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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Htoo v Cantle

Details

AGLC: Htoo v Cantle [2021] ACTSC 328
Case: [2021] ACTSC 328
Decision Date

CaseChat Overview and Summary

The appellant, Ywai Htoo, has appealed against a sentence imposed by a magistrate for level 4 drink-driving, a repeat offence under the Road Transport (Alcohol and Drugs) Act 1977 (ACT). The appellant was sentenced to two months' imprisonment, suspended after one month, with an additional condition of probation for nine months or such lesser period deemed appropriate. The appellant had spent six days in custody prior to being granted appeal bail. The appeal contested the procedural fairness of the imposition of an immediate full-time custodial sentence without prior notice, arguing it resulted in a practical injustice.

The appellant argued that the explicit warning by the magistrate at the start of the hearing about the contemplation of a custodial sentence was insufficient to alert the appellant or his legal representative to the need to address the possibility of a full-time detention sentence. The appellant's counsel relied on the need for procedural fairness, referencing case law which emphasised that counsel should address orders that might reasonably be contemplated in the circumstances of the case. The appellant claimed that the magistrate's comments did not exclude the possibility of a fully suspended sentence and that the appellant's legal representative was entitled to assume that in the absence of contrary submissions or warnings, a suspended sentence would be favourably considered.

The court found that the appellant's submissions were not well-founded. The maximum penalty for the offence included imprisonment for 12 months, and the circumstances of the offending were severe, with the appellant's blood alcohol level being significantly over the limit and involving erratic driving. The magistrate's explicit warning at the commencement of the hearing made it clear that a custodial sentence was within contemplation, a concept that would include sentences not involving full-time detention. Given the maximum penalty and the seriousness of the offence, the appellant would have needed to address the possibility of a custodial sentence. The explicit warning by the magistrate eliminated any doubt about the range of sentencing options being considered. The court held that there was no denial of procedural fairness.

The orders of the court were that, subject to amendment, the appeal is dismissed. The sentence was amended so that it starts on 9 December 2021 and ends on 8 February 2022, but the sentence imposed by the magistrate was otherwise confirmed.

Orders