Dean James Loughton v Luke Daniel Smorhun
[2014] ACTSC 92
•12 May 2014
DEAN JAMES LOUGHTON v LUKE DANIEL SMORHUN
[2014] ACTSC 92 (12 May 2014)
APPEAL AND NEW TRIAL – Appeal from Magistrates Court – Appeal against sentence – Good, sufficient and appropriate reasons exist for the licence disqualification period to be reduced
Road Transport (Alcohol and Drugs Act 1977 (ACT), ss 4E, 19, 26, 35
Road Transport (General) Act 1999 (ACT), s 61B
Legislation Act 2001 (ACT), s 133
Magistrates Court Act 1930 (ACT), ss 209(1), 214, Pt 3.10, Div 3.10.2
Magistrates Court of the Australian Capital Territory, Practice Direction No 2 of 2007 “A” List Procedures
Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Doyle v Gillespie (2010) 4 ACTLR 188
Grooms v Toohey (2012) 7 ACTLR 1
Hugg v Driessen (2012) 261 FLR 324
Jeffers v The Queen (1993) 67 ALJR 288
Kenny v Ritter (2009) 52 MVR 360
Maher v Carpenter (2012) 7 ACTLR 216
Mayen v Ryan [2013] ACTSC 172
Newham v Cogle [2012] ACTSC 76
Scott v Wynants (2009) 4 ACTLR 13
Talukdar v Dunbar (2009) 194 A Crim R 545
Walker v Treloar [2013] ACTSC 100
EX TEMPORE JUDGMENT
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 25 of 2014
Judge: Refshauge J
Supreme Court of the ACT
Date: 12 May 2014
IN THE SUPREME COURT OF THE )
) No. SCA 24 of 2014
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:DEAN JAMES LOUGHTON
Applicant
AND:LUKE DANIEL SMORHUN
Respondent
ORDER
Judge: Refshauge J
Date: 12 May 2014
Place: Canberra
THE COURT ORDERS THAT:
The time within which Dean James Loughton may file a notice of appeal be extended to 16 May 2014.
The appeal be allowed.
The conviction of the offence of being a driver on a road with the prescribed concentration of alcohol be confirmed.
The fine imposed by the Magistrates Court on 14 November 2013 and the court costs, criminal injuries compensation levy and victims levy then imposed be confirmed.
The period during which Dean James Loughton be disqualified from holding or obtaining a driver licence be set aside and the period of twenty months be substituted.
AND THE COURT DECLARES THAT:
The date on which the disqualification of Dean James Loughton from holding or obtaining a driver licence expires, having regard to s 61B of the Road Transport (General) Act 1999 (ACT) and s 35 of the Road Transport (Alcohol and Drugs Act 1977 (ACT), is 21 May 2014.
On 21 September 2012, Dean James Loughton, was driving his motor vehicle when he was subject to what is known as “random breath testing”.
The initial screening test proved positive and Mr Loughton was placed in custody and taken to City Police Station where he provided a sample of his breath which was analysed to show a concentration of 0.101 grams of alcohol per 200 litres of breath.
As the concentration of alcohol exceeded 0.1 grams of alcohol per 210 litres of breath, Mr Loughton was served with an immediate suspension notice under s 61B of the Road Transport (General) Act 1999 (ACT), immediately suspending his driver licence and so his right to drive for up to ninety days.
He was also summonsed to answer a charge for the offence against s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act) of driving with the prescribed concentration of alcohol.
Under s 4E of the Alcohol and Drugs Act, the concentration of alcohol was a Level 3 concentration of alcohol, rendering Mr Loughton, as a repeat offender, to a maximum penalty under s 26 of that Act of ten penalty units (that is, at the time by virtue of s 133 of the Legislation Act 2001 (ACT), a fine of $1,100) or imprisonment for six months or both and, under s 33 of the Act, to a default disqualification from holding or obtaining a licence for three years, reducible to a minimum period of six months.
The summons required him to appear in court on 14 November 2012; he did so and pleaded guilty. He was not then represented by a lawyer.
The learned Magistrate imposed a fine of $800, with court costs of $69, a criminal injuries compensation levy of $50 and a victim’s levy of $10. Her Honour disqualified Mr Loughton from holding or obtaining a driver licence for three years, the default disqualification period. Her Honour also made a good behaviour order for twelve months with probation supervision.
Mr Loughton has now sought leave to appeal against the sentence. His complaint is about the period of the disqualification from holding or obtaining a licence.
Leave to appeal
An appeal against a decision of the Magistrates Court is required to be commenced within twenty-eight days after the sentence is imposed or within such further period as the Supreme Court may allow: s 209(1) of the Magistrates Court Act 1930 (ACT).
When deciding whether to grant leave to appeal, this Court considers how it can do justice between the parties. In general terms, as I explained in Mayen v Ryan [2013] ACTSC 172 at [7], the court, in exercising the discretion, will consider the length of the delay, the reasons for it, whether there is an arguable case on appeal and any prejudice suffered by the intended respondent.
Leave was opposed by the respondent. The real grounds for consideration were the length and reasons for delay and whether there was an arguable case, all of which, the respondent submitted, counted strongly against the grant of leave. The respondent did not rely on prejudice.
Consideration
The delay was significant; the last day for appeal was 11 December 2012 and the application for leave to appeal was lodged on 3 April 2014, nearly sixteen months after the appeal period had expired.
It is a lengthy delay. It has been said that an extended delay requires the applicant to show “exceptional” circumstances: Jeffers v The Queen (1993) 67 ALJR 288 at 289. That, however, includes all relevant circumstances.
The explanation for the delay offered in this case was that Mr Loughton was not legally represented at the hearing and he deposed that he did not know that he had a right to appeal. When he did discuss his difficulties without a licence with his probation officer, he was told to wait until he had completed the good behaviour order.
He then consulted a lawyer who, unfortunately did not seem to have acted as promptly as would be desirable. He first met his lawyer on 18 February 2014, just over six weeks before the application was actually made. Of course, it was necessary to prepare some materials, such as obtaining a copy of the transcript, but this did appear to be a somewhat leisurely way to approach an application such as this. Nevertheless, as I said in Doyle v Gillespie (2010) 4 ACTLR 188 at 201; [60], the conduct of a party’s solicitor is, while relevant, not determinative of the question of whether an appropriate extension of time should be granted.
Overall, however, the explanation for the delay does not of itself justify it, but it is a rational and comprehensible explanation.
As a result, this leaves the real question to be whether there are prospects of success on the appeal.
Due to that, it was agreed that the appeal and the application for leave to appeal should be heard together.
Jurisdiction
Jurisdiction to entertain appeals from the Magistrates Court such as this is granted under Pt 3.10 of the Magistrates Court Act 1930 (ACT) in which Div 3.10.2 sets out the provisions for sentencing appeals such as the one Mr Loughton seeks to bring.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151 the principles surrounding such appeals. I will apply them in this case and summarise them below.
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 errors may be errors of law, errors of fact, taking account of 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 rather 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.
The facts
The bare facts of the offence have been relevantly summarised above.
At the time that Mr Loughton was subject to “random breath testing”, his partner and her two children were also in the car. The children were aged nine and eight years old.
The police formed the view that Mr Loughton was moderately affected by alcohol. There is no suggestion that Mr Loughton was other than polite and co-operative with police.
Mr Loughton explained to the learned Magistrate that he had had six beers in about five hours. He thought it was only four. He and his partner and her children had been out for dinner where he had had two beers.
In slightly odd circumstances, the prosecutor then addressed the court, saying that
[t]he information I have available to me on file indicates that the defendant told police that he’d consumed four schooners of beer that night, not two.
I described the process of giving evidence in sentencing proceedings, especially before the Magistrates Court, in Talukdar v Dunbar (2009) 194 A Crim R 545 at 548-50; [17]-[25]. Applying what I there described to the present case, I accept that, if an assertion is made by a defendant which the prosecution wishes to controvert, then that assertion should be challenged. In this case, however, the evidence of Mr Loughton was consistent with what was said by the prosecutor. Further, if there is other material that the prosecution has that is relevant, it should be stated to the court at the time the facts are given, not kept to later.
Mr Loughton’s prior criminal record was also tendered. He only had two matters on it. He had, however, been convicted on the two prior occasions also of an offence against s 19(1) of the Alcohol and Drugs Act. On 8 July 2003 he was convicted of the offence when the reading was 0.16% (Level 4). In July 2005, he was convicted when his reading was 0.084% (Level 3). This is why he was convicted and sentenced as a repeat offender.
He said that his present partner is not employed and the family relies on his income.
The appeal
The proposed notice of appeal listed four grounds of appeal:
(i) The licence disqualification is manifestly excessive;
(ii) The learned Magistrate failed to inform herself more fully of the impact of a licence disqualification on the appellant’s employment;
(iii) The learned Magistrate erred in imposing the default disqualification in the circumstances;
(iv) There is further evidence which was not before the court which would have persuaded Her Honour not to impose the default disqualification.
The orders made it tolerably clear that it was only the length of the disqualification that was being challenged.
The draft notice of appeal also indicated that further evidence was to be sought to be adduced so that Mr Loughton could rely on it.
Further evidence
In order to assess whether, with the further evidence, the appeal had prospects of success, I permitted Mr Loughton to file and read an additional affidavit.
Under s 214 of the Magistrates Court Act, such evidence is admissible on one of two bases, either that it is necessary or expedient that it be admitted in the interests of justice, or that it is likely to be credible and would have been admissible and there is a reasonable explanation for it not having been admitted in the original proceedings.
I set out in Grooms v Toohey (2012) 7 ACTLR 1 at 8-10; [37] the principles that apply. I apply them and receive the evidence.
The further evidence shows that Mr Loughton is the second-in-charge at a suburban supermarket. He has, as a result of the licence disqualification, been unable to perform duties such as banking and deliveries. He has managed to get other employees to undertake these tasks because he has been afraid to tell his employer of the disqualification. The impression this gives, however, is that he is shirking his responsibilities.
He has now told his employer, who provided a statement which was before me. It stated that Mr Loughton has worked for his current employer since 1992 and has been at his present location since 2007. He describes Mr Loughton as “honest, punctual and reliable”. He is entrusted with the keys to the store and required to open and close it from time to time. Significantly, he says that he “needs his driver’s licence to do his deliveries properly”. He says further that it is “inconveniencing the business” for Mr Loughton not to have a licence.
The further evidence also refers to his family situation. Mr Loughton is divorced with two children from his marriage and has contact with them each Tuesday and Thursday. His former wife lives at Dunlop. He has formed a relationship with a woman who lives in Ainslie and who has two children, mentioned earlier. He resides with her part of the time but also lives with his parents at Amaroo. His partner’s car only seats five and so it creates difficulties with his access to his children.
His partner also made a statement which confirmed that information. She also described Mr Loughton as “a very responsible person ... a great father and a supportive partner”. They have had to find a babysitter at times and at other times have had to cancel his visits to his children.
She observed that Mr Loughton “is very regretful for his actions” and she believes “that it has defineately [sic] taught him it is a privilege to have a licence”. She added that he “has also realised his actions have had an impact on his work, his children, [herself] and [her] children”.
I set out in Grooms v Toohey at 12; [52] the effect of such further evidence, where I said
The appellate court must decide whether, under s 214(3) or (4) of the Magistrates Court Act, the further evidence is to be admitted. If it is, the court must then consider whether a different sentence should, in the light of this further evidence, have been imposed. If it comes to the view that it should have been, then the sentencing discretion is enlivened and the sentencing proceedings must be re-opened. On those proceedings, still further evidence may then be admitted, though often it is not. Some or all of that additional evidence may not have been admissible under s 214(3) or (4), but should have, of course, to be admissible in sentencing proceedings. If, having considered all this evidence and, of course, the evidence before the Magistrate, the appellate court considers in the exercise of its independent discretion that no other sentence than that of the Magistrates Court should be imposed, the appeal should be dismissed. If that is not the case, then the appellate court should either remit the proceedings back to the Magistrates Court to be dealt with according to law or should sentence the appellant.
See also Walker v Treloar [2013] ACTSC 100 at [1].
Consideration
Mr Loughton says that he was nervous when appearing in court. He says that when he heard that he was liable to imprisonment, he became nervous and tongue-tied, leading to him being unable to recall that he should have mentioned his family responsibilities to the learned Magistrate.
The respondent, ably represented by Mr S McLaughlin, pointed out that Mr Loughton had been before the courts on two earlier occasions for offences that also attract as a maximum penalty a term of imprisonment. While a fair point, it was not possible on the material before me to know that, in fact, as here, the Magistrates on the other occasions referred to the maximum penalty. That seems to me to be good practice generally in sentencing, but it is understandable that in a busy list, such as the “A” List in the Magistrates Court (see Magistrates Court of the Australian Capital Territory, Practice Direction No 2 of 2007 “A” List Procedures), where there may be, perhaps, multiple pleas of guilty by various defendants to the same offence, the maximum penalty may not be mentioned on every occasion.
When he was asked what he wished to say, Mr Loughton acknowledged that he had made an error of judgement and the learned Magistrate commented, “Well, it’s your third error of judgement apparently”, not an unreasonable comment in the circumstances, but hardly likely to settle a nervous litigant.
The following exchange then took place:
HER HONOUR: Are you in employment?
THE DEFENDANT: Yes, full-time.
HER HONOUR: Full-time employment.
THE DEFENDANT: Yes.
HER HONOUR: Will loss of your licence have any effect on your employment?
THE DEFENDANT: Not fully but a little bit.
HER HONOUR: Very well, please sit down.
Mr J O’Keefe, who appeared for Mr Loughton, submitted that her Honour should have made further inquiry about the extent of the effect on his employment. It also seems that her Honour drew to an end his submissions at that point without further inquiry.
The obligations of a court to a litigant who is unrepresented involve a careful balance between ensuring that the person’s rights are identified and protected but without the court becoming partisan. I have set out some of the relevant principles in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [41]. I referred to the decision of Gray and Layton JJ in Kenny v Ritter (2009) 52 MVR 360, where their Honours acknowledged that it was difficult to ascertain a common approach on the authorities to the manner and form of the appropriate assistance, but it did require judicial assistance to ensure that unrepresented litigants are aware of their procedural and substantive rights.
It is easy to be critical when an appellate court has the opportunity to pore over the words in a transcript. I would not criticise her Honour in this case, though I do think that some further questioning may have elicited further information which could have obviated the need for the appeal.
I have addressed this issue in Hugg v Driessen (2012) 261 FLR 324 at 331; [47], noting that the court must ensure that the unrepresented defendant addresses the relevant issues and, I would add, reasonably adequately.
There is no doubt that the impact on employment is a relevant matter to be taken into account, for it can amount, by itself or in combination, to a good reason to reduce a period of disqualification. See, for example, Newham v Cogle [2012] ACTSC 76 at [49].
There is also no doubt that family hardship can also be a good reason for reducing the period of disqualification. See Hugg v Driessen at 332-3; [61]-[62].
Mr McLaughlin submitted that the reasons given by Mr Loughton were insufficient to justify a reduction of the licence disqualification period from the automatic or default period. He referred to what Howie J said in Application by the Attorney-General under section 37 of the Crimes (Sentencing Procedure) Act for a Guideline Judgment concerning the offence of High Range Prescribed Concentration of Alcohol under section 9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (No 3 of 2002) (2004) 61 NSWLR 305 (the Guideline Judgment).
His Honour addressed the issue of the disqualification period in the context of some statistical information that suggested that only eleven percent of people were disqualified for two years and fourteen percent for three years. His Honour then said at 336; [127]-[128] of the Guideline Judgment:
There should be sufficient and appropriate reasons for reducing the automatic period that are capable of being expressed by the court before such a step is taken. Those reasons should take into account the scheme of the Act and the significance of Parliament’s view that the automatic period is the period of disqualification to apply in the usual case.
This means that there will almost invariably be hardship, or at least inconvenience, caused to the offender deprived of his or her licence for such a lengthy period as Parliament has prescribed. This is particularly so in country areas and other places where public transport is rare or non-existent. Of course licence disqualification can have a severe impact upon the ability of a person to obtain or maintain employment. But the focus is here upon a criminal offence that Parliament considers to be one of the most serious summary offences. It is one, as I have already observed, that cannot be characterised as impulsive or arising as a result of a momentary aberration and where the offender must have been conscious that he or she was at least running the risk of committing the offence before getting into the motor vehicle.
The guideline then promulgated in the Guideline Judgment included the following reference to licence disqualification at 340; [146]:
(iii)the automatic disqualification period will be appropriate unless there is a good reason to reduce the period of disqualification;
(iv) a good reason under (iii) may include:
(a)the nature of the offender’s employment;
(b)the absence of any viable alternative transport;
(c)sickness or infirmity of the offender or another person.
It can be seen that the hardship to which his Honour had earlier referred was well able to be ameliorated within the guideline, leading me to believe that his Honour was not suggesting that the hardship he had described was not to be addressed by appropriate reductions of the automatic period.
It is, of course, the case, as Higgins CJ pointed out in Scott v Wynants (2009) 4 ACTLR 13 at 18; [35], that the Guideline Judgment is not binding on this Court or necessarily applicable in this Territory, though, as his Honour also pointed out, much of the reasoning is applicable and, of course, a first instance court should pay attention to what five senior judges of the New South Wales Supreme Court have said.
Nevertheless, it does not seem to me that the requirement for a good reason (or, as his Honour earlier said, a sufficient and appropriate reason) can be read from his Honour’s reasons or the structure of the legislation to be elevated beyond that to be, for example, a special and exceptional reason or a remarkable reason.
I further note, as Mr McLaughlin fairly conceded, that it is not uncommon for the default period to be reduced. There must, of course, be a good reason. There will always be some at least inconvenience if not hardship, for there is a minimum beyond which the court may not reduce the disqualification period.
Mr O’Keefe provided a table of decisions in this court showing that, on a regular basis, the default disqualification period is reduced, though not on every occasion.
This is not the case to decide whether the approach in this jurisdiction is different from that mandated in the Guideline Judgment or whether it is being followed or not or, indeed, whether the intention of the Territory legislature is being correctly applied.
In this case, on the basis of the evidence, including particularly the further evidence, I am satisfied that there is a good, sufficient and appropriate reason for the automatic disqualification period to be reduced.
The only question is for how long. Mr Loughton has now been disqualified from holding or obtaining a driver licence since 21 September 2012, that is for nearly twenty months.
Given the two prior offences and the readings there involved together with the fact that there were children in the car and all the other circumstances, I do not believe that a substantial reduction can be made.
In my view a reduction to twenty months is appropriate. I note that the immediate suspension under s 61B of the Road Transport (General)Act has to be taken into account under s 35 of the Alcohol and Drugs Act.
I will, therefore, make appropriate orders.
I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 23 June 2014
Counsel for the appellant: Mr J O’Keefe
Solicitor for the appellant: John O’Keefe
Counsel for the respondent: Mr S McLaughlin
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 15 April and 8 May 2014
Date of judgment: 12 May 2014
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