Gibson v Jones - [2020] NTSC 68

CITATION:Gibson v Jones [2020] NTSC 68
PARTIES:GIBSON, Erica Ann

v
JONES, Brett Campbell

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  APPEAL from LOCAL COURT exercising Territory jurisdiction
FILE NO:LCA 21 of 2020 (22004791)
DELIVERED:  25 September 2020
HEARING DATE:  25 September 2020
JUDGMENT OF:  Mildren AJ

CATCHWORDS:
SENTENCING – Appeal against sentence – sentence contrary to law – mandatory minimum term of license disqualification – disqualification runs from the date of the finding of guilt – mandatory minimum term is reduced by the period of time license suspended under s 29AAN – no suspension under
s 29AAN but not permitted to drive as a condition of bail – no power to backdate license disqualification to date bail granted – whether the offence was a second or subsequent offence – whether court erred in imposing an aggregate sentence of imprisonment where one of the offences carried only a fine

Traffic Act s 27A, s 28, s 29AAF, s 29AAG, s 29AAN, s 29AAS, s 34
Sentencing Act s 52, s 57
Traffic Regulations, reg 88

Murphy v Malony [1997] NTSC 51; (1997) 113 NTR 10, Rigby v James [2004] NTSC 6, Dixon v Pryce (unreported Mildren J, 26 September 1996), Tomlins v The Queen [2013] NTCCA 18, referred to
REPRESENTATION:
Counsel:
Appellant:D Castor
Respondent:  I Read SC
Solicitors:
Appellant:Office of the Director of Public Prosecutions
Respondent:  Northern Territory Legal Aid Commission
Judgment category classification:    B
Judgment ID Number:  Mil20564
Number of pages:  14

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Gibson v Jones [2020] NTSC 68

No. LCA 21 of 2020 (22004791)

BETWEEN:

ERICA ANN GIBSON

Appellant

AND:

BRETT CAMPBELL JONES

Respondent

CORAM: MILDREN AJ
EX TEMPORE REASONS FOR JUDGMENT[1]
(Delivered 25 September 2020)

On 28 April 2020 the respondent pleaded guilty in the Local Court at Katherine to the following offences, all committed at Katherine on 3 February 2020:
(a)     Count 1: driving a motor vehicle with prohibited drugs in his body (namely opiates, cannabis, amphetamine and methamphetamine), contrary to s 28(1)(a) of the Traffic Act 1987;
(b)     Count 2: driving a motor vehicle on a road at a speed over the speed limit (namely 72 kilometres per hour where a speed limit sign of 60 kilometres per hour applied), contrary to Rule 20 of the Australian Road Rules;
(c) Count 3: driving an unregistered motor vehicle on a public street contrary to s 33(1)(a) of the Traffic Act 1987;
(d) Count 4: driving a motor vehicle that did not have a current compensation contribution on a public street contrary to s 34(1) of the Traffic Act 1987;
(e)     Count 5: engaging in conduct that resulted in a breach of condition of his grant of bail contrary to s 37B of the Bail Act 1952;
(f)   Count 6: driving a motor vehicle which was in such a condition as to be unsafe to drive on a road contrary to regulation 17(b) of the Traffic Regulations 1999.
The Sentencing Judge registered convictions and imposed an aggregate term of five days imprisonment for counts 1, 2, 3, 5 and 6 backdated to commence on 24 April 2020; a conviction and no further penalty for count 4; and ordered that the respondent’s driver’s license be disqualified for a period of six months backdated to commence on 3 February 2020 for count 1.
The appellant has appealed against the penalties imposed on the grounds that that the learned Sentencing Judge erred by imposing sentences that were not according to law, namely:
(1)failing to apply a mandatory term of licence disqualification on count 1; and
(2)failing to impose a minimum mandatory fine for a fine only offence on count 4.
The appellant sought and obtained leave to add a further ground of appeal, namely that the Sentencing Judge erred in imposing an aggregate sentence of imprisonment for counts 1, 2, 3, 5 and 6 when one of the counts on the complaint (count 4) was not one for which a sentence of imprisonment was available.
Ground 1: That the learned Local Court Judge erred in failing to apply a mandatory term of licence disqualification according to law
On count 1, the respondent pleaded guilty to and was convicted of driving with a prohibited drug in his body contrary to s 28(1)(a) of the Traffic Act 1987.
Section 28(4) of the Act provides:
(4)If a court finds a person guilty of a relevant offence that is a second or subsequent offence, the person's licence to drive is automatically cancelled and the person is disqualified from obtaining a licence:
(a) for a second offence – for a minimum period of 3 months; or
(b) for a subsequent offence – for a minimum period of 6 months.
Section 28(2) provides that an offence against s 28(1) (defined as “a relevant offence”) is a second or subsequent offence if the person has previously been found guilty of (inter alia), driving with a prohibited drug in the blood [s 28(2)(b)].
The appellant contends that, at the time of sentence, the respondent had two previous convictions for driving with a prohibited drug in his blood for offending conduct on 2 June 2019 and 8 June 2019 respectively. He was convicted in relation to each of these offences in the Katherine Local Court on 30 September 2019.
The appellant contends further that count 1 was a “subsequent offence” that the respondent fell under s 28(4)(b), and that his licence was automatically cancelled and he was disqualified from obtaining a licence for a minimum period of 6 months.
The offence is defined in s 28(1)(a) as driving a motor vehicle while there is a prohibited drug in the person’s body.
An offence under s 28(1)(a) is a second or subsequent offence as defined in s 28(2) if the person has previously been found guilty of driving with a prohibited drug in the person’s blood [s 28(2)(b)]. That is to say, on that definition, an offence is not a second or subsequent offence if the person has previously been found guilty of driving with a prohibited drug in the person’s body; only in the person’s blood.
There is no offence in the Act defined as driving with a prohibited drug in the person’s blood. However, s 27A of the Act provides:
Evidence of drug in body
It is evidence that a drug is in a person's body if the drug is detected by analysis of a sample of the person's saliva or blood.
A question arises as to the construction of s 28(2)(b).
One possibility is that the offence under s 28(1)(a) is only a second or subsequent offence within the meaning of s 28(2)(b), if any previous offence against s 28(1)(a) of which the person was found guilty, were offences in which the presence of the prohibited drug in the person’s body was confirmed by a blood test. (This, then, would be an evidentiary issue. Was the presence of a prohibited drug or drugs confirmed by a blood test for the purpose of the two prior offences of which the respondent was found guilty on 30 September 2019?)
Section 29AAF(1) of the Act provides that in specified circumstances, a police officer may require a person to submit to a saliva test (or tests) for the purpose of determining whether there is a prohibited drug in the person's body. Section 29AAG(2) provides that in the circumstances set out in

s 29AAG(1), a police officer may require the person to give a sample of blood for the purpose (inter alia) of determining if the person's body contains a prohibited drug [s 29AAG(2)(b)]. The circumstances in which the police officer may require a person to give a blood sample include that the officer has reasonable cause (whether or not as a result of a positive indication from a saliva test) to suspect the person's body contains a prohibited drug [s 29AAG(1)(b)].
I do not know what the general custom is in relation to requiring people who have had a positive saliva test to undergo a blood test, but there is nothing in the Act to prevent a person from being charged with an offence of driving with the presence of a prohibited drug in the person’s body under s 28(1)(a) on the basis of a saliva test alone. In fact s 27A would appear to contemplate a person being charged on the basis of either a saliva or a blood test.
A possible alternative explanation is that s 28(2)(b) has been mistakenly drafted and that what was intended was that the words “driving with a prohibited drug in the blood” in s 28(2)(b) were intended to read “driving with a prohibited drug in the body”.[2] This is not a conclusion one would readily come to if there is an alternative construction of the provision that makes sense. In any event, the explanation seems unlikely as, if that had been the intention, the easiest way of effecting that intention would have been to define that particular relevant offence simply as “an offence contrary to s 28(1)(a)”.
In my view, therefore, on a proper construction of s 28(2)(b), an offence against s 28(1)(a) of driving with a prohibited drug in the person’s body, is only a second or subsequent offence as defined by s 28(2)(b) if the person has previously been found guilty of the offence of driving with a prohibited drug in the person’s body and the presence of the prohibited drug in the person’s body was confirmed by a blood test. However, it is not necessary to reach any final conclusion because I will proceed on the assumption that the two previous convictions on 30 September 2019 were offences against

s 28(1)(a) in which the presence of the prohibited drug in the respondent’s body was confirmed by a blood test and that, as there were two such previous findings of guilt, count 1 is a “subsequent offence” within the meaning of s 28(4).
The mechanism for implementing the provisions of s 28 is contained in

s 29AAS of the Act as follows:
When court finds person guilty
(1)   If a court finds a person guilty of an offence under this Part, the person's licence is cancelled and the person is disqualified from obtaining another licence for the minimum period specified in relation to the offence, taking into account whether the offence is a first, second or subsequent offence.
(2)   For subsection (1), a court which finds a person guilty of an offence under this Part must specifically find whether the offence is the person's first, second or subsequent offence.
(3)   The cancellation and disqualification occur automatically by operation of this Part, but take effect from the date of the finding of guilt.
(4)   The court may order that the person be disqualified from obtaining a licence for a period longer than any minimum period specified in this Part, as the court considers fit.
(5)   The period of disqualification is reduced by any period of licence suspension imposed under section 29AAN in relation to the same offence.
By virtue of the two convictions on 30 September 2019, count 1 was a “subsequent offence” for the purpose of s 28(4); on the finding of guilt on count 1 the respondent’s licence was automatically cancelled and he was disqualified from obtaining a licence for a minimum period of 6 months

[s 29AAS(1)], less any period of licence suspension imposed under

s 29AAN in relation to count 1 [s 29AAS(5)]. That cancellation and disqualification “took effect” on the finding of guilt (in this case 28 April 2020) [s 29AAS(3)].
This entire process was automatic and required no order of the court.[3] The Sentencing Judge had a discretion under s 29AAS(4) to order that the offender be disqualified from holding a drivers licence for a longer period but in the event, did not do so.
Section 29AAN provides:
Notice of immediate licence suspension and disqualification from driving
(1)   If a person is charged with an immediate suspension offence, a police officer may give the person a notice under this section.
(2)   For subsection (1), a person is charged with the offence when given a copy of the charge, signed by a police officer.
(3)   The notice must be in a form approved by the Commissioner and:
(a)has the effect that the person's licence is suspended immediately the person is given the notice; and
(b)must inform the person that he or she is disqualified from driving until the charge is determined by a court; and
(c)must require the person to surrender to police any licence document the person holds; and
(d)must include a statement of the person's right to appeal to the Local Court against the suspension and disqualification.
(4)   A police officer who gives a person a notice under this section must provide details of the notice, and the person to whom it was given, to the Registrar without delay.
A second or subsequent offence under s 28(1) is an “immediate suspension offence” [s 28(5)], meaning that it is one in which a police officer is empowered to issue a notice under s 29AAN that has the effect of immediately suspending the person’s licence and disqualifying the person from driving until the charge is determined by a court. It is common ground that, despite this, the respondent was not served with a notice of suspension under s 29AAN.
However, on 5 February 2020 the Sentencing Judge granted the respondent bail and imposed as a condition of his bail that he not drive a motor vehicle. In sentencing the respondent on count 1, the Sentencing Judge imposed a period of disqualification from holding a driver’s licence of 6 months and purported to backdate the disqualification to 5 February 2020, the date on which her Honour imposed that bail condition, no doubt to take into account the fact that the respondent had already been prohibited from driving for the period between 5 February and 28 April 2020.
The appellant contends that it was impermissible for the learned Sentencing Judge to backdate the period of disqualification, and that is unarguably correct.
The period of disqualification takes effect from the finding of guilt. That is the effect of the clear words of s 29AAS(3).[4] Unless the Sentencing Judge, exercises the discretion conferred on the court by s 29AAS(4) to impose a longer period, the period of disqualification from holding a licence is automatically calculated in accordance with ss 29AAS(1) and 29AAS(5) – i.e. in the case of a subsequent offence, 6 months less the period of licence suspension imposed under s 29AAN in relation to the offence.
In the case of the respondent, this means that by virtue of the relevant provisions of the Act, and without any need for an order of the court, on 28 April 2020 the respondent’s licence was automatically cancelled and he became disqualified from holding a licence for six months from that date, there being no period of suspension under s 29AAN to deduct.
The learned Sentencing Judge had no power to make a contrary order.
Ground 2: That the learned Local Court Judge erred in imposing a sentence of imprisonment to a charge which was a fine only offence and that was not according to law
The impugned sentence relates to count 4, driving without a current compensation contribution contrary to s 34(1) of the Traffic Act 1987. In sentencing the respondent, the Sentencing Judge recorded a conviction for count 4 and remarked: “I’m not going to impose any sentence for count 4”. This was not an order that was open to the Sentencing Judge to make.
Section 34 of the Act provides:
Driving uninsured or improperly insured vehicle
(1) Subject to subsection (4), a person shall not drive or permit to be driven on a public street or public place a motor vehicle in respect of which a current compensation contribution has not been paid under Part V of the Motor Vehicles Act 1949.
Penalty:If the offender is a natural person – 100 penalty units.
If the offender is a body corporate – 500 penalty units.
In both cases, the minimum penalty is:
(a) for a first offence – 5 penalty units; and
(b) for a second or subsequent offence – 10 penalty units.
The language of this section is unambiguous. For a first offence, the Sentencing Judge must impose a fine of not less than 5 penalty units on a person who is found guilty of an offence under s 34(1), and for a second or subsequent offence, the Sentencing Judge must impose a fine of not less than 10 penalty units, up to a maximum of 100 penalty units for a natural person such as the respondent.[5]
Additional ground:
The appellant has sought leave to rely on a further ground of appeal not specified in the Notice of Appeal, namely that it was not open to the learned Sentencing Judge to impose an aggregate sentence of imprisonment for five days on counts 1, 2, 3, 5 and 6.
Section 52(1) of the Sentencing Act 1995 provides (relevantly):
Aggregate sentences of imprisonment
(1)    Where an offender is found guilty of 2 or more offences joined in the same information, complaint or indictment, the court may impose one term of imprisonment in respect of both or all of those offences but the term of imprisonment must not exceed the maximum term of imprisonment that could be imposed if a separate term were imposed in respect of each offence.
(2)    A court must not impose one term of imprisonment under subsection (1) where one of the offences in respect of which the term of imprisonment would be imposed is an offence against section 192(3) of the Criminal Code.
(3)    Subsection (1) does not apply if one of the offences in the information, complaint or indictment is a violent offence or a sexual offence.
The appellant contends that this suggests that an aggregate sentence of imprisonment is not able to be passed on five offences in a six count complaint in circumstances where the sixth count cannot be subject to the aggregate sentence of imprisonment. I agree.
In Tomlins v The Queen,[6] the Court of Criminal Appeal said:[7]
Save for the exception contemplated by s 52(2) of the Sentencing Act, and subject to s 52(3) of the Act,[8] read literally, s 52 of the Act only enables a court to impose one term of imprisonment in respect of all counts on the indictment. It does not enable a court to pass a number of aggregate sentences for different groups of counts on an indictment. Nor does it enable a court to pass a discrete sentence of imprisonment for a violent offence or a sexual offence pleaded on an indictment and an aggregate sentence of imprisonment for the balance of non-violent or non-sexual offences pleaded in an indictment.
The respondent has submitted that the Court should not adopt a literal reading of s 52 of the Sentencing Act because it would lead to a number of manifestly absurd outcomes and would be inconsistent with the purpose of s 52 of the Act. That purpose involves “considerations of administrative convenience and the creation of a sentencing regime in which due allowance could be made for the recognition of the totality principle without having to resort to “juggling” with individual sentences in an artificial manner, to achieve the same result”. It was submitted that s 52 of the Act should be interpreted so as to allow aggregate sentences to be imposed for different groups of counts on an indictment.

As desirable as that may be, we do not accept this submission. The respondent’s submission would involve impermissibly reading too many words into the section and what is said to be absurdity, in truth, involves no more than a sentencing court being required to apply the general sentencing principle which is referred to in par [34] above, as inconvenient as that may be on some occasions. Such a process does not preclude due allowance being given to the principle of totality.
These remarks were obiter as the appeal was allowed on the basis that an aggregate sentence was imposed across all of the offences on the indictment, one of which was a violent offence, and s 52(3) specifically precluded an aggregate sentence in those circumstances. However, remarks from the Court of Criminal Appeal (in this case in a joint judgment from Riley CJ, Southwood and Barr JJ) are highly persuasive and, in any case I agree with the reasoning.
The literal meaning of the words used in s 52(1) seem to me to compel the conclusion that an aggregate sentence of imprisonment can only be imposed on all of the offences on a complaint of which the offender has been found guilty. A Sentencing Judge cannot impose an aggregate sentence of imprisonment in relation to some only of the offences on the complaint. It follows that if one of the offences is one for which a sentence of imprisonment is not an available option, the Sentencing Judge cannot impose an aggregate sentence for the remaining offences on the complaint.

ORDERS:
1.The order of the Sentencing Judge in relation to the period of disqualification in relation to count 1 is set aside.
2.The order in relation to count 4 is set aside.
3.The aggregate sentence for counts 1, 2, 3, 5 and 6 is set aside.
4.The matter is remitted to the Local Court for sentence according to law.

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[1]In this appeal both parties delivered written submissions to the effect that this appeal must be allowed. Before the matter came to be dealt with by me, it had been assigned to Kelly J, who had prepared a draft judgment. These reasons are largely based on her Honour’s draft.

[2]Alternatively, perhaps it may be argued that if the prohibited drug is found in the blood, it is necessarily in the body, as the blood is part of the body.

[3] This is the effect of s 29AAS(3). See also similar remarks by Martin CJ in relation to an earlier version of the Act in Murphy v Molony [1997] NTSC 51; 113 NTR 10; 138 FLR 316 at para [10].

[4] In Rigby v James [2004] NTSC 6 at [11], I remarked in relation to an analogous provision in an earlier iteration of the Act: “It is also clear that the period of disqualification to be imposed, whether it be the minimum or otherwise) cannot be backdated and must run from the date of the finding of guilt,” citing Dixon v Pryce (unreported Mildren J, 26 September1996) and Murphy v Molony [1997] NTSC 51; (1997) 113 NTR 10 at 11 where similar remarks were made.

[5] S 34(4) provides that the minimum penalty does not apply in circumstances provided by the Regulations. Regulation 88 exempts certain classes of vehicles in certain circumstances. It did not apply in this case. Even if the Court dismissed the charge under s 10 of the Sentencing Act 1995 this can only follow upon a finding of guilt. Consequently even in such a case it is very likely that the Court would still have to impose at least the minimum fine: see s 7 of the Sentencing Act 1995.

[6][2013] NTCCA 18.

[7]at [38], [40] and [41].

[8]This refers to the following remarks at [37] of the judgment: “[Section] 52(2) of the Act appears to permit an aggregate sentence to be passed for some counts on an indictment provided a discrete sentence is imposed for any offence contrary to s 192(3) of the Criminal Code. There is no such allowance under s 52(3) of the Act. That subsection appears to impose a wider constraint than s 52(2) because it clearly states that s 52(1), which provides the power to pass an aggregate sentence, does not apply if one of the counts on an indictment is a violent offence or a sexual offence.