Coggins, M.J. v The Queen

[1985] FCA 492

Re: MICHAEL JOHN COGGINS
And: THE QUEEN
NT No. G15 of 1985
Criminal Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Fox J.
Northrop J.
Toohey J.

CATCHWORDS

Criminal Law - sentence - offence of causing serious danger - aggravation by intoxication - plea of guilty before magistrate - maximum penalty applicable - lack of evidence as to danger or intoxication - appeal to Supreme Court dismissed - whether error by magistrate or Supreme Court.

Criminal Code Act 1983 (N.T.) ss.4, 154, 305

Justices Act (N.T.) ss.67, 121A

HEARING

SYDNEY
#DATE 26:9:1985

ORDER

1. The appeal be dismissed.
   
   Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This is an appeal from a judgment of the Supreme Court of the Northern Territory (Nader J.) in which he dismissed an appeal from a sentence imposed by a magistrate of that Territory. His Worship had with the consent of the parties exercised a discretion to deal summarily with an indictable offence (Justices Act (N.T.) s.121A), and the appellant had pleaded guilty before him. He was represented by counsel.

The charge was laid under sub-secn.154(1) of the Criminal Code Act, 1983 (N.T.) which is as follows:

"(1) Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years."

Sub-section (4) is relevant:

"(4) If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years."

The appellant had set alight to a caravan owned by himself, apparently jointly with his de facto wife, which was at the time in a caravan park at Darwin. There seems no doubt that this was done in a state of emotional reaction from a dispute he had had with the lady in question. The degree to which he was then under the influence of alcohol is a matter to which I will return. He was sentenced to a term of two years imprisonment, but it was directed that he be released after three months, upon entering into a recognizance. I understand that he has served two weeks in goal, but has otherwise been on bail.

His plea was a formal admission of the ingredients of the offence. It did not follow of course that the magistrate was bound to enter a conviction (see Justices Act s.67 and sub-secn.121A(1B)). He might for example, in this case, have been in doubt whether the facts as presented to him showed that the offence as charged had been committed.

No evidence was called before the magistrate. Some facts were briefly stated by the prosecutor, but no statement by or record of interview with the defendant was produced. So far as concerned the serious potential danger, the prosecutor referred to the admitted fact that an L.P. gas cylinder was attached to the exterior of the van and said that if it had exploded "it would have placed persons in the vicinity in danger of being injured". The cylinder did not explode. It appears from the statement of the defendant to the police, tendered in the Supreme Court with the rest of the record of interview with him, that there was little gas in the cylinder at the time, and that what there was might have been expected to escape slowly when the caravan stove was burnt in the fire.

Relevant questions and answers were as follows:

"Q.94 Can you tell me if any persons safety was endangered by the fire that destroyed the caravan.
A. I dont think so.

Q.95 Can you tell me if there was a L.P. gas cylinder attached to the caravan.
A. Yes, there was, I did'nt realise what I had done until I arrived at my friends place, then I started to think.
Q.96 Can you tell me what may have happened if that gas cylinder had of (sic) exploded due to the fire.
A. It would have been like a bomb.

Q.97 In the event that the cylinder did explode, in your opinion, would any persons that may have been in the area at the time been injured.
A. I'd say there would be a fair chance, I did'nt think any one would be hurt, I did'nt realise that the caravan would go up so quick.

Q.98 Did you see any other people in the vicinity of your caravan after having ignited the van and left to see Bill McDermott.
A. No.

Q.101 In your opinion, was there a possibility of harm coming to other residents in the area as a result of your actions.
A. No.

Q.102 When you realised that there was a gas cylinder at the van, what did you do.
A. I was at my friends place I become worried it might have exploded.

Q.104 Did you make an attempt to remove the cylinder at some stage.

A. No. I dont think the cylinder would have exploded because when the caravan burned the stove would have burned to (sic) and released the gas, I think."

The magistrate did not have these questions and answers before him, except that some were reflected in what counsel said. Defendant's counsel said that his client had said that there wasn't very much gas in the L.P. cylinder "and they are fairly secure your Worship they really do need something to go wrong with them before they go up." In sentencing the defendant the magistrate said:

"As a coroner I have dealt too with caravan fires, and I don't believe it is only the LP gas which is the cause of danger. Aluminium caravans, when they are on fire, assume a personality of their own, they send out sparks, they send out noxious odours, if there's any sort of wind, not noxious odours, noxious fumes, with any sort of wind there can be all sorts of problems. Annexes catch fire, people protect their caravans, I'm not saying Anna Roula does at the moment, but many caravan parks in the city in the past have protected themselves with banana plants, which to (sic) up like torches. What you did was an extremely dangerous and foolish act."

There was no direct evidence of anyone being in the vicinity at the time, indeed the sparse evidence was to the contrary. As the fire was lit at about 8.30 p.m. it may have been possible to infer, provided a proper basis of information existed, that there were some who were potentially in danger. The magistrate seems to me to have acted on his own appraisal, based on his own knowledge or experience.

The unsatisfactory nature of the evidence relative to the serious danger caused Nader J. some concern, and he was at one stage disposed to remit the matter to the magistrate (see para.177(2)(d) of the Justices Act). After consideration, he was against this course because, as he said, that would in effect give the prosecution a second chance - "I think the prosecution has, in reality, had its opportunity." He was of the view that "the facts alleged by the prosecution weren't precise enough as to just what the potential danger was." He added "I suppose, for that reason, there's some substance in what Mr Fitzgerald says, that this is one of those cases where the only version of the facts upon which the magistrate could act would be a version most favourable to the accused, because on the lack of the evidence the only thing the magistrate could do would be to say well, there is a formal admission of the facts necessary to constitute the offence, but little, if any, more than that."

The comments which I have quoted, although seemingly more than tentative observations, were made by his Honour in the course of discussions with counsel. When delivering judgment later, he said, in relation to the danger, and what the magistrate had said about it:

"In relation to the LP gas I rather think that the remarks are equally capable of indicating that he was playing it down rather than playing it up. He didn't say, in particular, that the LP gas was a particular source of danger. Indeed, he tends to pass over that as if it were not a particular source of danger, but makes some remarks which the Crown says, and with which I agree, indicate that the magistrate rather regarded setting fire to caravans in a caravan park as being manifestly dangerous.

That sort of offence is in my judgment of the situation serious. You cannot allow people to set fire to caravans in a caravan park. The potential danger is obvious to the point where it doesn't need a specific evidence.

It is true that no particular danger was pointed to, and for that reason His Worship would have fallen into error if he had been specific about some aspect of the danger. He hasn't done that. The danger is clearly the danger inherent in setting fire to a caravan in a caravan park. Sparks can fly, inflammable matter can blow around. One doesn't know what was contained in any of the other caravans, if there had been a piece of burning debris which might have landed on another caravan and set fire to it, there might have been someone in it, there might have been inflammable liquids in another caravan, metholated (sic) spirits or petrol. The potential danger is all that was admitted by the plea, and the potential danger as far as I can see is all that the magistrate addressed himself to."

I must say that I find this treatment of the danger aspect to be unconvincing. The starting point may have been the plea of guilty, but a magistrate, before sentencing, must be satisfied that there is material supporting the plea, and he must have a reasonably precise knowledge of the facts constituting the particular elements before he delivers sentence. What those facts are must appear unambiguously from the record. As has so often been said, if there is a dispute on a matter of significance, it must be resolved before the sentencing officer. In the present case, as the judge in effect found, the view the magistrate held as to the precise nature of the danger was unclear. The presence of the L.P. gas cylinder was explained at one point, but the effect of the caravan fire thereon was not shown, or stated, except in hypothetical terms. I do not think that a serious danger, within the meaning of sub-secn.154(1), was manifestly obvious from the stated facts.

Before his Honour, further material was introduced, and his Honour had reference to it. Notwithstanding this, and notwithstanding his Honour's difficulties with the expression by the magistrate of his conclusion in the matter of the danger, his Honour disallowed the appeal on the footing of finding no error in the magistrate's decision, and therefore not interfering with the exercise of the latter's discretion. It seems to me that in the circumstances all his Honour could do was to form a view on the material as it stood before him. In this connection he said that if it was left to him, he would have given a sentence "very very close" to that of the magistrate. Put another way, he would have imposed a different sentence.

There are two further matters which, taken with what I have been saying, in my view led to the whole sentencing process miscarrying. They both relate to the matter of intoxication. The first is factual. The offence is charged as having occurred on 24 February 1985, a Sunday. The information was laid on 26 February. The defendant was treated as having been intoxicated at the time, and his own account is that he was. Indeed, he said at one stage of the record of interview that he was drunk. The liquor which the material shows as having been consumed was beer, at the hotel (apparently on the Saturday), and 40 ounces of rum. The defendant interrupted the magistrate to say that he drank the rum on the Saturday:

"His Worship: You must have an alcohol problem if you could drink 40 ounces of Bundy and still be capable of doing it. You must have some sort of tolerance to alcohol, which is rather more than I hope most of the people in this court. . .

The Defendant: That was on Saturday night I drank that rum.

His Worship: And you did this on the . . .

The Defendant: Sunday night."

To say the least, there seems to have been some confusion in the evidence regarding the consumption of alcohol, and the degree of intoxication. The defendant's counsel seems to have addressed the judge on the footing that the drinking, including the consumption of the rum, took place on the one day, and so far as concerns the rum, just prior to the lighting of the fire in the caravan. The judge took into account "that he was drunk".

In many jurisdictions intoxication is a factor of possible mitigation. In the Northern Territory it is a matter of aggravation. Sub-section 154(4) of the Act is as follows:

"(4) If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years."

It is I think plain enough from the sub-section that intoxication is a "circumstance of aggravation" within the definition of that phrase in s.4. The sub-section does not create an offence. It seems to me to be a natural conclusion that, when dealing with an offence under sub-secn.154(1), the sentence should take account of the degree of intoxication by regarding the impact of the intoxication upon the offence. If a man who is very drunk commits a very minor breach of sub-secn.(1) (which is in extraordinarily wide terms) one does not add, say 4 years imprisonment to a term of one month, or impose a sentence of imprisonment for several years in addition to a recognizance to be of good behaviour.

It follows, in my view, that a person charged as was Mr Coggins did not necessarily face a term of 9 years imprisonment, even if sentenced in the Supreme Court. The statutory yardstick was not to be found simply by adding the two terms of 5 years and of 4 years. Yet both the judge and the magistrate referred more than once to 9 years as being the yardstick. Being dealt with by the magistrate, the maximum term of imprisonment which could be imposed was 2 years. This was in fact the term he decided upon. To gauge the imprisonment by reference to the 4 years referred to in sub-secn.(4) was wrong, unless it could be said that the aggravation by intoxication was maximal. Even then, there must be a due proportion between the sentence for the offence and the amount added or included for the aggravation. In this case matters depended upon a close knowledge of the level of intoxication, and of its causative or contributory effect. It seems to me that the material on this matter was conflicting and confusing.

There were I think errors both by the magistrate and the judge, sufficient to require us to consider the matter of sentence ourselves. There is however difficulty in deciding upon a sentence on the materials before us. There has not been any application to quash the conviction, and we have not heard argument on that matter. We must therefore give weight to the plea of guilty, and accept that the offence, in all its ingredients, was committed. The solution is not an easy one, but in view of the fact that the majority of the court is of the view that the appeal should be dismissed I shall not take the matter further, and will not dissent from the order they propose.

JUDGE2

The appellant appeals from a judgment of the Supreme Court of the Northern Territory given on 3 June 1985 dismissing an appeal from an order of a magistrate sitting in the court of summary jurisdiction on 1 April 1985 by which the appellant was sentenced to imprisonment with hard labour for a period of two years with a direction that, after serving three months, he be released upon giving security on his own recognizance in the sum of $1,000 to be of good behaviour for two years.

The appellant had pleaded guilty to a charge under s.154 of the Criminal Code that on 24 February 1985, at Darwin, he did an act that caused serious potential danger to the lives, health or safety of the public or any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done that act.

Particulars of the charge as amended during the hearing before the magistrate, were as follows:-

"you did set fire to a caravan situated at Annaroula Caravan Park. At the time of the offence (you) were under the influence of alcohol, an intoxicating substance, alcohol".

The facts giving rise to the offence can be stated shortly. For a number of years the appellant had been living with his de facto wife. In February 1985 they were living together in a caravan at Annaroula Caravan Park. The appellant had paid for the caravan but it is not clear whether it was owned by him or jointly by him and his de facto wife. His wife had spent the night of Friday, 22 February away from the caravan and the appellant. On the Saturday she told the appellant that she had slept with another man on that evening. They had an argument. She told him to pack his bags and go. He began to pack his bags, became emotionally upset, and went to the Berrimah Hotel where he consumed a large quantity of beer. He left the hotel at about 4.00 p.m. after having purchased a 40 ounce bottle of Bundy Rum. He returned to the caravan and drank the entire 40 ounces of rum. He was on his own. There is some confusion as to what happened thereafter. Before the Supreme Court, the appellant's counsel said that at about 8.30 p.m. the appellant finished packing and removed his possessions from the van, returned inside the van and ignited a newspaper. This caused the bedding in the van to burn as a result of which the entire van was eventually destroyed by fire. Saturday was the 23 February 1985. The appellant was interviewed by police on Monday, 25 February 1985.

While giving his reasons for sentencing the appellant, the magistrate said:-

"You must have an alcohol problem if you could drink 40 ounces of Bundy and still be capable of doing it. You must have some sort of tolerance to alcohol, which is rather more than I hope most of the people in this court . . .

THE DEFENDANT (the appellant): That was on Saturday night I drank that rum.

HIS WORSHIP: And you did this on the -

THE DEFENDANT: Sunday night."

The date alleged in the information was Sunday, 24 February 1985. This apparent inconsistency in dates was not explained to us.

After setting fire to the caravan, the appellant removed some of the property of his de facto wife. He attempted, in an ineffective way, to put the fire out. The Fire Brigade put out the fire. The caravan was some 20-30 feet away from the nearest caravan. Attached to the caravan was a 10 kilogram gas cylinder containing L.P. gas. It did not explode.

The appellant is 36 years of age. He has no prior convictions. He was in employment. He told the police everything that had happened in a fairly lengthy record of interview. The record of interview was not before the magistrate. It was before the Supreme Court on appeal but parts only of it were read out to the judge. The reason given by the appellant for his actions were that he was drunk and emotionally upset at the prospect of his relationship with his de facto wife breaking up.

In imposing sentence, the magistrate said that he would attach a further condition to the bond, that the appellant place himself under the supervision of a delegate of the Director of Correctional Services and obey all reasonable directions as to employment, residence, associates, reporting and counselling and treatment for alcohol. That condition does not appear in the certificate of conviction issued by the assistant clerk of the court.

Section 154 of the Criminal Code reads:-

"(1) Any person who does or makes any act or omission that causes serious danger, actual or potential, to the lives, health or safety of the public or to any member of it in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done or made that act or omission is guilty of a crime and is liable to imprisonment for 5 years.

(2) If he thereby causes grievous harm to any person he is liable to imprisonment for 7 years.

(3) If he thereby causes death to any person he is liable to imprisonment for 10 years. (4) If at the time of doing or making such act or omission he is under the influence of an intoxicating substance he is liable to further imprisonment for 4 years."

Section 305 of the Criminal Code is contained in "Division 2 - Indictments" of "PART IX - PROCEDURE". Sub-section 305(4) provides:-

"If any circumstance of aggravation is intended to be relied upon it shall be charged in the indictment."

By reason of s.4 of the Criminal Code, unless the contrary intention appears, and there is no contrary intention in this case, the phrase "circumstance of aggravation"

"means any circumstance by reason of which an offender is liable to a greater punishment than that to which he would be liable if the offence was committed without the existence of that circumstance;".

In the present case, pursuant to sub-s.305(4) of the Criminal Code, the indictment charged that the appellant was under the influence of an intoxicating substance, alcohol.

In giving his reasons for sentencing the appellant, the magistrate referred to the fact that under the first part of the charge, the maximum penalty was five years; that if the act caused grievous bodily harm, the maximum penalty was seven years; that if the act caused death, the maximum penalty was ten years and that if the person charged was under the influence of an intoxicating substance, the maximum penalty was increased by four years. Accordingly, he said that he had before him a person charged with an offence for which the Supreme Court could impose a term of imprisonment for nine years.

At the hearing before the magistrate, the appellant was represented by a solicitor. The appellant pleaded guilty to the charge and consented to the magistrate dealing with it. If the magistrate agreed to deal with it, the maximum penalty that could be imposed was two years imprisonment; see s.121A of the Justices Act.

The magistrate then referred to the danger that could have resulted from the fire which destroyed the caravan, even apart from the danger arising from the presence of the L.P. gas cylinder, and to the danger likely to arise from people trying to protect their caravans if they caught alight from the fire started by the appellant. He mentioned the alcohol problem of the appellant. He referred to his good record. He said that, because of the emotional condition of the appellant at the time, there was no element of deterrence in the sentence since persons emotionally upset would not be deterred by anything done by the magistrate. He said:-

"I do believe though, that I would not be paying lip service to the code if I didn't send you to gaol for some period."

He then imposed the sentence which is the subject of this appeal.

The appellant appealed to the Supreme Court. The appeal was an appeal by way of rehearing, though not a rehearing de novo. Messel v. Davern (1981) 9 N.T.R. 21. The Supreme Court had a discretion to admit further evidence; see Buckle v. Josephs (1983) 47 A.L.R. 787. In this case, the record of interview was tendered as evidence before the Supreme Court. Nothing turns on that further material. It should be noted, however, that there was no sworn evidence before the magistrate or the Supreme Court. Because of the plea of guilty, the normal practice was adopted of the prosecutor giving a summary of the facts and the legal representative making statements from the bar table. There are difficulties in this practice, as illustrated by this case, but at the same time the practical implications must be kept in mind.

The appeal from the magistrate was against the exercise of a discretion and the principles to be applied by the Supreme Court to an appeal from an exercise of discretion were applied.

In the Supreme Court Nader J. adverted to the difficulties that had arisen because of the way in which the matter had been conducted before the magistrate. He considered remitting the matter to the magistrate but, for reasons then given, did not do so. His Honour was concerned particularly by the material, or rather absence of material, as to serious potential danger to the lives, health or safety of persons being members of the public, resulting from the act of the appellant. The question of the lack of sworn evidence was not raised before us.

In his reasons for judgment Nader J. said that he did not think the magistrate had erred or that the magistrate had taken into account matters which he should not have taken into account. He said that the magistrate had regarded setting fire to caravans in a caravan park as being manifestly dangerous. He said that danger was serious and the potential danger was obvious and did not need specific evidence. To some extent, the plea of guilty had accepted that. His Honour said that it had been put to him that he should take into account as a mitigating factor the fact that, at the time, the appellant was drunk. On this matter, he said:-

"I do take into account that he was drunk but I'm bound by the Criminal Code now to take that into account as an aggravating factor. It is the factor which lifts the maximum penalty in this particular case from 5 years to 9 years, and it is against the background of a 9 year maximum that one has to look at this offence, and I can't see that the magistrate has erred in any way."

In this regard Nader J. applied sub-s.154(4) in the same way as the magistrate had. He then considered the circumstances of the offence and the factors in favour of the appellant. He referred to the "very short non-parole period for an offence of setting fire to what amounts to a dwelling, a very short non-parole period indeed". He held that there was no basis for interfering with what the magistrate did.

The appeal to the Federal Court is an appeal by way of rehearing, though again not a rehearing de novo; see para.24(i)(b) and s.27 Federal Court of Australia Act 1976. In the present case, the appeal involves an exercise of a discretion by the magistrate. The Federal Court must decide, in accordance with well known principles, whether the magistrate was in error in the way he exercised that discretion. In considering that matter, the Court has regard to what occurred before the magistrate, his reasons for exercising the discretion in the way he did, any additional material before the Supreme Court and the reasons for judgment of the Supreme Court.

The grounds of appeal to the Federal Court were:-

"1. That the learned trial judge failed to give due weight to the antecedents and prior good behaviour of the appellant.

2. The learned trial judge failed to give any weight or sufficient weight to the prospects of rehabilitation of the appellant.

3. That upon finding that imprisonment was the only appropriate punishment, the learned trial judge failed to give due consideration to suspending such sentence in its entirety.

4. That on two occasions, the learned trial judge confused the appellant's offence with a different and more serious crime which he referred to as 'setting fire to caravans and the like' and 'an offence of setting (fire) to what amounts to a dwelling' being descriptions of the offence of arson, which carries a penalty to life imprisonment, and wrongfully regarded this as an aggravating factor."

The submissions on behalf of the appellant were put in these terms:-

"1. The learned sentencing Magistrate and the learned appellant Judge ('the Courts below') failed to give due weight to the prospects of rehabilitation and/or the following mitigating circumstances:

1.1. The appellant had no prior criminal convictions.

1.2 The appellant had a good work record.

1.3 The offence was committed at a time of acute emotional pressure on the appellant.

1.4 The only property damaged by the offence was property paid for by the appellant and either owned by him or jointly owned by him and his de-facto wife.

1.5 The appellant had immediately shown remorse, and had attempted (albeit ineffectually) to minimise the damage.

2. Having determined that a sentence of imprisonment was the appropriate punishment, the Court below failed to give due consideration to suspending the operating of such sentence of imprisonment in its entirety.

3. In assessing the potential danger of the appellant's conduct, the courts below failed to consider the provisions of the Caravan Parks Act and the Dangerous Goods Act, and regulations made thereunder.

4. In the absence of any evidence as to the propensity of an L.P. gas bottle to explode in the circumstances of the offence, the Courts below erred in assuming that such a danger was significant.

5. In dealing with the matter, the Courts below regarded the appellant as having been convicted of an offence more serious than that of which he had actually been convicted and accordingly failed to consider the appropriate sentence on the basis of the offence to which the appellant had pleaded guilty. 6. The Courts below interpreted s.154(4) of the Criminal Code as requiring them - as a matter of law - to regard the circumstances of the appellant's intoxication at the time of the offence as being necessarily an aggravating circumstance."

There is no substance in the submissions numbered 1. and 2. The material shows that the courts below did consider all those matters. The weight to be given to them was for the magistrate. It is not for this Court to exercise its discretion in regard to those matters. The grounds of appeal numbered 1., 2. and 3. are not made out. It cannot be said that the sentence imposed is so manifestly unjust that error must have occurred.

The ground numbered 4. and the submissions numbered 3., 4. and 5. can be dealt with together.

The plea of guilty means that the appellant admitted each and every element of the charge laid against him, namely that the act of setting fire to a caravan in a caravan park was an act that caused serious potential danger to the lives, health or safety of the public or some member of it, in circumstances where an ordinary person similarly circumstanced would have clearly foreseen such danger and not have done that act, and that at the time of the offence he was under the influence of an intoxicating substance. In the present case there is a difficulty because of the absence of evidence directed to the nature, extent and degree of danger to the lives of members of the public and to the nature and degree of the intoxication of the appellant. But the appellant has not challenged his conviction.

It is true that, during the proceedings in the courts below, reference to the existence of the L.P. gas was made; but a reading of the reasons for judgment of the magistrate and Nader J. makes it abundantly clear that each had regard only to the danger arising from the burning of the caravan itself. Neither placed reliance on the danger of the L.P. gas cylinder exploding, but the presence of the cylinder was a fact that could not have been ignored. In fact, one of the reasons expressed by Nader J. in refusing to remit the matter to the magistrate was to prevent the prosecution from having a second go, as it were, by leading evidence as to the propensity of danger arising from the fire. In this regard, the provision of the Caravan Parks Act and the Dangerous Goods Act are irrelevant.

The reference to the word "dwelling" in the reasons for judgment of Nader J. has been set out above. From its context, it is clear that his Honour did not have in mind the offence of arson which carries a penalty of life imprisonment. In its context, the reference was to the fact that the caravan was being used as a dwelling and that three months was in that context a short non-parole period.

The appellant has not made out a case based on ground of appeal numbered 4. and submissions numbered 3., 4. and 5.

The submission numbered 6. raises questions of law as well as of fact. In the passage from the judgment of Nader J. set out above, his Honour used the expression "aggravating factor" in relation to the intoxication of the appellant. It is clear that those words should be read as "circumstance of aggravation" as defined in the Criminal Code and as used in sub-s.305(4) and applied by sub-s.154(4). His Honour used that circumstance of aggravation as showing that the maximum penalty that could be imposed by the Supreme Court following a conviction under sub-s.154(1) was nine years. This is consistent with general principle; see for example, Howard, Criminal Law 4th Ed. pp.121-122 where the author refers to circumstances of aggravation in which a greater penalty may be imposed, particularly with respect to assault.

Section 154 is part of the new Criminal Code. It is apparent that difficulties will arise in its construction and application in particular cases. These difficulties will arise not only under sub-s.(1) but also under sub-s.(4). It is apparent that sub-s.(4) does not create a separate and distinct offence from the offences created by subs-ss.(1), (2) and (3). In this regard, see Buckle v. Josephs supra. When a plea of not guilty is entered to a charge where sub-s.(4) is included in the indictment, apart from difficulties relating to questions of proof, other difficulties arise when considering what penalty should be imposed. If, on ordinary principles, a penalty of three years should be imposed for an offence under sub-s.(1), should a greater penalty be imposed if at the time of the offence sub-s.(4) was applicable? Likewise with respect to non-parole periods. What factors are relevant in considering intoxication in this regard? What is to happen if, upon a plea of not guilty, all the elements of a charge under sub-s.(1) are proved, but the elements under sub-s.(4) are not proved? See Howard, above, at p.122 and some of the authorities cited therein. All these matters, and no doubt many more, will need to be determined when they arise.

For the purposes of the case presently before the Court, having regard to the plea of guilty by the appellant, his representation by counsel and the absence of any sworn evidence, neither of the courts below was wrong in law in applying s.154 of the Criminal Code in the manner it did. Each considered the maximum penalty that could have been imposed by the Supreme Court was nine years. Each considered the maximum penalty that could be imposed in a court of summary jurisdiction was two years.

In all the circumstances the appellant has failed to establish any error by the magistrate or by the Supreme Court. Accordingly, the appeal should be dismissed.