Director of Public Prosecutions v BP

[2007] ACTCA 17

DIRECTOR OF PUBLIC PROSECUTIONS v BP
[2007] ACTCA 17 (27 July 2007)

Children and Young People Act 1999 (ACT)

Court Procedures Rules 2006 (ACT)

Crimes Act 1900 (ACT)

Road Transport (General) Act 1999 (ACT)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 24 - 2007
No. SCC 226 of 2005

Judges:  Higgins CJ, Crispin P and Gray J
Court of Appeal of the Australian Capital Territory
Date:  27 July 2007

IN THE SUPREME COURT OF THE  )   No. ACTCA 24 - 2007
  )  No. SCC 226 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:THE DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

AND:BP

Respondent

ORDER

Judges:  Higgins CJ, Crispin P & Gray J
Date:  27 July 2007
Place:  Canberra

THE COURT ORDERS THAT:

1. Leave be granted to the applicant to appeal out of time against the judgment of Justice Connolly given on 31 January 2006.

1. So much of the Court Procedures Rules 2006 (ACT) be dispensed with as is necessary to permit the appeal to be heard instantly.

1. The applicant file and serve a Notice of Appeal in the form of the Draft Notice of Appeal annexed to the affidavit of five paragraphs of Joel David Hiscox sworn 24 July 2007.

1. The sentence of Justice Connolly in respect of the offence of culpable driving causing death contrary to s 29(2) Crimes Act 1900 (ACT) be set aside, except for the ancillary order made pursuant to s 62 of the Road Transport (General) Act 1999 (ACT) that the respondent be disqualified from holding a licence for the period of six months.

1. Pursuant to ss 123(1)(a) and 96 of the Children and Young People Act 1999 (ACT) the respondent be committed to an institution for 18 months to commence 31 January 2006 and then to be released on probation under the supervision of the Chief Executive of the Department of Disability, Housing and Community Services for a period of 18 months from 31 July 2007.

1. It be recommended that the Chief Executive not exercise the power of remission under s 127 of the Children and Young People Act 1999 (ACT) in this case.

1. The disqualification of the respondent’s driving licence for six months from 31 January 2006 be confirmed.

IN THE SUPREME COURT OF THE  )   No. ACTCA 24 - 2007
  )  No. SCC 226 of 2005
AUSTRALIAN CAPITAL TERRITORY  )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:DIRECTOR OF PUBLIC PROSECUTIONS

Appellant

AND:BP

Respondent

Judges:  Higgins CJ, Crispin P & Gray J
Date:  27 July 2007
Place:  Canberra

REASONS FOR JUDGMENT

THE COURT:

1. HIGGINS CJ:  I note as you have asked me to at the outset, Mr Refshauge, that this is a sentence no less severe than that which was intended to be imposed by Connolly J but is simply re-cast so as to bring it expressly within the terms of the Children and Young People Act 1999 (ACT) (Children and Young People Act).  So with that qualification, we are in agreement that leave should be given to the applicant (appellant) to appeal out of time against the judgment of Connolly J given on 31 January 2006 and we dispense with so much of the Court Procedures Rules 2006 (ACT) as are necessary to permit the appeal to be heard instantly. We direct that the applicants file and serve a notice of appeal in the form of the draft Notice of Appeal annexed to the affidavit of five paragraphs sworn by Joel David Hiscox on 24 July 2007 and note in fact that condition is now satisfied.

1. MR REFSHAUGE:  The service has not formally been done, but I will do that your Honour.

1. HIGGINS CJ:  On that undertaking we note that that is sufficiently complied with.

1. MR REFSHAUGE:  Thank you.

1. HIGGINS CJ:  Insofar as the rules need to be applied to that by way of waiver, they are so applied.

1. MR REFSHAUGE:  Thank you, your Honour.

1. HIGGINS CJ: The sentence of Connolly J in respect of the offence of culpable driving causing death contrary to s 29(2) of the Crimes Act 1900 (ACT) is set aside. In lieu of that sentence, pursuant to ss 123(1)(a) and 96 of the Children and Young People Act, the respondent is committed to an institution for a period of 18 months commencing on 31 January 2006.  Thereafter he is to be released on probation under the supervision of the Chief Executive of the Department of Disability, Housing and Community Services for a further period of 18 months, that is from 31 July 2007. 

It should be noted, as I did at the outset, that that is no way to criticise or to regard as inappropriate the sentence which was imposed by Connolly J. We also recommend to the Chief Executive that the sentence we have now substituted should exclude the power of remission under s 127 of the Children and Young People Act in this case.  That is to say that the Chief Executive would be right to fail to exercise any discretion to grant any remissions on top of the sentence which has already been imposed.

1. MR REFSHAUGE:  Your Honours, my learned friend has just raised a question.  There was an ancillary order that his Honour was required to make, namely in relation to the suspension of licence.  It is a mandatory provision and it just went right off the radar.

If your Honours go to page 8 of the transcript of the proceedings which is Annexure D, I think, to Mr Hiscox’s first affidavit, your Honours will see a discussion there at about point 7.  It is the first large paragraph where his Honour says:

Section 62(1)[of the Road Transport (General) Act 1990 (ACT)] provides that if the court convicts a person of the offence of culpable driving that person is automatically disqualified from holding or obtaining a driver's licence. For a first offender for 6 months, or if a court enters a longer period, the longer period, or for repeat offender….

And so on.  ‘It would be common ground that [the respondent] is a first offender … .’  And so on.  So, his Honour says:

I would not be minded to impose a longer period. It seems to me that the difficulty … is not that he drives, although as a young bloke he shouldn't be driving at all, but he drives stolen cars.

I am not sure that I would be submitting to the same effect but that is what his Honour said and again by way of currency:

… holding out the opportunity that when he gets released from Quamby he will be eligible to apply for a licence … you’ll be able to drive like anybody… .

So, it appears that the six months was intended to be, as it were, concurrent with a regime that otherwise would not allow him to drive and I am content with that. But your Honours will need to confirm that.

1. HIGGINS CJ:  It is more a non-variation order, is it not?

1. MR REFSHAUGE:  Yes.

1. HIGGINS CJ:  That is, the effect of our order is not to vary the automatic disqualification that follows from a conviction.

1. MR REFSHAUGE:  That is so.

1. HIGGINS CJ:  Insofar as we need to do that, we will do that.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Date: 27 July 2007

Counsel for the Appellant:  Mr R Refshauge SC with Mr A Doig
Solicitor for the Appellant:  ACT Director of Public Prosecutions
Counsel for the Respondent:  Mr K Archer
Solicitor for the Respondent:  Legal Aid Office (ACT)
Date of hearing:  27 July 2007
Date of judgment:  27 July 2007