licence disqualification. Pursuant to s 7(e) of the Sentencing Act 1997, the learned magistrate declined to record a conviction.
The applicant moves the Court to review this sentence on the ground that it is manifestly inadequate.
At the hearing of this appeal leave was granted to add a second ground in the following terms:
"The learned magistrate erred in fact in finding that the respondent 'pleaded guilty essentially at the earliest opportunity', when such a finding was not reasonably open to him."
An appellate court sits to correct material error: Dinsdale v The Queen [2000] HCA 54, 202 CLR 321 per Kirby J at [57]–[60]. In Green v The Queen [2011] HCA 49, 244 CLR 462 at 477, the High Court stated the principles which are relevant to a Crown appeal. It said that the purpose was "to lay down principles for the governance and guidance that courts have in the duty of sentencing convicted persons. That is a limiting purpose. It does not extend to the general correction of errors made by sentencing judges".
In Everett v The Queen (1994) 181 CLR 295 at 300, the High Court explained that the reference to principles in Green (above) is to be understood as encompassing the avoidance of manifest inadequacy or inconsistency in sentencing standards.
It is established that it is not the function of the Court to overturn a sentence merely because it is considered to be lenient: Director of Public Prosecutions v Bradford [2016] TASCCA 14 at [14]. It is important that appellate courts respect the wide discretion vested in a sentencing court; Postiglione v The Queen (1997) 189 CLR 295. As Kirby J noted in that case, at 337, "the proper approach is one of vigilance within a context of appellate restraint".
In this case the applicant contends that the sentence which was imposed is manifestly inadequate in the sense of being unreasonable and plainly unjust; Dinsdale (above) and Markarian v The Queen [2005] HCA 25, 228 CLR 357 at [25]. A conclusion that a sentence is manifestly inadequate does not depend upon the identification of specific error: Dinsdale at [6]. Where specific error is not alleged, in order to uphold the appeal the appellate court must be persuaded of error of the second type referred to in House v The King (1936), 55 CLR 499. In a Crown appeal, the Court retains a residual discretion not to interfere: Director of Public Prosecutions v Harington [2017] TASCCA 4 at [96] per Pearce J.
The factual basis of the sentence was as follows:
"iThe respondent submitted to a random breath test. A later blood test revealed his blood alcohol content to be 0.145 grams of alcohol per 100 millilitres of blood .
iiThere was nothing aggravating about the respondent's driving. He was driving home at about 11:50pm and had consumed three unmeasured glasses of wine between approximately 9:30pm and 11:00pm.
iiiThe respondent rarely drank alcohol and certainly was not expecting to be over 0.05 when he drove. However, he did not exactly know how much alcohol he had consumed
ivHe later took steps to understand how his blood alcohol reading was so high.
vThe respondent was employed full time and was interested in cars, although there was no evidence that disqualification would cause him severe and unusual hardship or that any exceptional circumstances were present.
viFor approximately 2 years, the respondent had been in a relationship with a construction lawyer, Ms Hepburn, although she was not presently working as one. Ms Hepburn swore an affidavit which was read into evidence. She was not cross-examined.
viiThe respondent was of good character, evidenced by two letters of reference and his absence of any relevant prior convictions. His Honour referred to this.
viiiMs Hepburn had a career goal of working as a construction lawyer in Dubai or Qatar. Those two countries required non-citizen residents to satisfy a fit and proper person test. If asked by such authorities whether he had been convicted of an offence, if the learned magistrate recorded a conviction the respondent would need to disclose that.
ixThe respondent pleaded guilty on the day that the matter was listed for hearing.
xThe respondent's reading of 0.145 was a medium level reading for the purposes of the table in s 17 of the RS(AD) Act."
In imposing penalty the learned magistrate said:
"Mr Entresz has pleaded guilty to a mid-range, well, the higher end of a mid-range drink driving offence with a reading of 0.145. He drove almost 12 months ago on the 6th April 2017. There is no suggestion that he has committed any further offences and he has no prior convictions under the Road Safety Act.
In fact the only prior matter that he has is one traffic infringement notice for speeding on the 16th September 2016. There is nothing to suggest that he is otherwise of very good character. He is in a stable relationship. He is well educated and there were no particularly aggravating circumstances in his driving other than of course he drove with an excess of alcohol in his body. He pleaded guilty essentially at the earliest opportunity.
He was stopped by police, he provided a breath test and then a breath sample which was analysed with a reading of 0.110, at the lower end of the medium scale and he elected to have a blood test and as more often than not happens, the blood test increased and in this case reasonably significantly to a reading of 0.146 and again that is the reading that the Court must take into account.
I've heard a plea in mitigation and as I've said there are no aggravating or extraneous circumstances that the Court otherwise might need to take into account in the sentencing process and in most respects the minimum – the mandatory penalties of the minimum fine, in my view, should apply insofar as minimum period of disqualification is concerned.
I note that his reading here is at the higher end of the medium scale and in some circumstances, especially if he had had prior convictions, I may well have been convinced to exercise a discretion to increase the period of disqualification and/or fine beyond the minimum period but in all of the circumstances I'm not prepared to go to that stage and so it is my intent to impose a penalty of a minimum period of disqualification and a minimum fine.
That then begs the question, should I record a conviction. Mr Stevens, on behalf of Mr Entresz has submitted that I should exercise the discretion not to do so. S 7E of the Sentencing Act has been amended to permit the Court, when a person is fined especially under the Roads Safety Alcohol and Drugs Act that any mandatory fine does not necessarily have to be visited with a penalty – a further penalty of a conviction and in this case I have the affidavits of Mr Entresz and his partner and I note that they have been partners for some two years now.
She is a lawyer, has significant background and experience in the construction law industry especially in New South Wales – I think it was New South Wales – Victoria, beg your pardon – in Victoria and in the last two years she has obtained a position with the – as a Tasmanian Public Servant, specifically for the first two years engaged in construction law with the Justice Department.
She has in more recent times been seconded within the Tasmanian Public Service as a contracts officer in the Procurement and Property Branch at the Department of Treasury and Finance and I accept the submission that that means that she is further engaged in reviewing contracts for – that are being let out for public works and again her expertise in the construction industry is being used. She also deposes that she is keeping up to date with her involvement with further education in that particular part of the legal practice in national construction law by attending conferences.
She retains a significant interest and it is very clear to me from reading her affidavit that she is well experienced in that area and that she has a desire, not in the foreseeable future because she has contracts in the State Government here, but in the foreseeable future on a plan of somewhere between three to 10 years to work in either Dubai or Qatar as a construction lawyer and whilst she does not specifically go into detail in her affidavit about why those countries might be areas where she might target, the Court is well aware that they are burgeoning countries, especially in construction and that they attract many persons with expertise whereby people in their own countries do not have that so they attract people with significant income for periods of time and what she is essentially deposing to is that because of her long term relationship with Mr Entresz, that if she obtains a position in one of those countries, then the inference that I draw that it would be for a reasonably significant period of time, and I'm not talking about weeks or months, but is more likely to be a contract in terms of years, and on that basis then her partner, Mr Entresz, is likely to follow along with her.
All of this needs to be dealt with on the balance of probabilities. They are in a long term relationship of two years. They are both well‑educated individuals. Mr Entresz is intending to go back to university I am told to enhance his own current qualifications. Were they married, I don't think in this current day and age, the fact they're married or not really has just no significance at all but if they were married, I don't know that that would make the situation any better than it is. I have deposed evidence and submissions that they are in a strong relationship and when there are strong relationships then usually partners stay together wherever possible.
The prosecutor, quite properly, challenges whether the submission that there should be no conviction recorded challenges that submission on the basis that well, it's really on the never-never, that it's three to 10 years, at some stage in the future, anything can intervene in the meantime and – meaning that Mr Entresz may not necessarily be required to go, there may be no application for jobs, the job market might dry up, their relationship might end, there might be all sorts of reasons and of course in those circumstance the reason for not providing a conviction has gone by the board and the prosecutor submits that there needs to be more significant information and verification and more of a plan I suppose, to use my words, that it is more likely to happen than not.
I think what she's really saying is that there needs to be a contract available today and there need to be plans in place and then maybe that the public interest might be satisfied but of course anything can happen, even if there was a plan in place today with a contract to go to, anything could happen tomorrow or next month or next year or whatever whereby that situation may change significantly so that Mr Entresz is then not required for whatever reason to leave Australia and then the exercise of the discretion has again been a waste of time and maybe contrary to the public interest.
I don't think in any of those circumstances the Court can really have a crystal ball. It has to take it as it sees it at this point in time. I think, in my view, the most significant factor here is that Mr Entresz has no other convictions, there's no suggestion he's committed any further offences since the last occasion and there are no aggravating circumstances as such in his driving other than of course the reading that he displayed especially by the blood analysis and what I'm conscious of here is that if I do not impose a conviction against him, the mandatory minimum penalties must still apply and by the legislation, if there is no conviction recorded insofar as the future is concerned for him in relation to any further offences especially in Tasmania, most probably in Australia I would suspect, but especially in Tasmania, any further offences then there is no escape for him. The full effect of the penalty that is going to be imposed will have exactly the same effect, in my view, as it might otherwise have whether there was a conviction recorded or not.
The prosecutor is correct that this is more about Ms Hepburn as such. She is the one who is presenting the information but of course Mr Entresz is her partner and there is, in my view, at least a reasonable likelihood that she may become employed in a place where a conviction may well preclude Mr Entresz from entering that country and may thus mean that she may well be precluded from entering the country on the basis that she would rather retain her relationship than pursue an otherwise lucrative career in another place.
This is a discretionary matter and I think weighing up all of the information and all of the evidence that I have and as I repeat without having a crystal ball in relation to it, I think that I'm satisfied that in all of the circumstances of this case that a conviction against Mr Entresz is contra-indicated for the reasons that I have stated. I don't think that he would get that opportunity again for fairly obvious reasons if he breached this legislation again and came back before the Courts, then I don't think at any future stage would there be a reasonable submission to be made that there should be no conviction recorded at some stage in the future. So having said all of that, the penalty which I impose against Mr Entresz is as follows. He wasn't given a notice I would assume – I just want to confirm that.
The penalty which I impose against you without conviction is as follows: that you be disqualified from holding or obtaining a driver's licence for a period of six months; that you are fined the sum of six hundred and fifty dollars; that you pay the Victim of Crimes levy of twenty dollars; Court costs of sixty five dollars and ten cents. That's it. Covered it. All right, you are now free to go."
Under s 17 of the Act, the penalty for this offence was required to be within the range of 4 penalty units to a maximum of 20 penalty units; 6 to 18 months' disqualification and 6 months' imprisonment.
Apart from the fact that it imposed no conviction, the court imposed the minimum licence disqualification. The fine was not the subject of specific comment but the whole of the penalty was called into question in light of the decision not to record a conviction. The State contends that, if that course is taken, the penalty should be otherwise adjusted upwards to reflect that, so as to maintain the deterrent effect of the penalty.
The State submits that intervention is appropriate in this case to establish principles with respect to the operation of s 7(e) of the Sentencing Act as applied in the context of the Act.
Section 7(e) of the Sentencing Act provides:
"(e) with or without recording a conviction, order the offender to pay a fine."
Section 9 of that Act is relevant in this context:
"Conviction or non-conviction
In exercising its discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including –
(a) the nature and circumstances of the offence; and
(b) the offender's antecedents and character; and
(c)the impact that a conviction would have on the offender's economic or social wellbeing or employment prospects."
Discussion
Relevant to the court's decision not to record a conviction was its conclusion that a conviction would affect the respondent's opportunity to work in the Middle East. As to this prospect, there was evidence that the respondent's partner intended to work there in the future. The learned magistrate was told that Dubai and Qatar are the hubs of large-scale construction firms, making it an attractive destination for her based on her qualifications. She said in an affidavit presented to the court that this was intended to happen within the next three to ten years. It was put to the learned magistrate that the respondent would want to travel with her and work there too.
The learned magistrate was told that to work in the Middle East the respondent would require a work visa for which he would require a Good Conduct Certificate. It was submitted that a conviction for an alcohol-related offence would preclude the grant of such certificate and thus eligibility to work. It was submitted that this would force the respondent to separate from his partner and stay in Australia.
The evidence on this issue was lacking. It was not clear at hearing or on the appeal whether the fact of a plea of guilty was enough to cause this result, or only the recording of a conviction. If the former, there was no basis to be found in the Middle East plans, for not recording a conviction.
Nor was the court told if the obligation to make disclosure was subject to a time limit, such that pleas of guilty or convictions could be ignored after a certain time. The material before the learned magistrate in relation to Dubai, for example, appears to suggest that it is only matters in the preceding five years that are required to be disclosed. Such a requirement would not appear to create a problem if the travel occurs after that period, a possibility on the evidence. Nor was it determined whether a waiver of the disclosure obligation could be procured, or whether the effect of disclosure could be neutralised by submissions or consular interview, for example. All of this was relevant to the evaluation required to be made but it was not known.
Sitting above all these matters is the fact that none of the impact claimed arises unless the respondent's plans are implemented, and the respondent's plans are tied to his partner's plans and he intends to work there. There are uncertainties and contingencies associated with such claims, and the weight to be afforded to the claim is a relevant issue. Where the asserted impact of a conviction flows from the prospective action of a third party, and more so where there is a choice about taking the action said to create the impact, these types of matters will have a reduced significance in sentencing.
It was also necessary to assume the relationship would continue until such a choice was implemented, before the claimed impacts would follow. I think that is a more straight forward matter. Any serious relationship, a matter of evidence, should attract an assumption in favour of its continuity. The learned magistrate addressed that issue noting the relationship was of some 2 years' duration at the time. (I was told it is continuing.)
I accept that in this case it is another's choice that creates the potential problem, and that is a choice over which the respondent cannot exercise control. As such any problem which might exist, cannot be dismissed as the product of a wholly free choice to expose himself to it. A sentencing court will have to make a judgment on all the evidence. I do not need to be prescriptive about what is required. But clearly the Court is required to be satisfied there are circumstances creating the potential for an impact, and that in those circumstances, an impact will accrue. The vague possibility of a future impact is not sufficient.
Assuming there is such evidence, the State concedes that the effect of a conviction upon the respondent's ability to live and work in Dubai or Qatar was a relevant matter in sentencing, in the sense that the impact of a sentence on a person's economic, social well-being and employment prospects are relevant matters. That is no more than an acknowledgment of the considerations in s 9(c) of the Sentencing Act.
The evidence led in this case established that the respondent's partner would travel in the future; that the respondent was likely to travel with her; and that the duration of the stay would be such that the respondent would need to work.
There was not however any evidence establishing the impact of conviction. The consequences were assumed to follow a conviction. I repeat what I said at pars [17] and [18] above. The evidence was not, in my view, sufficient to establish as "circumstances of the case" the economic or employment impact claimed.
Assuming there was evidence of the claimed impacts, should the discretion have been exercised? The question of whether a conviction should be recorded has been discussed in a number of cases.
The recording of a conviction is in itself an element of punishment which can discourage repetition of criminal activity and act as a deterrent: R v Brown, ex-parte Attorney General [1994] 2 Qd R 182 at 194.
In Attorney-General v Smith [2002] TASSC 10, Crawford J (as he then was) said at [26]:
"[26] When considering whether to record a conviction, a court must weigh up the public interest, and the need for an official record to be made of the commission of the offence, against the beneficial nature to the offender of a conviction not being recorded. Regard must be had to the purposes specified in s58. If the offence is of a relatively serious nature, the Court may feel compelled to record a conviction. In addition to public interest questions, it is proper that the Court have regard to whether the victim of such an offence might reasonably not feel vindicated by the failure to record a conviction."
Section 7(e) provides no guidance within its terms about the matters material to a court's decision to refrain from recording a conviction. Section 9 of the Sentencing Act does that. It mandates consideration of at least the matters recorded there.
The use to which a conviction might be put is relevant. That "use" is really an impact in the sense referred to in s 9. In DPP v NOP [2011] TASCCA 15, Evans J discussed the use to which a conviction could be put. In that case the sentencing judge had not recorded convictions against a respondent charged with the rape of a child by a youth with a reduced mental age. At [27] Evans J said:
"[27] The learned sentencing judge did not say why he did not record convictions against the respondent. I infer that he took this course because he considered that it was not 'appropriate to punish somebody who at the time of offending, had a mental age of something like ten years eight months', and because to do so would impact adversely on the respondent's chances of obtaining employment. I am in no doubt that the latter is so. However, bearing in mind the very serious nature of the respondent's criminal conduct and the unavoidable uncertainty about whether he might re-offend it was, with respect, most important that convictions be recorded. Those who have a legitimate interest in knowing about the respondent's criminal conduct include future employers. It may be that the respondent can find employment as gardener or labourer in a crèche or school. To my mind, the need for potential employers in areas such as these to be in a position to know of the respondent's criminal conduct outweighs the adverse impact of recording convictions on his employment prospects. With respect, for this reason alone, I consider that it was an error not to record the convictions. An additional reason is that in due course, when the respondent's victim reflects on what he did to her and how it was dealt with by the Court, the failure to record a conviction would provide her with good reason to feel that she had not been vindicated. This inadequacy in the sentence imposed on the respondent will be touched on in the course of that which I now turn to, that is, whether the sentence is manifestly inadequate because it fails to address the needs of general deterrence and denunciation."
It is considered by many that the option of not recording a conviction is an important and useful one. The Sentencing Advisory Council in the Executive Summary to its report "Non-Conviction Sentences", Final Report No 3, August 2014, said this at vii:
"The Council considers that, regardless of other sanctions imposed by the court, the recording of a conviction remains an act of significant punishment – both as a symbolic mark of censure and because of the consequences that attach to a conviction. The sentencing option of 'not recording a conviction' allows a sentencer to have regard to the circumstances of the individual case, and to decline to impose a conviction because of the adverse impact that a conviction would have on the offender's economic or social wellbeing or employment prospects. The Council stresses that maintaining the distinction between guilt and conviction not only provides a benefit to those offenders who are found guilty without a conviction being recorded (who avoid the stigma and adverse consequences of a conviction), it also has the potential to improve community safety through the rehabilitation of offenders."
In that report the Sentencing Council expressly acknowledges the significance of a conviction as marking societal disapproval for the conduct (at 2.2, p 10) but adds that, beyond that symbolic function, the effect of a conviction can extend far beyond the duration of any sentence imposed. In the employment context that effect might be tempered somewhat. It repeated the point made by Dr Bradfield in Sentences without conviction: Protecting an offender from unwarranted discrimination in employment, Monash University Law Review, Vol 41, Issue 1 (2015), picking up a point made in the Victorian Sentencing Manual at [5.3.6], (published by the Judicial College of Victoria), that the effective consequences "of a conviction as compared with a non-conviction disposition should not be overestimated, as the impact on employment prospects may be the greatest practical significance of a conviction and it is often the finding of guilt rather than the conviction that 'triggers adverse consequences'."
The seriousness of the offence is also a relevant consideration both at large, and in terms of s 9. In DPP v Candaza [2003] VSCA 91 at [12], the Court said for a crime as serious as armed robbery that disposition other than by a custodial sentence was unusual, and "a disposition without recording a conviction should only be available in rare and exceptional circumstances". Chernov JA accepted that submission, and the same view was expressed by Winneke ACJ and Phillips JA.
In Blake v Adams [2013] TASSC 44, 22 Tas R 295 at [29], Porter J noted that the effect of each matter referred to in s 9 of the Sentencing Act, is cumulative and that the matters must be kept in balance and none overlooked, although one may have greater weight than another in a particular case. At [41] his Honour noted that the particular circumstances of the applicant's offending must be considered, not just the offence in an abstract sense. His Honour said this at [53]:
"[53] The assumptions underpinning the public interest factor may now be less safely based. However, the considerations identified in Offe and in Smith remain valid and support the notion that in general terms, of itself, the nature of offences under firearms legislation would carry weight in relation to determining whether or not a conviction should be recorded. At the same time, as Crawford J recognised in par[26] of Smith, that is not to say that the circumstances of the particular offence, nor those of the offender, need not be examined."
As a general principle, the exercise of the discretion not to record a conviction should be reserved for cases where the effect of a conviction exceeds the blameworthiness of the conduct, such that it might properly be said that the effect of a conviction on the offender, is more than is necessary by way of curial response to the offending behaviour.
This was not such a case. The reading was a high one, and it is thus a serious example of the offence. It was at the top end of the mid-range category. The offence of driving with an excessive concentration of alcohol in the blood is a prevalent offence, a relevant factor in itself. It is also a serious offence for the risk it creates to other road users. In Briant v Bessell (1994) 74 A Crim R 204 at 208, Zeeman J referred to the clear legislative intent evinced by the Act to treat the driving of motor vehicles by persons affected by the consumption of intoxicating liquor as "a grave social evil" that was to be visited with penalties severe enough to act as a general deterrent, and as a personal deterrent to the particular offender.
Courts usually record a conviction for this type of offence. While the claimed employment impact was not satisfactorily established, in my view the seriousness of the offence reflected in the reading, extinguished any basis upon which such an impact could have prevailed. I will not therefore afford the respondent an opportunity to supplement the evidence on this issue.
In light of Briant v Bessell (above) and cases following, in the ordinary course this offence should be met with disqualification, fine and conviction as elements which together operate to deter and punish as required by the applicable law. That conclusion reflects the long-standing view taken by the courts in relation to this type of offence I have decided that no court acting reasonably and approaching the matter correctly, could have concluded otherwise.
The court erred in not imposing a conviction in this case.
As to the proposition that a decision to refrain from recording a conviction for this category of offence should always result in a longer disqualification, I express no concluded view. Each case is different.
Conclusion
In this case I consider that the reading required a penalty which reflected the seriousness of the offending. I would have imposed a longer disqualification and a higher fine. But the discretion is a wide one and I have decided to leave that aspect undisturbed. Because I have reached the view that the learned magistrate erred in not recording a conviction, I will set aside the sentence, and resentence the respondent.
The respondent is convicted. He is suspended from holding a driver’s licence for a period of 6 months to commence on 28 March 2018. I reimpose the fine of $650.00, which I am told has been paid.
In the circumstances I do not need to consider the second ground of appeal.
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