Hambrook v Duke
[2014] ACTSC 203
•22 August 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hambrook v Duke |
Citation: | [2014] ACTSC 203 |
Hearing Date(s): | 6 May 2014 |
DecisionDate: | 22 August 2014 |
Before: | Refshauge J |
Decision: | 1. The appeal be dismissed. 2. The parties be heard as to any consequential orders. |
Category: | Principal Judgment |
Catchwords: | APPEAL – IN GENERAL – Appeal by informant – Principles governing such appeals APPEAL – IN GENERAL – Appeal against sentence – Non-conviction orders – Meaning of “extenuating circumstances” |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 17 |
Cases Cited: | Balthazaar v The Queen [2012] ACTCA 26 |
Parties: | Richard Hambrook ( Appellant) Natalie Maylin Duke ( Respondent) |
Representation: | Counsel Mr S Drumgold ( Appellant) Mr R Davies ( Respondent) |
| Solicitors ACT Director of Public Prosecutions ( Appellant) Legal Aid Office (ACT) ( Respondent) | |
File Number(s): | SCA 114 of 2013 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Magistrate Dingwall Date of Decision: 4 December 2013 Case Title: Hambrook v Duke Court File Number(s): CC 13/9693 |
REFSHAUGE J:
On 25 September 2013, police on mobile patrol saw a motor vehicle being driven by the respondent, Natalie Maylin Duke, travelling on the wrong side of a public street in Holt. The police officers stopped the vehicle and administered a roadside breath-alcohol screening test to Ms Duke.
The test, under s 8 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Alcohol and Drugs Act), proved positive for alcohol and Ms Duke was taken into custody to Belconnen Police Station where a breath analysis was conducted under s 12 of the Alcohol and Drugs Act. The analysis disclosed a breath alcohol concentration of 0.089 grams of alcohol per 210 litres of breath, a Level 3 concentration under s 4E of the Alcohol and Drugs Act.
Ms Duke was summonsed to appear in the Magistrates Court on 4 December 2013 where she was charged with an offence under s 19(1) of the Alcohol and Drugs Act, namely that, being a repeat offender, she drove a motor vehicle on a road while, within the relevant period, having the prescribed concentration of alcohol in her breath.
She pleaded guilty. The learned Magistrate proceeded under s 17 of the Crimes (Sentencing) Act 2005 (ACT) (the Sentencing Act) and without recording a conviction, made a good behaviour order for twelve months.
The informant, Constable Richard Hambrook, has appealed against the sentence imposed on Ms Duke.
Jurisdiction
Part 3.10 of the Magistrates Court Act 1930 (ACT) confers jurisdiction on this Court to hear appeals from the Magistrates Court, including against sentences imposed by it, and Div 3.10.2 regulates those appeals.
I have described, in Cooper v Corvisy (No 2) (2010) 5 ACTLR 151, the principles applicable to such appeals. They may be summarised as follows.
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. In the case of an appeal by the prosecution, however, I should not re-exercise the sentencing discretion if to do so would only amount to 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 or plainly unjust or plainly wrong.
I note that I shall apply these principles in this case.
Despite being an appeal by the prosecution, the filing of a Notice of Appeal under s 216 of the Magistrates Court Act stays the enforcement of the sentence or penalty the subject of the appeal. That must be addressed at the conclusion of the appeal.
Prosecution appeals
The appellant, namely the informant, submitted that appeals by the prosecution against sentences imposed in the Magistrates Court should be considered in the same way as Crown appeals against sentence in this Court.
I said in Byrne v Mingay [2014] ACTSC 126 at [64]-[65] about such appeals:
64.The prosecution accepted that an appeal against sentence by the informant attracted the same principles as a Crown appeal against sentence set out in decisions such as Griffith v The Queen (1977) 137 CLR 293 at 310, Everett v The Queen (1994) 181 CLR 295 at 306, Director of Public Prosecutions v Ip [2005] ACTCA 24 at [38], R v Osenkowski (1982) 30 SASR 212 at 212-213 and Dinsdale v The Queen (2000) 202 CLR 321 at 340.
65.In brief, such appeals should be a rarity, only brought to establish some matter of principle, including to enable appellate courts to maintain adequacy and consistency in sentencing standards, to enable idiosyncratic views of individual judges to particular crimes or types of crimes to be rectified and to correct sentences that are so disproportionate to the seriousness of the crime as to shock the public conscience.
If I uphold the appeal, however, and re-sentence Ms Duke, I should impose a sentence of a severity that is appropriate to all the circumstances of the offence and the offender. I am not required to moderate the sentence because she has been sentenced again with the presumed distress and anxiety caused by her having to stand for sentence again. See R v Chatfield [2012] ACTCA 32.
Notice of Appeal
The grounds set out in the Notice of Appeal were as follows:
a.The sentence was manifestly inadequate.
Particulars:
i.His Honour failed to take properly into account the nature and circumstances of the offence and the respondent’s prior history of similar offences.
b.His Honour erred in law by finding that a proffered excuse amounted to an extenuating circumstance in which the offence was committed, in terms of section 17(3)(c) of the Crimes (Sentencing) Act 2005.
c.His Honour applied a mistaken view of the facts, namely that the respondent was turning the vehicle around rather than (as the facts established) travelling on the wrong side of the road.
The facts
The essential facts alleged by the prosecution are set out above (at [1]-[2]).
The police Statement of Facts also stated that the incident occurred at about 11:40 pm on 25 September 2013.
The police Statement of Facts did state that police saw the two children in the car; one was a six year old child and the other an eighteen month old infant. They were in the back seat. The weather was fine and traffic conditions were light. The road surface was dry and in good repair.
Constable Hambrook noted that Ms Duke’s speech was slow, her balance was fair and there was a moderate odour of intoxicating liquor about her. He formed the view that she was moderately under the influence of alcohol. Ms Duke was co-operative with police.
Ms Duke tendered a letter on sentencing which gave the following background to the offending. The letter stated
On the 25th of September I was visiting my cousin who lives in Beaurepaire Crescent Halt [sic]. I had no intention of driving that [sic] and had everything in place to stay the night. It was late at this point and I had my children sleeping on a mattress on the lounge room floor. A fight erupted between two of my cousins and one of them fled through the front door kicking my youngest child on her way through. Because the commotion scared us and my children were distraught, I chose to remove them from the situation.
I was aware that I was on the wrong side of the road and this was because of the direction my car was parked on the nature strip. I usually reverse from this position so that I back onto the correct side of the road. My cousins were now outside fighting behind my car so I could not reverse as I normally would. The road was too narrow for the turning circle of my car to turn sufficiently forward without hitting the centre divide. To prevent this I drove around it to come back on to the correct side of the road. The police saw me as I was coming back onto the correct side of the road approximately 10-15 meters [sic] from where my car was originally parked. This is not an action I would have taken under any other circumstance.
Subjective circumstances
In the letter Ms Duke tendered, she also stated:
I am a single mum living in Dunlop and I am the person my children rely on. My income is from Centrelink and child support. My daughter (6) goes to Macgregor Primary School and my son (18 months) is in day care at the University of Canberra (UC) while I study there. I have been studying a 4 year Primary Teaching course part-time and so far I have completed 6 years of study. An essential requirement of my course is professional placement in which I am placed in various schools around Canberra. I accept the impact of the punishment I receive will make my daily life extremely difficult and that my actions will affect my children as well as my ability to meet my course requirements. With this in mind, I want to ask the Court to consider the lighter side of the scale of punishment I could potentially receive so that my actions do not disadvantage my children or my studies dramatically.
Ms Duke stated that she receives little financial support from the father of her children. She also stated that she relies on her car to get her elder child to school and for her to get to university and to her teaching placements. She could manage by bus except for the placements. Her parents could not offer her much help.
Ms Duke also tendered a letter from her general practitioner who stated that she suffered from an Anxiety disorder. In particular, her doctor said that speaking in a public situation will put her under “significant mental pressure”.
Ms Duke’s prior criminal record was also tendered. It showed that in 2003 she was convicted and fined for having driven on 16 May 2003 as a “special driver” with a prescribed concentration of alcohol in her blood. The reading on that occasion was 0.06. She was fined for the offence. In February 2004 she was again charged with an offence of driving with a low range prescribed concentration of alcohol on 1 February 2004. I did not have information of the precise concentration. A non-conviction order was made and the charge dismissed.
Sentence
Ms Duke was not represented by a lawyer at the sentencing hearing.
The learned Sentencing Magistrate suggested that there were extenuating circumstances under which the offence was committed but the prosecution submitted that there were other ways in which Ms Duke could have reacted.
When his Honour indicated that he was thinking of proceeding under s 17 of the Sentencing Act, the prosecutor submitted that the placing of her children “at high risk by driving” cancelled out the risk of them being hurt in the fight between her cousins. She also referred to her prior offending.
His Honour then proceeded to sentence Ms Duke. In sentencing, his Honour said
Well, Ms Duke, I have taken into account your plea of guilty. You have been charged with being a repeat offender committing an offence of PCA with a reading of 0.089. It is 9 years since your last conviction for a similar matter. That was a low level PCA. Prior to that in 2003, a 0.006 [sic] level 2 PCA. I am satisfied on the material you have presented to me that on this occasion there were extenuating circumstances; that you felt a need to drive to remove your children from a situation in which you had been placed which involved violence being around them.
The community abhors any violence as perpetrated to or around children. Whilst your record on its own does not give you any assistance in terms of me disposing of the matter, as I say, those extenuating circumstances, together with your health, as described by your GP, in my view is sufficient on this occasion, and bearing in mind of course the very severe impact on you and your children if you lose your licence, given your personal circumstances.
In all those circumstances, I am satisfied it is appropriate to proceed under section 17 of the Crimes (Sentencing) Act. Without recording a conviction I order that you be required to sign an undertaking to comply with your good behaviour obligations under section 85 of the Crimes (Sentence Administration) Act 2005 for a period of 12 months, together with a condition that you give security self in the sum of $500 for compliance with the order. You are ordered to pay court costs of $71 and a victims of crime levy of $50.
His Honour then, as he was bound to do, explained the effect of the sentence to Ms Duke.
Challenge to the facts
It is convenient to consider the third ground of appeal first. The appellant submitted that the following factual findings were not open to the learned Sentencing Magistrate:
(a)The respondent drove whilst intoxicated because of the needs [sic] to drive to remove her children from a situation in which she had been placed, which involved violence being around them.
(b)The respondent drove on the wrong side of the road by necessity and for only a short distance.
(c)A loss of licence would a very severe impact on the respondent and her children.
I find it difficult to follow the basis for these submissions. The learned Sentencing Magistrate had before him the police Statement of Facts and Ms Duke’s letter. Ms Duke made some brief additional comments as to the factual circumstances. These matters are relevantly set out earlier in these reasons (at [1]-[2], [16]-[20]). None of the matters so asserted were challenged.
As to the first factual matter, this was directly asserted by Ms Duke in her letter. She further said that neither she nor anyone else, such as neighbours, called the police to the fight between her cousins. She also said that she thought that the police had seen her cousins in the street.
The police Statement of Facts makes no mention of Ms Duke’s cousins. It also does not say that police asked Ms Duke why she was driving whilst intoxicated and, if they did, what was her reply. None of this contradicts Ms Duke’s explanation for her driving.
The prosecutor made no submission that the facts as asserted by Ms Duke should not be accepted and, indeed, appeared to accept her explanation.
There is no reason why the learned Sentencing Magistrate should not have accepted the version of events given by Ms Duke. It was not improbable, it was not challenged and it was not inconsistent with the police Statement of Facts.
As I pointed out in Talukder v Dunbar (2009) 194 A Crim R 545 at 549; [20], assertions of fact made “from the bar table” become evidence admitted unless there is a challenge to them. Accordingly, there was evidence on which the learned Sentencing Magistrate was able to rely which permitted him to make the finding he did.
As to the second matter, that seems to me to be in the same situation. The two submissions on appeal about this matter were that
Further, it would be highly unlikely the police would not have been able to offer further evidence of the distance they observed the respondent drive on the wrong side of the road.
Accordingly, it is submitted to accept the police facts then offer evidence inconsistent to this both traverses the plea and offends the rule in Browne v Dunn.
Neither submission was really explained. The first submission may well have been correct, but the police did not choose to state in their Statement of Facts the distance they saw Ms Duke drive. The prosecutor did not seek an adjournment to obtain that information. It may be that any such adjournment could have been for a very short period just while telephone contact was made with the informant if, as seems likely, he was not in fact at court. That option was not taken and the learned Sentencing Magistrate was bound not to speculate on what the police may or may not have been able to say.
So far as the second submission is concerned, it is simply incorrect to say that the statements made by Ms Duke traversed the police Statement of Facts. They did not.
As to the reference to the rule in Browne v Dunn (1894) 6 R 67, that rule may be stated as follows: where a cross-examining party intends later to contradict a witness by calling further evidence or suggesting that the witness’s testimony can be otherwise explained, the witness should be given the opportunity in cross-examination to comment upon the contradicting version.
In sentencing proceedings, especially in the Magistrates Court, it is extremely rare for there to be cross-examination of witnesses.
It appears that the submission being put here is that if a police Statement of Facts is tendered without objection by the prosecution, the defendant is estopped from adducing information inconsistent with that Statement.
The rule in Browne v Dunn does not cover this situation. Even if it did, it is a rule of practice and not a rule of admissibility, though breach of it may permit a court to exercise a discretion to exclude evidence if the adducing of it would offend the rule.
In sentencing proceedings, where neither party is, unless the court so orders, bound by the rules of evidence (s 4(2) of the Evidence Act 2011 (ACT)), a court is well able to address the issue that may arise where a defendant does not object to the tender of a police Statement of Facts but asserts contrary or contradictory facts in the plea in mitigation.
In any event, there was no police evidence before the learned Sentencing Magistrate on this second factual issue which was contradicted by assertions of Ms Duke.
The third matter was the only one where any real submissions were made on the appeal. It was submitted that the evidence of Ms Duke contradicted the findings of the learned Sentencing Magistrate.
The appellant referred to evidence about assistance with travel that Ms Duke’s parents could provide. Her evidence was that her mother was a nurse who apparently worked shift work at night. Ms Duke said “[s]he sleeps during the day”. Her father, she said, lived in Gungahlin, some distance away from her home in Dunlop, and that “he can’t help me every day”.
Ms Duke’s main concern, however, was managing her professional placement required for her teaching course commitment. Her evidence was
THE DEFENDANT: ... The major concern for me is being placed.
HIS HONOUR: I’m sorry?
THE DEFENDANT: A requirement of my course is to be placed in schools, and for me to get my children to school, to day care and to remain professional.
Although much was to be inferred from this statement, it is not an unreasonable inference from this evidence that Ms Duke would have difficulty in getting her children to school or day care and attend a school anywhere in Canberra for a professional placement. This was mentioned in her letter.
This exchange preceded the court’s investigation of alternatives, and combined with the comments in Ms Duke’s letter, led to the finding made by the learned Sentencing Magistrate.
In my view, that finding was open to his Honour.
The third ground of appeal is not made out.
Extenuating circumstances
The second ground of appeal was that Ms Duke’s wish to remove her children from the fight that had included her youngest child being kicked was not an extenuating circumstance in which the offence was committed.
This is relevant because s 17 of the Sentencing Act requires the court, inter alia, to consider such circumstances. The section is in relevantly the following terms:
(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.
(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.
The Court of Appeal, however, has had to consider the meaning of “extenuating circumstances” in Proud v Sladic [2014] ACTCA 26. The court there said at [36]-[38]
36. ... The appellant emphasised that, when s 17(3)(c) speaks of an extenuating circumstance, it speaks of an “extenuating (circumstance) in which the offence was committed” (emphasis added). The appellant submitted that, in the present case, the personal stress suffered by the respondent was merely a background fact to be taken into account as part of the overall subjective circumstances, and it could not be elevated to an “extenuating (circumstance) in which the offence was committed” (emphasis added).
37.In RLG v Donnelly [2012 WASC 230 at [39], Beech J considered the equivalent Commonwealth provision, observing:
39. “Extenuating circumstances” have been said to mean circumstances which “excuse in some appreciable degree the commission of the offences or lessen the appellant’s guilt” ...
38. For the purposes of argument, it may be accepted that, in order to constitute a s 17(3)(c) extenuating circumstance, the relevant circumstance must bear a direct relationship to the offence that was committed. In the present case, there was such a relationship. The respondent’s legal representative submitted that the respondent’s serious personal stress had caused an uncharacteristic lapse of judgment, as a result of which the respondent committed the offence. The asserted connection was not contradicted.
For a similar situation, see Semrad v Habiburahman [2013] NTCA 6 at [18]-[20].
It seems to me that if, in that case, the personal stress being experienced by the offender was relevantly connected to the offence, the connection here is much stronger. It is akin to, but, of course, not as serious as, a medical in emergency which has been accepted as clearly an extenuating circumstance as in Olds v Daire (1981) 29 SASR 133 at 135-6.
The relevant circumstances as set out by the respondent in her submissions include
-she had had no intention of driving the vehicle that night
-she had everything in place to stay the night
-a fight erupted between two of her cousins late in the evening
-one cousin kicked her younger child who was asleep on a mattress on the lounge room floor, while fleeing from the room
-the children were scared and distraught as a result of the commotion and she chose to remove them from the situation.
In my view, it was open to the learned Sentencing Magistrate to find that the circumstances as perceived by Ms Duke, namely that she had to take her children out of what she saw as danger, were extenuating circumstances in which the offence was committed.
Manifest inadequate sentence
The first ground of appeal was that the sentence was manifestly inadequate.
I have set out in R v TW (2011) 6 ACTLR 18 at 27-8; [59]-[61] the principles to be applied where a sentence is challenged as being manifestly excessive or manifestly inadequate. I apply those principles.
The relevant factors that appear to be relied on by the appellant are the following.
Ms Duke had committed two previous offences of drink driving. They were, however, both of the lower level of the offence as shown by the level of the blood alcohol concentration and from the penalties imposed. In addition, it needs to be taken into account that they were committed over nine and a half years ago.
Ms Duke was driving on the wrong side of the road. This was explained by her. There was only the police care on the road in addition to her car and she drove for only a very short distance until she was able to get back onto the correct side of the road.
Ms Duke had her two small children in the car. The number of persons potentially put at risk in such an offence is a relevant factor as noted by Higgins CJ in Scott v Wynants (2009) 4 ACTLR 13 at 17; [20]. Apart from the police, no other persons were potentially put at risk. See also Shires v Edwards [2011] ACTSC 132 at [46]-[49].
Nevertheless, it was Ms Duke’s purpose to remove her children from what she clearly perceived as a greater immediate threat from the fight in which her children had already been involved.
The maximum penalty for the offence is, of course, a relevant matter. In this case, the maximum penalty, set out in s 26 of the Alcohol and Drugs Act was ten penalty units (a fine of $1,400), or imprisonment for six months, or both. In fact, the maximum penalty for a repeat offender is, in this case identical to the maximum penalty for a first offender. The maximum penalty does not make the offence one for which an order under s 17 of the Sentencing Act could not be imposed.
Recently I have considered the relevance of such factors in Roseby v Harman [2014] ACTSC 125 at [51]-[52] where I said
50.A number of decisions of this court have considered the application of s 17 of the Sentencing Act in the context of drink-driving offences. It is clear, for example, that the requirement for general deterrence in relation to such offences is not necessarily of itself a bar to making such an order: Hevesi-Nagy v Sarhan [2013] ACTSC 124 at [3]. Similarly, it would appear that there is no general proposition that an offender with a prescribed concentration of alcohol at Level 4 could never be given such an order (Woodlee v Callaghan [2013] ACTSC 60 at [10]), though these occasions are likely to be rare (Gordon v Reddin at [16]).
51.In a case where an offender had a Level 3 prescribed concentration of alcohol in his blood or breath and his manner of driving drew the attention of the police to the driver, but he had good character and had been driving for twenty-four years with no prior convictions, a non-conviction order was made in Sutherland v Luchetti [2013] ACTSC 196.
The level of Ms Duke’s intoxication; it was, however, shown to be at the bottom of the range for a Level 3 concentration: it was 0.089 grams where the Level 3 is 0.08 grams or more but less than 0.15 grams.
Ms Duke pleaded guilty on her first appearance in court and had prepared material to tender to the Court, showing that she took the proceedings seriously. This plea showed remorse and saved the administration of justice, though the case against her was overwhelming.
Interestingly, while the appellant referred to the need for general deterrence, no express mention was made of specific deterrence, even in the context of Ms Duke’s criminal record.
In considering this ground, it is as well to bear in mind what the Court of Appeal said in Balthazaar v The Queen [2012] ACTCA 26 at [61] as follows
61.It is not enough on appeal that the members of the appeal court would have imposed a different sentence. As Maxwell P, with whom Eames JA and Habersberger AJA agreed, pointed out in R v Abbott (2007) 170 A Crim R 306 at 309; [14]:
[T]he ground of manifest excess will only succeed if it can be shown that no reasonable sentencing judge could have imposed this sentence on this offender for this offence in these circumstances. That is a stringent requirement, difficult to satisfy. It reflects the oft-repeated policy that sentencing is for judges and magistrates at first instance. Sentencing is not the task of appellate courts, except where clear error is shown.
There is no doubt that magistrates have a great deal more experience at sentencing offenders for this offence than does this Court, though, of course, in a proper case, this Court may, indeed sometimes must, interfere.
While the learned Sentencing Magistrate may have been generous to Ms Duke and imposed a sentence that was lenient in the circumstances, I cannot say in the light of the approach that this court has taken to such offences it is manifestly inadequate.
This ground of appeal is not made out.
Conclusion
As none of the grounds of appeal have been upheld, the appeal must be dismissed.
It would appear that the sentence has been stayed since the Notice of Appeal was lodged, even though s 216 of the Magistrates Court Act seems more apt to an appeal commenced by an offender. The clear wording of the section, however, does not show that its operation is not activated by the lodging of a Notice of Appeal by an informant.
Unless Ms Duke has been alleged to have done anything that might be held to have breached the good behaviour order since she was sentenced, it seems to me there is a case for reducing the period it now has to run. I shall hear submissions or any such consequential order to be made.
| I certify that the preceding seventy-eight [78] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 22 August 2014 |
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