Director of Public Prosecutions v KS (a pseudonym) (No 3)

[2023] ACTSC 352

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v KS (a pseudonym) (No 3)

Citation: 

[2023] ACTSC 352

Hearing Dates: 

29 September 2023; 24 November 2023

Decision Date: 

24 November 2023

Before:

McCallum CJ

Decision: 

(1) For the offence of affray the charge is dismissed under s 17(2)(a) of the Crimes (Sentencing) Act 2005 (ACT).

(2)    For each of the 7 offences of drive while suspended a fine of $2 is imposed with 6 months to pay. Note the automatic disqualification periods of 1 month are to be served concurrently, commencing 22 May 2024 and expiring 21 June 2024.

(3)    Note that the automatic disqualification period for a first offender aggravated dangerous driving is 12 months, commencing 22 May 2024 to 21 May 2025.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – affray – driving offences – imposition of non-conviction order where extenuating circumstances exist – automatic licence disqualification periods – imposition of nominal fines

Legislation Cited: 

Crimes (Sentencing) Act2005 (ACT) s 17

Crimes Act 1900 (ACT) s 35A(1)

Magistrates Court Act 1930 (ACT) s 90B

Road Transport (General) Act 1999 (ACT) s 63

Cases Cited: 

DPP v K S (No 2) [2023] ACTSC 298

Parties: 

Director of Public Prosecutions

KS (a pseudonym) ( Offender)

Representation: 

Counsel

M Dyason ( DPP)

J McGuire ( Offender)

Solicitors

ACT Director of Public Prosecutions

Paul Edmonds & Associates ( Offender)

File Numbers:

SCC 346 of 2022

SCC 347 of 2022

McCALLUM CJ:

1․The offender before the Court, who is referred to by the pseudonym KS, was recently sentenced by me for several series of offences in respect of which I imposed a Drug and Alcohol Treatment Order (DATO): see DPP v K S (No 2) [2023] ACTSC 298. In that judgment, I referred to the three series of offences identified by the prosecutor. The third series included eight offences transferred to this Court under s 90B of the Magistrates Court Act 1930 (ACT), being seven offences of driving while suspended and one offence of affray. Each offence of driving while suspended carries a licence disqualification period.

2․Further, the offences for which KS was sentenced by me included an offence of aggravated dangerous driving, for which I sentenced him to a term of imprisonment for three months.  That offence carries an automatic disqualification period of 12 months. 

3․At the time of sentencing KS, needing further information about the implications of the driving offences, I stood over the sentence proceedings of the eight transfer charges and consideration of the disqualification period for any other relevant offences in order to give proper consideration to what should be the appropriate total period of licence disqualification under the statutory regime.

4․The facts of the transfer offences are set out in my previous judgment as these offences arose in the course of KS's commission of the more serious offences for which he has been sentenced: see DPP v K S (No 2) [2023] ACTSC 298 at [20]-[38]. I have had regard to those facts in making my determination today.

5․As to the offence of affray, the circumstances indicate that KS was very much a bit player. The offence consisted in a physical fight between KS's co-offender and another person, during which KS threw a punch and ultimately pulled his friend away from the conflict. That offence, contrary to s 35A(1) of the Crimes Act 1900 (ACT), carries a maximum penalty of imprisonment for 2 years.

6․Having regard to all of the considerations set out in my earlier judgment in the proceedings and the penalty that I have already imposed on KS of a DATO, and having regard to his youth, the good progress he has made towards his own rehabilitation and the difficult circumstances under which he is labouring during the DATO, including living with his father in circumstances where he has no income and is doing his best to stay on the right track, I do not think it is appropriate to impose any further penalty for the offence of affray.

7․In reaching that conclusion I have had regard to the matters set out in s 17(3) of the Crimes (Sentencing) Act2005 (ACT), including my assessment that the offence was of minimum seriousness in the range of offences of affray and the extenuating circumstances of the offender's current commitments and hard work in the Drug and Alcohol Treatment List.

8․For those reasons I propose, without convicting KS of that offence, to make an order under s 17(2)(a) directing that the charge be dismissed, as I am satisfied that it is not appropriate to impose any punishment other than nominal punishment for that offence.

9․Returning to the driving offences and the appropriate period of disqualification, KS's licence is currently disqualified pursuant to three decisions in the Magistrates Court.  The period of disqualification ends on 21 May 2024. 

10․For the offence of aggravated dangerous driving, s 63 of the Road Transport (General) Act 1999 (ACT) provides that the mandatory or automatic disqualification of 12 months must start at the conclusion of that period. It follows that KS's licence must be disqualified for a period of 12 months from 22 May 2024 to 21 May 2025.

11․For the offences of driving while suspended, the automatic disqualification is a period of one month for each offence, and as already indicated, there are seven of them.  In my view, having already a mandatory period of disqualification that prohibits him from holding a licence until May 2025, the offender has already faced significant punishment in the disqualification of his licence.  As a young man, he will have had his licence disqualified for more than a tenth of his life.  The offences were all committed within a short burst of criminal activity, or mostly so, and he is paying dearly for that period.

12․There is authority to which counsel has referred authorising the court to impose concurrent disqualification periods for those offences and that is the course I propose to take: see McCurley v Beath [2017] ACTSC 196. For each offence of driving while suspended, the course I propose is to impose a concurrent disqualification period of one month, also commencing on 21 May 2024 and expiring on 20 June 2024.

13․I have a discretion also to impose a period of disqualification for five offences of dishonestly driving a stolen motor vehicle.  The offender was sentenced for those offences in my previous judgment, and it is only the period of disqualification that needs to be considered. I decline to exercise my discretion to impose any period of disqualification for those offences, for the reasons I have given.

14․It remains to deal with any penalty to be imposed for the offences in addition to the automatic periods of disqualification. I have been informed that there is authority in this jurisdiction that it is not open to the court to impose no penalty, simply convicting an offender and then determining a period of disqualification.  Uninformed by authority I would have difficulty accepting that proposition.  There does not appear to be anything in the language of the statute to compel the court to impose a penalty in addition to a period of disqualification.  However, today is not the day to reopen that issue.  I have not seen the authority about which I have been informed and the parties have not addressed me on the issue.

15․On the assumption that I am required to impose some penalty, for the reasons already given, I consider it expedient to impose only nominal penalties for all offences.  Accordingly, for each of the seven offences of driving while suspended I impose a fine of $2, to be paid within six months.  That gives a total fine of $14 to be paid within six months.

16․On 28 November 2023 I made the following additional orders in chambers:

(1)For all other offences but the first offence for which KS was sentenced by McCallum CJ on 24 November 2023, he is exempt from liability to pay the victims financial assistance levy pursuant to s 83(2)(b) of the Victims of Crimes (Financial Assistance) Act 2016 (ACT).

(2)For all offences which KS was ordered to pay a fine by McCallum CJ on 24 November 2023, he is exempt from liability to pay the victims services levy pursuant to s 26(2) of the Victims of Crime Act 1994 (ACT).

I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Justice McCallum

Associate:

Date: 17 April 2024