Harlovich v Sebbens

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Harlovich v Sebbens
Citation:	[2024] ACTSC 153
Hearing Date:	23 August 2022
Referral to Full Court	1 December 2022
Decision Date:	7 June 2024
No further submissions confirmed	23 January 2024
Before:	Loukas-Karlsson J
Decision:	1) Appeal dismissed 2) Pursuant to s 219F(8) of the Magistrates Court Act 1930 (ACT), the costs of and incidental to the appeal are payable by the appellant
Catchwords:	APPEAL - CRIMINAL LAW - Appeal from the Magistrates Court against sentence – drive while disqualified – residual discretion - matter heard subsequent to referral to full court – Galambany Circle Sentencing Court – whether the sentence was manifestly inadequate
Legislation Cited:	Crimes (Sentencing) Act 2005 (ACT) s 10 Crimes (Sentence Administration) Act 2005 (ACT) s 85 Evidence Act 2011 (ACT) Magistrates Court Act 1930 (ACT) ch 4C, pt 3.10, ss 219B(1)(f), 219D(e), 219F, 291M, Road Transport (Driver Licensing) Act 1999 (ACT) ss 32(1), 32(9) Supreme Court Act 1933 (ACT) s 13(3)
Cases Cited:	Adams v Navaratnam [2021] ACTSC 256 Barrett v The Queen [2016] ACTCA 38 Bugmy v The Queen [2013] HCA 37; 249 CLR 571 CMB v Attorney-General (NSW) [2015] HCA 9; 256 CLR 346 Chapman v Cottle [2022] ACTSC 330 Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 Croatto v Banks [2015] ACTSC 398 Dalton v The Queen [2015] ACTCA 48; 19 ACTLR 264 Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 Elias v The Queen [2013] HCA 31; 248 CLR 483 Everett v the Queen [1994] HCA 49; 181 CLR 295 Fall v Vuolo [2022] ACTSC 249 Garay v The Queen (No 3) [2023] ACTCA 2 Gordon v Reddin [2013] ACTSC 87 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Griffiths v The Queen [1977] HCA 44; 137 CLR 293 Hall v CL [2015] ACTSC 286 Harlovich v Sebbens [2022] ACTSC 331 Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 Hili v The Queen [2010] HCA 45; 242 CLR 520 Hogan v Hinch [2011] HCA 4; 243 CLR 506 House v The King [1936] HCA 40; 55 CLR 499 Kaye v Siddiq [2013] ACTSC 62 Kirby v Ali [2021] ACTSC 95; 358 FLR 288 Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358 Knight v Birch (1992) 106 ACTR 27; 106 FLR 109 LM v Childrens Court of the Australian Capital Territory [2014] ACTSC 26 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Owen Patterson v Wendy Brookman [2021] ACTMC 16 Police v Cadd (1997) 69 SASR 150 R v Bandy [2018] ACTSC 261 R v Hernando [2002] NSWCCA 489; 136 A Crim R 451 R v Hopkins [2004] NSWCCA 105 R v Irwin [2019] NSWCCA 133 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Lattouf (Unreported, NSW Court of Criminal Appeal, 12 December 1996) R v Lee [2017] ACTCA 30 R v Low [2022] ACTCA 59 R v Nicholas; R v Palmer [2019] ACTCA 36 R v Osenkowski (1982) 30 SASR 212 R v Perry [2022] SASCA 127 R v Rappel [2019] ACTCA 11 R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 TS v DT [2020] ACTCA 43 Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465 Williams v Connor [2019] ACTSC 184
Texts Cited:	Australian Law Reform Commission, Pathways to Justice—Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report No 133 (2017)
Parties:	Director of Public Prosecutions ( Appellant) Carla Lee Sebbens ( Respondent)
Representation:	Counsel T Hickey ( Appellant) J Cooper ( Respondent)
Solicitors ACT Director of Public Prosecutions ( Appellant) Aboriginal Legal Service ( Respondent)
File Number:	SCA 10 of 2022
Decision Under Appeal:	Court/Tribunal: Magistrates Court of the ACT Before: Special Magistrate Hopkins Date of Decision: 31 March 2022 Case Title: Harlovich v Sebbens Court File Numbers: 220119, 225280

LOUKAS-KARLSSON J:

Introduction

1․This case has quite a lengthy history and has therefore taken quite some time to be dealt with to finality. This was primarily due to the diametrically opposed positions adopted by the Director of Public Prosecutions concerning the residual discretion in two separate prosecution sentence appeals argued before me, in August and October 2022. As a consequence, both matters were referred by me, at the same time, to the Full Court to consider the issue of whether the Court retains a residual discretion not to intervene in a prosecution sentence appeal from the Magistrates Court; see Court of Appeal decision Harlovich v Sebbens [2023] ACTSCFC 3; 20 ACTLR 237 (Harlovich v Sebbens [2023] FC). I will refer to this matter in greater detail later in this decision.
2․On 31 March 2022, Ms Sebbens (the respondent) was convicted and sentenced by Special Magistrate Hopkins (the sentencing magistrate) before the Galambany Circle Sentencing Court as follows:
(a)For the offence of possess knife in public place (CAN2021/11886), to a six-month Good Behaviour Order (GBO);
(b)For the offence of drive while disqualified (CAN2021/6685) contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT), to an 18-month GBO on condition to engage with Yeddung Mura. The automatic disqualification period of 12 months was imposed; and
(c)For the offence of drive with prescribed drug in oral fluid (CAN 2021/6684), to a GBO of six months. The minimum disqualification period of 12 months was imposed, concurrent with the disqualification period attached to CAN2021/6685.

3․The appellant, the Director of Public Prosecutions (DPP), who I shall refer to as the prosecution as a matter of clarity and convenience, appealed only from the sentence imposed in relation to the offence of drive while disqualified (CAN2021/6685). The sole ground of appeal was manifest inadequacy. Counsel for the prosecution submitted the failure of the sentencing magistrate to impose a sentence of imprisonment resulted in a manifestly inadequate sentence, being a sentence that was plainly unjust and unreasonable.
4․I note at the outset, the condition ordered by the sentencing magistrate for the respondent to engage with Yeddung Mura. Yeddung Mura is an organisation for Aboriginal and Torres Strait Islander people in the ACT. Yeddung Mura runs support programs – including drug and alcohol counselling, transport, anger management, relationships Australia counselling, smart recovery and yarning circles.

The Offending

5․The facts relating to the offence of drive while disqualified were set out in the Statement of Facts tendered before the magistrate at the sentencing hearing. The facts are as follows.
6․On 27 June 2021, police conducted a traffic stop on a vehicle that was being driven by the respondent. The respondent indicated that she was driving home. When police asked for her driver licence the respondent said, “I don’t have one, I’m disqualified.” Police checks confirmed that the defendant was disqualified from driving, by reason of orders of New South Wales (NSW) Courts. At the time of driving, the respondent was disqualified from driving until 29 April 2051 (s 257 certificate, tendered upon the entry of the guilty pleas on 13 September 2021). The last point in time at which the respondent was not disqualified was April 2009.
7․The defendant was also required to undergo a drug screening test, which resulted in a positive indication to a prescribed drug. The results of oral fluid analysis later confirmed the presence of both cannabis and methylamphetamine.
8․In relation to the driving charges, the respondent attended court on 30 July 2021. The respondent entered pleas of guilty to both charges on the third mention. The statement of facts, respondent’s criminal history, a s 257 certificate from NSW Roads and Maritime Services and an ACTGAL certificate were tendered on the same date and the matter was referred to the Galambany Circle Sentencing Court.
9․The charge of possessing a knife in a public place arose from the discovery of the knife during a search of the respondent in December 2021 following arrest for an unrelated matter.

Proceedings in the Galambany Circle Sentencing Court: General Approach

10․The Galambany Court was established by Chapter 4C of the Magistrates Court Act 1930 (ACT) (Magistrates Court Act). Section 291M provides that the Magistrates Court is known as the Galambany Court when the Court is sitting to provide circle sentencing.
11․Circle sentencing is defined as “the step in a sentencing proceeding for an Aboriginal or Torres Strait Islander offender that includes members of the Aboriginal or Torres Strait Islander community” (see Magistrates Court Act, dictionary (definition of circle sentencing)).
12․The Galambany Court is a Circle Sentencing Court. The Court aims to provide a restorative sentencing process for Aboriginal and Torres Strait Islander people who have pleaded guilty to an offence. In Ngunnawal language, Galambany means “we all, including you.” The Galambany Court depends on the commitment and wisdom of First Nations elders. Court proceedings take place in a circle. In that circle, words are spoken and listened to by all. Thus, the process differs from a conventional court proceeding. Nevertheless, the law applied to offenders who are sentenced in the Circle Sentencing Court is the same law applied in the conventional Sentencing Court: see Owen Patterson v Wendy Brookman [2021] ACTMC 16.
Proceedings in the Galambany Circle Sentencing Court in this Case
13․The sentencing magistrate adopted the approach outlined above and began by explaining the process of the Galambany Court to the respondent. The sentencing magistrate further explained that he would listen to the respondent’s conversation with the elders and then sentence according to law.
14․The elders and the lawyers and the respondent introduced themselves and sentencing exhibits were tendered.
15․The prosecutor then gave a summary of the facts of the offences. After that summary, the Galambany Court Aboriginal elders held a conversation with the respondent in relation to the offences. The respondent stated that, on the day of the driving offences, three of her children were fighting so she took one child to a friend’s house. Further, there was extensive explanation and discussion of the respondent’s background and the background to the offences. There was also discussion amongst the elders and the respondent about Yeddung Mura and such a condition. Following this, the respondent’s lawyer and the prosecutor made submissions to the court about sentence. Counsel for the respondent before the magistrate’s court submitted that, but for a two-and-a-half-year gap in offending, he would have conceded that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act) was crossed for the driving while disqualified charge. At the sentencing hearing, the prosecutor submitted that the “s 10 [threshold] is well and truly crossed”, given the respondent’s history of like offending.
16․Subsequently, after a short adjournment of 15 minutes, the sentencing magistrate delivered ex tempore remarks and sentenced the respondent, noting that Yeddung Mura may provide opportunities for the respondent for counselling to address trauma, engage with drug and alcohol rehabilitation, attend yarning circles and provide a place of peace and support outside the home. The decision of the magistrate emphasised that, in coming to a sentence, the elders’ recommendation was significant and that the gap in offending and the background to the circumstances of the offending meant that a term of imprisonment was not appropriate, stating the following:
Imprisonment is considered to be a last resort. It doesn’t appear to have been effective for you in the past, though it seems your experience of family violence was really overwhelming over that period that you built up that record that led to your habitual offender disqualification through to 2050 or 2053. I will give the reasons, but I have considered it strongly with the elders and received their recommendation and they are strongly of the view that that gap and also the particular history of the offence and the circumstances means that a term of imprisonment is not appropriate, or there are alternatives, I should say.

(emphasis added)

17․The sentencing magistrate indicated that the objective seriousness of the offending fell “towards the lower end of the scale.” The sentencing magistrate recognised both the respondent’s significant record and the two-and-a-half-year gap in offending. In considering the nature of the respondent’s driving, as to what extent it was contumacious, the sentencing magistrate noted the violence between the respondent’s children. The sentencing magistrate stated:
…There’s no evidence you’ve driven other than this and you have clear strategies of getting food in that don’t involve you driving and so forth. So that combined with a gap in offending of two and a half years suggests that it was the circumstances that were happening this day that were bearing upon you and the level of contempt is, in my view, minimal and is affected by your experience of violence, both the history of it and the circumstances at that moment and all of those matters.

(emphasis added)

18․Relevantly, the sentencing magistrate took into account principles that arise from the High Court decision in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 (Bugmy) and the respondent’s deprived background.
19․The sentencing magistrate considered that imprisonment would not be a just and appropriate sentence, and that the sentence imposed would provide a measure of both specific and general deterrence, while working towards protection of the community through the respondent’s rehabilitation.
20․It is important to note that the reasons of the sentencing magistrate were delivered ex tempore and that the reasons were expressed directly to the respondent, to be understood by the respondent, without legalese. The reasons were directed at the respondent and not expressly directed at an appeal judge. That is as it should be: see Kinnane v Beattie [2022] ACTSC 265; 372 FLR 358 (Kinnane v Beattie) at [37] and [52] per Mossop J. See also LM v Childrens Court of the Australian Capital Territory [2014] ACTSC 26 at [42]; Cowie v Gungahlin Veterinary Services Pty Ltd [2016] ACTSC 311 at [101]; Williams v Connor [2019] ACTSC 184 at [43]; and TS v DT [2020] ACTCA 43 at [82].

Jurisdiction

21․The Court’s jurisdiction to hear appeals from the Magistrates Court arises from Pt 3.10 of the Magistrates Court Act. Section 219B(1)(f) provides for appeals from a sentence imposed by the Magistrates Court. Under s 219D(e), this may be on the ground that “the sentence or penalty was manifestly inadequate or otherwise in error.”
22․It is well established that the “limiting purpose” of a prosecution sentence appeal is to lay down principles for the governing and guidance of courts with the duty of sentencing convicted persons: CMB v Attorney-General (NSW) [2015] HCA 9; (2015) 256 CLR 346 (CMB) at [55]; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green) at [1]. See also Everett v The Queen [1994] HCA 49; 181 CLR 295 (Everett) at 300, and Griffiths v The Queen [1977] HCA 44; 137 CLR 293 at 310.
23․Where error is established, the power to intervene is enlivened. Section 219F of the Magistrates Court Act provides:
219F Powers of Supreme Court
(1)On a review appeal, the Supreme Court may, after considering the evidence before the Magistrates Court and any further evidence called by leave of the Supreme Court—
(a)dismiss the appeal if satisfied that the decision of the Magistrates Court should be confirmed; or
(b)set aside or quash, in whole or part, or otherwise vary or amend, the decision of the Magistrates Court.

(2)If, under subsection (1) (b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may—
…
(c) for a decision mentioned in section 219B (1) (f)—
(i) impose the sentence or penalty the Supreme Court considers appropriate;
(ii) by order, exercise any power that the Magistrates Court might have exercised; or

…
(5) The Supreme Court may, despite the ground or any of the grounds for review mentioned in section 219D being established, dismiss the appeal if the court considers that no substantial miscarriage of justice has happened.
(emphasis added)

Residual Discretion: Summary of Law
24․The High Court has consistently made it clear that when dealing with a prosecution appeal on sentence, the residual discretion refers to the discretion of an appellate court to dismiss an appeal. This residual discretion exists despite the fact that the prosecution has established error concerning the sentence imposed at first instance: Green at [1] and [24] (French CJ, Crennan and Kiefel JJ); CMB at [54] (Kiefel, Bell and Keane JJ).
25․In August 2022 the prosecutor appearing for the DPP before me, properly submitted that the residual discretion applied in prosecution sentence appeals from the Magistrates Court to the Supreme Court. Subsequently, in October 2022, another prosecutor from the DPP in another case before me submitted that the residual discretion did not apply in prosecution sentence appeals from the Magistrates Court to the Supreme Court.
26․In December 2022, as a result of the DPP adopting opposite positions on an important matter of law before me, it was therefore, in my view, incumbent upon me and appropriate to refer both cases; I referred both matters to the Full Court to answer the question of law concerning a sentence appeal from the Magistrates Court and the existence or otherwise of the residual discretion not to intervene (Harlovich v Sebbens [2022] ACTSC 331; Chapman v Cottle [2022] ACTSC 330 (Chapman v Cottle)).
27․After my referral, the Full Court in Harlovich v Sebbens [2023] FC at [2] confirmed that even where error is established in the original sentence imposed, an appellate court may, exercising the residual discretion, decline to allow a prosecution appeal and resentence an offender including where:
i.The prosecution contributed to the error in the court below, such as where the prosecution resiles on appeal from a concession made at first instance (including where the prosecution consented to a non-custodial outcome at first instance, yet submits on appeal that a sentence of imprisonment should have been imposed), or where the prosecution otherwise changes its case on appeal, or where the prosecution did not assist the court below in avoiding error;
ii.The allowing of a prosecution appeal would occasion an unfair additional burden upon the offender, such as where the allowing of the prosecution appeal would undermine an offender’s progress towards rehabilitation, or where the offender has been released (either unconditionally or on parole), or such release is imminent;
iii.There has been a delay in the commencement, hearing or determination of the prosecution appeal; and
iv.The prosecution’s selective invocation of appellate jurisdiction could cause disparity between co-offenders.

See Green at [43]-[44]; Munda v Western Australia [2013] HCA 38; 249 CLR 600 at [72]; R v Ralston [2020] ACTCA 47; (2020) 285 A Crim R 159 at [80].

(emphasis added)

28․The “limiting purpose” referred to by the High court in CMB provides a framework within which to assess the significance of factors relevant to the exercise of the residual discretion.
29․As underlined in Harlovich v Sebbens [2023] FC at [4], the residual discretion is concerned with the avoidance of unfairness or injustice, therefore the considerations which are relevant to the exercise of the residual discretion are not confined:

The exercise of the residual discretion is concerned with issues of fairness and justice, both to the individual offender and with respect to the administration of justice more generally: Green at [43]; R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [92]; DK v Director of Public Prosecutions (NSW) [2021] NSWCA 134; 105 NSWLR 66 at [38]. As Street CJ held in R v Holder [1983] 3 NSWLR 245; 13 A Crim R 375 at 255, the residual discretion “enables the court to keep an ultimate control by protecting a convicted person against unfairness or injustice if that would flow from an adverse appellate decision”. For this reason, the considerations which are relevant to the exercise of the residual discretion are not confined to those outlined at 2 above: Ralston at [80]; JW at [85].

(emphasis added)

30․It is also well established that the onus is on the prosecution to satisfy the appellate Court that the residual discretion on a prosecution appeal should not be exercised in favour of the respondent: CMB at [66].

Referral to the Full Court and Delay

31․I will now set out in comprehensive detail the timeline concerning the referral of the matter to the Full Court. The reason for this detail is that the delay is relevant to exercising the residual discretion in the case before me. This is a case where I have come to the conclusion that even were I satisfied that the sentence for the drive while disqualified charge were manifestly inadequate, I would exercise the residual discretion not to intervene.
32․The somewhat lengthy and unfortunate history of this case is outlined below.
33․This matter proceeded to hearing before me on 23 August 2022. I listed this matter urgently before me on 1 December 2022, to hear from parties as to whether this matter should be referred alongside another matter (Chapman v Cottle) to the Full Court, pursuant to s 13(3) of the Supreme Court Act 1933 (ACT) to consider the issue of whether the Court retains a residual discretion not to intervene on a prosecution appeal from a sentence imposed in the Magistrates Court.
34․In the sentencing proceeding in Chapman v Cottle counsel for the director submitted before me that the residual discretion had been excluded by s 219F(5) of the Magistrates Court Act. Relying on the decisions in Kirby v Ali [2021] ACTSC 95 (Kirby v Ali) and Fall v Vuolo [2022] ACTSC 249 (Vuolo), counsel for the Director submitted that when considering a prosecution appeal against sentence where a court was satisfied that there was an error, the Supreme Court would be required to allow an appeal and re-sentence an offender unless satisfied that “no different sentence was warranted.” Therefore the submission of the DPP was that the residual discretion did not apply.
35․The prosecution sought the referral in Chapman v Cottle and the respondent in that matter consented to the referral given the importance of the issue and the submitted lack of clarity arising from the views expressed in Kirby v Ali and Vuolo.
36․Noting the direct inconsistency in the approach taken by the Director in the two proceedings, on 1 December 2022, with the consent of all parties, I referred the following questions to the Full Court pursuant to s 13(3) of the Supreme Court Act 1933 (ACT):
(i) In an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court, is there a residual discretion not to intervene?
(ii) If there is a residual discretion, to what extent, if at all, is it affected by s 219F(5) of the Magistrates Court Act 1930 (ACT)?
See Chapman v Cottle [2022] ACTSC 330 at [41]; Harlovich v Sebbens [2022] ACTSC 331 at [11].
37․On 27 October 2023, Baker, McWilliam and Abraham JJ delivered the full court’s judgment in Harlovich v Sebbens [2023] FC. The findings of this case are summarised below.
38․As stated in Harlovich v Sebbens [2023] FC, until recently it was well accepted for a number of decades that the residual discretion applied to prosecution appeals against sentences imposed by the Magistrates Court: see Knight v Birch (1992) 106 ACTR 27; 106 FLR 109 at 115; Kaye v Siddiq [2013] ACTSC 62 at [35] - [38]; Gordon v Reddin [2013] ACTSC 87 at [13]; Hall v CL [2015] ACTSC 286 at [129]; Croatto v Banks [2015] ACTSC 398 at [19]. However, in Kirby v Ali Robinson AJ expressed doubt about that line of authority. Despite the fact that both the prosecution and the respondent in Kirby v Ali accepted that the residual discretion applied to the appeal, his Honour stated that he was “not convinced” that the relevant Division of the Magistrates Court Act “adopts this body of law”: Kirby v Ali at [3]-[4]. His Honour further described it as a “a gloss to the statutory criterion” see [57] – [60].
39․Since that decision, differing views had been expressed as to whether the residual discretion applied to a prosecution appeal against a sentence imposed by the Magistrates Court. For example, in Adams v Navaratnam [2021] ACTSC 256 at [39], I declined to follow Kirby v Ali and held that the prosecution was required to negate the residual discretion. Conversely, in Vuolo at [36], Kennett J indicated that he was “inclined to conclude” that the decision in Kirby v Ali was correct.
40․The full court held that Kirby v Ali was wrongly decided.
41․In relation to the first question, the Court held that there is a residual discretion not to intervene in an appeal to the Supreme Court brought by the prosecution from a sentence imposed in the Magistrates Court. The Full Court held at [73] – [74]:
[73]For the reasons outlined above, residual discretion principles are concerned with the protection of a convicted person against the unfairness or injustice that may arise from allowing a prosecution appeal against sentence. These principles will be read into a generally worded statute that confers such a right of appeal unless displaced by clear and unmistakeable language.
[74]Accordingly, the question to be asked is not whether the Magistrates Court Act indicates a textual intention to positively “adopt” the residual discretion; cf Kirby v Ali at [4]. Rather, the proper question to be asked is whether, in conferring jurisdiction on the Supreme Court to hear a prosecution appeal against sentence, the legislature clearly indicated an intention to oust the exercise of the residual discretion.

(emphasis added)

42․The Court further held there was no support, or historical basis, for the proposition that the legislation intended to oust the residual discretion in respect of prosecution appeals against sentences imposed in the Magistrates Court. The Court further held that there is no textual or purposive reason to conclude that the legislature intended the court to disregard the considerations of fairness and justice which underlie the residual discretion.
43․The Court further held at [75] in discussing the fairness and justice which underlines the residual discretion, that there is no reason to conclude that the legislature intended the court to disregard the considerations of fairness and justice.

The second question: Whether the content of the residual discretion is affected by s 219F(5) of the Magistrates Court Act

44․The Court did not accept the Director’s submission that the inclusion of s 219F(5) restricts the operation of the residual discretion.
45․The Court further stated the following in relation to the principle of legality at [86]:
The principle of legality applies not only to the abolition of common law rights, but also to their limitation. The principle of legality “requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law”: Momcilovic at [43] (emphasis added). Issues such as the onus of proof and the relevance of temporality (that is, whether events occurring after the imposition of the sentence at first instance can be taken into account) have the capacity to significantly circumscribe the operation of the residual discretion. Clear language is required before a construction is adopted that could have the effect of curtailing the court’s discretion to dismiss a prosecution appeal for reasons of fairness.

(emphasis added)

46․The Court further held that the creation of a separate discretion to refuse relief in s 219F(1) is clear from the use of the word “may” and further confirmed by the provision in s 219F(1) for an appeal to be dismissed if the Supreme Court is “satisfied” that the decision of the Magistrates Court should be confirmed. It was further held that the matters that may “satisfy” the Supreme Court that a decision of the Magistrates Court should be confirmed are not defined or limited. The Court further there is no textual basis to infer that the discretion in s219F(5) is intended to limit the broad discretion conferred by s219F(1): see Harlovich v Sebbens [2023] FC at [87] – [88].
47․Thus, the law continues to be that the prosecution faces two hurdles. First, the prosecution must establish manifest inadequacy. Secondly, the prosecution must negate why the residual discretion not to intervene should not be exercised.
48․The Court, through my associates, made enquiries in January 2024 concerning whether further submissions or evidence were to be filed post the Full Court decision. Counsel for the prosecution and Counsel for the offender responded that they did not propose to put on any further evidence nor make any further submissions.

Was the Sentence Imposed Manifestly Inadequate?

49․First, I note at the outset of this discussion of manifest inadequacy, that the sentencing magistrate in this case accepted the panel of elders’ recommendation.
50․Second, I note that the principles applying to prosecution appeals alleging manifest inadequacy are well established and were usefully summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]-[68]; and Dalton v The Queen [2015] ACTCA 48; 19 ACTLR 264 at [18]. See also R v Rappel [2019] ACTCA 11 at [10]; R v Lee [2017] ACTCA 30 at [53]; Dinsdale v The Queen [2000] HCA 54; 202 CLR 321 (Dinsdale) at [6]; and Barrett v The Queen [2016] ACTCA 38 at [34].
51․Third, manifest excess or manifest inadequacy in relation to a sentence being considered on appeal, is a conclusion that does not depend upon attribution of identified specific error. The reason for this is that the relevant legal test is whether the sentence is unreasonable or plainly unjust. A sentence which is manifestly excessive or manifestly inadequate is a sentence therefore which is erroneous in point of principle.
52․Fourth, importantly, in considering whether a sentence is unreasonable or plainly unjust, the Court must do so while acknowledging that there is no one single correct sentence. It must not be forgotten that the process of sentencing involves due allowance for differences of judicial opinion at first instance while still acting in accordance with principle.
53․Fifth, it is not enough, in an endeavour to establish that a sentence is manifestly inadequate or manifestly excessive, that the appeal court would have imposed a different sentence. That is, without more, not the test and cannot be the test.

Yeddung Mura Condition – First Nations

54․The sentencing magistrate imposed an 18-month GBO with a condition that the respondent engage with Yeddung Mura.
55․As stated at the outset, Yeddung Mura is an organisation for Aboriginal and Torres Strait Islander people. Yeddung Mura runs support programs including drug and alcohol counselling, anger management, Relationships Australia counselling, smart recovery, transport and yarning circles.
56․As a consequence of this order by the sentencing magistrate, I requested further submissions from both parties in relation to the significance of the Yeddung Mura condition.

Prosecution submission that Yeddung Mura condition is “not a real condition” is not accepted by this court

57․The prosecution on appeal submitted that the sentencing magistrate’s reasons disclose some consideration of the condition in relation to Yeddung Mura and whether it would be appropriate. The prosecution referred to the sentencing magistrate stating the following:
… So one of the possibilities that’s frequently used here would be a condition that engage with Yeddung Mura with no corrections supervision. … Obviously it’s not designed to be enforced if there isn’t engagement, but it’s designed to be an encouragement and sets that expectation. It strikes me, from what we’ve heard, that may be of some benefit.
58․The prosecution submitted that the legislation makes plain that offenders must comply with any GBO conditions (s 85 Crimes (Sentence Administration) Act 2005 (ACT)). The prosecution submitted that the sentencing magistrate’s comments undermine that, and that the sentencing magistrate did not explain to the respondent the consequences of breaching the order.
59․Further, the prosecution submitted that his Honour’s decision to have no Corrective Services supervision meant there was no mechanism to place the respondent in breach of the GBO if the respondent did not attend or otherwise engage with Yeddung Mura. The prosecution submitted that the condition was no more than a recommendation and therefore could not serve the purposes of sentencing.
60․I am not persuaded that the GBO and the Yeddung Mura condition could not serve the purposes of sentencing. In my view, the Yeddung Mura condition, in context, as ordered by the sentencing magistrate, was supported by the evidence. The evidence before the sentencing magistrate was that the respondent drove to avoid violence among her children. Further, the evidence was that the respondent had no emergency transport. Taking this into account the Galambany Court Elders recommended Yeddung Mura as a condition. Importantly, Yeddung Mura provides services to address matters relevant to rehabilitation. An employee from Yeddung Mura confirmed before the magistrate that Yeddung Mura could provide relevant services through such a condition and that Yeddung Mura could assist the respondent with accessing support services in relation to both rehabilitation and transport.
61․It is important for me to note at this juncture, in the context of the importance and appropriateness of the GBO and Yeddung Mura condition (without Corrective Services supervision) that the sentencing magistrate had the advantage of seeing the respondent and had the invaluable and important assistance and advice of a panel of Aboriginal Elders in deciding the penalty and condition.
62․The condition was clearly formulated to assist the respondent. A primary aim of the court is to assist offenders in overcoming their offending behaviour. This is so that offenders do not reoffend, so that recidivism is decreased. This is a worthy and well-established aim of sentencing: see Hogan v Hinch [2011] HCA 4; 243 CLR 506, where French CJ stated the following at [32]:
Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest.

63․The sentencing magistrate properly took this principle into account in coming to his conclusion as demonstrated by the quote from the magistrate’s decision earlier in this judgment at [16].

Prosecution Submissions on Weight

64․On the question of manifest inadequacy, I must now deal with the prosecution submissions on weight. The prosecution made two main submissions on weight. First, concerning the weight accorded by the sentencing magistrate to the gap in criminal record, and second concerning the weight accorded by the sentencing magistrate to the circumstances of the offending.

Gap in criminal record

65․The prosecution submitted that the gap in the respondent’s record was not worthy of great weight in the context of the criminal history. Similarly, the prosecution submitted that the circumstances of the offending should not have been attributed considerable weight.
66․The prosecution submitted that in relation to the ‘gap’, prior to the respondent’s instant offending in June 2021, her most recent conviction for driving whilst disqualified was approximately two years and eight months earlier in September 2018. At the sentencing hearing, the solicitor for the respondent submitted that this was “an encouraging gap” and that, but for that gap it would have been conceded that the threshold in s 10 of the Sentencing Act was crossed for the driving while disqualified charge.
67․The prosecution on appeal submitted that this was not worthy of great weight in the context of the criminal history. I am not persuaded by this submission. It is well established that the ultimate question, as a matter of law, is not determined by weight but rather, whether the overall sentence is manifestly inadequate in the end result.

Circumstances of offending

68․The prosecution submitted that the respondent explained that the children will punch each other and it “just never ends” so she “didn’t really consider the consequences or anything but… [she] just jumped in the car with [child 1] and [child 2] and dropped [child 1] off over at [friend’s] house”. The respondent stated that the children get into fights with each other “every second day” and when that happens “usually it involves [redacted] most of the time and [redacted]…and that just keeps being the same cycle over and over again.” The prosecution submitted that far from being an irrational decision, it was perfectly explicable that the respondent would try to separate her children from each other without the intervention of the authorities, but the respondent was disqualified from driving. The prosecution further submitted that the evidentiary basis that the sentencing magistrate relied on to link the driving to any post-traumatic stress condition was tenuous. I do not agree, with the prosecution submission that the evidentiary basis was tenuous. In my view, there was a reasonable foundation in the evidence.
69․Additionally, the prosecution submitted in relation to the circumstances of the offending, that the transcript of the sentence hearing indicates that the elders and sentencing magistrate placed considerable weight on the respondent’s account in the circle as to the circumstances in which she was driving. At the sentencing hearing, the respondent stated that her three children were fighting so she took one child to a friend’s house. The respondent stated:
Well, on that day - so there’s a lot of domestic violence with my children… I took it into my own hands to take [child 1] out of the situation with the two younger ones and I dropped [child 1] over to [suburb], so that they would stop fighting, because otherwise it ends up with the house smashed up and police called and, yes.
…
I was taking [child 1] away.
…
Yes. So I was taking [child 1] over to our friend’s house to get [child 1] away from the two youngers ones, because they were all fighting.
70․The respondent further stated that one of her children “sort of gets angry” and then the other child “will get stuck into” them. She further stated that two of the children will “punch each other out and it’s just – it just never ends.”
71․The respondent also stated that she had experienced domestic violence from her former partner and her driving in the past had been in the context of that abusive relationship.
72․I note that the respondent stated at the sentencing hearing that the respondent was receiving $68 per fortnight for transport from the NDIS. It was also stated that the worker “always pulls out.” The respondent also stated she had no family to rely on.
73․The prosecution further submitted that the sentencing magistrate appeared to place considerable weight on this account. His Honour stated that it was one of the two key bases for the elders to recommend that a term of imprisonment was not appropriate. The prosecution submitted that the sentencing magistrate then appeared to draw a causal connection between the respondent’s past experience of domestic violence, a PTSD diagnosis and her choice to drive in relation to the present offending. Although stating it was not raised “in any kind of medical sense”, his Honour purported to make findings that “your decision-making process goes offline to some extent” and that there is “a fight or flight response.” The prosecution submitted that there was no evidentiary basis for such findings by the sentencing magistrate. I am not persuaded that there was no evidentiary basis for these findings by the sentencing magistrate. In my view, there was an evidentiary basis. As I stated earlier, there was a reasonable foundation on the evidence.

74․Further in relation to this matter, the prosecution submitted that the respondent’s description of the circumstances of the present offending were quite different to an experience of violence at the hands of an abusive partner. I note the term ‘domestic violence,’ which is a form of ‘family violence,’ is often used to refer to violence against an intimate partner or ex-partner, while ‘family violence’ is a broader concept and includes violence against children, older people, parents and other kin or family members. In my view, this prosecution would-be distinction between family violence involving children as opposed to domestic violence involving a partner is not a particularly useful forensic distinction on the facts of this case for the purposes of the prosecution submission. Both domestic violence and family violence involve distressing violence in the home.
75․Additionally, the prosecution submitted that the circumstances certainly did not rise to the level of duress or a sudden or extraordinary emergency, and that the circumstance of the respondent’s children fighting may have been difficult for the respondent to manage, however there were a number of other steps that the respondent could have taken, short of driving, including for example, it was submitted, calling the police for help. In my view, the prosecution submission that an Aboriginal mother or any mother’s first thought should be to call police in relation to her own children is a somewhat debatable proposition that I cannot accept. I note other alternatives were also posited by the prosecution.
76․Further, the prosecution submitted that to the extent that the sentencing magistrate seemed to draw a connection between the respondent’s past experience of violence and her decision-making processes in the present matter, this, it was submitted, was not a finding open to the sentencing magistrate. The prosecution referred to the psychological report of Dr Bonner in evidence and stated that the report pre-dated the offending in this matter by almost a year and was prepared for the purpose of assessment for a psychiatric treatment order. The prosecution maintained that the evidence therefore was limited to the indication of a diagnosis of PTSD and some background as to her mental state generally, but could not provide any assessment as the respondent’s particular psychological state during or in response to the circumstances that precipitated the offending conduct. The prosecution submitted that the evidence as to the relevance of her prior experiences of domestic violence to her NSW offending was also limited to her statements made in the context of the discussion with the elders, and not capable of testing by the prosecution. As to this submission, I note that on my review of the transcript, there was no indication from the prosecution at first instance that the factual statements made by the respondent, or the elders, were matters in contest or dispute. I also note the prosecution did not make an application for the Evidence Act 2011 (ACT) to apply and to cross-examine the respondent.
77․During the sentence proceedings, the respondent gave evidence of how the violence involving her children brings her back to the domestic violence from their father and she has difficulty dealing with that.
78․The prosecution submitted that the statements made by the respondent as to the circumstances of the present offending could only be given limited weight, and, to the extent that it was relied upon as a factor justifying a non-custodial sentence, this was another example of undue weight given to a sentencing consideration, that was productive of manifest inadequacy. Again, this was a prosecution submission directed at weight, and it is well established the ultimate question is whether the sentence is manifestly inadequate.
79․Relevantly, drive while disqualified cases provide an analysis of seriousness through the concept of contumacy (Cotter v Corvisy [2008] ACTSC 64; 1 ACTLR 299 (Cotter v Corvisy) at [38]):
I note that the Shorter Oxford English Dictionary defines contumacy relevantly as “[w]ilful disobedience to the summons or order of the court” and the Macquarie Dictionary defines it relevantly, and similarly, as “wilful refusal to obey an order of a court.” An act becomes contumacious, as opposed to merely wilful, when the person doing it knows that it is prohibited and has no reasonable excuse for doing it, or no reasonable belief that it can be excused: In the Marriage of Kitchener (1978) 20 ALR 535 at 541. As many of the cases suggest, contumacy is defiance - defiant disobedience to authority: Witham v Holloway (1995) 183 CLR 525 at 542; Doyle and Ors v Commonwealth and Anor (1985) 156 CLR 510 at 516; Australian Consolidated Press Limited v Morgan and Anor (1965) 112 CLR 483 at 489.

(emphasis added)

80․The respondent properly submitted that the sentencing magistrate applied the correct test to the facts, and the uncontested purpose of the respondent driving was to remove a child from the house to escape family violence in her home. To my mind, on reviewing the evidence, this analysis is correct.
81․In this case, the respondent submitted the issue is contumacy, which is a mental attitude. Taking children away from violence was submitted by the respondent to be a protective parental attitude – not one of disobedience. On my review of the evidence, I am persuaded that this submission is correct. The degree or extent of contumacy is assessed in relation to the extent of defiant disobedience of the law: see Cotter v Corvisy at [38]. I note that contumacious offending is:
…something more than a mere intention to drive disqualified which is an essential element of the charge. It is committing the offence with an attitude of total disregard of the disqualification in disobedience to the authority which imposed it.
see Police v Cadd (1997) 69 SASR 150 at 179, quoted in Cotter v Corvisy at [36].
82․Counsel for the respondent in my view correctly submitted that the two sentencing factors: first, that the respondent’s criminal record; and second being a victim of domestic violence, were powerful subjective matters that pointed in different directions. As stated earlier, the sentencing magistrate considered the criminal record in detail. His Honour correctly found it was a very significant record. This was patently not ignored by the sentencing magistrate.
83․The sentencing magistrate considered the evidence and found that the experience of disadvantage must be given full weight according to the Bugmy principles. Again, that is a matter of weight in the sentencing magistrate’s discretion.
84․The respondent properly submitted that, after considering the criminal record and giving full weight to the Bugmy principles, the sentencing magistrate resolved the conflicting purposes of sentence in favour of an alternative to imprisonment. In my view, this was properly within the sentencing magistrate’s discretion.
85․In the circumstances, the respondent broadly submitted that given the evidence of disadvantage and its relevance to the reason for committing the offence, an alternative to imprisonment was within the scope of the sentencing discretion. I agree and discuss this further from [89] – [114].

Conclusion on Weight Accorded to Sentencing Factors

86․It is well established that matters of weight, of themselves of course, do not establish error: Bugmy at [24], [53]; R v Tuala [2015] NSWCCA 8; 248 A Crim R 502 at [44].
87․It is important to emphasise in my conclusion concerning prosecution submissions on weight that the discretion to overturn a sentence is not enlivened by a finding that the appeal court would have attributed less weight to subjective matters and more weight to objective factors. The High Court made the following pertinent observations concerning weight in Bugmy (at [24] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ)):
The Director submits that it is implicit in the reasons of the Court of Criminal Appeal that the Court concluded that the sentence for the offence against Mr Gould was manifestly inadequate. The difficulty with acceptance of the submission is that the Court expressly refrained from making that assessment. Sentencing is a discretionary judgment and there is no single correct sentence for an offender and an offence. Plainly enough the Court of Criminal Appeal disagreed with the sentence imposed by Judge Lerve and favoured a more severe sentence. The difference between the Court of Criminal Appeal's assessment of the appropriate sentence and Judge Lerve's assessment may be explained by saying that Judge Lerve gave too little weight to some factors and too much weight to other factors. However, within a range of sentences for this offence and this offender, the weight to be given to the evidence and the various, conflicting, purposes of sentencing was a matter for Judge Lerve. The authority of the Court of Criminal Appeal to substitute a sentence for that imposed by Judge Lerve was not enlivened by its view that it would have given greater weight to deterrence and less weight to the appellant's subjective case. The power could only be engaged if the Court was satisfied that Judge Lerve's discretion miscarried because in the result his Honour imposed a sentence that was below the range of sentences that could be justly imposed for the offence consistently with sentencing standards….

(emphasis added)

88․The question for this Court is not, if this Court were sentencing the respondent, whether this Court would have imposed the same sentence that was imposed by the sentencing magistrate. The question for this Court is whether the leniency of the sentence demonstrates error to the extent of manifest inadequacy; that the sentence is unjust and unreasonable: see House v The King [1936] HCA 40; 55 CLR 499. My conclusion to that question will be discussed under the next heading.

The prosecution submission that the sentence was manifestly inadequate is not accepted by this court

89․Counsel for the prosecution submitted that the sentence imposed for the offence of driving while disqualified was manifestly inadequate, particularly having regard to the following factors:
(a)The nature of the offending as contumacious;
(b)The respondent’s criminal history for like offending; and
(c)The respondent’s obvious awareness of the disqualification period.

90․There are valid points. The respondent was aware of the disqualification and the respondent had a significant criminal history of like offending. Nevertheless, I note that the prosecutor at first instance described the offending as both “bordering on” contumacious and “not contumacious.” Whereas the prosecutor on appeal described the offending as “contumacious.” This is a matter that may be relevant to the discussion of the residual discretion later in this judgment.
91․Notwithstanding the respondent’s invidious record for like offending, there must be a place for leniency in sentencing when an experienced judge, and in this case, an experienced circle sentencing judge, in the Galambany Court forms the view with the benefit of advice from Aboriginal elders that leniency at that stage of the offender’s life may lead to reform. As stated in R v Osenkowski (1982) 30 SASR 212 at 212 – 213, as underlined by King CJ, prosecution sentence appeals should not be allowed to circumscribe unduly the sentencing discretion of judges:
It is important that prosecution appeals should not be allowed to circumscribe unduly the sentencing discretion of judges. There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at that particular stage of the offender’s life might lead to reform.

(emphasis added)

92․I note the germane observation of Mossop J in Kinnane v Beattie at [73] when also considering a prosecution sentence appeal from the Galambany Court that:
Hope and mercy, although sometimes unfashionable in the discourse around sentencing are not prohibited by the [Sentencing Act].
93․It must not be overlooked in this case that the sentencing judge was obliged to consider and take into account the view of the elders in the Galambany Circle Sentencing Court.
94․This obviously does not mean that every recommendation must perforce be adopted. Nothing is mandatory in sentencing, apart from mandatory sentencing itself.
95․Nevertheless, a sentencing judge is obliged to consider all relevant matters, and in this case, the recommendation by the Galambany Court elders was a significant consideration. The Galambany elders were “strongly of the view” that an alternative to imprisonment was appropriate.
96․It is worthwhile at this juncture to quote Kourakis CJ in R v Perry [2022] SASCA 127 at [37] on Aboriginal and Torres Strait Islander/First Nations circle sentencing courts and the critical importance of Aboriginal elders in that regard:
In the book “Specialist Courts for Sentencing Aboriginal Offenders” the author, Magistrate Paul Bennett who has substantial experience as the Manager of the Nunga Courts in Adelaide and Murray Bridge describes the roles of Elders as follows:
“The Elders' role is significant for three reasons. First, the Elders are a crucial source of personal, community and cultural information or advice. The Elders bring experience and knowledge to the sentencing discussion from a perspective which is neither that of a professional participant, nor the defendant's advocate. Secondly, they are the critical link between the court, the local Aboriginal community and the defendant. The link is direct, with the Elders coming from the same community as the defendant.
Finally, the Elders occupy a unique position in the decision-making process. While in some other specialist courts (Drug, Family Violence and Mental Health courts) case workers provide information concerning eligibility or continuing participation in the court's rehabilitative program, in no other criminal court do laypersons directly advise on or influence the sentencing decision.”
(emphasis added)

97․In my view, the prosecution submissions do not pay sufficient regard to the significance of the elders in the Circle Sentencing Court. The elders in a circle sentencing court, such as the Galambany Court in the ACT, are a crucial link between the court, the local Aboriginal community and the respondent. The elders advise in relation to the sentencing decision for that reason. The elders were not the respondent’s advocate. The elders were a crucial source of community, information and advice in this case.
98․As further underlined by Kourakis CJ at [49], the importance for the conference process should not be underestimated and is rarely captured by a court transcript:
The power of the conference process to reveal personal and community strengths which would otherwise go unseen, and the effect of the close participation in the judicial process by elders, family and the defendant, should not be underestimated. The full effect of the conference will rarely be captured by the ink on a page of transcript.
99․The transcript alone cannot convey the full import or importance of the Circle Sentencing process. It is somewhat akin to the difference between reading a play and seeing it performed: see Garay v The Queen (No 3) [2023] ACTCA 2 at [31]. In this case it is the difference between words on a court transcript and seeing the real people involved speak those words; it is the difference between words in person and words on a page. Despite those limitations, on my review of the full transcript before the Galambany Court, the conference in the respondent’s case did reveal important personal matters and community strengths.
100․As to the prosecution submissions concerning manifest inadequacy, there is no absolute rule as emphasised by Kirby J (with whom the other members of the High Court bench agreed): Dinsdale at [68]. Consistency in sentencing does not mean a circumscribed, universal, unerring approach; a universal or blanket rule without discretion would itself be an error of sentencing principle:
…[T]here is no absolute rule. Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case.

(emphasis added)

101․Some feature of the case, as highlighted by the High Court, may lead in the proper exercise of the sentencing discretion by a judge to a lenient sentence. In other words, may lead to a lenient sentence not a manifestly inadequate sentence. In my view, this is what was determined by the sentencing magistrate in the case before me; a lenient sentence, not a manifestly inadequate sentence.
102․In this case, a pre-eminent feature of the respondent’s case was the view of the elders. What, I ask rhetorically, is the point of a circle sentencing court if the sentencing judge does not take proper account of the elders’ properly considered views? Circle sentencing is important, and I note purely by way of context that the Australian Law Reform Commission (ALRC) recommends (see Australian Law Reform Commission, Pathways to Justice—Inquiry into the Incarceration Rate of Aboriginal and Torres Strait Islander Peoples, Final Report No 133 (2017) at 14, 214):
Recommendation 6-3: State and territory governments, in partnership with relevant Aboriginal and Torres Strait Islander organisations and communities, should develop options for the presentation of information about unique systemic and background actors that have an impact on Aboriginal and Torres Strait Islander peoples in the courts of summary jurisdiction, including through Elders, community justice groups, community profiles and other means.

(emphasis added)

103․In considering all relevant matters, a judge through the process of instinctive synthesis, comes to a decision properly weighing all relevant factors. An approach to consistency that would entail close to identical sentences should be discouraged and deplored. Identical sentencing, or cookie cutter sentences, is not what consistency in sentencing requires. Sentencing that is not individual is anathema to proper application of sentencing principles. Each sentencing decision must fit the individual crime and the individual offender: see R v Lattouf (Unreported, NSW Court of Criminal Appeal, per Mahoney ACJ, 12 December 1996). The sentencing magistrate was careful to ensure that he sentenced the respondent in a way that was appropriate to the circumstances of the drive while disqualified offence and the circumstances of the respondent before him, while applying the purposes of sentencing.
104․Counsel for the prosecution further submitted that the factors outlined above at [89] warranted the imposition of a sentence of imprisonment. Further, Counsel for the prosecution accepted that it was a matter for the sentencing magistrate as to whether such a sentence ought to be partly or fully suspended, and in oral submissions the prosecution submitted that a fully suspended sentence could have been appropriate. Additionally, Counsel for the prosecution submitted that the sentencing of the respondent to a GBO in the circumstances was plainly unjust and unreasonable, and further emphasised in this context the maximum penalty. The maximum penalty that was referred to at first instance for this offence contrary to s 32(1)(a) of the Road Transport (Driver Licensing) Act 1999 (ACT) was 50 penalty units, six months’ imprisonment or both. I note that the prosecution submitted that although the respondent had numerous prior convictions for the equivalent NSW offence, the respondent was a ‘first offender’ in the ACT as the definition of a ‘repeat offender’ for the purpose of s 32(1) is limited to those with prior convictions or findings of guilt in the past five years for “an offence against this section” (Road Transport (Driver Licensing) Act 1999 (ACT), s 32(9)).

105․Unquestionably it is the case that the maximum penalty set by the legislature is an important yardstick. The High Court underlined this in Markarian v The Queen [2005] HCA 25; 228 CLR 357, the High Court held at [30]:
[30] Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance…

(emphasis added)

106․At the same time, giving careful consideration to the maximum penalty does not mean the maximum penalty must play a decisive role in the final determination of the respondent’s sentence: Elias v The Queen [2013] HCA 31; 248 CLR 483 at [27]:
The maximum penalty is one of many factors that bear on the ultimate discretionary determination of the sentence for the offence. It represents the legislature's assessment of the seriousness of the offence and for this reason provides a sentencing yardstick. Commonly the maximum penalty invites comparison between the case with which the court is dealing and cases falling within the category of the "worst case". As explained in Markarian v The Queen, for these reasons careful attention is almost always required to the maximum penalty. However, this is not to suggest that consideration of the maximum penalty will necessarily play a decisive role in the final determination.
107․It is well established that features that are relevant to sentencing in a drive while disqualified case include the history of offending; the reason for driving; the duration of driving; whether the driving was associated with the commission of other offences; and the disqualification and its duration. These factors have all been discussed earlier in the judgment. In this case the respondent had a history of driving offences including disqualified driving and was disqualified until 2051. The last time the respondent was not disqualified was 2009. And I again note the duration of the driving and that the driving was associated with another offence.
108․Unquestionably, the criminal history is important in relation to the question of continued disobedience: see Veen v The Queen(No 2) [1988] HCA 14; 164 CLR 465 (‘Veen (No 2)’) at 477. There were a significant number of prior convictions for driving disqualified and other relevant driving convictions when the respondent was sentenced. The sentencing magistrate considered the criminal record in detail and correctly found it was a very significant record.
109․Nevertheless, I emphasise again, that there must be a place for properly considered leniency in sentencing when an experienced judge in a circle sentencing court, or any court, forms the view that rehabilitation may be fostered to prevent reoffending. There must be a place for principled leniency in relation to an individual offender, on the considered recommendation of a panel of elders that a particular course at that point is called for where it may lead to the provision of rehabilitation services and access to transport.
110․Adopting a superficial analysis, it could be submitted that the leniency represents a sentencing anomaly. Nevertheless, when analysed in context and with the necessary depth required, the sentencing disposition by the magistrate, in my view, is not anomalous or idiosyncratic in the sense of undermining public confidence: see Hili v The Queen [2010] HCA 45; 242 CLR (Hili) and Everett and R v Irwin [2019] NSWCCA 133 at [64].
111․Manifest inadequacy is demonstrated by a consideration of all factors relevant to determining a sentence and by its nature does not call for a lengthy exposition nor necessarily call for a detailed treatise on sentencing generally. As stated by the High Court, reference to the circumstances of the offending and the subjective factors concerning an offender may sufficiently reveal whether a sentence is or is not manifestly inadequate: Hili at [59] – [61] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
112․The synthesis of sentencing considerations is an avowedly difficult process. This is because sentencing often involves dealing with and weighing conflicting considerations: see R v Low [2022] ACTCA 59 at [50]. See also Veen (No 2), where Mason CJ, Brennan, Dawson and Toohey JJ emphasised that the guideposts that are the purposes of sentencing sometimes “point in different directions” at [476]:
However, sentencing is not a purely logical exercise, and the troublesome nature of the sentencing discretion arises in large measure from unavoidable difficulty in giving weight to each of the purposes of punishment. The purposes of criminal punishment are various: protection of society, deterrence of the offender and of others who might be tempted to offend, retribution and reform. The purposes overlap and none of them can be considered in isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.

(emphasis added)

113․It is well to underline that where two highly relevant considerations, as in the respondent’s case, are incompatible, it is not necessarily the case that the end result must constitute an averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105 (Hopkins) (See also R v Bandy [2018] ACTSC 261).
114․In the respondent’s case, the purposes of sentencing did point in different directions. Ultimately in this case the sentencing magistrate decided that the weight of rehabilitation considerations and subjective matters outweighed the weight to be afforded to the other sentencing factors including general deterrence and specific deterrence. This was in the individual circumstances of this individual offender, on the basis of the evidence before the sentencing magistrate and the considered recommendations of the Aboriginal elders. This approach by the sentencing magistrate is consistent with the observations made in Hopkins and Veen (No 2), discussed above. This was a difficult sentencing exercise, approached in accordance with principle by the sentencing magistrate.
115․Ultimately, having considered all the matters discussed above, for the reasons set out above from [49] – [114] I have come to the conclusion that the sentence is undoubtedly lenient; nevertheless, the sentence is not manifestly inadequate.

Residual discretion

116․Thus, having concluded that this is a case where I am not persuaded of manifest inadequacy on the facts of this case, I must also consider the alternative. That is, the alternative that the sentence is manifestly inadequate and consequently whether I should apply the residual discretion as discussed earlier in this judgment at [24] – [30].

117․The prosecution submitted in the original written submissions concerning residual discretion that there was no delay in bringing the appeal. Regrettably, delay is now an issue in this case to be considered in relation to the residual discretion.
118․In this case there has been a substantial delay in the determination of this appeal.
119․I further stated earlier at [31], that even if I determined that the sentence was manifestly inadequate, this was a case where the onus on the prosecution has not been discharged in relation to the residual discretion.

120․The prosecution must negate any reason why the residual discretion of the appeal not to interfere should be exercised: see CMB; R v Hernando [2002] NSWCCA 489; 136 A Crim R 451. See Harlovich v Sebbens [2023] FC; Chapman v Cottle; and Everett. On the assumption that the sentence was indeed manifestly inadequate, in my view, I would in any event exercise the residual discretion not to intervene in this case.
121․As explained earlier in this judgment at [1] there has been a substantial delay in finalising this matter due to the DPP taking two diametrically opposed positions concerning residual discretion through two different prosecutors in two different cases before me. Two different positions were advanced before the Court by the prosecution representing the same DPP. This of necessity led to my referring questions of law to the Full Court for determination as discussed earlier in this judgment. As referred to earlier, the first case commenced before me in August 2022 and the second case, Chapman v Cottle, commenced in October 2022.
122․In December 2022 I referred both cases to the Full Court. The Full Court handed down the decision in October 2023. That delay of approximately a year from October 2022 – October 2023 would not have been occasioned but for the DPP adopting contradictory positions before me. In my view, it is clear that if I were to conclude that the sentence was manifestly inadequate it would therefore be proper to exercise the residual discretion not to intervene in this case on the unique facts of this case encompassing in particular the substantial delay engendered by the DPP.
123․I also note in the context of the residual discretion the matter I referred to at [90] concerning the different positions adopted by the prosecution on the question of contumacy before the sentencing magistrate and on appeal before me. The prosecution conducting a case on appeal on a different basis on this issue from that undertaken at first instance is a factor that also favours the exercise of the residual discretion not to intervene: see R v JW [2010] NSWCCA 49; 77 NSWLR 7 at [92].

Orders

124․For these reasons, I make the following orders:
(1)Appeal dismissed.
(2)Pursuant to s 219F(8) of the Magistrates Court Act 1930 (ACT), the costs of and incidental to the appeal are payable by the appellant

I certify that the preceding one hundred twenty-four [124] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Loukas-Karlsson

Associate

Date: 18 June 2024

[2024] ACTSC 153

7 June 2024