Darren Cook v Michael John Lang
[2012] ACTSC 170
•1 November 2012
DARREN COOK v MICHAEL JOHN LANG
[2012] ACTSC 170 (1 November 2012)
APPEAL AND GENERAL PRINCIPLES – Interference with Discretion of Court Below – appellant initially charged with inappropriate offence because of unavailability of NSW information – appellant challenged charge – after further police investigation appellant charged with appropriate, more serious, offence – appellant pleaded guilty after 14 months and 10 court appearances, and on day of hearing – whether Magistrate erred in his treatment of plea of guilty – whether Magistrate erred in not giving any sentencing discount for appellant’s disclosure of information leading to new charge for more serious offence – appellant’s information did not disclose the commission of an unknown offence, or disclose his guilt of a known offence with an unknown offender – no sentencing discount sought for “assistance to authorities” – no error by Magistrate in relation to disclosure of guilt unknown –re-sentence not only available on appeal where error is found to have affected the sentence – appeal dismissed.
Crimes (Sentencing) Act 2005 (ACT), ss 35, 36
Road Transport (Driver Licensing) Act1999 (ACT), s 32(5)(a)
Crimes (Sentencing Procedures) Act 1999 (NSW), s 23
AB v The Queen (1999) 198 CLR 111
Baxter v The Queen (2007) 173 A Crim R 284
Douar v The Queen (2005) 159 A Crim R 154
Keen v Tither [2010] ACTSC 130
Powell v Fitzroy, Waller and Pine [2012] ACTSC 149
R v Ellis (1986) 6 NSWLR 603
Ryan v The Queen (2001) 206 CLR 267
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 120 of 2006
Judge: Penfold J
Supreme Court of the ACT
Date: 1 November 2012
IN THE SUPREME COURT OF THE )
) No. SCA 120 of 2006
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DARREN COOK
Appellant
AND:MICHAEL JOHN LANG
Respondent
ORDER
Judge: Penfold J
Date: 1 November 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is dismissed.
The fine and the associated costs and levies are confirmed.
The appellant has six months within which to pay the costs and levies.
The 12-month licence disqualification is confirmed.
Introduction
On 10 November 2009, Darren Cook was pulled over by the police for a random licence and registration check. It seems that Mr Cook told the police officers that he was not sure whether he was disqualified in the ACT as a result of being subject to a New South Wales habitual offender disqualification.
An immediate check of police records found that an earlier disqualification had expired four months earlier, but that Mr Cook had no current licence, and police accordingly issued him with a traffic infringement notice for driving unlicensed.
Mr Cook contested the infringement notice, apparently because of his uncertainty whether the ongoing NSW disqualification applied in the ACT. Mr Cook’s counsel said that he did this because he didn’t know which offence he should admit.
In due course, police checks revealed that the NSW licence disqualification ran until 4 January this year and was applicable in the ACT, and Mr Cook was accordingly charged with the more serious offence of driving while disqualified. The infringement notice was at that stage withdrawn.
Proceedings in the Magistrates Court
Over a period of 14 months, Mr Cook appeared 10 times in the Magistrates Court, as well as failing to attend a case management hearing on one occasion, and, having pleaded not guilty some time earlier, he finally entered a guilty plea on the date set for hearing of the charge, although on only the second occasion on which he was represented.
Mr Cook’s previous traffic infringements were in evidence, but the Magistrate in fact focused more on the time it had taken Mr Cook to enter his plea of guilty, and said that “he gets no benefit for the plea of guilty”. An exchange between counsel and the Magistrate followed.
COUNSEL: He gets something, your Honour, though, for bringing the prosecution on himself.
HIS HONOUR: He gets something.
It is not at all clear to me whether his Honour was agreeing that some kind of sentencing discount was appropriate for Mr Cook’s action in bringing the prosecution on himself, or whether he was in fact simply noting the effect on Mr Cook of having brought the prosecution on himself.
For reasons set out below, I do not think it matters, although I note that Delphic utterances of this sort by judicial officers are not necessarily helpful in the administration of justice.
Mr Cook was convicted and fined $2,000, the maximum fine being $5,500, with a 12‑month licence disqualification cumulative on any other disqualification being served. I note at this point that under s 32(5)(a) of the Road Transport (Driver Licensing) Act1999 (ACT), the licence disqualification period is automatic and cannot be reduced, although it can be increased, by the sentencer.
The appeal
Mr Cook now appeals that sentence on the ground that his Honour erred in failing to give adequate weight to his plea of guilty and to what was described as the disclosure of guilty otherwise unknown. Because there is nothing I can do about the disqualification period, this amounts to an appeal against the amount of the fine.
Treatment of guilty plea
To the extent that the appeal relies on a failure to give adequate weight to Mr Cook’s plea of guilty as such, it is easily disposed of.
First, I note that s 35 of the Crimes (Sentencing) Act 2005 (ACT), which deals with sentencing discounts for pleas of guilty, explicitly applies only where a sentence of imprisonment is contemplated, but I do not take this point against Mr Cook.
Secondly, I have noted previously that s 35 of the Crimes (Sentencing) Act empowers rather than requires a court to give a discount for a plea of guilty, but that where the section applies, it does require a court to advert to the plea of guilty.
In this case, his Honour referred at some length to the progress of the matter, listing all the dates on which Mr Cook had been before the court, emphasising the adherence to his plea of not guilty on all appearances until the last, noting that Mr Cook had, months before that, been advised by another Magistrate about the strength of his intended defence, and concluding with the comment that Mr Cook would get no benefit for his plea of guilty.
Clearly his Honour did not fall into the error of overlooking the plea of guilty. He gave reasons for his approach to the plea of guilty, and in the circumstances that were before his Honour I consider that deciding to give no plea of guilty discount was an available exercise of his Honour’s discretion.
In Powell v Fitzroy, Waller and Pine [2012] ACTSC 149, I held that there may also be error in relation to a plea of guilty if a sentencing officer’s decision in relation to a plea of guilty has been affected by a mistaken view of the facts, but there is no suggestion in this case that his Honour was mistaken about anything that he mentioned in relation to whether any plea of guilty discount should be given.
Disclosure of guilt unknown
The appeal ground argued at length by counsel was that some kind of leniency should have been available to Mr Cook for what was described as the disclosure of guilt otherwise unknown. That appeal ground relies on comments made by McHugh J in Ryan v The Queen (2001) 206 CLR 267 (Ryan) at [11] as follows:
The appellant argues that R v Ellis (1986) 6 NSWLR 603 holds that a plea of guilty entitles a convicted person to an element of leniency in sentence, the degree of which may vary, but that the disclosure of previously unknown offences entitles the accused to a considerable degree of leniency. In Ellis, Street CJ (with whom Hunt and Allen JJ agreed) said [at 604]:
“When the conviction follows upon a plea of guilty, that itself is the result of a voluntary disclosure of guilt by the person concerned, a further element of leniency enters into the sentencing decision. Where it was unlikely that guilt would be discovered and established were it not for the disclosure by the person coming forward for sentence, then a considerable element of leniency should properly be extended by the sentencing judge. It is part of the policy of the criminal law to encourage a guilty person to come forward and disclose both the fact of an offence having been committed and confession of guilt of that offence.
The leniency that follows a confession of guilt in the form of a plea of guilty is a well recognised part of the body of principles that cover sentencing. Although less well recognised, because less frequently encountered, the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency, the degree of which will vary according to the degree of likelihood of that guilt being discovered by the law enforcement authorities, as well as guilt being established against the person concerned.” (Emphasis added by McHugh J)
Mr Cook’s counsel summarised the principle he relied on as follows: where a person brings about a prosecution in some way by volunteering their guilt then they are entitled to some, possibly even a high degree of leniency.
I note first that the principles surrounding the volunteering of guilt by way of a plea of guilty are relatively well settled. The considerable degree of leniency referred to by McHugh J relates to a different form of volunteering guilt, in which otherwise unknown guilt of an offence is disclosed to the authorities.
There are good reasons for the approach taken in R v Ellis (1986) 6 NSWLR 603 (Ellis) and approved by McHugh J and other members of the High Court in Ryan (although there were differing views in that case about whether the sentencing judge had erred in his application of the principle).
In Ryan, Gummow J explained the justification for the approach as follows:
92. Clearly it is in the public interest that the law should encourage offenders to acknowledge, and bring to official notice, offences not previously known to the authorities. In part, this interest derives from the saving of costs in the investigation and prosecution of criminal offences. In part, it is because it helps to improve the clear-up rate for crimes and vindicates the public process of punishing and deterring crime. These considerations were referred to in AB v The Queen.
93. The applicable public interest also includes a growing concern of modern criminal law and practice with a consideration that is of particular relevance to a case such as the present. I refer to enlarged attention to the position of the victims of the crime. A confession by an offender allows a victim a public vindication. In the particular matter of serial criminal offences against children and young persons, a confession by the offender may also facilitate the provision, where appropriate, of community assistance to the victim or the payment of compensation and an expression of greater family understanding and support. Medical reports tendered in the appellant’s sentencing proceedings indicated that some of the persons abused by him as boys were considered, years later, still to be in need of psychiatric treatment.
94. Unless persons such as the appellant are encouraged to bring unreported cases to notice, the likelihood is that, in the great majority of instances, such crimes will not be reported. They will therefore go unpunished. Accordingly, both from the point of view of society and of the victims of crime, there are strong reasons of policy why the law should encourage offenders to make full confessions. It should certainly not discourage them. Encouraging a full confession may also be an important first step in securing help for, and counselling of, the offender. This is likewise one of the objectives of criminal punishment, and thus of judicial sentencing. (citations omitted)
The case of Ryan involved multiple child sex offences by a priest, some of which were disclosed by the offender after complaints by other victims brought him to police attention. The emphasis in the extracts from Ryan, not just on the offender’s admission of guilt but on his disclosure of offences whose commission was previously unknown to the authorities, is particularly relevant in relation to such offences.
That is, by virtue of the offender’s disclosures, police became aware of offences that previously would only have been known to the offender and the victim, and would not have been the subject of any police attention. Such offences, if reported, may well have been difficult for police and painful for victims to establish.
Thus the offender’s disclosures would have had the effect of bringing to police attention offences quite separate from the ones they were investigating, and that might otherwise have remained unknown except to the offender and the victim.
The case of Ellis involved seven offences of armed robbery. While the police were no doubt aware of the commission of the offences, it seems that they had no suspicion of the offender until, following advice from a minister of religion, the offender consulted a solicitor and made a voluntary disclosure of his involvement in the robberies.
Thus, the two cases deal with either offences whose very commission is unknown to the authorities until the offender makes admissions, or known offences where the offender’s involvement is unknown and apparently unsuspected by the authorities.
The benefit to the criminal law in general and, where relevant, to victims in particular in having such offences recognised and punished as a result of disclosure by the offender is real, as is the possibility that the disclosure reflects genuine remorse. Both those matters are appropriately taken into account in sentencing.
Mr Cook’s case is a completely different kind of case. Police knew that he was an offender, and they knew the substance of his offence, being that he had driven a motor vehicle in contravention of the law. All that they didn’t know at the time the infringement notice was issued, because of a gap in the police records available to them when they stopped Mr Cook, was the exact reason why Mr Cook was not permitted to drive, and therefore the exact description of the offence he had committed.
This does not seem to me to be a case of disclosing guilt that would otherwise not have been discovered or established by the authorities. In responding to the infringement notice issued for driving unlicensed, Mr Cook was not confessing to a criminal act that would otherwise go undiscovered or unpunished. He was merely disputing the description of his unarguably criminal act of driving contrary to law.
I note also the issues mentioned by McHugh J as relevant to the degree of leniency that might be available for a disclosure of guilt. In this case, there is no doubt that all the information necessary to both identify and establish Mr Cook’s real offence was available to the authorities, albeit spread across ACT and NSW records.
Whether Mr Cook’s real offence would ever have come to light if he had simply paid his infringement penalty rather than contesting it is not clear, since I have no idea whether, for instance, road transport authorities across the jurisdictions ever do any kind of data matching or reconciliation among the various sets of records.
On the other hand, that does not seem to matter. The difference between the offence originally charged, and the more serious offence committed, is essentially a technical difference, and correction of the charge did not potentially help a victim, clear up an unsolved crime or otherwise noticeably enhance the general operation of the criminal law.
Mr Cook’s counsel asked me to accept that Mr Cook was acting with openness and candour in disputing the infringement notice, although counsel stopped short of claiming to have instructions to that effect.
I am unconvinced about Mr Cook’s claimed uncertainty about why he was not permitted to drive. If Mr Cook was really unsure about the effect of his NSW disqualification in the ACT, as he initially told police, it is curious that he had not investigated that question with a view to obtaining an ACT licence if he was not, in fact, disqualified in the ACT.
Furthermore, it seems to me at least as likely that Mr Cook raised the possibility that he had been charged with the wrong offence in the hope of inducing the withdrawal of the infringement notice, a suspicion that may be borne out by the fact that once Mr Cook was charged with the correct offence, he delayed for more than a year before pleading guilty.
I am not in a position to make a positive finding about Mr Cook’s intentions in raising the disqualification issue, but for the reasons indicated, I do not accept the submission that Mr Cook dealt with the initial infringement notice and then the charge of driving while disqualified, as he did, out of a wish to see that he was found guilty of and punished for the correct offence, or even a willingness to facilitate that outcome.
In interpreting McHugh J’s comments in Ryan already quoted, it is appropriate to set out also what his Honour said shortly afterwards at [15]:
The appellant’s argument based on the trial judge’s failure to indicate that he was giving the appellant “a significant added element of leniency” reflects a misunderstanding of the use that can properly be made of statements by judges in other cases. Judgments are not to be read as if they were Acts of Parliament. In Cassell & Co Ltd v Broome, Lord Reid pointed out that it is not the function of judges “to frame definitions or to lay down hard and fast rules”. Their function is “to enunciate principles, and much that they say is intended to be illustrative or explanatory, and not to be definitive”. The statement in Ellis that “the disclosure of an otherwise unknown guilt of an offence merits a significant added element of leniency” is a statement of general principle or perhaps more accurately of a factor to be taken into account. It is not the statement of a rule to be quantitatively, rigidly or mechanically applied. It is an indication that, in determining the appropriate sentence, the disclosure of what was an unknown offence is a significant and not an insubstantial matter to be considered on the credit side of the sentencing process. How significant depends on the facts and circumstances of the case. (citations omitted)
Finally, in relation to this appeal ground, I note that in the footnote to McHugh J’s comments at [11] that I have already quoted, his Honour pointed out that the principle expounded in Ellis had been effectively replaced by s 23 of the Crimes (Sentencing Procedures) Act 1999 (NSW). That section, described as applying to assistance provided to law enforcement authorities, is in very similar terms to s 36 of the Crimes (Sentencing) Act 2005 (ACT).
Counsel for Mr Cook did not rely on s 36 of the ACT legislation, but in the light of McHugh J’s comment about the equivalent NSW legislation, and the fact that s 36 (albeit using a slightly different approach) does refer to the matters mentioned in Ellis as going to whether any sentencing reduction, and if so what, should be provided, I cannot see that it would be appropriate to recognise Ellis as continuing to provide a separate ground for a sentence reduction in the ACT.
Counsel who appeared for Mr Cook in the Magistrates Court confined himself to references to Mr Cook bringing the prosecution on himself, and did not raise the relevance of s 36 of the Crimes (Sentencing) Act. This may have been a considered forensic decision on counsel’s part, given that it is hard to see that the sentencing Magistrate would have been persuaded that Mr Cook’s approach to the proceedings involved anything that could be described as providing assistance to the authorities.
For the reasons I have given, I cannot see that the sentencing Magistrate was obliged, in reliance on the authorities of Ryan and Ellis, which do not in any case appear to have been mentioned to his Honour, to give Mr Cook any leniency for the fact that Mr Cook had initially raised the argument that led police to check his disqualification records more carefully.
Nor do I consider that in the circumstances his Honour was under any kind of obligation to recognise Mr Cook’s actions as amounting to assistance to the authorities. I can find no error in his Honour’s approach to Mr Cook’s “openness and candour” in resisting the original infringement notice.
Impact of identified error on appeal
Moving on to a separate topic, I note the comment in the respondent’s written submissions to the effect that even where error can be established, that finding of error does not allow for appellate intervention unless the appellant shows that the error has affected the sentence. This is not a correct statement of the law relating to appellate intervention in a sentence affected by error.
There is authority for the specific proposition that re-sentencing on appeal does not simply involve correcting the error identified, for example Baxter v The Queen (2007) 173 A Crim R 284 at [19] per Spigelman CJ (quoted in Keen v Tither [2010] ACTSC 130), but the principle is also clear in AB v The Queen (1999) 198 CLR 111 at 130, in which Hayne J, in the course of explaining the difference between specific error and manifest excess, said:
In the [case of specific error], once an appellate court identifies an error, the sentence imposed below must be set aside, and the appellate court is then required to exercise the sentencing discretion afresh. The offender must be re-sentenced unless, of course, in the separate and independent exercise of its discretion the appellate court concludes that no different sentence should be passed. (emphasis in original)
I note also that the appellate court is required to exercise its sentencing discretion on the basis of the facts and circumstances put to that court, not on the basis of the position at the time of the original sentencing (see Douar v The Queen (2005) 159 A Crim R 154 at [121]–[124]; Baxter v The Queen (2007) 173 A Crim R 284 at [6]–[7]).
Thus, the respondent’s proposition would more appropriately be stated as:
A finding of error does not allow for appellate intervention unless the appeal court is satisfied that, on the material available to it, a different sentence should be imposed.
Of course, since I have found no error in the Magistrate’s approach, the question of a re-sentence does not arise in this case.
Value of appeal
Finally, I mention that, as noted earlier, the non-discretionary nature of the licence disqualification period applicable in this case meant that the most the appellant could have hoped to achieve through this appeal was the overturning of the fine of $2,000. I have no idea what Mr Cook’s lawyers will charge him for conducting this appeal, but I would be surprised if it was substantially less than that. Presumably, they had explicit instructions that the appeal was to be pursued irrespective of the limited financial benefit that was likely to flow from even the most successful outcome possible.
Orders
The appeal is dismissed. The orders necessary to give effect to that decision are:
(a) to confirm the fine and the associated costs and levies; and
(b) to confirm the 12 month disqualification (but noting that because a month of that disqualification period has already been served, the disqualification period will now end on 29 September 2013).
I also order that Mr Cook has six months within which to pay that fine and the associated costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Acting Associate:
Date: 14 January 2013
Counsel for the appellant: Mr T Sharman
Solicitor for the appellant: Ms R Bird
Counsel for the respondent: Ms A Knibbs
Solicitor for the respondent: Director of Public Prosections
Date of hearing: 1 November 2012
Date of judgment: 1 November 2012