Cock v Depaoli - [2017] TASSC 8

[2017] TASSC 8

COURT: SUPREME COURT OF TASMANIA

CITATION: Cock v Depaoli [2017] TASSC 8

PARTIES:  COCK, Jason Christopher
  v
  DEPAOLI, Melina Ann
  WILSON, Annette Helen

FILE NO:  570/2016
DELIVERED ON:  9 February 2017
DELIVERED AT:  Burnie
HEARING DATE:  9 February 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Appeal and new trial – Appeal against conviction recorded on guilty plea – Particular cases – Incomplete assertion of exculpatory facts.

Marlow v The Queen [1990] Tas R 1; Chapman v Fleming [1960] Tas SR 1 and Beechey v McDonald [2010] TASSC 47, distinguished.
Aust Dig Criminal Law [3446]

Magistrates – Appeal and review – Tasmania – Motion to review – Other matters – Error of fact as to number of prior convictions.

Aust Dig Magistrates [1349]

REPRESENTATION:

Counsel:
             Applicant:  S G Wright
             Respondents:  S Thompson
Solicitors:
             Applicant:  Stephen G Wright
             Respondents:  Director of Public Prosecutions

Judgment Number: [2017] TASSC 8
Number of paragraphs: 31

Serial No 8/2017
File No 570/2016

JASON CHRISTOPHER COCK v
MELINA ANN DEPAOLI and ANNETTE HELEN WILSON

REASONS FOR JUDGMENT BLOW CJ

(Edited version of reasons delivered orally) 9 February 2017

This is a motion for the review of decisions made by two magistrates in relation to charges relating to driving offences committed nearly four years ago. The offences, or alleged offences, were committed on 18 January 2013 and 23 March 2013. The notice to review was filed on 29 February 2016. It was filed out of time. The applicant is seeking an extension of time. I have heard the motion to review and the application for extension of time together.
On the first occasion, 18 January 2013, the applicant was driving on the Bass Highway when he was intercepted by police. He underwent a drug test. It was found that he was driving with three illicit drugs in his blood. He pleaded guilty to a charge of driving with illicit drugs in his blood. The conviction in relation to that charge is not challenged in these proceedings, but the sentencing orders are.
On the second occasion, 23 March 2013, the applicant was stopped by police when driving. His driver licence had expired the previous day. A breath analysis revealed a blood alcohol content of .045%. He was charged with two offences. He was charged with driving with alcohol in his body and with driving whilst unlicensed. He pleaded guilty to those two offences.
The applicant contends that the learned magistrate erred by accepting his plea of guilty to the charge of driving with alcohol in his body. The applicant contends that that magistrate should not have accepted his plea because he advanced matters in the course of submissions in mitigation that disclosed a defence under s 6(3A) of the Road Safety (Alcohol and Drugs) Act 1970.
The charges relating to the second incident were heard and determined before the charge relating to the first incident, and it is convenient to address them first. The charges relating to the second incident were dealt with by a magistrate, Mr D Jones, on 16 April 2013. The applicant pleaded guilty to the two charges. He was unrepresented. When asked what he had to say, he told the learned magistrate two things that are of significance. First of all he said this:
"I really don't have an excuse your Honour just that I didn't have time to get to Service Tasmania to renew my driver's licence. I was at work 14 hours a day in the forest industry and I assume you know the opening and closing hours for Service Tasmania. They don't suit my work hours."
A little later he said this to the learned magistrate:
"I was in the process of getting my truck licence hence I only had a temporary driver's licence at the time. I didn't realise that my full licence had expired. It was just a stupid mistake I'm afraid to say."
As a person who did not hold any sort of driver licence, the applicant was a person to whom s 6(2) of the Road Safety (Alcohol and Drugs) Act applied. That subsection makes it an offence for a person to whom it applies to drive while alcohol is present in his body. However, s 6(3A) provides a defence in the following terms:
"(3A) For the purposes of subsection (3), a person who does not hold an Australian driver licence is to be taken to hold such a licence if the person satisfies the court that he or she would, but for an unintentional failure to comply with an administrative requirement, be the holder of such a licence."
It follows that when a person in the applicant's position is charged with driving with alcohol in his body contrary to s 6(2), it is open to that person to assert that there was an unintentional failure to renew his driver licence, and that, but for that unintentional failure, he would have renewed it, and would have held a licence at the time of the relevant driving.
It is significant that the applicant in this case told the learned magistrate only that he was unaware that his licence had expired and did not positively assert that, if he had been aware of the expiry, or imminent expiry, of the licence, he would have renewed it. In fact what he said about his working hours clashing with the opening hours of Service Tasmania tended to suggest that he might not have renewed his licence.
The applicant contends now that, as a result of what he said, the learned magistrate should not have accepted his plea of guilty, but had a duty to afford the applicant an opportunity to rely on s 6(3A), and that taking any course other than recording a plea of not guilty involved an error of law.
I disagree. It is certainly well established that when a defendant pleads guilty but then personally, or by his counsel, asserts facts that are inconsistent with that plea of guilty, the sentencing court is obliged not to accept the plea of guilty. Marlow v The Queen [1990] Tas R 1, is a decision of the Court of Criminal Appeal that stands for that proposition. In my view that case is distinguishable because what the applicant said to the learned magistrate did not go so far as to assert every element of the defence that might have been available under s 6(3A). It is true that he said that he was unaware that his licence had expired. But it is very significant that the applicant did not say that, with awareness, he would have renewed his licence.
There are cases in which courts have held that pleas of guilty should not have been accepted as a result of submissions made during pleas in mitigation that were equivocal – that is, submissions that were ambiguous as to whether the elements of the charge were conceded or not. They include Chapman v Fleming [1960] Tas SR 1 and Beechey v McDonald [2010] TASSC 47.
In Chapman, the applicant had pleaded guilty to a charge of unlawfully, wilfully and obscenely exposing his person. However the facts stated in mitigation were ambiguous as to whether his exposure was wilful and obscene, or not.
In Beechey, the applicant pleaded guilty to two charges of breaching family violence orders by pushing his partner forcefully with a large box. His counsel, in a plea in mitigation, said that his conduct was "simply inadvertent". That was ambiguous because it might have been a reference to negligence, or it might have been a reference to recklessness – forcefully moving the box with reckless indifference to it possibly having an impact upon the partner.
In my view, cases of that nature are to be distinguished from this case. The applicant did not say anything ambiguous to the learned magistrate. What he said to the learned magistrate, if he had a defence, was incomplete. I think it would have been an excellent idea for the learned magistrate to have enquired as to what the applicant would have done if he had realised in time that his licence was about to expire. However as a matter of legal duty, he was not obliged to. I have to determine whether there was an error on the learned magistrate's part, subject of course to any question of extension of time. But, in my view, he did not err in law by failing to enquire, or by proceeding on the basis of the plea that he accepted. So, I consider that in relation to the charge of driving with alcohol in the blood, the motion to review could not succeed, and it would therefore be inappropriate to extend time in relation to the challenge to that charge.
The learned magistrate dismissed that charge pursuant to s 7(h) of the Sentencing Act 1997. In relation to the charge of driving without a licence, he recorded a conviction but imposed no other penalty.
After those orders had been made, the charge relating to the first incident came before a different magistrate, Mr S Mollard. I have been referring to a single charge of driving with an illicit drug in the blood. As a matter of detail, the complaint originally contained three such charges, each relating to a different drug but to the same driving. When the matter came before the learned magistrate, the complaint was appropriately amended so that the plea of guilty was recorded in relation to a single charge relating to three drugs being present in the bloodstream.
When that matter came before the second magistrate, the applicant again appeared unrepresented. The learned magistrate sentenced him to two months' imprisonment which was wholly suspended on conditions that applied for a period of two years. That penalty was imposed on 16 July 2013. The conditions applied for a period of two years from that date. The learned magistrate also disqualified the applicant from driving for a period of 12 months.
The charge that the learned magistrate dealt with related to the applicant's second contravention of the Road Safety (Alcohol and Drugs) Act. The learned magistrate was provided with the applicant's record of prior convictions. It showed that on 25 October 2008 he contravened the Road Safety (Alcohol and Drugs) Act by driving with alcohol exceeding the prescribed limit in his bloodstream. His reading was 0.121. On 25 November 2008 a magistrate convicted the applicant on that charge, fined him $480, and disqualified him from driving for six months.
The charge that the learned magistrate was dealing with was, as I have said, the applicant's second contravention of the Road Safety (Alcohol and Drugs) Act. His third was the charge that the other magistrate had already dealt with – the charge of driving with alcohol in his body with a reading of .045 on 23 March 2013. That was a subsequent offence. The record of prior convictions provided to the learned magistrate erroneously recorded that the applicant had been convicted of that offence and that the charge of driving without a licence had been dismissed under s 7(h) of the Sentencing Act. In fact, it was the other way round. The drink driving charge had been dismissed under s 7(h), and the conviction had been recorded on the unlicensed driving charge.
The learned magistrate invited submissions from the applicant in relation to penalty and had a discussion with him. They discussed the drink driving offence of 23 March 2013, and the learned magistrate, referring to that charge, said:
"Right. Okay so leaving that one out of it which I think I ought to do, this is your third in way under five years isn't it, driving with either alcohol in your body or drug in your body?"
The applicant, incorrectly, replied, "That's correct your Honour, yes."
That was not correct. In fact it was only the second offence involving driving with either alcohol or drugs in the applicant's body. Although traces of three drugs were found in his body, there was nothing in the facts put to the learned magistrate to suggest that there was anything wrong with his driving, or anything concerning about his driving, when he was intercepted by the police on the relevant occasion, 18 January 2013.
The learned magistrate, in his sentencing comments, said this:
"You've been offending over and over again and it's – well I've already commented upon the fortunate timing of the way in which the courts are dealing with these more recent matters. There's absolutely no way I can avoid the imposition of at least a head sentence of imprisonment, and it really is a very narrow decision on my part to decide to order its suspension. I can see that you've had the benefit of suspended sentences before through one of these drive while suspendeds. You've got through that period but not by a big margin. So you'll need to be awfully careful in the next couple of years that you don't commit any similar offences."
The learned magistrate then went on to impose the penalties that I have referred to. The sentence of two months' imprisonment was suspended on condition that he be of good behaviour, and on condition that he not commit any breach of the Road Safety (Alcohol and Drugs) Act as a driver for a period of two years. By virtue of s 24(1) of the Sentencing Act, it was also a condition of that suspended sentence that the applicant was not to commit any offence punishable by imprisonment during that period of two years. As I have said, the learned magistrate also imposed a driving disqualification for 12 months.
I should say something about the earlier suspended sentence that the learned magistrate referred to. The applicant had three significant prior convictions for driving while his licence was suspended. Those offences were committed on 17 April 2010, 19 September 2010, and 24 September 2010. In relation to the first of them, he was fined $375. In relation to the second and third of them, a magistrate sentenced him to two weeks' imprisonment, wholly suspended, with conditions applying for a period of 12 months. It seems clear that that was a penalty aimed at personal deterrence because the applicant had committed the third offence of driving while his licence was suspended only five days after the second. It also seems that the objective of personal deterrence was fulfilled. There were no more convictions for driving while his licence was suspended. Incidentally, the record of prior convictions does not show any licence suspension imposed by a court. It seems likely that the licence suspension that applied in 2010 was the result of failure to pay fines.
Looking at all of this, it is clear that the penalty of two months' imprisonment, wholly suspended, with a disqualification for 12 months, must have been a penalty that the learned magistrate thought he was imposing for a third contravention of the Road Safety (Alcohol and Drugs) Act, when if fact he was dealing with a second such contravention. When one takes into account the fact that there was no criticism of the manner in which the applicant was driving on 18 January 2013, I think it is very clear that the learned magistrate made a significant mistake as to the applicant's record. I cannot imagine that any magistrate would have imposed a suspended sentence of two months' imprisonment for a second offence when there was no suggestion of bad driving or concerning driving. It is clear that there was error on the part of the learned magistrate.
Against that background, I turn to the application for an extension of time. The respondents have not been prejudiced in the preparation of submissions in relation to this matter as a result of the delay. The applicant, on the other hand, is in a very unfortunate position because, during the two-year period when the suspended sentence was hanging over his head, he re-offended. If that sentence should not have been imposed, in my view it is very much in the interests of justice that it should be set aside. So far as delay is concerned, the delay has been enormous. I agree with Mr Thompson that, as a general rule, the greater the delay, the more compelling the reasons for extending time need to be in order for it to be extended. However it is significant that the applicant was not legally represented on the occasion that he appeared before the second magistrate, and it is likely that for a very long time he was not aware that the outcome might have been different if the true facts about his record had been made clear.
In all the circumstances, I think the only just course is to grant an extension of time in relation to the charge relating to 18 January 2013.
I make the following orders:
1    That the time for the filing and service of a notice to review in respect of the penalties imposed on 16 July 2013 be extended to 29 February 2016.
2    The motion to review is allowed.
3    The suspended sentence of imprisonment imposed on 16 July 2013 is quashed.
I do not think it is appropriate to disturb the disqualification order because the period of disqualification has been served. I will not make any order in relation to the charges dealt with by the first magistrate.
It is now necessary for somebody to resentence the applicant in relation to the matter dealt with by Mr Mollard, and he is not here. There are three options: I could do that now; I could adjourn and do that another day; or I could remit the matter to the Magistrates Court. [Counsel made submissions as to resentencing.]
I order that complaint 52251/13 be remitted to the Magistrates Court for resentencing of the applicant.