Htoo v Cantle
[2021] ACTSC 328
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Htoo v Cantle |
Citation: | [2021] ACTSC 328 |
Hearing Date: | 15 December 2021 |
DecisionDate: | 15 December 2021 |
Before: | Mossop J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal against sentence – offence of driving with a prescribed concentration of alcohol in breath – level 4 drink-driving – whether denied procedural fairness by the imposition of an immediate full‑time custodial sentence without prior notice that such was being contemplated – where magistrate gave explicit warning that a custodial sentence was contemplated at commencement of hearing – where maximum penalty and objective seriousness brought a custodial sentence within range – where counsel for the appellant would have needed to address the possibility of a custodial sentence – no procedural unfairness – appeal dismissed |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT), s 10 Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 19(1), 26(2)(b) |
Cases Cited: | NE v Pruckner [2018] ACTSC 212 Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305 |
Parties: | Ywai Htoo ( Appellant) Leigh Cantle ( Respondent) |
Representation: | Counsel P Edmonds ( Appellant) N Deakes ( Respondent) |
| Solicitors Canberra Criminal Lawyers ( Appellant) ACT Director of Public Prosecutions ( Respondent) | |
File Number: | SCA 24 of 2021 |
Decision under appeal: | Court/Tribunal: Magistrates Court of the ACT Before: Magistrate Theakston Date of Decision: 28 July 2021 Case Title: Cantle v Htoo Court File Number: CC2021/3180 |
MOSSOP J:
Introduction
The appellant has appealed from a sentence imposed by a magistrate for a single charge of level 4 drink-driving. He is a repeat offender contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). He was sentenced to two months’ imprisonment to be suspended after one month upon entering into a good behaviour order for a period of 12 months, with a condition that he be on probation for nine months or such lesser period as deemed appropriate. He spent six days in custody prior to being granted appeal bail.
Of the three grounds of appeal in the Notice of Appeal, the only ground which was pressed was:
a. The Appellant was denied procedural fairness by the imposition of an immediate full‑time custodial sentence without prior notice to the Appellant that such was being contemplated.
This was said to have resulted in a practical injustice, because the appellant was deprived of the opportunity to seek an assessment of his suitability for an intensive correction order and the appellant’s legal representative was not put on notice that she needed to address the court further as to why his sentence should be fully suspended.
Submissions
The appellant referred to what I said in NE v Pruckner [2018] ACTSC 212 (Pruckner) at [19]-[20]:
19. It is clear that an offender is entitled to procedural fairness during criminal proceedings, including proceedings on sentence: Pantorno v The Queen (1989) 166 CLR 466 at 472‑474, 482-483. The particular requirements of procedural fairness may vary. The content of the requirement will be affected by what is said and done during the proceedings and what is ultimately in issue: Re Minister for Immigration & Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; 214 CLR 1 at [34]. The concern is to avoid practical, not merely theoretical injustice: Lam at [37].
20. When making submissions counsel must be expected to address the Court in relation to orders that might reasonably be contemplated to be available in the circumstances of a particular case. They are not expected to address the possibility of unusual orders or orders that would be unusual in the circumstances of the case unless they are put on notice of the possibility that such orders might be in contemplation of the magistrate, either by:
(a) an application being made for such an order by another party;
(b) a submission being made by another party that such an order may be appropriate in the circumstances; or
(c) by something said or done by the magistrate.
The appellant submitted that, in the absence of any express forewarning by the magistrate or submission to the contrary by the prosecution, the appellant was entitled to assume his eventual submission that any sentence of imprisonment would be fully suspended would be accepted. He submitted that the suspension of any sentence was in line with current sentencing practice.
The appellant relies upon the absence of an invitation to his legal representative to seek a pre-sentence report so that suitability for an intensive correction order could be considered. The appellant also relies upon the absence of any indication from the magistrate that he rejected the appellant’s submissions that a fully suspended sentence would be appropriate.
The appellant submitted that the comments of the magistrate did no more than make clear that he considered that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) had been passed and that the appellant’s legal representative would reasonably have understood the reference to a custodial sentence as not excluding a fully suspended sentence.
So far as current sentencing practice is concerned, the appellant referred to the New South Wales guideline judgment for high-range drink-driving: Re Application by Attorney General (No 3 of 2002) [2004] NSWCCA 303; 61 NSWLR 305. In that case, the New South Wales Court of Criminal Appeal identified that in an ordinary case of a high-range prescribed concentration of alcohol (PCA) offence, where a number of factors of aggravation are present to a significant degree, a sentence of any less severity than imprisonment of some kind, including a suspended sentence, would generally be inappropriate: see [146]. While recognising the differences between the jurisdictions, the appellant submitted that the guideline judgment “may properly be considered as not being inconsistent with sentencing practice in the territory” and hence “a suspended sentence was clearly open to the sentencing Magistrate and the Appellant’s legal representative was entitled to assume that in the absence of either submissions to the contrary by the prosecution, or express warning by the Magistrate, such would be favourably considered”.
Consideration
In my view, the appellant’s submissions cannot be accepted.
First, regard must be had to the maximum penalty for the offence, which includes imprisonment for 12 months: see s 26(2)(b) of the Road Transport (Alcohol and Drugs) Act.
Second, regard must be had to the circumstances of the offending: the blood alcohol reading was 0.279 g of alcohol per 210 L of breath which compared to the threshold for a level 4 offence of 0.150 g and the permissible blood alcohol limit of less than 0.05 g. It also involved erratic driving at 2:46pm including weaving left and right down the road, stopping suddenly and mounting gutters and continuing to drive after police emergency lights and sirens had been turned on.
Third, regard must be had to what occurred at the hearing and, in particular, the express warning given by the magistrate at the commencement of the proceedings. The transcript provides:
HIS HONOUR: While we are waiting for that to occur, this is a very, very serious example of this type of offending. I think I need to put the parties on notice that a custodial sentence must be within contemplation.
MS GORDON: Certainly that is not what I was seeking this morning, your Honour.
HIS HONOUR: Of course, yes, but just to so it is clear, so the maximum penalty for the offence is 12 months imprisonment, default disqualification for five years. I could reduce that disqualification down to 12 months. In the absence of an accident, I can’t think of a more serious example of drink driving.
MS GORDON: It is certainly conceded this would be considered on the highest end of this kind of offending. I suppose my submission would move in the direction then, your Honour, that we perhaps be seeking some kind of good behaviour order given - look, he has a very limited criminal history, being one PCA some seven years ago which was a very low reading, a level one. Clearly this was a very significant incident but it certainly was no- - -
Once some informal arrangements were made in relation to interpretation, his Honour raised the issue again:
HIS HONOUR: We can abandon the attempt with the, yes, interpreter. Okay, yes, so - just have a seat please, so you [are] more comfortable. Again I will just repeat my indication that - just to give the parties, I guess, a heads up that I must - considering the documents I have before me I must be at least considering a custodial sentence.
MS GORDON: Certainly.
HIS HONOUR: Look, I have just indicated that a term of imprisonment must be within range of what I am contemplating doing today.
MS GORDON: Well, thank you, your Honour, for that indication. At the outset I suppose I would first deal with the fact that we would be seeking the minimum disqualification period with some kind of significant fine. I have heard your Honour on the piece that perhaps - that it is in - within range to consider a custodial sentence. My submission, which I can address you on shortly at the end, however, will be that given his very limited criminal history we would be seeking that that would be taken no higher than a good behaviour order or some kind of very short, sharp term of imprisonment by way of a suspended sentence. It is certainly conceded that there are significant aggravating features in this offending.
Counsel for the appellant went on to address the objective circumstances, conceding that “this matter is on the high end of objective seriousness”. She then referred to the appellant’s strongly favourable personal circumstances, the absence of alcohol dependence, his early guilty plea and the difficulties that would be created by a period of disqualification. When prompted by the magistrate to explain the circumstances in which the offending occurred, counsel made some submissions and sought an adjournment to get some more instructions about the reasons for driving and his family circumstances. The submissions included reference to the death of his uncle that day, a person who had been a father figure to him throughout his time in a refugee camp.
The submissions made by the prosecutor were brief. She reiterated the erratic manner of driving and the failure to stop in response to the police sirens. She referred to the apparently false statement made to police that he had only had three to four glasses of wine. She also referred to the options available to the appellant to deal with a licence disqualification.
In reply, counsel for the appellant pointed to the potential for there being language difficulties in relation to the statement made to police.
The magistrate then gave his reasons immediately.
There can be no doubt that from the commencement of the hearing, the magistrate made the parties aware that he was contemplating a custodial sentence. That is a concept which legal practitioners would understand would extend to some sentences not involving full-time detention. Nothing in what his Honour said indicated that this was limited to a suspended sentence as opposed to a period of full-time detention. He made specific references to “imprisonment”.
Fourth, while it was submitted that a sentence of full-time imprisonment was unusual, it had not been established that there was any accepted practice or well-entrenched sentencing range which would suggest that the very explicit warning given by the magistrate was sufficient to only indicate a custodial sentence not involving full-time detention. The case is distinct from a situation such as that in Parker v Director of Public Prosecutions (1992) 28 NSWLR 282 which involved a custodial sentence being imposed upon appeal where one had not been imposed below. That occurred in a context in which there was an established practice or convention in District Court appeals that a judge who was contemplating an increase in the sentence under appeal would signal that possibility to the appellant.
In my view, there was no denial of procedural fairness. That is made particularly apparent by the explicit warning given by the magistrate at the commencement of the hearing. Even in the absence of such a warning, having regard to the maximum penalty and the objective circumstances of the offending, the possibility of a custodial sentence would be something which the appellant would have needed to address. The reference in Pruckner to unusual orders must be read in the context of the facts of that case described at [21]: a charge of common assault resulting in the imposition of a non-association order which would have had the effect of breaking up the appellant’s marriage. In this case, a sentence of imprisonment was clearly an obvious and available sentencing option. However, the explicit warning put the matter beyond doubt. There was nothing in the circumstances or the context which indicated that there was an implication that the magistrate was only contemplating a form of custodial sentence that did not involve any period of full-time detention. That the appellant has what might be considered to be strongly favourable subjective circumstances does not alter the position. The balancing of the various purposes of sentencing and hence the assessment of the significance of objective and subjective circumstances are a matter for the magistrate. An exercise of the sentencing discretion in a way less favourable to the appellant than might have been hoped is not indicative of a denial of procedural fairness.
Orders
The orders of the Court are:
1. Subject to order 2, the appeal is dismissed.
2. The sentence is amended so that it starts on 9 December 2021 and ends on 8 February 2022, but the sentence imposed by the magistrate is otherwise confirmed.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 16 February 2022 |
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