Grant Carmody and David McKenzie Ladd v Peter Waugh
[2009] ACTSC 156
•1 December 2009
GRANT CARMODY AND DAVID MCKENZIE LADD v PETER WAUGH
[2009] ACTSC 156 (1 December 2009)
CRIMINAL LAW – Appeal from Magistrates court – whether appeal manifestly inadequate – drink driving – two charges – high range offences – first offender for each matter – not treated as a repeat offender – seriousness of offence – principles of general deterrence – evidence of good character – appeal upheld – non-conviction order manifestly inadequate – good behaviour order imposed
CRIMINAL LAW – Appeal from Magistrates court – whether donation as a condition of a good behaviour order authorised by law – ancillary orders to a non-conviction order – whether s 17 Crimes Act 1900 (ACT) should be approached differently to preceding provisions s556A/s 404 – held intent of provisions the same as for s 17 – appeal upheld – condition to make donation inconsistent with a non-conviction order – donation condition ineffectual – good behaviour order varied
Crimes (Sentencing) Act 2005 (ACT), ss 9, 13, 14, 17, 18
Crimes (Sentence Administration) Act (ACT), ss 87, 108
Road Transport (Driver Licensing) Regulations 2000 (ACT) regs 45, 47
Crimes Act 1900 (ACT), ss 404, 556A
Higgs v R (unreported) [1999] FCA 1562
Properjohn v Gaughan [1998] ACTSC 26
R v Ingrassia (1977) 41 NSWLR 447
REASONS FOR DECISION
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 25 of 2009
Judge: Higgins CJ
Supreme Court of the ACT
Date: 1 December 2009
IN THE SUPREME COURT OF THE )
) No. SCA 25 of 2009
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEEN:GRANT CARMODY AND DAVID MCKENZIE LADD
Appellant
AND:PETER WAUGH
Respondent
ORDER
Judge: Higgins CJ
Date: 1 December 2009
Place: Canberra
THE COURT ORDERS THAT:
The appeal be upheld.
On charge CC2008/11931 a six month good behaviour order be imposed from 15 May 2009. For that period the respondent be disqualified from driving a motor vehicle save for the purposes of employment and on condition that he not drive for 10 hours after any alcohol consumption.
On charge CC2008/11007 a 12 month good behaviour order be imposed from 15 May 2009 with the condition that the respondent be disqualified from driving a motor vehicle save for the purposes of employment and on condition that he not drive for 10 hours after any alcohol consumption. Condition 2 of the original good behaviour order imposed, in respect of the $300 donation, be set aside.
On Friday 11 September 2009, I upheld an appeal by the informants against a decision by the Chief Magistrate imposing certain penalties upon the respondent consequent upon his pleas of guilty to two charges of driving with the prescribed concentration of alcohol.
The first was on 18 September 2008, a reading of 0.185 and the second on 4 November 2008, a reading of 0.154. The respondent had no prior criminal history and had been driving for over 20 years. There was positive evidence of good character.
Apparently, when the pleas of guilty were first heard, his Honour indicated that, if the respondent complied with bail conditions not to drive save for work and therapy, to complete an alcohol and other drugs assessment and an ADFACT Sober Driver Education course and CADAS treatment plan, a sentence pursuant to s 17 of the Crimes (Sentencing) Act 2005 (ACT) would be considered.
The prosecutor strongly submitted that in view of the fact that there were two matters and the high readings on each occasion, a conviction should, at least, be recorded. Section 17 provides:
17 Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b)a good behaviour order under section 13.
Note A good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
Note An appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
(5)If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.
Note 1 For notice of a good behaviour order under s (2) (b), see s 103.
Note 2 For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).
(6)Failure to comply with subsection (5) does not invalidate the non‑conviction order.
(7)If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.
(8)This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).
As his Honour pointed out, the matters were listed together because of the way the Director of Public Prosecutions prosecuted the matter, as a result, the respondent escaped being a repeat offender. The prosecutor submitted that if the respondent was given a s 17 disposition for the first matter, he should then be subject to a three month disqualification for the second if convicted of it. The effect of the bail conditions was that he had served nearly six months of effective disqualification.
His Honour responded:
I understand your submissions, but I think the sentencing needs to be creative and I think it is. Now if this man lets me down he lets me down, but I think there’s every reason in this case to suggest he’s taken what he’s supposed to have done and made the most of the opportunity.
And it may be that on one of them I’m going to release him on a condition that will include him not driving within 10 hours of consuming any alcohol, that’s for the rest of his driving career as far as I’m concerned, or at least during the period of the bond. And I’m going to request that he make a donation to charity.
The respondent was convicted and fined for some additional matters of driving an unregistered and uninsured vehicle on the occasions in question. There is no appeal in respect of those matters.
For the 18 September 2008 matter, his Honour dismissed that information (08/11007) pursuant to s 17 (supra). On the second (08/11931), his Honour also proceeded pursuant to s 17, but imposed a good behaviour order for six months with a condition that he not drive a motor vehicle within 10 hours after consuming any intoxicating liquor … “and also to make a donation of $300 to ACT Kids for Cancer”.
On the hearing of the appeal, Mr Doig for the appellants, submitted that the condition of the good behaviour order to make a donation was not authorised by law nor could it be enforced, though it was conceded that the fact that a donation to charity had been made might well be seen as justifying more lenient treatment of an offender.
Mr Doig conceded that, as a matter of law, the respondent was a first offender in respect of each matter. Nevertheless, in substance, he was a repeat offender and should have been effectively treated as such for the second offence.
The main objection as a matter of principle, however, was to the imposition of the “donation” as a condition of the good behaviour order.
If it was a valid condition, breach of it could lead to action under s 108 of the Crimes (Sentence Administration) Act. The good behaviour order might be cancelled and the offender re-sentenced.
Whilst combination sentencing is permitted under the Crimes (Sentencing) Act (s 9) a fine may be imposed only if the offender is convicted (see s 14 Crimes (Sentencing) Act).
Under s 18(5) of the Crimes (Sentencing) Act a court making a non-conviction order may make certain ancillary orders, that is:
(a) restitution;
(b) compensation;
(c) costs;
(d) forfeiture;
(e) destruction;
(f) disqualification or loss or suspension of a licence or privilege.
If an order was made suspending or disqualifying the respondent’s driver licence then under the Road Transport (Driver Licensing) Regulations 2000 (reg 45(1)) the disqualified driver is permitted to make application for a restricted licence and the Court may authorise the issue thereof under reg 47(1) and (2). It was conceded that the respondent could well qualify for that concession but the condition imposed was not expressed so as to engage s 18(5)(f) of the Crimes (Sentencing) Act.
It was contended on the part of the respondent that the donation condition was valid and that the penalty was otherwise not manifestly inadequate. It was suggested that s 17 of the Crimes (Sentencing) Act should be approached differently from the preceding provisions of s 556A/s 404 Crimes Act 1900 (ACT).
I do not agree. The intent of those provisions is the same as for s 17. Each provision enables an exception to the general rule that a person found guilty of an offence is to be convicted of it. There is no entitlement to this course being taken, though it may be a likely outcome in appropriate circumstances.
As Wilcox, Einfeld and Kenny JJ noted in Higgs v R (unreported) [1999] FCA 1562:
[3]The recording of a conviction is the usual result of a guilty verdict or a plea of guilty to the offence charged, the option being available to the sentencing judge not to take that step, having regard to the matters set out in s 556A.
By reason of being dealt with as a first offender for each of the two offences, the respondent already gained the benefit of not being excluded from the restricted licence provisions. If he had been convicted on the second offence he would have been subject to a default disqualification of three years, reducible for good reason to not less than six months (not three months) but with eligibility for a restricted licence.
Ms Warwick, for the respondent, referred to s 13(3) of the Crimes (Sentencing) Act. Section 13(3)(g) permits a good behaviour order to include “any other condition, not inconsistent with this Act or the Crimes (Sentence Administration) Act 2005 that the court considers appropriate”. Certainly, one example of such a condition is that which his Honour imposed in relation to not driving a motor vehicle or consuming alcohol.
It is noteworthy that a community service order may not be included as a condition of a good behaviour order unless an offender is convicted (see s 87 Crimes (Sentencing) Act). It seems to me that it is not consistent with that provision that a person be ordered to donate money, rather than labour, to a community cause. That is, if a non-convicted person cannot be ordered to give their labour to a community cause, it does not seem to me that they can be ordered to donate money to such a cause.
In any event, such a condition, though well-intentioned, may lead to offenders offering donations to what they perceive to be the presiding Magistrate’s favoured charity, hoping to curry favour. Nor should it be perceived that the courts are the agent of charities, however worthy, in soliciting or approving donations.
It is instructive to note that in Properjohn v Gaughan [1998] ACTSC 26 Gallop J dealt with an appeal by an alleged offender. The appeal was upheld for reasons not relevant to this matter. The order of the learned Magistrate had included a good behaviour order with a term that $300 be paid by way of penalty. Though obiter, as the appeal was upheld for other reasons, his Honour considered that condition inconsistent with a non-conviction order. A fine could not be imposed without a conviction order. Gallop J noted that Gleeson CJ in R v Ingrassia (1977) 41 NSWLR 447 had denounced such a condition, not being a fine, as something more in the nature of a donation to the revenue and that s 556A of the Crimes Act (as it then was) was not a provision to be used for the purpose of soliciting gifts whether to the revenue, to charities or to anyone else (see [43]).
His Honour expressed the view that a practice of requiring a donation to charity as part of a disposition of a matter, by means of s 556A, (or s 404) of the Crimes Act or, now, s 17 Crimes (Sentencing) Act) was unlawful.
I consider that his Honour’s opinion is correct, though I would use the term “ineffectual” rather than unlawful. It is beyond power for s 556A, s 404 or s 17 to be used to impose a monetary penalty whether payable to the Territory or any other person or cause.
The penalties imposed should be therefore set aside on this ground as well as on the ground of manifest inadequacy.
I repeat my conclusion as stated on 11 September 2009:
Firstly, in respect of the first matter which Mr Waugh faced, a reading of 0.185, in my opinion, even granted the fact that he had all those favourable matters which were detailed by the Chief Magistrate, whilst it was open to his Honour to have proceeded under section 17, it seems to me it was manifestly inadequate to proceed simply to impose a non-conviction order, there ought to have been a good behaviour order and it ought to have been for a period of 6 months from the date of the finding of guilt.
That was, of course, on 15 May 2009, so I would vary the order made by his Honour to include a good behaviour order for that period and I would make an ancillary order that the respondent be, and be deemed to have been, from that date, disqualified from driving a motor vehicle save for the purposes of employment, and on condition that he not drive for 10 hours after any alcohol consumption.
In respect of the second matter, although a lower reading, plainly, it’s aggravated by the fact this was a second occasion of detection within a very short space of time after the first, and, although Mr Waugh certainly was entitled to be treated as a first offender in respect of each of the two occasions, again, it seems to me that it was inappropriate and inadequate simply to dismiss the matter even on the terms of the good behaviour order which was made.
And I would vary that by imposing a good behaviour order in that case of 12 months from 15 May 2009 with the same condition, and I set aside the condition in respect of the $300 donation.
And I’ll just say this, that, if the matter had been at first instance, it seems to me that it would have been inappropriate to proceed under section 17 in respect of each of the two offences, but I will not interfere with that even though I find it to have been inadequate, because it is quite apparent that his Honour gave such an indication on the first occasion, and it’s not clear to me what the reaction of the prosecutor was on that occasion.
We don’t have a transcript in respect of it, but it seems to me that Mr Waugh was entitled to assume, as if it were a sentence indication, that if he complied with all the stringent conditions the learned Chief Magistrate imposed, which he did, that section 17 would be applied in respect of each. He had no reason to expect that there would not be a good behaviour order, but he certainly had some reasonable expectation that section 17 would have applied to both, rather than simply to the first, though as I say I would not have done that myself. If does seem to me that he’s entitled to the benefit of that, to the extent that I have mentioned. Now is there anything else by way of ancillary order?
I will hear the parties as to any ancillary order including costs.
I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.
Associate:
Date: 1 December 2009
Counsel for the Appellants: Mr A Doig
Solicitor for the Appellants: Director of Public Prosecutions for the ACT
Counsel for the Respondent: Ms T Warwick
Solicitor for the Respondent: Diana Burns Solicitors
Date of hearing: 11 September 2009
Date of judgment: 1 December 2009
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