Damon Reardon v Stephen Matthew Dzido, Dale Richard Brian Ohlmus and Mitchell Scott Pavletich
[2013] ACTSC 197
•6 September 2013
DAMON REARDON v STEPHEN MATTHEW DZIDO, DALE RICHARD BRIAN OHLMUS AND MITCHELL SCOTT PAVLETICH
[2013] ACTSC 197 (6 September 2013)
APPEAL – Appeals from the Magistrates Court – appeal against sentence – appeal on the ground of manifest excess – appeal conceded
TRAFFIC LAW – Offences – imposition of penalties – comparison of fine and community service – relevance of the mathematical equivalence of fine to community service expiation rate – not appropriate to be used
CRIMINAL LAW – Sentencing – principle of totality – importance of
Crimes (Sentence Administration) Act2005 (ACT), Pt 6A, s 116ZG
Magistrates Court Act 1930 (ACT), Pt 3.10, Div 3.10.2, ss 120, 216
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1), 26, 32
Road Transport (Driver Licensing) Act 1999 (ACT), ss 13, 32
Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 6(1)
Road Transport (Vehicle Registration) Act 1999 (ACT), s 22
Australian Road Rules, r 20
Road Transport (Offences) Regulation 2005 (ACT), Pt 1.2 of Sch 1
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Cotter v Corvisy (2008) 1 ACTLR 299
Foote v Dixon (2013) 8 ACTLR 65
Geard v Fletcher [1987] TASSC 113
Godfrey (1993) 69 A Crim R 318
Hussaini v Szolnoski [2013] WASC 64
Leering v Nayda (Unreported, Supreme Court of the Northern Territory, Kearney J, 23 January 1997)
Meschino v Police [2003] SASC 258
Mill v The Queen (1988) 166 CLR 59
Nieto v Mill (1991) 55 SASR 379
Pearce v The Queen (1998) 194 CLR 610
Quinn v Crawford [1988] TASSC 105
R v De Simoni (1981) 147 CLR 383
R v Jurisic (1998) 45 NSWLR 209
R v Meyboom [2012] ACTCA 48
R v Perre (1986) 41 SASR 105
R v Verdins (2007) 16 VR 269
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 40 of 2013
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 September 2013
IN THE SUPREME COURT OF THE )
) No. SCA 40 of 2013
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DAMON REARDON
Appellant
AND:STEPHEN MATTHEW DZIDO
DALE RICHARD BRIAN OHLMUS
MITCHELL SCOTT PAVLETICH
Respondents
ORDER
Judge: Refshauge J
Date: 6 September 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld and the sentences imposed by the learned Magistrate be set aside.
On the charge of speeding, Mr Reardon be required to sign an undertaking to comply with the offender’s good behaviour order obligations under the Crimes (Sentence Administration) Act2005 (ACT) for a period of 6 months from today.
On the charge of negligent driving, Mr Reardon be required to sign an undertaking to comply with the good behaviour conditions of the Crimes (Sentence Administration) Act for a period of 12 months from today.
On the charge of driving while suspended, Mr Reardon be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months today, with a condition that for 12 months or such lesser period Mr Reardon be on probation subject to the supervision of the Director-General or her delegate and obey all reasonable conditions of the person delegated to supervise him.
On the charge of driving with a prescribed concentration of alcohol, Mr Reardon be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months from today, with a condition that for 12 months or such lesser period as the person delegated to supervise him may determine, you be on probation, subject to the supervision of the Director-General or a person delegated by her and obey all reasonable directions of the person delegated to supervise him.
On the charge of driving whilst suspended in March, Mr Reardon be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months from today, with a probation condition for 12 months or such lesser period as the person delegated to supervise him may direct, that he be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise him.
For the charge of driving a vehicle with number plates issued for another vehicle, Mr Reardon be required to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 3 months from today.
For the first offence of driving while suspended, Mr Reardon be suspended from holding or obtaining a licence for a period of 1 month.
For the driving with a prescribed concentration of alcohol, Mr Reardon be prohibited from obtaining or holding a licence for a period of 1 month from today.
For the second offence of driving while suspended, Mr Reardon be prohibited or disqualified from holding a licence for a period of 3 months to be concurrent with the other 2 licence disqualifications.
Damon Reardon, the appellant, was charged by police with six traffic offences committed between 11 September 2012 and 2 March 2013. At the time he had no prior criminal record. On 23 May 2013 he appeared before the Magistrates Court and entered pleas of guilty to all the charges.
It became clear during the sentencing proceedings that he had a significant number of outstanding penalties, presumably due under infringement notices. It was submitted that fines therefore would be inappropriate. The learned Magistrate convicted Mr Reardon of all charges and made a series of good behaviour orders for a total period of twelve months.
Some of the good behaviour orders included a probation condition, a condition that he attend “such educational, vocational, psychological, psychiatric or other programs and counselling, as directed”, and a further condition that he perform community service work which amounted in total to 180 hours. He was also disqualified from holding a driver licence for a total period of seven months.
Mr Reardon has appealed against the sentence then imposed on the grounds that his Honour failed to give any or any sufficient regard to the principle of totality and that the sentences were manifestly excessive in all the circumstances.
JURISDICTION
This Court has jurisdiction under Pt 3.10 of the Magistrates Court Act 1930 (ACT) (the Magistrates Court Act) to hear and determine appeals from the Magistrates Court. Division 3.10.2 regulates appeals such as appeals against sentences, as this appeal is.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I apply them in this case.
In summary, the sentences imposed in the Magistrates Court are not to be set aside simply because I, on hearing the appeal, conclude that I might have imposed a different sentence. I may uphold the appeal and substitute a sentence for the original sentence if I am satisfied that the exercise of the sentencing discretion in the Magistrates Court was affected by a specific error, but only if I, in re-exercising the sentencing discretion, consider that a different sentence is appropriate.
Specific error is maybe errors of law, errors of fact, taking into account irrelevant or extraneous considerations, or failing to take account of relevant or material considerations. If I find specific error but the original sentence nevertheless appears to be appropriate, I should dismiss the appeal whether than allow the appeal and reimpose the same sentence.
Even if I cannot identify a specific error I may uphold the appeal, and substitute another sentence for the original sentence if I find the sentence to be manifestly excessive, unreasonable, plainly unjust or plainly wrong.
Under s 216 of the Magistrates Court Act, the filing of a Notice of Appeal stays the enforcement of the sentence or penalty the subject of the appeal. That often has to be addressed at the conclusion of the appeal.
THE FACTS
The first offence arose out of Mr Reardon driving on William Hovell Drive, Belconnen, on 11 September 2012. He was measured by an “averaging speedometer” to have maintained a constant speed of 96 kilometres for about 10 seconds. The speed limit for the area was 80 km/h.
Police stopped the vehicle and spoke to Mr Reardon. In addition to speaking to him about his speeding, the police officer drew his attention to the fact that his licence had been suspended in March 2012. It appears that he had earned demerit points (s 13 of the Road Transport (Driver Licensing) Act 1999 (ACT)) when he was served with infringement notices (s 120 of the Magistrates Court Act) earlier.
No action was taken in respect of his suspended licence. The prosecution, however, relied on that conversation in relation to later offences to show that he was aware that his licence had been suspended.
On 6 October 2012, Mr Reardon was involved in a motor vehicle accident. He turned in to Beaurepaire Crescent from Southern Cross Drive, Holt, and said he looked away for a moment and his motor vehicle collided with the rear end of another motor vehicle that had stopped in preparation for turning right into a driveway.
As a result of the impact of the collision the vehicle into which Mr Reardon's car had collided was pushed into the opposite lane of Beaurepaire Crescent in front of another vehicle, which had to take evasive action in order to avoid having a head-on collision, though it made minor contact with the vehicle. Mr Reardon believed that he blacked out following the collision. Police and an ambulance attended at the scene of the accident and Mr Reardon was charged with negligent driving and driving whilst his licence was suspended by law.
On 2 March 2013, Mr Reardon was driving along Stump Jump Crescent in Dunlop when he was stopped by police. When asked to produce his licence he said that he did not have one. He was subjected to a roadside screening test showing that he had recently drunk alcohol and was taken into custody to Belconnen Police Station for the purpose of breath analysis. He underwent breath analysis and returned an alcohol concentration of 0.036 grams of alcohol per 210 litres of exhaled breath (level 1).
It was also noted that affixed to the motor vehicle which he was driving were number plates that were properly issued to another vehicle. He was charged with driving with a prescribed concentration of alcohol, driving whilst his licence was suspended by law, and driving a vehicle to which the number plates were properly issued to another vehicle.
THE PROCEEDINGS
In relation to these matters he first appeared in court on 14 December 2012. The matters were adjourned from time to time, no doubt as the additional charges were laid. On 5 April 2013 he pleaded not guilty to the charge of speeding, but changed that to a plea of guilty on 2 May 2013. On the other charges he pleaded guilty on 5 April 2013.
Mr Reardon maintained his pleas of guilty to all charges and was sentenced on 23 May 2013. Mr Reardon's counsel tendered a report from the clinical director of the Black Dog Institute, Dr Paul Friend, a letter from Dr Eryn Davies, clinical psychologist, and a GP Mental Health Care Review dated 21 February 2013.
After the facts had been read by the prosecutor, the learned Magistrate sought an assessment for community service. A report was received shortly, after which assessed Mr Reardon as suitable for a community service work condition to a good behaviour order.
SUBJECTIVE CIRCUMSTANCES
Mr Reardon was born in 1990. It appears that he has suffered depression from age 6. At times he has recurring periods of severe depression. Mr Reardon also has periods of elevated mood when he feels “above the world”, he is “positive and confident, and his thoughts are fast.”
His parents ended their relationship when he was aged 3. He has an older half-brother from his father's first marriage and a sister from his parents' relationship. His father, in fact, has five children from a subsequent marriage and his mother four children from a subsequent relationship. Mr Reardon lived with his mother after his parents separated. His mother re-partnered, and he and her partner and various cousins were very violent towards him. When he was aged 10, his father obtained custody and he lived with his father until he turned 20.
He left school in Year 11 and subsequently completed 11 months of a carpentry apprentice. He worked as a removalist and has had other jobs. He recently started an apprenticeship as a floor and wall tiler, work that he finds enjoyable because there is a frequent change in type and location of jobs.
He has impaired literacy and poor handwriting, and finds it difficult to stick at many tasks, even tasks such as playing the game console which he enjoys.
It appears, Dr Friend opined, that Mr Reardon most likely has “Type II Bipolar Disorder.” In addition, he has long-standing symptoms consistent with attention deficit hyperactivity disorder.
While he has in the past fractured his knuckles, his toe and one elbow in various incidents, and had an appendectomy, tonsillectomy and adenoidectomy, he appears to be in good health. Mr Reardon is a non-smoker, rarely drinks alcohol and does not use illegal substances. He has an extensive regime of medication which apparently keeps his mental health issues under control, so long as he maintains his medication. He has been attending psychological therapy and has entered into a mental health plan with his general practitioner.
THE OFFENCES
Speeding at more than 15 kilometres but equal to or less than 30 kilometres above the speed limit is an offence under r 20 of the Australian Road Rules which, under Pt 1.2 of Sch 1 of the Road Transport (Offences) Regulation 2005 (ACT), attracts a maximum penalty of 20 penalty units, that is, a fine of $2,200. The penalty, when an infringement notice is issued, was at the time $261.
Driving whilst his licence is suspended by law is an offence against s 32(2)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) with a maximum penalty for a first offender of 50 penalty units, that is, a fine of $5,500 or imprisonment for 6 months, or both, and for a repeat offender, a maximum penalty of 100 penalty units, that is, a fine of $11,000 or imprisonment for 1 year or both.
Negligent driving is an offence against s 6(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) which, in the circumstances where the driving does not occasioned death or grievous bodily harm, provides a maximum penalty of 20 penalty units, that is, a fine of $2,200. The penalty when an infringement notice is issued for this offence was, at the time, $230.
Driving as a first offender special driver with a prescribed concentration of alcohol in his breath being level 1 is an offence under s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and s 26 provides for a maximum penalty of 5 penalty units, that is, a fine of $550. Under s 32(2) a default licence disqualification of 3 months with a minimum disqualification to which the court may reduce the disqualification period to 1 month.
Using a motor vehicle to which number plates were attached that were properly issued to another motor vehicle is an offence under s 22(1)(a) of the Road Transport (Vehicle Registration) Act 1999 (ACT), which provides for a maximum penalty of 20 penalty units, that is, a fine of $2,200.
THE SENTENCING
Mr Reardon’s submissions
Mr Reardon's counsel submitted to the learned Magistrate that the only reason the speeding charge was initially defended was that there was some uncertainty about the basis of the assessment of the speed on the statement of facts. Due to the margin of error of the equipment, it was thought that there may be a basis for reducing the charge to one where the range was less than 15 km/h over the speed limit. That proved not maintainable and a plea of guilty was entered. I do not consider that it is other than a plea which facilitates the course of justice, as with all the other pleas which were entered at an early stage.
As to the negligent driving charge, Mr Reardon's counsel submitted that it was a matter of momentary inattention rather than a degree of negligent driving over an ongoing course of conduct. That, it was submitted, puts the offence at the lower end of the offending. It was noted that both matters were matters that could be dealt with by infringement notices.
Mr Reardon's counsel submitted that he had bought the vehicle that day and was driving it just a few hundred metres to a friend's place in order to conduct repairs. He had bought the car in anticipation of ultimately regaining his licence or having the suspension lifted.
The learned Magistrate noted that there was a fair amount of damage that was occasioned in the collision and it was submitted that the only person who was injured was Mr Reardon. The ambulance attended due to his complaint of neck pain. He was not taken to the hospital by ambulance, although it was recommended that he attend hospital. The statement of facts did not disclose that any other persons were taken to hospital.
In relation to the drink-driving offence, Mr Reardon's counsel submitted it was towards the middle range of level 1. He said that Mr Reardon had instructed him that he had had one drink about 30 minutes before driving that was in the process of driving to his parents' residence to collect belongings.
He said that later that evening he attempted to commit suicide and was held at the Adult Mental Health Unit overnight, as he had not been taking his medication as required. He was provided with medication in the Mental Health Unit and had been taking his medication since that time.
Mr Reardon's counsel submitted that he was a full-time student undertaking a security course, being a Certificate II in Security and intending ultimately to undertake a Certificate III if possible. He is currently in receipt of Centrelink benefits and earns about $500 per fortnight. About $350 of that goes towards outstanding bills, including a mobile telephone contract, and outstanding electricity and gas bills. The rest of the money goes on food and other living expenses.
It was submitted that he has a very limited capacity to pay fines and, of course, he had $2,300 in penalties owing to the Road Transport Authority under various infringement notices. Arrangements had been made with his counsel to explore paying off the fines with weekly or fortnightly instalments or otherwise undertaking community service work in order to expiate them.
Mr Reardon's counsel noted the significant mood disorder with which he had been diagnosed and noted that one of the problems from his mental illness was an impaired decision-making capacity. It was submitted that he had taken the most recent offences as “a wake-up call”, given, at the time, he was not regularly taking his medication. That had changed. He continues to see Dr Davies, the clinical psychologist, and was intending to continue to see her as long as necessary.
Mr Reardon's counsel's initial submission was that a good behaviour order was appropriate, but recognised that his Honour had already obtained a community service work condition assessment as an indication of where his Honour was thinking the appropriate penalties would be.
Mr Reardon's counsel noted that this was the first occasion in which he had appeared before a court and, while it was a significant matter, it was in the circumstances a situation where significant leniency was able to be afforded to Mr Reardon, particularly given the diagnosis of his mood disorder and the insight gained more recently as to the need for not only appropriate treatment but continued treatment.
Mr Reardon's counsel also noted that he was a first offender and had not committed further offences after appearing in court. Reference was also made to the need to comply with the principle of totality and to take into account that the offences were, by and large, offences for which only fines were mandated.
Prosecution submissions
Counsel for the prosecution did not wish to be heard but confirmed that Mr Reardon was a first offender.
The Magistrate’s sentence
The learned Magistrate adjourned briefly and then proceeded to sentence Mr Reardon. After setting out the facts, his Honour noted the brief subjective circumstances that had been identified and acknowledged that Mr Reardon taking his medication may be a reason for the commission of the offences, as it interfered with his mood and in particular his ability to make appropriate decisions.
His Honour held, however, in relation to driving while suspended, Mr Reardon had opportunities to decide not to drive and proceeded to drive knowing full well that he was not permitted to do so. This was despite the fact that police had informed him that his licence had been suspended.
His Honour noted that he was a full-time student, but was available to perform community service at the weekends. His Honour noted that Mr Reardon was “somewhat financially constrained” and that “imposing substantial fines or any fines, would interfere with his continuing capacity to pursue his studies”. His Honour noted that he had pleaded guilty and took that into account, especially as the plea was made at the earliest opportunity. Accordingly, he reduced the penalties he would otherwise have imposed.
In respect of the speeding offence, he convicted Mr Reardon and made a good behaviour order for a period of 12 months with a probation condition. In relation to driving negligently, his Honour took the view that Mr Reardon’s “action on that day can’t really be fully explained by inadvertence.” His Honour thought that it was “very careless”. He convicted Mr Reardon and made a good behaviour order for 12 months with a community service work condition for 36 hours to be completed within 12 months.
As to the driving whilst disqualified, his Honour made a good behaviour order for 12 months with a probation condition and a condition that he attend such educational, vocational, psychological, psychiatric or other assessment, programs and counselling as directed. He disqualified Mr Reardon from holding or obtaining a driver licence for 1 month.
In relation to the drink-driving offence, he convicted Mr Reardon and disqualified him from obtaining a licence for a period of 3 months. He made a further good behaviour order for 12 months which included an obligation to perform 36 hours of community service within 1 year, cumulative on the earlier community service work condition.
In relation to the charge of using a motor vehicle with incorrect number plates attached, he convicted him and made a good behaviour order for 12 months with a probation condition and a condition about attending various assessments, programs and counselling as directed.
In relation to the second charge of driving with a suspended licence, his Honour made a good behaviour order with a community service work condition of 108 hours to be completed within 12 months. He made that condition also cumulative. He also disqualified him from holding or obtaining a licence for 3 months.
THE APPEAL
As noted above (at [4]), Mr Reardon appealed against the sentences on the ground that
(a) his Honour failed to have any or any sufficient regard to the principle of totality, and
(b) the sentences were manifestly excessive in all the circumstances.
Mr Reardon's counsel referred to the principle of totality set out in Mill v The Queen (1988) 166 CLR 59 at 62-3, where the High Court said:
The totality principle is a recognized principle of sentencing formulated to assist a court when sentencing an offender for a number of offences. It is described succinctly in Thomas, Principles of Sentencing, 2nd ed. (1979), pp. 56-57, as follows (omitting references):
The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is 'just and appropriate'. The principle has been stated many times in various forms: 'when a number of offences are being dealt with and specific punishments in respect of them are being totted up to make a total, it is always necessary for the court to take a last look at the total just to see whether it looks wrong[']; 'when ... cases of multiplicity of offences come before the court, the court must not content itself by doing the arithmetic and passing the sentence which the arithmetic produces. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences'.
In R v Meyboom [2012] ACTCA 48 at [66]-[69], the Court of Appeal said:
66.Whether a total sentence for multiple offences is inadequate or excessive must relate to an obvious inconsistency between the length of the total sentence and the totality of the offender’s criminal behaviour, assessed by reference to all relevant objective and subjective circumstances. That is the test for manifest inadequacy or excess.
67.If the individual sentences have been appropriately set, then any inadequacy or excess might have resulted from the way in which they were accumulated or made concurrent, though there may have been no identifiable error in the application of the accumulation or concurrency principles. The inadequacy or excess is, then, more likely to have been a result of the application of the principle of totality, which is applied as a ‘last look’ after the setting of the individual sentences and the application of, inter alia, the accumulation and concurrency principles.
68.While the failure to apply the accumulation and concurrency principles correctly will increase or decrease the length of the sentence, it will not necessarily make it manifestly excessive or manifestly inadequate. We leave for another day whether such an error is a specific error which requires appellate intervention.
69.The issue here is that the question whether the sentence is manifestly inadequate is not answered by asking whether the sentences have been appropriately accumulated; as the plurality held in Johnson v The Queen (2004) 205 ALR 346 (Johnson) at 356; [26], the total sentence is not the only matter to which a sentencing court must have regard. Whether the sentence is manifestly inadequate, however, can only be answered by assessing whether the totality of the sentence adequately reflects the total criminality of the offending, having regard to the objective circumstances of the offences and the subjective circumstances of the offender.
Mr Reardon's counsel submitted that the facts in each matter were unremarkable, though the offence of driving while Mr Reardon's licence was suspended was aggravated by the accompanying offences of driving negligently in one case and driving with a prescribed concentration of alcohol in another. I am not sure that that submission is one to be accepted. That seems to me to offend against the principles enunciated in Pearce v The Queen (1998) 194 CLR 610 at 623; [40], where the Court said:
To the extent to which two offences of which an offender stands convicted contains common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn.
Later the Court said:
A judge sentencing an offender for more than one offence must fix and appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.
In addition, it is necessary to have regard to the principles in R v De Simoni (1981) 147 CLR 383, which requires an accused to be sentenced only for the offence or offences charged, excluding consideration of any part of the accused's conduct that could have been charged separately. In traffic matters this has been followed, for example, by Geard v Fletcher [1987] TASSC 113, where Underwood J pointed out (at [12]) that, on a charge of speeding:
An inference that the manner of driving was negligent or dangerous is not relevant to the sentencing process. Taking into account such an inference when determining penalty would amount to taking into account matters which would warrant convictions for graver offences and which are not necessary elements of the offence charged.
See also Quinn v Crawford [1988] TASSC 105.
Mr Reardon's counsel also submitted that the level of negligence which was momentary inattention was at the lower end of seriousness. That submission must be accepted. See R v Jurisic (1998) 45 NSWLR 209 at 231.
The learned Magistrate, however, said:
I take the view that your action on that day can’t really be fully explained by inadvertence, simply. It was very careless of you to drive into the back of the other car at speed, pushing it into an oncoming line of traffic, and it demonstrates to me that you are not paying proper attention to your manner of driving at the time.
A court can reject a version of events given by an accused person even if not challenged by the prosecution, as was noted by King CJ in R v Perre (1986) 41 SASR 105 at 106.
It is not clear to me, however, that his Honour did not accept Mr Reardon's version of the events and I cannot see how any of what his Honour described is inconsistent with momentary inattention. Indeed, it seems to me quite consistent.
In the circumstances, however, his Honour imposed a relatively modest penalty.
Correctly, Mr Reardon's counsel pointed out that contumacy and repetition were aggravating features. See Cotter v Corvisy (2008) 1 ACTLR 299 at 308-9; [43].
Correctly also, Mr Reardon's counsel submitted that the circumstances of the offending are still relevant, though it is not clear to what circumstances he was actually referring.
Nevertheless, the circumstances of the offender are important. Here Mr Reardon did not have a prior criminal record, although apparently he had received a number of infringement notices. He was a young man, 22 years old at the time of the earlier offences, and 23 at the time of the most recent offences. It is clear that he has been diagnosed with bipolar disorder and his financial circumstances were such that he could not realistically pay a fine.
Mr Reardon's counsel also referred to the provisions of Pt 6A of the Crimes (Sentence Administration) Act 2005 (ACT) which provides a legislative basis for the enforcement of court fines. Under the arrangements, community work orders can be made for fine defaulters. Mr Reardon's counsel pointed out that an outstanding fine is discharged at the rate of $37.50 an hour (s 116ZG of the Act). He pointed out that applying this approach for the drink-driving offence, for example, where the maximum penalty is a fine of $550, the rate would equate to 14 hours and 40 minutes rather than the 36 hours that was imposed. The period of 36 hours of community service actually imposed would equate to a fine of $1,350.
When the appeal came on for hearing, the Crown conceded the appeal, and accepted that there had been a breach of the principle of totality and that the sentences were, in all the circumstances, manifestly excessive.
Nevertheless, I must be satisfied that there is an arguable appealable error in the decision of the learned Magistrate before my jurisdiction to interfere is enlivened: Foote v Dixon (2013) 8 ACTLR 65 at 68-9; [17]-[20].
Although offences against the road rules and the Road Transport legislation are generally and rightly described as traffic offences, they are still formidable offences and can attract severe penalties, including imprisonment. Though many of them are regulatory offences, they are all designed to regulate the movement of vehicles. Moving vehicles have the potential to compromise the safety of those in them and others around them, leading to serious injury or even death, hence the need for regulation and the obligation of the courts to ensure that the regulations are imposed.
Nevertheless, as with every sentence, any sentence imposed must be just and must be proportionate to the offences that were actually committed. It has long been a principle of the law that the means of an offender are important, particularly when setting levels of fine as a penalty for imprisonment. See Hussaini v Szolnoski [2013] WASC 64 at [26]-[29].
In this case, however, because Mr Reardon was unable realistically to pay any fines, it was suggested that a community service order would be appropriate. That seems to me not to be an inappropriate approach, given, in particular, that the Crimes (Sentence Administration) Act provides for a regime where fines can be expiated by the performance of community service work before the ultimate sanction of imprisonment is imposed.
Nevertheless, there are problems about how to compare a fine and community service. In Nieto v Mill (1991) 55 SASR 379 at 384, Legoe J said:
By reason of the different and separate provision for community service orders which can now be ordered independently of a recognizance or bond parallel to a suspended sentence, I consider that cases decided under the repealed Act do not provide a guide to the sentencing principles to be applied when a separate community service order has been made for an offence or number of offences.
In Holdsworth v Larcombe [(1987) 44 SASR 294] (at 296), Olsson J laid down certain practical guidelines for structuring a multifaceted sentencing package as he was considering in that case. Point 3 of those guidelines suggest that due regard should be had:
‘to the practical impact of the quantum of the community service order. Whilst it is not directly to be equated with a fine equivalent to the monetary value of work performed, nevertheless it is useful to bear that aspect in mind in assessing its impact - the more so as such work is often, if not usually, performed on the weekend.’ [emphasis original]
It is true, as Kearney J said in Leering v Nayda (Unreported, Supreme Court of the Northern Territory, Kearney J, 23 January 1997) at [35], that a community service condition is “not a lenient sentencing option”. Indeed, as Olsson J said, performing community service work at the weekend can interfere with the ordinary incidents of living of an offender.
It is necessary, however, as Legoe J also noted in Godfrey (1993) 69 A Crim R 318 at 320, to determine whether a community service order is purely punitive or deterrent, or whether there are rehabilitative elements to it as well.
In Meschino v Police [2003] SASC 258, Perry J exhorted the courts to be consistent in matters where community service orders were imposed in relation to matters that would otherwise be dealt with by fines in circumstances such as this.
It seems to me that while the imposition of the community service order instead of a fine may be because an offender is unable to pay the fines to circumstances such as those faced by Mr Reardon, it is not appropriate to use a mathematical equivalence between the fine that might have been imposed and the community service.
On the other hand, it is clear that the legislative imperative set out in Pt 6A of the Crimes (Sentence Administration) Act shows that the courts ought to have regard to the amount that can be expiated from a fine to community service when setting a community service and recognise that community service is a more severe penalty ordinarily than that imposed by a fine.
Having regard, then, to the penalties that were possible under the fines that could be imposed and, in many cases, only imposed without any possibility of imprisonment, in this case it does seem to me that the amount of community service work was excessive.
In addition, it seems to me that it was important to take into account the circumstances of Mr Reardon. In Dr Friend's report he said:
Even now he finds it difficult to stick at many tasks, including playing the PlayStation which he enjoys and he is easily bored when watching television. Listening to music helps him to stick at tasks.
It seems to me that it is likely that that would be a matter that would affect his capacity to undertake community service work. In R v Verdins (2007) 16 VR 269 at 276, the Court of Appeal in Victoria noted that a person’s mental health was to be taken into account and set out the range of circumstances for that. Included in that range was the effect that the mental health of an offender would have or may have upon the way in which the sentence would be served.
In all the circumstances, I consider that the sentences imposed by the learned Magistrate were excessive and in totality they exceeded the total criminality. His Honour did not indicate that he had considered totality and reflected on the total sentence that was imposed in the circumstances. Accordingly, the sentences need to be set aside.
RE-SENTENCE
One of the difficulties is that, before Mr Reardon lodged the Notice of Appeal and by which the sentences were stayed (s 216 of the Magistrates Court Act), he had completed 36 hours of the total community service order component of the sentence. Since then, although technically the sentence was stayed, he has also performed a further 84 hours of community service.
In those circumstances, it seems to me that I should simply set aside the sentences and impose good behaviour orders alone from today and to structure them in a way that would be appropriate.
Had Mr Reardon not served that period of community service, it would have been appropriate, in my view, for community service to have been imposed on the charges of negligent driving, driving with a prescribed concentration of alcohol and driving while suspended. But I would have imposed many fewer hours to equate more closely to the likely fines that would have been imposed.
DISPOSITION
I uphold the appeal and I set aside the sentences imposed by the learned Magistrate.
On the charge of speeding, I require you to sign an undertaking to comply with the offender’s good behaviour order obligations under the Crimes (Sentence Administration) Act for a period of 6 months from today.
On the charge of negligent driving I require you to sign an undertaking to comply with the good behaviour conditions of the Crimes (Sentence Administration) Act for a period of 12 months from today.
On the charge of driving while suspended, I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months today, with a condition that for 12 months or such lesser period you be on probation subject to the supervision of the Director-General or her delegate and obey all reasonable conditions of the person delegated to supervise you.
On the charge of driving with a prescribed concentration of alcohol, I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months from today, with a condition that for 12 months or such lesser period as the person delegated to supervise you may determine, you be on probation, subject to the supervision of the Director-General or a person delegated by her and obey all reasonable directions of the person delegated to supervise you.
On the drive whilst suspended in March, I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 12 months from today, with a probation condition for 12 months or such lesser period as the person delegated to supervise you may direct, that you be under the supervision of the Director-General or her delegate and obey all reasonable directions of the person delegated to supervise you.
In relation to the number plates offence, I require you to sign an undertaking to comply with the offender’s good behaviour obligations under the Crimes (Sentence Administration) Act for a period of 3 months from today.
Mr Reardon, had you not already completed your community service order, there would have been community service conditions added to the count of negligent driving, driving with a prescribed concentration of alcohol and the second driving while suspended.
In relation to the first driving while suspended, I suspend you from holding or obtaining a licence for a period of 1 month.
For the driving with a prescribed concentration of alcohol, I direct that you be prohibited from obtaining or holding a licence for a period of 1 month from today.
For the second drive while suspended, I direct that you be prohibited or disqualified from holding a licence for a period of 3 months to be concurrent with the other 2 licence disqualifications.
I certify that the preceding ninety-seven (97) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 2013
Counsel for the Applicant: Mr M Toole
Solicitor for the Applicant: Legal Aid (ACT)
Counsel for the Respondent: Ms A Clarke
Solicitor for the Respondent: Director of Public Prosecutions (ACT)
Date of hearing: 6 September 2013
Date of judgment: 6 September 2013
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