Garoup Bol Guak Dhol v Jane Glenda MacKenzie
[2011] ACTSC 193
•30 November 2011
GAROUP BOL GUAK DHOL v JANE GLENDA MACKENZIE
[2011] ACTSC 193 (30 November 2011)
APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal against sentence – appeal partly upheld.
CRIMINAL LAW – jurisdiction, practice and procedure – judgment and punishment – procedure – fact-finding in sentence proceedings – acceptance of facts in submissions – desirability and limits.
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4D, 9, 11, 12, 19, 33
Road Transport (Driver Licensing) Act 1999 (ACT), s 31
Crimes (Sentencing) Act 2005 (ACT), ss 10, 33, Pt 4.2
Magistrates Court Act 1930 (ACT), s 216, Pt 3.10, Div 3.10.2
Road Transport (General) Act 1999 (ACT), s 65
Australian Road Rules 1999, r 287
Weininger v The Queen (2003) 212 CLR 629
Cooper v Corvisy (No 2) (2010) 5 ACTLR 151
Talukder v Dunbar (2009) 194 A Crim R 545
Apolevski v Kinnane [2010] ACTSC 43
R v Verdins (2007) 16 VR 269
R v Healey (2008) 186 A Crim R 433
Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282
R v Qutami (2001) 127 A Crim R 369
Butler v Vickers and Ors [2011] ACTSC 134
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 64 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 30 November 2011
IN THE SUPREME COURT OF THE )
) No. SCA 64 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN: GAROUP BOL GUAK DHOL
Appellant
AND:JANE GLENDA MACKENZIE
Respondent
ORDER
Judge: Refshauge J
Date: 30 November 2011
Place: Canberra
THE COURT ORDERS THAT:
The appeal be partly upheld.
The sentence imposed by the Magistrates Court for the charge of driving with the prescribed concentration of alcohol on 28 July 2010 be set aside.
The sentence imposed by the Magistrates Court for the charge of being an unlicensed driver on 28 July 2010 be set aside.
The other sentence of the Magistrates Court be confirmed, save that the period within which Garoup Bol Guak Dhol is to pay the fine of $400 be until 29 April 2012.
The parties be heard as to sentence.
On 28 July 2010, the appellant, Garoup Bol Dhol, was the driver of a motor vehicle which had been involved in a rear end collision with another vehicle stationary in front of his vehicle.
The collision, which occurred at about 8.30 am on that day, took place at the intersection of two major roads in Ainslie, Wakefield Avenue and Limestone Avenue, which would have been a busy intersection at that time.
Police attended shortly after the collision. Mr Dhol was required by the police who attended to undergo an alcohol screening test under s 9 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act). That test indicated that the concentration of alcohol in Mr Dhol’s breath was the prescribed concentration and he was taken into custody under s 11 of the Alcohol and Drugs Act and driven to City Police Station.
There he was required to give a sample of breath for analysis under s 12 of the Alcohol and Drugs Act and the breath analysing instrument determined that he had a blood alcohol concentration of 0.182 grams of alcohol per 100 millilitres of blood.
The offences
After police made further inquiries, Mr Dhol was charged with:
(i) being a repeat offender, driving a motor vehicle on a public street with level 4 alcohol concentration in his blood, an offence under s 19(1) of the Alcohol and Drugs Act, which carries a maximum penalty of 20 penalty units (that is, a fine of $2,200) or imprisonment for 12 months or both;
(ii) being an unlicensed driver, an offence under s 31(1) of the Road Transport (Driver Licensing) Act 1999 (ACT), which carries a maximum penalty of 20 penalty units, namely a fine of $2,200; and
(iii) being a driver involved in a crash who did not give particulars to the other driver, an offence under r 287(1) of the Australian Road Rules, by virtue of non-compliance with r 287(2)(a) of those Rules, and which carries a maximum penalty of 20 penalty units, namely a fine of $2,200.
The sentence
Mr Dhol appeared in the Magistrates Court and, on his second appearance on 25 March 2011, pleaded guilty to all charges. On 1 June 2011, he was convicted of each charge and sentenced as follows:
(i) On the drink-driving charge, to imprisonment for a period of six months to be suspended after four months with a good behaviour order for two years with conditions:
(a) that he give security of $500;
(b) that he be subject for probation to supervision for 12 months;
(c) that he attend such programs, particularly as to alcohol counselling and trauma counselling as he may be directed and to undertake a sober driver program;
and he was disqualified from driving “until the court otherwise orders”;
(ii) on the unlicensed driver charge, to be released with a good behaviour order in the same terms as that imposed on the drink-driving charge;
(iii) on the failing to give particulars charge, to a fine of $400 with six months to pay.
The appeal
On 24 June 2011, Mr Dhol filed a Notice of Appeal that stayed the enforcement of the sentences. On 1 July 2011, Gray J granted Mr Dhol bail pending the hearing of his appeal. He had, thus, spent one month in custody before being granted bail.
The grounds of the appeal set out in the Notice of Appeal were as follows:
1.Her Honour erred in disregarding statements made in the pre-sentence report and submissions made on behalf of the appellant because they could not be corroborated or proved by other evidence.
2.Her Honour erred in failing to accept the submission made on behalf of the appellant that he had abstained from consuming alcohol.
3.Her Honour erred in finding that the appellant had not told the author of the pre-sentence report that he had abstained from consuming alcohol.
4.Her Honour erred in failing to accept the submission that the appellant had taken steps to address the underlying causes of his problem with alcohol.
5.Her Honour erred in failing to attach any or any sufficient weight to the psychiatric and psychological disorders from which the appellant suffered.
6.Her Honour erred in failing to attach any or any sufficient weight to the trauma and disadvantage experienced by the appellant throughout most of his life.
7.Her Honour erred in failing to have any or any sufficient regard to the need of the appellant for assistance in addressing his psychiatric or psychological disorders and the problem of alcohol abuse.
8.Her Honour erred in failing to give due consideration to the availability of community based sentencing options that would assist the appellant in addressing his problems.
9.The sentences and penalties imposed by Her Honour were manifestly excessive in all of the circumstances.
10.The indefinite disqualification of the appellant from holding or obtaining a driver’s licence was both inappropriate and excessive in all of the circumstances.
The Magistrates Court proceedings
In order to understand the grounds of appeal, it is necessary to set out in some detail the course of the proceedings in the Magistrates Court.
It appears that the Statement of Facts prepared by the police had been tendered when the plea of guilty had been entered on 25 March 2011 and that then a direction had also been made for preparation of a Pre-Sentence Report under Pt 4.2 of the Crimes (Sentencing) Act 2005 (ACT).
The Statement of Facts disclosed that Mr Dhol had been driving in the northbound lane of Limestone Avenue and his vehicle had collided with a vehicle which was stationary at the intersection. Both vehicles had sustained damage. Mr Dhol’s vehicle was parked on the nature strip near the intersection.
The occupants of the other vehicle told police that Mr Dhol had left the scene without providing his particulars as required by the Australian Road Rules. Mr Dhol, however, was seen walking on Majura Avenue away from the intersection.
Mr Dhol was spoken to by police and subjected to breath testing as set out above
(at [3] and [4]). Police observed that Mr Dhol’s “speech was slurred, his eyes were watery and bloodshot and there was a strong smell of intoxicating liquor”. Police formed the opinion that Mr Dhol was “well under the influence of alcohol”.
Mr Dhol produced a South Australian driver licence, but inquiries showed that it had been surrendered and that he had not been granted another driver licence.
His prior criminal record appears to have also been tendered on 25 March 2011. It showed that he had been convicted in Alice Springs on 22 January 2010 of a driving with a medium range blood alcohol content offence. That meant that, under s 4D of the Alcohol and Drugs Act (as it was at 28 July 2010), he was a repeat offender for the purpose of that Act. This increased the maximum penalty to which he was liable.
Mr Dhol’s criminal record was not short: it included 21 offences for which he was dealt with at seven court appearances. All but one of the offences appeared to be related to the use or misuse of a motor vehicle, save that charges of “reckless conduct endanger serious injury” and “possess controlled weapon without excuse”, dealt with in the Melbourne Magistrates Court on 20 October 2006, were equivocal. There was also one conviction for theft in the Dandenong Magistrates Court on 17 July 2008.
Particularly relevant were three previous convictions for drink-driving, one in 2010 (as noted above at [15]) and two in 2007. Also relevant were convictions for failing to stop after an accident and failing to provide relevant details in 2007 and 2005. He had also been convicted of unlicensed driving in 2007. Thus, he was a repeat offender in respect of the other two offences also.
As noted, the Director-General was directed to prepare a Pre-Sentence Report; that Report was before the Court at sentencing on 1 June 2011. It disclosed that Mr Dhol, at the time a 25 year old, was a South Sudanese immigrant who had arrived in Australia in 2001.
The Report noted that war had come to Mr Dhol’s country three years before his birth and meant that he was born into a ravaged country and a life of hardship. His brother died and, at age 13, Mr Dhol was sent alone to Egypt for his education. After a year at primary school, he came to Australia where he has since lived.
His parents and other family members remain in South Sudan, but he has frequent contact with them and, through his occasional employment in various unskilled positions, sends money to them when he can.
He lived initially with other Sudanese in Melbourne suburbs where he achieved a position of leadership, responsible for mentoring many immigrant youths. He taught them traditional Sudanese dance and assisted them to achieve a smooth transition to the Australian community, work of which he is justifiably proud.
Mr Dhol came to Canberra in 2010 and hopes to achieve a position of leadership here. He is presently studying at the University of Canberra where he is undertaking a double degree in Arts and Psychology, majoring in National Security and Performing Arts. He has involved himself as a singer, dancer and “rapper” at the University.
The Report noted that his university entrance has been achieved despite receiving almost no schooling in South Sudan and minimal schooling in Egypt. Thus, his success has been due to him studying hard since his arrival in Australian where he was able to achieve sufficient success to be admitted to university studies. Mr Dhol is a recipient of Austudy.
Mr Dhol, the Report stated, suffers acute chronic back pain, the result of falling from a tree in Sudan in 1997. He is, however, able to play soccer and engage physically in the performing arts.
The Report noted that, in 2007, Mr Dhol’s cousin was murdered and, in 2008, Mr Dhol experienced very traumatic incidents involving three other deaths. He sought and obtained counselling from a psychologist in 2009, but it gave him little relief and he continues to suffer depression and has difficulty sleeping. The author of the Report suggested that he may suffer Post Traumatic Stress Disorder though there was no diagnosis put before the court. That suggestion must mean that the author of the Report considers such a diagnosis likely though not qualified formally to make it himself.
The Report also stated that Mr Dhol had not used illicit drugs but has a major problem with alcohol. He first experimented when he was 17, quickly becoming reliant on it, especially in times of sadness and stress. He stated that he “started drinking to avoid hurting [himself]”. He admitted that “he continues to use alcohol because he has found no other way to deal with loss or depression... ”. He usually drinks beer alone, drinking as much as he can, though his binges are limited by his financial constraints.
It was reported that he was abstinent for 10 months in 2008-2009 and was currently abstinent having ceased drinking in November 2010. He conceded to the author of the Report, “I really need help to stop drinking”. It appeared that he had not used professional intervention in this regard.
As to the offence, Mr Dhol told the Report’s author that he had not been drinking on the day of the offences, but had engaged in binge drinking the night before. On the day of the offences, he felt stressed and depressed. He says he left the scene of the accident, not to avoid responsibility but to avoid conflict with the other driver who seemed, perhaps unsurprisingly, aggressive and aggrieved. He recognised the offences as serious and showed some remorse but not a great deal of insight into the dangerousness of the offences.
The author of the Report observed:
Alcohol has been problematic for Mr Dhol for nearly eight years, and although he does claim two significant periods of self-imposed abstinence, including the current bail period, he is aware he cannot completely overcome his dependence issues unassisted. Traumatic experiences and apparent mental health issues have likely exacerbated the offender’s reliance on alcohol, but to what extent his mental health has been a factor in his offending is not known.
The author of the Report did also comment that he “appears to have no insight into the risk that he poses... [to the] community when he continues to drive unlicensed and above the prescribed alcohol limit”. He was, however, assessed as at a low to moderate risk of re-offending. That risk was said to be likely reduced were he to undertake the Sober Driving Program of the Alcohol and Drug Foundation of the ACT.
The author of the Pre-Sentence Report had clearly gone to some trouble to investigate how best to assist Mr Dhol address his problems. Thus, in addition to the references to programs, in this case the ACT Sober Driving Program and the ACT Corrective Services Cognitive Self Change Program, it was reported:
It is acknowledged that, due to cultural issues, a group-structured program such as the CSC program may present difficulties for the offender. Culturally specific, one-to-one counselling may better benefit Mr Dhol. Such counselling is available through Companion House in O’Connor in the ACT. Staff at Companion House reported a willingness to counsel the offender with regard to alcohol-use and unresolved grief issues; however a significant waiting period – unknown at the time of writing – may apply.
Mr Dhol’s counsel, Mr T Foley, made submissions, confirming the facts in the Pre-Sentence Report. As he put it, Mr Dhol used alcohol to medicate himself to deal with the quite traumatic experiences in his background both in Sudan and in Melbourne.
Mr Foley submitted that Mr Dhol had not consumed alcohol since the offences were committed nor had he driven since then, though he was issued with a licence in February. He had worked hard to get into the University of Canberra and his results for the first semester were good.
Mr Foley pointed out that he had a limited capacity to pay a fine, but as the Learned Sentencing Magistrate rightly noted, “He’s well and truly past the fine stage”. Emphasis was placed on the trauma of his background, though accepting that this did not excuse his conduct. He also noted that the inevitable lengthy disqualification would involve him in substantial inconvenience because of his study requirements. Without a home computer, he has to use the University provided computers in its library, where he is able to stay until 2.00 am or 3.00 am, at which time, of course, there is no available public transport, other than taxis.
Mr Dhol, Mr Foley further submitted, had also obtained some work to pay the fines he owes in Victoria.
Her Honour expressed some surprise that Mr Dhol was able to spend as much money as he did on alcohol, though it is not clear on what evidence her Honour was relying for that comment. Neither the Pre-Sentence Report nor Mr Foley’s submissions indicated how much Mr Dhol spent on alcohol. It did not even indicate how often Mr Dhol engaged in binge drinking, so that an estimate could be made.
Mr Foley then relied on the instructions he had received from Mr Dhol that he had not consumed alcohol since the offences were committed. Her Honour said:
But there’s nothing to verify that. That’s simply what he says.
Mr Foley also submitted that he had sought medical assistance from a general practitioner in Belconnen who had prescribed antidepressants. These, he said, had addressed his depression and anxiety and, while not sufficient in itself to resolve his alcohol problem, were an important first step. He had also discussed with the author of the Pre-Sentence Report the courses he could attend and was prepared to undertake the Sober Driving Program.
Her Honour intervened, asking:
Well, what exactly has he done, Mr Foley? Because this report, unless I’ve misread it, states that he hasn’t done anything about his alcohol.
Mr Foley pointed out that he had stopped consuming alcohol, perhaps confirmed by the fact that “he hasn’t come to notice since these events occurred”. Where, in the past, “he would drink to excess and then drive the next day and come to attention”.
The following exchange then occurred:
HER HONOUR: Well, that may well be so, but you will and he will appreciate if I’m sceptical about him simply saying, “I’ve stopped drinking,” because on page 3 of this report, this is just the last paragraph under “Drug and Alcohol History”, it says:
It appears no professional intervention has been sought regarding the offender’s alcohol issues. Mr Dhol did inform of his intention to discuss his alcohol issues with his general practitioner as soon as possible.
Now, this report is dated 26 May ---
MR FOLEY:Yes, your Honour.
HER HONOUR: --- which was like the day before the day before yesterday.
MR FOLEY:Yes, your Honour.
HER HONOUR: So I’m sceptical about what he says about the ---
MR FOLEY:Yes, your Honour.
HER HONOUR: Unless there is some proof that he has been ---
MR FOLEY:I don’t have that ---
HER HONOUR: No, so ---
MR FOLEY:I don’t have that ---
HER HONOUR: --- I’m going to accept what’s in the pre-sentence report ---
MR FOLEY:Yes, your Honour.
HER HONOUR: --- and that says that he hasn’t sought any professional help at all with his alcohol, you know, with his general practitioner.
Curiously, Mr Foley does not seem to have suggested to Mr Dhol that he get a report from the general practitioner he had seen. Curiously also, he did not seek an adjournment to get such a report and further evidence as to Mr Dhol’s alcohol use.
Mr Foley then sought to have her Honour accept that Mr Dhol, in the medical assistance he had sought, was now addressing the underlying problems that had led to his offending. Her Honour remained sceptical pointing out that the Pre-Sentence Report had said that it was “not known if the offender has suffered or is suffering any Post Traumatic Stress Disorder” and that he had stopped seeing a psychologist.
Mr Foley attempted to put Mr Dhol’s situation into the context of his background when her Honour interrupted with a commentary on migration and migrants:
HER HONOUR: I accept that and there are a lot of people – I’ve said this before in this court and I’ll say it again to this man. There are many people who, in this country, have come from very impoverished, war-ravaged, traumatic backgrounds, migrants. This country has been accepting migrants for many, many years. You and your lot, sir, are not the first group of migrants ever to hit these shores from war-ravaged and seriously impoverished countries. Many people in this country are from migrant stock and that doesn’t excuse the behaviour. You have been here 10 years now. It is time that you learned how to behave in a lawful way and respected the laws of this country. And if you can’t, then you have had the opportunity for the last 10 years to do something about it and you’ve done nothing and that’s the part that concerns me.
So I’m willing to accept that he has suffered some trauma in his past life, but he has been here for 10 years now and what he does here is totally disrespect the laws of this country and the laws of just about every territory that he’s been in. South Australia, Victoria, the Northern Territory, South Australia and now the ACT. He’s now going to have convictions in all of those jurisdictions. So it doesn’t really matter where he goes or where he moves to, he doesn’t obey the laws of any of those jurisdictions, and that’s the part that’s a difficulty. And he cannot keep on saying that, ‘I’ve suffered trauma therefore I drink, therefore I should be excused.” And that’s really what he’s asking, Mr Foley, and that’s not going to work any longer for him.
There are a number of matters that could be said about what her Honour said there, but there are only two that need be mentioned. It seems to me to be irrelevant to the sentencing of Mr Dhol that other migrants have arrived in Australia with “impoverished, war-ravaged, traumatic backgrounds”. That many of them have not committed offences is hardly to the point. One could similarly say that many people from broken homes where they experience abuse and a deprived background do not offend. That does not make irrelevant that background for those who do offend. Similarly, Mr Dhol’s background is relevant to the proper sentence to be imposed.
It is not clear what her Honour meant by “excuse”, for if those matters excused his behaviour, he would not be liable to be punished, but that was not the submission. The submission was that there were explanations for his behaviour and that he was addressing those matters so that a sentence that was just and appropriate and individualised as required could be imposed. See Weininger v The Queen (2003) 212 CLR 629 (at 638; [24]).
It was also not correct to say that Mr Dhol had “done nothing”. He had consulted a psychologist, though he had discontinued that treatment, apparently prematurely, and more recently he had consulted a general practitioner, who had prescribed medication which appeared to be making a difference. Further, on two occasions he had ceased consuming alcohol for substantial periods and he had actively sought, clearly with hard work, to better his prospects and, despite substantial educational disadvantage, had managed to gain admission to university and achieved at a commendable level.
Her Honour then challenged the matters on which Mr Foley had made submissions implying that they were unreliable because they were self-reported.
Her Honour said:
So he has really nothing apart from what he’s told you, Mr Foley, to put before this court. He has nothing about any GP assistance that he’s seeking. He has nothing to show that he’s now stopped drinking such as liver function tests or anything like that. There is nothing to put before the court that he has done any course of drug and alcohol awareness. There’s nothing to say that he is succeeding in any of the studies that he’s doing.
And there’s nothing to say that he has been employed in any capacity whatsoever, because this pre-sentence report states that he is unemployed and he’s intermittently undertaking several unskilled positions between lengthy periods of unemployment. So I really have to be guided and take note of what is in this pre-sentence report in the absence of anything else apart from what he tells you and what you tell me, Mr Foley.
It is not clear why her Honour referred to liver function tests as though they might provide an objective indication of whether Mr Dhol had ceased drinking, rather like urinalysis could help to determine objectively whether a drug user had remained abstinent. There was no evidence that a liver function test or, indeed, any other similar test, could achieve that assessment. Certainly, there is nothing of which I am aware about a liver function test that could determine whether a person had ceased drinking alcohol.
Mr Foley then suggested, rather tentatively, that an adjournment might allow for these matters to be addressed, though it appears to have been sought in the context of the university course, but her Honour said “[t]hat of itself would not be sufficient”. It is not entirely clear what is meant, though clearly it indicated to Mr Foley that he should not pursue his application for an adjournment.
Her Honour then referred to the conviction on 10 October 2006 when Mr Dhol was required to undertake community work and to undergo assessment and treatment for alcohol addiction. She queried whether Mr Dhol had completed the work as he appeared to have been fined for failing to complete the community work.
Mr Foley submitted that his instructions were that the community work was ultimately completed. That appears to have been accepted by the prosecution.
Her Honour also referred to an entry for breach of the suspended sentence earlier imposed, though I note that the court took no action on the breach, clearly considering that it was not a serious breach or worthy of punishment.
Mr A Joseph, who appeared for the prosecution, submitted that the drink-driving offence was in the mid to high range of seriousness, involving a collision, though there was no evidence about how serious it was, who was at risk or how extensive the damage was.
He pointed out the relatively early pleas of guilty but noted that Mr Dhol’s criminal record “admits of no leniency whatsoever”, a bold submission. He submitted that the university studies did give some hope of rehabilitation, but that this had to be balanced with the contents of the Pre-Sentence Report which he described as not being “completely positive by any stretch”. He referred particularly to the lack of insight as to the consequences of such offences referred to in it.
Mr Joseph referred to general deterrence as an important factor. He accepted that, although not completing it at first, Mr Dhol had completed the community work to which he had been sentenced. He submitted, however, that only a sentence of imprisonment was appropriate, but did further submit that it would not be inappropriate to suspend it. Indeed, he submitted that this:
would allow [Mr Dhol] to, in effect make good on what my friend’s said to the court about his turnaround, his new efforts at education. It would also give [Mr Dhol] a chance to prove that he’s serious about not offending any further.
The sentence
The Learned Sentencing Magistrate referred to the charges and summarised the facts of the offences. Her Honour also noted that all the offences were repeat offences in one way or another.
Her Honour referred again to his migrant status, saying:
... the pre-sentence report says that he came here as a migrant. I have already had my say about migrants coming to this country. He is not the first migrant ever to come to this country and he will not be the last migrant ever to come to this country. So he can expect no special treatment for the fact that he is a migrant. He can expect a lot of praise if he is a law-abiding migrant, but not if he is not.
Her Honour then recounted Mr Dhol’s criminal history and referred to the maximum penalties.
Her Honour also expressed amusement at the statement in the Pre-Sentence Report that he had been a leader of his community in Melbourne and commented “[o]nce again, something else that has not been confirmed”. Her Honour suggested that:
... the Sudanese community in the ACT do not need your type of leadership if this is the way you are going to behave. You break the law. They do not need any guidance or any leadership from somebody like you who constantly breaks the law.
Her Honour also referred to the fact that Mr Dhol was unemployed, stating that this was of concern “because you have a very extensive drinking habit, which is admitted”. I am not sure that the evidence went at all that far.
Her Honour also repeated the rather exaggerated assessment that he had “not done anything” to address his alcohol habit. Her Honour then said “I am told that you have stopped drinking. I do not know that. The pre-sentence report does not say that”. In fact the Pre-Sentence Report did say “He also claimed to be currently enjoying a record period of abstinence” and did not express any scepticism about that; indeed it referred to some facts about the circumstances which would tend to support it.
Her Honour then decided that no other sentence than imprisonment, was appropriate, that community service was inappropriate “because it’s just too little.” Her Honour rejected periodic detention because “I have no faith that if I were to allow you to do a sentence of imprisonment by way of periodic detention that you will comply”, making reference to his criminal record, which, her Honour considered showed that he was “somebody who is not going to comply with court orders because you have not to date”.
Her Honour then imposed the sentences set out above (at [6]).
Jurisdiction
This court has power under Pt 3.10 of the Magistrates Court Act 1930 (ACT), to hear and determine appeals from the Magistrates Court, Div 3.10.2 regulates appeals in criminal matters such as this appeal.
I have described in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles surrounding such appeals. I apply them in this case.
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, and that I am not merely tinkering.
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.
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 appellant’s submissions
It seems to me that the errors said to be made by the Learned Sentencing Magistrate in the appellant’s submissions can be grouped into three categories:
1. failing to accept or, alternatively, take into account, factual matters asserted from the bar table by Mr Dhol’s counsel including those which appeared in the Pre-Sentence Report;
2. failing to take into account the traumatic personal history of Mr Dhol and the need that this indicated for rehabilitative assistance which could be provided in the community;
3. that the sentence was manifestly excessive.
In relation to the first category, it was asserted that her Honour had failed to accept the following matters:
(a) that Mr Dhol had abstained from consuming alcohol since November 2010;
(b) that he had sought professional assistance in relation to the cause of his abuse of alcohol;
(c) that he was succeeding in his studies at the University of Canberra.
All of these matters were very relevant to sentence and had been the subject of submissions from Mr Dhol’s counsel. Her Honour clearly rejected the first two when saying that Mr Dhol had “not done anything” to address his alcohol habit. Indeed, Mr Dhol’s claim to have stopped drinking was actually referred to in the Pre-Sentence Report, in circumstances suggesting that the author had accepted it, though with still a need for professional intervention, a matter which was also the subject of a submission.
It was noted by Mr Dhol’s counsel that the prosecution had not challenged any of these assertions.
Mr Dhol’s counsel referred to what I said in Talukder v Dunbar (2009) 194 A Crim R 545 (at 549-50; [22] to [25]) as follows:
22.... It seems to me that in sentencing proceedings judicial officers are entitled to rely on assertions of matters, including matters of fact, made from the bar table unless they are challenged. As was said by Winneke P, Brooking and Hayne JJA and Southwell AJA in R v Storey [1998] 1 VR 359 at 371:
Ordinarily, much of what is relied on in sentencing is not the subject of evidence given on the plea. Judges have always relied heavily on what is asserted from the bar table and we see no reason why that practice should not continue. We are not to be taken as suggesting any departure from current practices on sentencing hearings. As we have said, judges can, and commonly do, act in such hearings on matters that are not proved by evidence that would be admissible at trial. There will, however, be cases, we venture to suggest relatively few cases, in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence.
23.It is clear now that where there are disputed matters on sentence, the prosecution is obliged to prove such matters beyond reasonable doubt and as to the facts of the offence and circumstances of aggravation, and the defence to prove matters of mitigation on the balance of probabilities: R v Storey [[1998] 1 VR 359]; R v Olbrich (1999) 199 CLR 270. That only means that matters which are asserted by either party need to be proven by strictly admissible evidence or to that standard of proof in a sentencing proceeding only where they are challenged. This seems to have been accepted in this jurisdiction in R v Capobianco [1978] 20 ACTR 29 at 30-1.
24.Thus, defence counsel can be reasonably confident that appropriate submissions, including assertions of fact, can be made from the bar table and will be accepted by the court and relied upon in the sentence unless challenged, either by the prosecution or the court. Of course, this leaves as somewhat flexible the extent to which such assertions may go before a challenge would be expected and for which defence counsel (or, mutatis mutandis, prosecutors) should be ready to prove in the usual way.
25.This approach is clearly recognised in the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) where it frequently refers to “information” being received or relied on by the court as distinct from “evidence”. See, for example, ss 36(3)(c) and 35(1)(b).
Reference was also made to Apolevski v Kinnane [2010] ACTSC 43 (at [21] et seq).
It was submitted that there was no sound basis on which her Honour could doubt the assertion made in the Pre-Sentence Report or in the submissions from the bar table and that no reasons were advanced. This is especially so having regard to the particular regime under which Pre-Sentence Reports are prepared in this Territory: Apolevski v Kinnane (at [30]).
It was also submitted that her Honour had erred when her Honour found in her reasons for sentence:
I am told that you have stopped drinking. I do not know that. The pre-sentence report does not say that.
There is nothing that you have put before this court to show that you, indeed, have stopped drinking. How do I know you have stopped drinking? You might have been drinking yesterday, you might have been drinking today. You might have been drinking last night.
The Pre-Sentence Report did, in fact, report that Mr Dhol had claimed to have stopped drinking. As noted above (at [63]), there was some support for that claim and no overt dispute. Apart from the misconceived reference to a liver function test, there was no suggestion from her Honour about what satisfactory evidence would have been accepted.
As to the second category, it was submitted that her Honour had failed to appreciate that a significant part of the traumatic background which Mr Dhol suffered had occurred in Melbourne, after he had arrived from the Sudan. Her Honour’s surprising comments about migrants was, to that extent, irrelevant, though, no doubt, Mr Dhol’s horrific youthful experience would have aggravated his Melbourne experiences.
This, it was submitted, was relevant to the sentence to be imposed, in accordance with the principles expressed in R v Verdins (2007) 16 VR 269.
Her Honour said that there was “no plan at all ... for seeking assistance with your alcohol use” where, it was submitted that comprehensive details were, in fact, set out in the Pre-Sentence Report, the author of which had clearly gone to some trouble to prepare and research.
As to the manifest excess, it was conceded that the drink-driving offence was objectively serious. It was submitted, however, that there were some features of his criminal history that needed to be taken into account:
(a) there were no indications of the blood alcohol level in respect of the earlier similar offence in the Northern Territory;
(b) he had never been sentenced to a term of imprisonment before which he was required to serve;
(c) there was some overlap of the culpability in the offence of leaving the scene of the accident without exchanging particulars and the drinking-driving offence.
It was submitted that the Pre-Sentence Report showed Mr Dhol had a long-standing alcohol problem but had been abstinent for some months and that programs were available to address this issue. He had previously been subject to conditional release which, albeit not without breach, he had completed.
The alternatives to full-time imprisonment had, it was submitted, not been properly explored or given due weight.
The respondent’s submissions
Mr J Hiscox, who appeared for the prosecution, submitted that, as I had indicated in argument, the Court was not bound to accept factual assertions made in counsel’s submissions merely because the prosecutor had not challenged them. He further submitted that if there was further evidence that could be adduced in support of the facts that the Learned Sentencing Magistrate had queried, then Mr Dhol’s counsel could have sought an adjournment to obtain it. If it were unreasonably refused that may have grounded a successful appeal as in Talukder v Dunbar (at 555; [51]).
He further submitted that her Honour had imposed a sentence that was within a proper sentencing range, especially in view of the circumstances of the offences and his prior criminal history.
He submitted that, in these circumstances, the protection of the community was important and that, accordingly, specific and general deterrence would feature prominently in a proper sentence.
Mr Hiscox further submitted that her Honour had made quite plain her concerns about the issues of mitigation referred to by Mr Dhol’s counsel. There was no procedural unfairness in how her Honour proceeded and, in this case, there had been no error.
Consideration
Fact finding in sentencing can be problematic. I have set out in Talukder v Dunbar the approach I consider will ordinarily be taken in the Magistrates Court and, to some extent, in this Court. I adhere to the views I there expressed, as set out above (at [75]). As the High Court observed in Weininger v The Queen (at 637; [21]), when referring to a provision equivalent to s 33(1) of the Crimes (Sentencing) Act 2005 (ACT):
The use of the phrase ‘known to the court’, rather than ‘proved in evidence’, or some equivalent expression, suggests strongly that s 16A [the equivalent to s 33(1)] was not intended to require the formal proof of matters before they could be taken into account in sentencing. Rather, having been enacted against a background of well-known and long-established procedures in sentencing hearings, in which much of the material placed before a sentencing judge is not proved by admissible evidence, the phrase ‘known to the court’ should not be construed as imposing a universal requirement that matters urged in sentencing hearings be either formally proved or admitted.
I do emphasise, however, that the fact that the prosecution does not object to assertions of fact in submissions is, while a powerful reason for the Court to accept what is there asserted, not binding on the Court.
The Court, too, must be astute to ensure that it is fair in the way it addresses these issues. Ordinarily, that will mean that it should give reasonable notice of any concerns it has about the facts being asserted.
There are some limits to this. For example as Neave JA, with whom Ashley JA and Pagone AJA agreed, said in R v Healey (2008) 186 A Crim R 433 (at 442-3; [44] to [46]):
44.In R v Storey [[1998] 1 VR 359; (1996) 89 A Crim R 519] this Court accepted the long-standing practice under which sentencing judges normally rely on statements made by counsel from the bar table, while accepting that there will be some cases ‘in which there will be significant disputes of fact that can be resolved only by the calling of appropriate evidence’: [R v Storey [1998] 1 VR 359 at 371; (1996) 89 A Crim R 519 at 532]. It will normally be obvious when this is the case, either because the counsel for the Crown has contested a fact on which an offender relies in mitigation, or the offender’s counsel has submitted that facts relied upon by the Crown should not be taken into account as circumstances aggravating the gravity of the offending.
45.There may be some cases where the judge’s failure to alert defence counsel of his or her intention to draw inferences adverse to the defendant, unless the defendant calls additional evidence, is a breach of procedural fairness. Such a situation arose in R v Mielicki [(1994) 73 A Crim R 72], where the sentencing judge took account of aggravating factors based on facts in depositions which were not included in the agreed statement of facts which provided the basis for the defendant’s guilty plea. It was held that the sentencing judge’s failure to warn the defendant’s counsel of what he intended to do amounted to a breach of procedural fairness, because it had prevented the defendant from disputing those facts, or considering whether his guilty plea should be withdrawn.
46.This is not a case where the judge found that aggravating factors were established beyond reasonable doubt, without giving the offender an opportunity to make submissions on matters falling outside the agreed statement of facts. In a situation such as this, where defence counsel puts forward factors said to go in mitigation and the Crown makes no submissions on that matter, I would be reluctant to take the view that a sentencing judge has an obligation to warn counsel that he or she is considering the possibility of finding that those factors are not established on the balance of probabilities. Defence counsel has a forensic choice as to whether the offender or other witnesses should be called. It seems to me that it would be excessively onerous to require a judge to give a warning of this kind in all plea hearings in which a judge considers that facts relied upon in mitigation are not established on the balance of probabilities.
It seems to me that what Neave JA said at [46] in R v Healey itself needs to be recognised as requiring careful consideration for a sentencer as to what concerns need to be raised about material submitted in this way for, as Kirby P (as his Honour then was) said, in Parker v Director of Public Prosecutions and Anor (1992) 28 NSWLR 282 (at 296):
[A] fair procedure requires, at least for important decisions and those critical to the determination of a case, that considerations of importance to the judicial officer’s conclusions should be drawn to the notice of the parties affected or their representatives so that a fair opportunity is presented for contrary argument to persuade the judicial decision-maker to a different view.
Defence counsel must be astute to ensure that in preparation for a plea in mitigation, they have assembled what evidence is reasonably needed for the plea and that they do not merely rely on submissions where it would be reasonable to adduce evidence by way of reports, references, letters, certificates or the like.
Defence counsel should also ensure that if, despite their appropriate preparation, doubt or scepticism is expressed about any of their submissions, there are options available which the defendant can choose to resolve the problems. The defendant can be called to give sworn evidence, and, of course, be cross-examined, an important answer to queries of self-report, as noted in R v Qutami (2001) 127 A Crim R 369 (at 377; [58]; 380; [79]).
In addition, an adjournment can be sought, which will allow any further evidence to be obtained to address the matters. While such applications should rarely be made, as that may disclose inadequate preparation, it is sometimes appropriate or, indeed, necessary. An unreasonable refusal to grant the adjournment can be resolved on appeal.
Having said that, if submissions are reasonably made, especially in reliance on principles such as those set out in Talukder v Dunbar, their unreasonable rejection runs the risk of unfairness, or, indeed, of error. Ultimately, it would also have the effect of causing sentencing hearings to be substantially prolonged. For example, it is rare for defendants in the Magistrates Court to be called to give sworn evidence. Were that to become common, as it is in this Court, there is a risk of overburdening the busy Magistrates Court and creating delays and extra work.
Nevertheless, if the submissions are to be routinely rejected merely because they are based on self report and rejected without a reasonable basis for doing so, and, of course, there is sometimes a very reasonable basis for it (see, for example, R v Ashman [2010] ACTSC 45 (at [26])), then the only alternative for defence counsel is to call the defendant to give sworn evidence and adduce other evidence at some costs, prolongation of sentencing hearings and, no doubt, delay. A proper balance is required.
In this case, her Honour appears to have taken the view that no submissions relying on self-report by Mr Dhol could be accepted and her Honour viewed with surprising scepticism every submission made. No clear justification was articulated for this approach and some of the comments were wrong.
For example, her Honour suggested that a liver function test was a desirable method of proving that Mr Dhol was no longer drinking. That is in error. Her Honour suggested that the Pre-Sentence Report had not stated that Mr Dhol was no longer drinking. It, in fact, did state that he had claimed that and that there was some basis for accepting that this was so. It is difficult to see what else the Report’s author could have done.
In addition, her Honour questioned Mr Dhol’s source of funds for “extensive” drinking of which there was no evidence. Her Honour seemed to suggest his trauma came only from his experiences in Sudan, ignoring or erroneously rejecting the severely traumatic experiences he had had in Melbourne.
Indeed, the author of the Pre-Sentence Report had gone to extra lengths to provide information about appropriate community-based programs that would be suitable, clearly addressing the challenges that Mr Dhol was facing, a strong endorsement in the Report itself of the fact that there was, contrary to her Honour’s scepticism, a real basis for the contention that his problems were based on his earlier experiences in Sudan but particularly more recently in Melbourne.
This was supported by the fact that, despite his history and lack of schooling, Mr Dhol had managed to gain sufficient education by his own efforts in Australia to earn admission to University, hardly the actions of someone who has ignored or rejected the opportunities that his migration to Australia had offered.
It seems to me that her Honour set up a false dichotomy; either his background excused his behaviour or it was irrelevant. In fact, it did not excuse his behaviour but it was relevant. It was relevant both as the background and circumstances under which he lived and operated on a day-to-day basis and which had formed his personality and mental health but also for the appropriate sentencing options that were available to her Honour. It was an explanation, not an excuse, and as such was part of what her Honour was statutorily required to take into account under s 33(1)(m) of the Crimes (Sentencing) Act. It was important to take this material into account for the identification of the appropriate sentencing options.
Her Honour did consider whether a suspended sentence with a good behaviour order containing a community service option or whether a term of imprisonment to be served by periodic detention should be available.
Her Honour rejected both options, saying:
So community service is not appropriate, in my view, because it is just too little. Community service is not an appropriate sentence for somebody on a fourth high range drink driving charge. And likewise, periodic detention, I have no faith that if I were to allow you to do a sentence of imprisonment by way of periodic detention, that you will comply. Because quite frankly, you have shown yourself through your criminal history that you are somebody who is not going to comply with court orders because you have not to date. You know, you are told, ‘Do not drink, do not drive,’ and you do. So periodic detention is not appropriate.
The reason for rejection of the community service condition is an error for there was no evidence of three earlier high range drink-driving charges. Indeed, the one immediately previous conviction was explicitly shown in the criminal records as for a “medium range” offence and the earlier two gave no indication of the blood alcohol level.
As to the rejection of periodic detention, it seems to me that the reason offered is not appropriate. A breach of periodic detention has its own sanction, a very tough sanction, namely that the offender must serve the balance of the term in full-time custody.
A penalty that the offender cannot undertake is, of course, not one that should be imposed, but, if it is otherwise appropriate and proper, the risk that an offender will not complete a sentence is not necessarily a good reason for not imposing it, especially if that means a more severe sentence is to be imposed. That would breach the principle set out in s 10(2) of the Crimes (Sentencing) Act, namely that, having considered possible alternatives, the court may only impose a sentence of imprisonment if “no other penalty is appropriate”.
Clearly, whether there is a risk that the offender will not complete a sentence order is a relevant consideration. For example, that may be a good reason why a Deferred Sentence Order might not be made.
Here, there is nothing in Mr Dhol’s history to suggest that he would not satisfactorily complete a sentence of imprisonment to be served by periodic detention. He did not complete his community service at first, but it was accepted that he ultimately did so.
The breach of his suspended sentence in Melbourne in 2008, was clearly constituted by the commission of the theft offence for which a modest fine was imposed and no action taken on the breach. Mr Dhol has certainly continued to drive without a licence, but that does not appear to be in defiance of court orders. See Butler v Vickers and Ors [2011] ACTSC 134 (at [34] to [37]). He has, for example, not been convicted of any charge of driving whilst disqualified. The assertion, therefore, that he “is not going to comply with court orders” is not based on his prior criminal record.
There were some other oddities in the sentence. A condition was made to the good behaviour order that he undertake a sober driving program, presumably within the two years of the order, probably during the 12 months of supervision. On the other hand, he was not to obtain a licence “until the court orders otherwise” and her Honour suggested he should “not even bother thinking about it for many, many years, not this side of five years, in any event”. The two simply do not sit appropriately together, especially as Mr Dhol would have to pay for the sober driving course himself.
Her Honour’s reference to disqualifying Mr Dhol’s licence “until the court orders otherwise” also seems to be in error. The power to make an order such as this is found in s 65 of the Road Transport (General) Act 1999 (ACT). It provides:
(1)This section applies if –
(a)a person is disqualified (whether or not by court order) from holding or obtaining a driver licence because of being convicted, or found guilty, of an offence, or offences, against the road transport legislation or any other territory law; and
(b)the total period of disqualification (the compulsory disqualification period) is 12 months or more.
(2)If the court that convicts the person, or finds the person guilty, of an offence mentioned in subsection (1) is satisfied, after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that it is necessary in the public interest to do so, the court may disqualify the person from holding or obtaining a driver licence from the end of the compulsory disqualification period until the disqualification is set aside under subsection (3).
(3)If a court is satisfied, on application by a person who is disqualified under subsection (2) and after considering the matters mentioned in subsection (7) and any other matters the court considers relevant, that the disqualification is no longer necessary in the public interest, it may set the disqualification aside.
(4)An application under subsection (3) must be given to the registrar of the court with an affidavit of the applicant setting out the grounds of the application.
(5)The respondents to an application are the road transport authority and the chief police officer.
(6)If the Magistrates Court commits a person mentioned in subsection (1) to the Supreme Court for sentence under the Magistrates Court Act 1930, section 92A, subsection (2) applies as if the Supreme Court had convicted the person.
(7)For subsection (2) or (3), the court must consider the following matters:
(a)the total period for which the person concerned is, or has been, disqualified from holding or obtaining a driver licence;
(b)the person’s history of offences (including offences for which infringement notices were served on the person) –
(i)against the road transport legislation or a law of another jurisdiction corresponding to it (or to part of it); or
(ii)against another law of any jurisdiction in relation to the use of motor vehicles;
(c)any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person;
(d)the risk to the safety of other road users.
(8) In this section:
infringement notice includes a notice (however described) served on a person under the law of another jurisdiction that gives the person the option of paying an amount for an offence instead of being charged with the offence.
What this section requires is that:
(a) the person must have been subject to a compulsory disqualification (i.e. by virtue of a conviction);
(b) the total period of disqualification is for 12 months or more;
(c) having regard to the matters set out in subsection (7), the court must find that it is necessary in the public interest that the disqualification continues from the end of the compulsory disqualification period until the disqualification is set aside.
As a repeat offender, Mr Dhol was automatically subject to a default disqualification for five years, unless the court otherwise ordered a lesser period: s 33 of the Alcohol and Drugs Act.
Even were the Court to have reduced that maximum, it could not be reduced to less than 12 months and so s 65 would potentially always apply.
Her Honour, however, clearly did not appreciate that the additional disqualification applies from the end of the compulsory disqualification period, as her reference to “not this side of five years” discloses.
Further, there was no indication that her Honour had addressed the criteria set out in subsection (7), nor any finding that it was in the public interest that the order be made.
It seems to me that Mr Dhol’s traffic record and, indeed, the specific circumstances of this offence did not obviously justify such an order.
There are, therefore, a number of errors in the sentence imposed for the drink-driving offence and that requires me to re-sentence Mr Dhol for that offence.
While the imposition of a good behaviour order for the offence of being an unlicensed driver was appropriate, it seems to me that it was inappropriate to be in the same terms as for the more serious drink-driving office and that should also be varied. The other sentence was appropriate.
Mr Dhol will, accordingly, have to be re-sentenced.
I shall make appropriate orders to give effect to these reasons.
Mr Dhol’s counsel sought to put further matters to me on sentence. I shall provide that opportunity for that to be done.
I certify that the preceding one hundred and twenty-six (126) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 30 November 2011
Counsel for the appellant: Mr R Davies
Solicitor for the appellant: Legal Aid Office (ACT)
Counsel for the respondent: Mr J Hiscox
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 30 September 2011
Date of judgment: 30 November 2011
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