Barry Atherden v Gareth Hipwell
[2013] ACTSC 86
•9 May 2013
BARRY ATHERDEN v GARETH HIPWELL
[2013] ACTSC 86 (9 May 2013)
APPEAL – GENERAL PRINCIPLES – appeal against sentence –Level 1 drink-driving offence – impact of conviction and loss of licence on offender’s employment – whether Magistrate made an error of fact – Magistrate rejected claim that offender would lose his job if convicted – whether Magistrate entitled to reject evidence of little weight if witness not cross-examined – no error of fact by Magistrate – appeal dismissed.
Crimes (Sentencing) Act 2005 (ACT), s 17
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 26, 33
Browne v Dunn (1893) 6 R 67
Giucci v Serbatoio [2005] ACTSC 132
Levinge v Director of Custodial Services, Department of Corrective Services and Ors (1987) 9 NSWLR 546
Mwauluka v Turkich [2013] ACTSC 1
Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362
R v CJP, R v CAD; R v MES [2003] NSWCCA 187
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 70 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 9 May 2013
IN THE SUPREME COURT OF THE )
) No. SCA 70 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:
BARRY ATHERDEN Appellant
AND:
GARETH HIPWELL Respondent
ORDER
Judge: Penfold J
Date: 9 May 2013
Place: Canberra
THE COURT ORDERS THAT:
(a)The appeal is dismissed.
(b)The parties be heard about any further orders required.
Introduction
On 27 July 2011 Barry Atherden (also known as Barrie Atherden) was found guilty of an offence committed on 29 April 2011 that, as a special driver and repeat offender, he drove with the prescribed concentration of alcohol in his blood. Mr Atherden was convicted and fined $500, the maximum fine available being $1,100, and disqualified from driving for a period of three months, being the minimum disqualification period available on conviction for the offence concerned (Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 26 and 33).
Mr Atherden appealed the Magistrate’s decision to record a conviction, filing notice of his intention to appeal to the Supreme Court on the day he was convicted.
The appeal
The basis of the appeal was that the sentencing Magistrate had made an error of fact in rejecting the submissions made by defence counsel seeking a non-conviction order under s 17 of the Crimes (Sentencing) Act 2005 (ACT). The error of fact related to the likely impact of a licence disqualification on Mr Atherden’s employment.
The facts
Mr Atherden was charged with this offence after being stopped by police at about 5:10 pm on a Friday in Drakeford Drive, Isabella Plains. He was driving a vehicle described by the prosecutor only as “a white coloured Scania bearing ACT registration”, but which, it emerged from his counsel’s submissions, was a truck used by the appellant to deliver bricks. Mr Atherden’s licence authorising him to drive the truck was described as an “HC” driver licence, which subjected him to a blood alcohol limit of 0.0 while driving that truck. His counsel described the circumstances in which Mr Atherden was detected driving the truck with a blood alcohol level of 0.043:
he’d completed his day’s work by dropping off a load at Kambah at a worksite. At that worksite he was offered a single stubby of beer and he accepted it, foolishly in hindsight and he acknowledges that.
Counsel noted that Mr Atherden’s truck was not loaded at the time, and that his trip would have taken him home.
Relevant evidence
Criminal history
Mr Atherden’s criminal record was before the Magistrate. It consisted of four traffic offences, two of which were drink-driving offences dating back to 1991 and 1995. Those offences had been dealt with, respectively, by a $750 fine and six months licence suspension, and by a $500 fine and the cancellation of Mr Atherden’s licence until otherwise ordered by the court; the licence appears to have been reinstated about 14 months after the cancellation. Those offences made Mr Atherden a repeat offender for the purposes of the current offences.
Evidence about Mr Atherden’s employment
There was evidence before the Magistrate about Mr Atherden’s employment.
He had been employed as a truck driver by a firm called Karalie Pty Ltd for eight years.
A reference from Mr Atherden’s employer described him as “a dedicated and reliable employee” who was trustworthy and always performed his duties in a professional manner. The employer said:
I encourage you to consider Barrie’s strong work ethic in your consideration of this matter. He is a valuable employee and it would be a loss to the company if he was unable to work for any extended period.
A reference from a family friend said that for Mr Atherden to lose his licence or get a criminal record:
will be a detrimental impact to the family not only as he is the only income earner in the family, but as Barrie and his wife Jodie do a [sic] amazing job at fostering children.
A letter to the court from Mr Atherden’s wife said:
Barrie is the only wage earner in our family as I have several health issues that have forced me to be made Totally and Permanently incapacitated from the workforce.
...
The impact of a criminal record or loss of licence that could come from this one stupid mistake on our family would be enormous. As I have mentioned before Barrie is the sole wage earner in our family, he would lose his job if he loses his licence.
During the hearing, there was the following exchange between the Magistrate and Mr Atherden’s counsel:
HIS HONOUR: ... the minimum disqualification period is three months.
MR SHARMAN: Which of course will have the direct impact of him losing his employment, but also, as a corollary, the impact upon his family - - -
HIS HONOUR: Yes it will.
MR SHARMAN: - - - to support not only his children and his foster parents.
When his Honour came to sentence Mr Atherden, he said:
You’ll be convicted and fined $500 and disqualified for a period of three months, the minimum period available, and in doing so, I do so for the reasons that I’ve espoused [sic] already to your solicitor. I don’t have any evidence that he’s to lose his job. There is no evidence before me. The record from Karolee [sic] simply says that I’m to consider him and it would be a loss if he was unable to work for any extended period. There’s no evidence there that he will lose his position and that Karolee [sic] won’t find other employment for him.
The argument
Counsel’s argument that his Honour had made an error of fact in sentencing Mr Atherden was, in essence:
(a)that there was evidence before his Honour that Mr Atherden would lose his job if he lost his licence;
(b)that during the hearing the Magistrate had accepted that evidence;
(c)that despite appearing to accept that evidence, his Honour had said after convicting Mr Atherden that he had no evidence that Mr Atherden would lose his job; and
(d)that his Honour had therefore exercised his discretion to record a conviction on the basis of a mistake about what evidence was before him.
What evidence was before the Magistrate?
The difficulty for the appellant is that what his Honour said after convicting Mr Atherden was, strictly speaking, correct. There was no evidence before him that Mr Atherden would lose his job if he lost his licence.
First, as his Honour explained (quoted at [13] above), the employer’s letter could not be read as saying that Mr Atherden would lose his job.
Secondly, his Honour was not obliged to accept the assertion by Mr Atherden’s wife that “he would lose his job if he loses his licence” as evidence of that fact, for two reasons:
(a)because there was no apparent basis on which she was qualified to give evidence of that fact; and
(b)because her claim was inconsistent with the effect of the letter from Mr Atherden’s employer, the person who was presumably not only able to give relevant evidence about the company’s attitude but may well have been the person who would actually make the decision about Mr Atherden’s employment.
In Levinge v Director of Custodial Services, Department of Corrective Services and Ors (1987) 9 NSWLR 546, McHugh JA said at 560:
The rule in Browne v Dunn (1893) 6 R 67 at 76-77 prevents a court from refusing to act on or disbelieving evidence which has not been the subject of cross-examination. However, one exception to the rule in Browne v Dunn is the case where the evidence is inherently improbable; cf Precision Plastics Pty Ltd v Demir (1975) 132 CLR 362 at 371.
I note that in Precision Plastics Pty Ltd v Demir Gibbs J actually referred to evidence that was inherently incredible rather than improbable, but also that the evidence of Mr Atherden’s wife, as is not uncommon in sentencing hearings especially in the Magistrates Court, was not sworn evidence but simply a letter to the court. Furthermore, defence counsel tendered that letter (describing it as a “letter of support”) at the sentencing hearing, together with three other documents, with the comment that the prosecutor had not yet had an opportunity to look at them, and very shortly after that the prosecutor said that there was no objection to what he described as “those references”. Mr Atherden’s wife’s claim about Mr Atherden’s employment may not have been “inherently incredible” or even “inherently improbable”. However, it does not seem to me, in all the circumstances including the description of the wife’s letter and the existence of a letter from Mr Atherden’s employer, that the wife’s letter was tendered in circumstances that required it to be accepted, because of the absence of cross-examination, as evidence in relation to Mr Atherden’s employment.
Counsel referred me to Giucci v Serbatoio [2005] ACTSC 132, in which Higgins CJ was dealing with an appeal based on a claim that the sentencing Magistrate had made findings of fact inconsistent with submissions made before him. His Honour the Chief Justice said:
As I say, if it had been desired on the part of the prosecution to have disputed [defence submissions] then the prosecution was undoubtedly in a position to call evidence and have the learned magistrate determine any dispute that might have arisen. The fact that no such application was made would seem to indicate that the prosecution was not in a position to dispute that particular assertion and there is no particular reason I can see why his Honour should not have accepted it.
I have no argument with the proposition put by his Honour in the particular facts of that case. However, it seems unlikely to me that his Honour was expressing a general principle to the effect that, if defence counsel makes submissions about matters of fact that are unsupported by any evidence before the court, and the prosecution calls no evidence to refute those “facts”, the court must in all cases accept those submissions and act on those “facts”. If Higgins CJ did intend to express such a principle, I must respectfully disagree with his Honour.
In this case, there was evidence about Mr Atherden’s employment before his Honour, but counsel’s submission went beyond the evidence given in the employer’s reference, and could only have been referable to the claim made by Mr Atherden’s wife which, for reasons I have already outlined, could carry little if any weight. In such circumstances I can see no basis for saying that, because the prosecution did not call evidence or require the wife for cross-examination, the Magistrate was obliged to accept the claim made by Mr Atherden’s wife and repeated by counsel.
It is unfortunate that his Honour in the exchange with counsel quoted at [12] above appears to have accepted counsel’s submission that Mr Atherden would lose his job, but this may well be why his Honour felt obliged, having imposed sentence, not only to say explicitly that there was no evidence that Mr Atherden would lose his job but also to explain the interpretation of the employer’s letter that his Honour relied on in saying that there was no such evidence.
Timing of sentencing remarks
During the hearing of the appeal, there was discussion about whether it was odd that the Magistrate had pronounced the conviction and sentence and then explained his reasons. It may well be that, in most cases, sentence is pronounced after rather than before reasons have been articulated, and there is some authority for the proposition that sentencing reasons should not be reserved in the way that reasons for other court orders may be reserved. In R v CJP, R v CAD; R v MES [2003] NSWCCA 187, Sheller JA, Hidden J and Carruthers AJ said, in considering a case in which sentences had been articulated but reasons had not been provided until nearly three months later:
66 ... It is in accordance with the principle that a sentencing judge must give reasons and, further, there must be contemporaneity between the handing down of the sentence and the expression of the judge’s reasons. The separation of the imposition of the sentence from the expression of the appropriate reasons not only creates a sense of injustice in the mind of all concerned with the sentencing process but also creates significant practical difficulties.
...
68 Mr Stratton submitted, rightly in our view, that such separation tended to bring the sentencing process into disrepute, as it may suggest that the reasons are being moulded to fit in with a predetermined sentence, rather than the other way around. Secondly, he argued, that the sequence of events in this case was capable of giving the impression that the reasons for sentence could be influenced by the Crown appeals. It is not suggested, of course, that his Honour was influenced by the appeals; the significant matter is the perception.
69 This case is an appropriate one for this Court to state in emphatic terms that not only must a sentencing judge give reasons consistent with any statutory obligations as well as the common law obligation, but there must be a contemporaneity between the pronouncement of the sentence and the delivery of reasons, be they oral or written.
70 When the Court speaks of contemporaneity, allowance must be made for the rare case when, for example, due to the exigencies of the circumstances a sentence is pronounced late on one day and reasons are delivered at the first opportunity on the following day. A failure to comply with this requirement bespeaks a miscarriage of justice which renders the sentence liable to be quashed by this Court and the matter remitted to the sentencing court.
Especially noting the Court’s recognition that there may be scope within the principle for splitting the sentencing process over two days with the reasons coming second, I cannot see that his Honour’s comments about the evidence in this case breached the requirement of contemporaneity simply because they were made immediately after rather than before sentence was pronounced. I accept, however, that if his Honour’s comments about evidence had in fact been inaccurate, that would have raised a different issue, and in such a case a claim of error of fact would not usefully have been met by the response that since the comments were made after sentence was pronounced, they did not form part of the reasons for sentence so as to found an appeal based on the error.
Evidence about employment consequences
In Mwauluka v Turkich [2013] ACTSC 1, I commented on the significance of employment requirements in assessing the proper disqualification period for drink-driving offences, saying at [29]:
Furthermore, I accept that there is considerable authority (much of it collected by Refshauge J in Barac v Thexton [2008] ACTSC 137) to the effect that the matter of losing one’s employment is a matter to be taken into account in sentencing under s 33(1) of the Crimes (Sentencing) Act. I note, however, that there is a danger in allowing members of the community to believe that employment considerations will protect them from any extended loss of licence for drink-driving offences, or more generally that needing a driving licence will justify a reduced disqualification period (rather than requiring a higher level of commitment to avoiding drink-driving).
It is appropriate in this context to note also that the provision of inadequate evidence about a defendant’s employment is an unfortunately common practice (see, for instance, Mwauluka v Turkich at [17] to [25]). It is rare in my experience for an employer to give explicit evidence that a defendant’s employment will be terminated if he or she is disqualified from driving at all, or for an extended period. Possibly this is because an employer’s right to terminate the employment of an employee who is disqualified from driving may not be clear-cut, and employers are understandably reluctant to give evidence of an intention to do something that might be illegal. Alternatively it might be because the employer has no plan or wish to terminate the employee’s employment but is keen to help the employee avoid or minimise a likely disqualification period. As I noted in Mwauluka v Turkich (quoted at [24] above), the likely effect on a person’s employment is properly taken into account in determining an appropriate disqualification period – but this does not in my view mean that courts should feel obliged to impose shorter periods of disqualification if the real impact of the evidence before them is not that a defendant will become unemployed but that the defendant and his or her employer will be inconvenienced. This is especially the case where, as here, the only way to avoid the inconvenience would be for the court to send an undesirable message to the community, not only by showing general leniency in choosing a disqualification period but also by refraining from even convicting a defendant, however inappropriate such an approach would otherwise seem.
There is in my view no reason why courts should be expected to act on vague hints about the possible unfortunate consequences of a licence disqualification, whether the vagueness of the evidence is the result of carelessness, an unwillingness by an employer to foreshadow action that may itself be unlawful, or the careful crafting of a non-committal but worrying prediction about the defendant’s future employment.
Conclusions
I am satisfied that his Honour did not misinterpret the letter from Mr Atherden’s employer or inappropriately ignore the claim made in the letter from Mr Atherden’s wife, and more generally did not make a mistake of fact in assessing the evidence before him about the possible impact of a licence disqualification on Mr Atherden’s employment. Accordingly, I can find no error in his Honour’s approach to the sentencing process, and the appeal must be dismissed. I shall hear the parties about any further orders necessary to give effect to my decision.
This means that there is no need to consider whether, despite any error, the sentence should stand, or whether I should re-exercise the sentencing discretion.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 9 May 2013
Counsel for the appellant: Mr T Sharman
Solicitor for the appellant: Rachel Bird and Co
Counsel for the respondent: Mr M Clark
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 13 December 2011
Date of written submissions: 26 March 2013
Date of judgment: 9 May 2013
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