Kinnane v Beattie
[2022] ACTSC 265
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Kinnane v Beattie |
Citation: | [2022] ACTSC 265 |
Hearing Date: | 20 July 2022 |
DecisionDate: | 30 September 2022 |
Before: | Mossop J |
Decision: | The appeal is dismissed. |
Catchwords: | CRIMINAL LAW – APPEAL – Appeal from ACT Magistrates Court – appeal from Galambany Court – appeal against sentence – drive with prescribed drug in oral fluid as repeat offender – whether non-conviction order manifestly inadequate – consideration of meaning of “character” and “antecedents” in s 17(3)(a) of the Crimes (Sentencing) Act 2005 (ACT) – no appellable error demonstrated – appeal dismissed |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT), s 108 Crimes (Sentencing) Act 2005 (ACT), ss 17, 33(1)(m) Supreme Court Act 1933 (ACT), s 37O |
Cases Cited: | Beattie v Potts [2015] ACTSC 350; 305 FLR 198 Bennett v Daley [2021] ACTSC 159 Williams v Connor [2019] ACTSC 184 |
Texts Cited: | Mirko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022) Practice Direction No 1 of 2012, ACT Magistrates Court David Arthur Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) |
Parties: | Damien Kinnane (Appellant) Shay Michelle Beattie (Respondent) |
Representation: | Counsel S Drumgold SC (Appellant) J Cooper (Respondent) |
| Solicitors ACT Director of Public Prosecutions (Appellant) Aboriginal Legal Service (Respondent) | |
File Number: | SCA 7 of 2022 |
Decision under appeal: | Court/Tribunal: Galambany Court Before: Special Magistrate Hopkins Date of Decision: 25 March 2022 Case Title: Beattie v Kinnane Court File Numbers: CC2017/173 CC2017/1640 CC2021/1277 |
MOSSOP J:
Introduction
These proceedings involve an appeal from a sentence imposed by a special magistrate (the magistrate) on 25 March 2022. The charge being dealt with was that the respondent drove with a prescribed drug in her oral fluid contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RTAD Act). The offence occurred on 26 December 2020. The drugs detected in the respondent’s oral fluid were methylamphetamine and delta‑9‑tetrahydrocannabinol (THC). Also dealt with at the same time were breaches of two good behaviour orders which had been imposed in 2019 for the same type of offence.
The hearing involved the Galambany Court established by Ch 4C of the Magistrates Court Act1930 (ACT). That is the name of the Magistrates Court when sitting to provide “circle sentencing” which is defined in the Dictionary of the Act to mean “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”. After the sitting of the Galambany Court, the magistrate proceeded in accordance with s 17(2)(b) of the Crimes (Sentencing) Act 2005 (ACT) (CS Act) to not record any conviction but make a good behaviour order for a period of six months. Because no conviction was recorded, there was no period of disqualification from holding a driver licence.
The appeal
The appellant was the informant in the court below. The appeal is brought pursuant to s 219B(1)(f) of the Magistrates Court Act which falls within Div 3.10.3: “Review appeals in criminal matters”. The grounds for review are set out in s 219D of the Magistrates Court Act. Relevantly they include “that the sentence or penalty was manifestly inadequate or otherwise in error”: s 219D(e). The powers of the Supreme Court on such an appeal are set out in s 219F. Section 219F(5) provides that the Supreme Court may, despite any grounds of review being established, “dismiss the appeal if the court considers that no substantial miscarriage of justice has happened”.
The grounds of appeal are:
i.The learned magistrate misapplied s 17(3) of the Crimes (Sentencing) Act 2005 (ACT); and
ii.The sentence was manifestly inadequate.
Particulars:
(a) The failure to impose a conviction was manifestly inadequate.
The Notice of Appeal seeks that the sentence be set aside and that the respondent be resentenced.
Objective circumstances
At 10:10pm on 26 December 2020 the respondent was driving a Mitsubishi sedan on Lathlain Street in Belconnen. Police caused the vehicle to stop. The respondent was required to undergo a drug screening test which resulted in a positive indication to a prescribed drug. She was required to undergo an oral fluid analysis which recorded the existence of a prescribed drug. Subsequent laboratory analysis confirmed the presence of THC and methylamphetamine.
There was no evidence that anything about the manner of the respondent’s driving led her to be stopped by police. There was no evidence of any aberrant driving or risk arising from any impairment by the two drugs detected.
Subjective circumstances
The respondent’s subjective circumstances were described in a pre-sentence report, a criminal history and two written references provided to the court.
The respondent was aged 42 at the time of the Magistrates Court proceedings. Her maternal heritage is from Thursday Island and she also identifies as a Bundjalung woman. She had a difficult childhood. She lived with her grandparents for some of her formative years. She returned to live with her mother at the age of nine. She was subject to child sexual abuse by her grandfather. She was exposed to and encouraged to engage in illicit substance use throughout much of her childhood. She never had any contact with her biological father. Her mother had a number of partners, one of whom introduced her to illicit substance use. She expressed some empathy for her mother’s circumstances and described the impact of discovering that her mother was terminally ill. Her mother had died shortly prior to the present offending in December 2020.
All of the respondent’s intimate partners had been abusive. Although her current partner of three years had engaged in emotional abuse, this had improved significantly. They had made joint efforts to abstain from illicit substance use.
The respondent has five children with four different fathers. She became pregnant with her first child at the age of 15. Her children range in age from 27 down to 7 years old. The youngest three children had been in child protection care since they were young.
She was having regular contact with her youngest children and her behaviour over the last two to three years reflected an improvement that may coincide with her reduction in drug use.
She had recently commenced a Certificate III and IV in Community Services at the Canberra Institute of Technology. She had been employed at the Cuppacumbalong Homestead since November 2021 although she was still in receipt of some welfare payments. She had a substantial Centrelink debt which she was repaying.
The offender had been introduced to illicit substances at the age of 10. She first used heroin at the age of 14 assisted by her mother and stepfather. She used ‘speed’ from the age of 13, assisted by her mother. There were periods when she had used amphetamine or methylamphetamine daily but had reduced her use significantly. She had completed a day program at the Ngunnawal Bush Healing Farm. At the time of her mother’s death, she relapsed into more regular drug use. She admitted last using amphetamine or methylamphetamine in approximately July 2021. As at March 2022 she continued to use cannabis.
The pre-sentence report recorded that her mental health symptoms were likely linked to chronic post-traumatic stress disorder.
She had used methylamphetamine three days prior to committing the current offences.
She was assessed as not suitable for a community service work condition or an intensive correction order.
There was evidence in the form of two written references that indicated that:
(a)she participated in the “Culture Talks” program and had shown a leadership role within that program by offering to pick up and drop off other participants; and
(b)she had been working at Cuppacumbalong since November 2021 and was a “reliable and hardworking” member of the team.
The respondent had a considerable criminal history. She had convictions for receiving stolen property, possessing stolen property, neglecting a child and an animal, possessing a false document, unlicensed, uninsured and unregistered driving, driving while suspended and two convictions for driving with a prescribed drug in her oral fluid. She had been subject to suspended sentences of imprisonment as well as a sentence of imprisonment to be served by periodic detention.
At the time of the offending, she was subject to two good behaviour orders, each of which was imposed in relation to the charge of being a driver with a prescribed drug in her oral fluid.
The proceedings below
The Magistrates Court is known as the Galambany Court when it is sitting to provide circle sentencing. Section 291N of the Magistrates Court Act allows the Magistrates Court to give a direction in relation to the procedure to be followed in relation to circle sentencing. At the relevant time, that was done by way of a Practice Direction No 1 of 2012, which set out the procedure to be followed. The procedure was described to some extent in Hall v CL [2015] ACTSC 286 at [36]-[49]. It involved a number of Aboriginal elders participating in the proceedings and providing a recommendation to the magistrate. It was the magistrate who ultimately imposed the sentence. The magistrate was not bound by the recommendation made by the elders but, if not adopting the recommended sentence, was required to inform participants of the reasons why the sentence imposed was an appropriate one.
The proceedings commenced with the magistrate introducing the process and himself. Each other person present was then invited to introduce themself. Amongst those who introduced themselves were four elders, the lawyer representing the respondent and the prosecutor.
The magistrate marked as exhibits the Statement of Facts (Exhibit 1), the respondent’s criminal history from the Australian Capital Territory (Exhibit 2) and from New South Wales (Exhibit 3), the pre-sentence report (Exhibit 4), two reference letters (Exhibit 5 and 6) and a laboratory certificate identifying that THC and methylamphetamine were detected in the oral fluid sample (Exhibit 7).
The prosecutor summarised the Statement of Facts. There was then a discussion between the elders and the respondent. It appears that there might have been some prior discussion between the respondent and one of the elders about her circumstances. She described that the offending had taken place just after her mother had died and that she and her mother had a long messy history. The respondent said “it was very triggering for me, you know, to be there with mum”. She described the effect of the loss of her mother on her state of mind and that her new normal was going to work, “trying to think and better me and actually finally trying to love myself”. It is apparent that what she said had some significant impact, with one of the elders saying “we are sharing tears together but I can hear some strength and resilience in you”. She said that she honestly believed she would not go backwards. She described having recently been offered methylamphetamine again and having refused that. She said that “getting back in touch with my culture was massive, you know. That’s what saved me. It saved me, honestly.” She described her ambition to “open or create a place to help Indigenous families and staff, mainly kids, to stop them being removed and losing that connection because it can change your life, losing that connection, as we all know too well.” She said that she was currently working at Cuppacumbalong as “a gardener-grounds person sort of thing”. She described that she was a different person and that she loved it out there.
A Mr Judd, who worked at Cuppacumbalong, was there to support the respondent. He was asked by the elders how he found the respondent. He said:
Just a quick background, for around 20 years in Canberra I was a social worker, health worker and youth worker. I’ve seen - I’ve worked with a lot of clients in my time, especially those affected by drugs and alcohol. And in that - over those two decades, [the respondent] has been the only one that has stood out as being truthful and wanting to correct her path in life. She is the only one I’ve actually seen just kicked the habit just because of sheer willpower.
And I think that’s why I wanted to be here today, because she has been so outstanding in her efforts. She’s recognised what she’s done in her life, she’s remorseful and she’s taken responsibility for those actions. But now she is making decisions that will set herself up for a future away from all the trauma that was in her past. It is a very hard road to travel.
So the - I suppose one [way] of looking at it is the echoes from her past have caught up with her but they don’t define who she is going to be tomorrow. And that’s what I found with a lot of clients through my time is they let those echoes swarm their lives and just gave up, whereas [the respondent] has stood up and said, “I’ve had enough. I need to change. I know what I need to do to change,” and she’s doing it.
She makes great effort in coming to work, she makes great effort in going to the Orana Centre, and her priority to see her children is unbelievable and the example that she is trying to set for her children I find so sincere. It’s just amazing to see her doing that, because I’ve worked with a lot of clients who talk the talk but would never walk the walk and [the respondent’s] actions truly speak to her. Yes.
Mr Judd also referred to the respondent’s intention to open a centre for women fleeing domestic violence or trying to “kick habits that have led to that”.
One of the elders described his connection with the respondent as follows:
And just so we - I do know [the respondent]. When I used to work at the bush healing farm -I was out there for three and half years and that’s where I met [the respondent] and - you know, very outspoken, gets along with everyone in the course. Yes, knows how to speak her mind and, you know, just an enjoyable person to be around with. Yes.
The magistrate then asked about the leadership role which the respondent was described as playing in the Culture Talks program. The respondent described that when the person responsible for running the program was unable to take participants to Cuppacumbalong for the purposes of the program, she arranged to pick people up and take them out.
She was asked by one of the elders whether there was anything that she thought she needed to address. She said that she had already sought assistance in relation to cigarettes and cannabis because she would still “smoke pot on occasion”. She continued:
So, yes, that’s obviously something that I want to stop as well. I want to be drug free, completely - be able to say for the first time in my life I’m completely drug free and actually be able to be more in touch with myself and my country.
She described one of the biggest reasons why she still smoked cannabis was because of her nightmares and that that was something she would have to deal with.
After the discussion concluded, submissions were made by the solicitor appearing for the respondent. Having referred to relevant aspects of the facts, he submitted that the court should take no action on the breach matters. He noted that the minimum period of licence disqualification to be imposed was 12 months. He impliedly accepted that there would be a conviction for the offence. This prompted the magistrate to enquire whether or not he was making a submission that a non-conviction order should be made. He said that he was not. The questioning of the magistrate was such as to very clearly indicate that he should make such a submission. The following then appears in the transcript:
HIS HONOUR: I’m not going to suggest to you what to do. Obviously it’s an open discretion here, but if you have a look - I mean, I may as well open it up in the circle, because the question with section 17 is - I’m not trying to say anything about the job or submissions, but, you know, the question of looking at character.
MR LYNCH: Yes.
HIS HONOUR: And we have to look at the experience that [the respondent] has been through from a child.
And I won’t go into the details of it, [respondent], because I’ve read it and I know what to talk about the impact that can have.
If we look at that and then we look at the trajectory, it’s hard to imagine a higher demonstration of character to come from that situation. So if you put that there and then consider the circumstances of the offence in terms of the - - -
ELDER ABEL: Timing.
HIS HONOUR: - - - death of mum, which is related very closely to that trauma history with all of the complexities, I don’t know. Anyway - - -
MR LYNCH: I most certainly will submit on it.
The solicitor for the respondent then made appropriate submissions directed at a potential disposition under s 17 of the CS Act.
At the conclusion of the submissions, the magistrate referred to the prosecutor and said: “we’ve put you in a difficult position”.
The prosecutor said she was in a difficult position because of the respondent’s criminal history, this being her fourth such offence, and being in breach of two good behaviour orders for the same offending. (Whether the offending was the third or fourth such offence is addressed at [49] below). She indicated that she had been going to submit that a conviction with a good behaviour order without any supervision would adequately address the offending. She submitted that the need for general and specific deterrence meant that a non‑conviction order was “not an accurate reflection of the protection of the community”. His Honour then said:
Understood, and I - well, I’ll speak with the elders and I’ll come back. It is a court that I think rightly takes a view of character that may be different to other courts but it’s a contextual one that is based around a full understanding and I appreciate that that might seem unusual. I need to speak with the elders but there is a reason why this court is able to engage with elders understanding the shared experience and thinking about character in a broad way.
The court then adjourned and upon returning three minutes later, the magistrate gave his oral reasons. He indicated that he was going to make a s 17 order, explaining: “So the elders are very strong in their recommendation. They want you to be given the opportunity of a non-conviction order and I’ll give you an explanation of why that is.” He then gave the following explanation:
HIS HONOUR: In considering a non-conviction order, there are a number of matters that have to be taken into account by the court and that I’ve considered with the elders. Those matters are your character, your antecedents which is your past history, your age, health, medical condition, but I want to focus on character. We also need to consider the seriousness of the offence and any extenuating circumstances.
I’m going to do it in back order here because it was clear with your mum passing, given the whole, very traumatic background - and can I say, reading the report, it was quite - we don’t always read reports that bring out something of the story but the level of - the fact that you’ve been able to engage, and to some extent even find ways to forgive your mother by acknowledging her own trauma history even though that impacted you so horribly in ways that no one who hasn’t been through that could [imagine], shows like a degree of just - it’s fairly incredible to observe and I think you presented in that way that supports that sort of insight that we were presented with.
But anyway, there were extenuating circumstances around that. It’s not serious, in the sense that you weren’t impaired. There is no evidence of you being impaired or putting anyone at risk. So we’re talking about three days before and it stays in the system, and ultimately that’s going to be an issue for you going forward as you know.
You can be stopped in a situation where there is no suspicion for the stop. You get stopped and if you’ve been smoking cannabis in the last week, it seems, or we don’t know, then you’re suddenly facing this sort of offending, so the seriousness.
But let me now just come to character. So as I said, I don’t want to go in - this is one of the strengths of a good pre-sentence report is it means we know something about the history, we don’t necessarily have to speak it. Sometimes it’s important, but I want you to know that I have read that. I have seen the lines of force that play in your life. We see them in this court as you would know.
But we also see, both in what we’ve heard and in the report, is someone who with the most traumatic of backgrounds, hard to imagine more challenging, has become the most important line of force in your own life and brought yourself to a situation where the strengths and resources that you now have available to you are incredible. And you’ve spoken about the strength of connecting to culture.
There was - I won’t go through the details of the report but you have child protection services saying the last two to three years they’ve really observed [a] change in your behaviour. Your daughter has spoken incredibly positively about your employment and your wellbeing. These things - now, this is one thing to say about anyone but for a person who’s come from that history and that trauma background it’s impossible to imagine a greater display of character.
Okay. So that’s the way that this court thinks about character and it’s because of that shared understanding and the elders are very strong in relation to that. Now, there’s evidence of that clearly. Four years of no offending and then one year afterwards despite a long history of involvement in the justice system. That shows the trajectory. So again that speaks to that point.
And can I say also, the sorts of ambitions you have yourself, for your family, for the community, for example, culturally appropriate and supportive safe space for women escaping violence, which we - there are in other parts of the country in various places but not in the ACT necessarily in terms of, you know, a First Nations led and run organisation.
These sort of things could pay forward and reduce the trauma that you’ve experienced in other people’s lives and so that doesn’t flood through, and so the power of that and the potential you have is extraordinary.
Now, another matter that can be taken into account here is what’s the consequence to you and the community of taking your licence, and one of the consequences is that you won’t be able to continue in that work or not so easily. Cuppacumbalong is long way out of town.
THE PARTICIPANT: Yes, there is no public transport.
HIS HONOUR: Doing important things in that space for other people as a leader in that program when Adam is not available you’re already engaged in helping others to heal. So for this court to reduce your capacity to help others to heal, and to hinder your own healing, is - when we think of, in legal terms, the sentencing purposes designed to protect the community and promote your rehabilitation, clearly the best protection for the community is here for you to continue on that journey.
Whatever therapy it takes, hypnotherapy, anything that works for you, clearly the strength of culture is going to be foundational, but the other aspect here is, and it relates very closely, your rehabilitation. That’s the path. You’ve demonstrated it. You’ve proved it in ways that Dean has spoken about pretty powerfully but in ways that I think the elders can see and I can see, and so for that reason that’s also a matter.
And those things all aligned to the point where this is an opportunity to give you that leniency, that the court has that capacity to commend you on where you are, to encourage you to continue and to say let’s hope this is the last time we see you. But I just want to again end by saying that the cannabis challenge and the driving - - -
THE PARTICIPANT: Yes, and I’m very aware of that.
HIS HONOUR: It’s not a criminality act thing but it---
THE PARTICIPANT: No.
HIS HONOUR: Well, it’s made a criminality thing because it’s an offence, but from my perspective, and let the elders say whatever they wish at the end, good luck with that journey - - -
THE PARTICIPANT: Thank you.
HIS HONOUR: - - and that continuing healing process. And for the sake of the whole community and not just the First Nations community, the broader community, I hope that you continue to grow in strength, and your children, I should say, and continue to pay that forward and break those cycles.
There were then some final remarks by the elders and the proceedings concluded.
The terms in which the reasons were given reflected the fact that they were given ex tempore and directed largely to the respondent rather than a court of appeal. They reflect the following conclusions:
(a)having regard to the traumatic background of the respondent and her mother, her mother’s recent death constituted extenuating circumstances;
(b)so far as the objective seriousness of the offending was concerned, it was not serious because there was no evidence that the respondent was impaired or put anyone at risk;
(c)having regard to the traumatic background of the respondent, the change in her behaviour reflected a “display of character” on her part;
(d)her criminal history showed a trajectory which was relevant to her character;
(e)her ambitions were relevant to the prospect of her rehabilitation;
(f)a conviction and consequent disqualification from driving would reduce her capacity to help others;
(g)the best protection for the community was for her to continue with her rehabilitation; and
(h)those circumstances taken collectively made it appropriate to make a good behaviour order without conviction.
Section 17
Section 17 of the CS Act provides:
17Non-conviction orders—general
(1)This section applies if an offender is found guilty of an offence.
(2)Without convicting the offender of the offence, the court may make either of the following orders (each of which is a non-conviction order):
(a)an order directing that the charge be dismissed, if the court is satisfied that it is not appropriate to impose any punishment (other than nominal punishment) on the offender;
(b)a good behaviour order under section 13.
NoteA good behaviour order for a non-conviction order cannot include a community service condition because the offender is not convicted of the offence (see s 87).
(3)In deciding whether to make a non-conviction order for the offender, the court must consider the following:
(a)the offender’s character, antecedents, age, health and mental condition;
(b)the seriousness of the offence;
(c)any extenuating circumstances in which the offence was committed.
(4)The court may also consider anything else the court considers relevant.
NoteAn appeal may lie to the Supreme Court from a decision of the Magistrates Court to make a non-conviction order for an offender in the same circumstances as an appeal from a decision of the Magistrates Court in relation to an offender’s conviction for an offence (see Magistrates Court Act 1930, pt 3.10).
(5)If the court makes a non-conviction order under subsection (2) (a) for the offender, the court must, as soon as practicable after the order is made, ensure that written notice of the order, together with a copy of the order, is given to the offender.
Note 1For notice of a good behaviour order under s (2) (b), see s 103.
Note 2For a young offender who is under 18 years old, the notice and order must also be given to a parent or person with parental responsibility (see s 133J).
(6)Failure to comply with subsection (5) does not invalidate the non‑conviction order.
(7)If the court makes a non-conviction order under subsection (2) (b), the good behaviour order must be for a term of no longer than 3 years.
(8)This section (other than subsection (7)) is subject to section 13 and chapter 6 (Good behaviour orders).
Section 17 “confers a very broad discretion upon a sentencing court”: Proud v Sladic [2014] ACTCA 26; 67 MVR 485 at [28]. That is because in addition to the three matters referred to in s 17(3), the court is empowered to consider “anything else the court considers relevant”.
In Bennett v Daley [2021] ACTSC 159 at [49], Burns J made the following points:
(a)The ordinary consequence of proof of criminal offending is the recording of a conviction.
(b)The imposition of a non-conviction order is therefore a disposition which falls outside the ordinary.
(c)There must be a good reason for adopting such a course.
(d)This does not require exceptional circumstances but “cogent or compelling circumstances” should be demonstrated before a court is persuaded to deviate from the ordinary consequence of criminal offending.
(e)A lack of prior convictions would not of itself ordinarily satisfy the requirement. Although material may be put before a court concerning character, antecedents, age health or mental condition or suggest extenuating circumstances when properly analysed, “in most cases the material will not take the offence or the offender outside the ordinary”.
Thus, notwithstanding the breadth of the discretion given by the terms of s 17, it must be understood having regard to its overall place in the context of the CS Act.
Appellant’s submissions
The appellant submitted that the allegations of patent error were inextricably linked with the allegation that the failure to impose a conviction resulted in a sentence which was manifestly inadequate.
The appellant submitted that there were no extenuating circumstances within the meaning of s 17(3)(c). It submitted that there was no explanation for the offending and hence the death of the respondent’s mother and her very traumatic background could not be causally linked to the offending and therefore could not constitute extenuating circumstances.
The appellant submitted that the sentencing was “overwhelmed by an almost exclusive and narrow focus on the respondent’s character” and that the magistrate had suggested that the approach to character was different in the Galambany Court to the approach taken in other courts. The appellant submitted that the focus on positive aspects of the respondent’s character failed to give any consideration to the mandatory consideration of the respondent’s criminal history. Further, having regard to that history, the appellant submitted that no leniency could be warranted.
The appellant submitted that the evidence relating to the consequences of a conviction arising from disqualification from driving was not strong and that the magistrate’s approach simply reflected an attempt to sentence the respondent in a way that bypassed mandated penalties.
The appellant submitted that although there were some positive subjective circumstances, the offender’s prospects of rehabilitation were guarded at best. It also submitted there was no cogent evidence that the steps towards rehabilitation would be jeopardised should a conviction be imposed.
Finally, the appellant pointed to the lateness of the plea of guilty, occurring after an adverse ruling in relation to the operation of s 138 of the Evidence Act 2011 (ACT).
The appellant made submissions in relation to the court’s discretion not to intervene. The submissions of the appellant characterised the operation of s 219F(5) of the Magistrates Court Act as operating in the same way as the residual discretion recognised in cases such as CMB v Attorney-General for New South Wales [2015] HCA 9; 256 CLR 346.
Consideration
The maximum penalty for the offence was 25 penalty units, imprisonment for three months or both: RTAD Act s 20(1)(b)(i). There was an automatic disqualification of five years which could be reduced by order to 12 months: s 34(2). The two good behaviour orders that had been breached related to the same offence provision. Those offences were committed on 19 November 2016 and 30 January 2017. Both related to methylamphetamine. The good behaviour orders were not associated with suspended sentences of imprisonment. Therefore, they were to be dealt with under s 108 of the Crimes (Sentence Administration) Act 2005 (ACT).
As a matter of first impression, the sentence was one which was anomalously lenient. The offender had at least two previous convictions for the same offence. (There was a third conviction for that offence recorded in 2015 but an appeal from that decision led to the conviction being quashed and the matter remitted for rehearing: Beattie v Potts [2015] ACTSC 350; 305 FLR 198. No conviction relating to that offence is subsequently recorded and therefore the inference is that the charge was dismissed for one reason or another.) In addition to the two previous convictions, the offender had a variety of other convictions and hence, so far as her criminal history was concerned, she could not be considered to be a person of good character. However, the appeal is not to be determined as a matter of first impression or on the basis that this court, if it was sentencing the offender, would have imposed a conviction. Rather, what must be detected is a House v The King (1936) 55 CLR 499 error. So far as the allegation of manifest inadequacy is concerned, the appropriate approach is summarised in R v Nicholas; R v Palmer [2019] ACTCA 36 at [66]-[68].
As the matter was argued, the focus was on the manifest inadequacy of a sentence which did not involve the recording of a conviction. Errors were asserted in relation to the operation of s 17(3)(a) and (c) of the CS Act, but the emphasis was upon the ultimate result.
Five general points should be made about the proceedings below.
First, the appellant’s submissions must be considered in the overall context of the reasons given by the magistrate. The reasons were given after only a very short adjournment. They were directed to the respondent rather than to the legal representatives or a court of appeal. They were given in the context of a court whose hearings departed, to an extent, from the traditional procedures of the Magistrates Court. Insofar as particular parts of the reasons are relied upon either to establish patent error or to inform the consideration of latent error, the reasons must be interpreted in the context that I have outlined as well as with the usual caveats relating to the interpretation of a magistrate’s reasons: see 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]; TS v DT [2020] ACTCA 43 at [82].
Second, in understanding those reasons, it is relevant to take into account that the magistrate appears to have been reluctant to articulate at length the very difficult childhood suffered by the respondent. That appears to have been because he considered that to do so would have been, at least, upsetting for the respondent. However, the lack of recitation of those very difficult circumstances in the reasons given for the order that was made should not detract from the appreciation of how difficult they were.
Third, the only complaint made by the appellant is that a conviction should have been recorded. Consistently with the approach taken by the prosecutor at first instance, the court imposed a good behaviour order upon the respondent. Thus, the contention of the appellant was necessarily that, although it was open to the magistrate to deal with the matter by way of a good behaviour order, the sentence was manifestly inadequate if it did not include a conviction and hence include a period of disqualification from holding a licence under s 34(2) of the RTAD Act.
Fourth, the proceedings took place before a specialist court dealing only with certain Aboriginal or Torres Strait Islander offenders who had pleaded guilty to their offences. The magistrate and the elders appeared to have some background knowledge as to Cuppacumbalong, the Ngunnawal Bush Healing Farm, the Culture Talks program and the Orana Centre. The background knowledge of the participants in the process is a matter which needs to be taken into account along with the fact that, having not seen and heard the proceedings below, this court is deprived of some of the advantages obtained by the magistrate as a result of having done so.
Fifth, the Evidence Act did not apply to the sentencing proceedings and at no point did counsel appearing for the informant indicate that factual statements by the respondent, counsel for the respondent, the elders or Mr Judd were contentious.
The appellant’s arguments may be addressed first by reference to the matters required to be considered under s 17(3) of the CS Act.
Character
In s 17(3)(a) the meaning of “age, health and mental condition” is apparent. The words “character” and “antecedents” require some further explanation.
At common law, the concept of good character incorporates both the absence of previous convictions and also any evidence of positive good character: Mirko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022) at [500.19900]. Thus, an offender may show that he or she has behaved in a commendable way in relation to matters wholly unrelated to the offence and receive credit for such conduct in the sentencing process: see the examples given in David Arthur Thomas, Principles of Sentencing (Heinemann, 2nd ed, 1979) at 200.
In the CS Act, s 33(1)(m) refers to “the cultural background, character, antecedents, age and physical or mental condition of the offender”. Section 17 is somewhat narrower in that it does not include consideration of “cultural background”. Notwithstanding this, the considerations in s 17(3)(a) encompasses consideration of the subjective circumstances of the offender. So far as “character” and “antecedents” are concerned, there is a considerable yet uncertain degree of overlap between them. Given their appearance together in both s 17(3)(a) and in s 33(1)(m), it is not generally necessary to determine what factors fall within each. In his dissenting judgment in Weininger v The Queen [2003] HCA 14; 212 CLR 629 at [58], Kirby J pointed out that these expressions involve separate considerations. He said that “antecedents” referred to “any past criminal conviction, agreed or proved”: see also R v Harrington [2016] ACTCA 10; 11 ACTLR 215 at [57]. However, antecedents are broader than that. The expression extends to encompass “the whole of the circumstances of the offender and the offence”: Cobiac v Liddy (1969) 119 CLR 257 at 276-277; Commissioner of Taxation v Baffsky [2001] NSWCCA 332; 192 ALR 92 at [27]-[29]. As Kirby J pointed out in Weininger at [59], even where good character is not established, the absence of criminal convictions is a matter that must be taken into account.
While the breadth of the expression “antecedents” means that it will incorporate many matters which inform the assessment of a person’s “character”, the separate requirement to consider character means that some assessment is required of whether the person is of good character or otherwise. So far as “character” is concerned, whether or not it concerns an offender’s criminal history, it incorporates positive or negative aspects of character independent of criminal history. It is thus open to reach a conclusion that a person is of bad character even in circumstances where they have no criminal record: R v Pishdari [2018] SASCFC 94; 274 A Crim R 91 at [23]-[24]. Similarly, a person may be of good character in some respects but not in others: Harrington at [56].
In the context of s 17, exactly what considerations fall within the scope of “character” and “antecedents” is not significant, as both fall within the matters in s 17(3)(a) which must be considered. Further, to the extent that other matters might have been considered which fall outside the scope of “character” or “antecedents”, they are matters which may be taken into account pursuant to s 17(4). Thus, other than in relation to determining what falls within s 17(3) which “must”, as opposed to “may”, be taken into account, any taxonomic exercise is a barren one.
The appellant placed particular reliance upon the statement by the magistrate that the Galambany Court “rightly takes a view of character that may be different to other courts but it’s a contextual one that is based around a full understanding and I appreciate that that might seem unusual”. That statement, combined with only a passing reference in the reasons to the respondent’s criminal history (“… despite a long history of involvement in the justice system”), was relied upon by the appellant as indicating either a specific error or a matter leading the court to impose a manifestly inadequate sentence.
The approach taken by the magistrate seemed to treat “character” as referring to, or at least encompassing, strength of character. Thus, the fact that the respondent could be said notwithstanding her traumatic childhood and past drug use, to be on a positive trajectory (apart from the current offending), was seen to be relevant to the question of “character”. Adopting this approach, there was clearly evidence before the court that, if accepted, provided strong support for the offender’s strength of character, in particular the very strong endorsement of Mr Judd.
The appellant’s submission appeared to be that in adopting the approach to character that he did, the magistrate had erred. It is true that there is a risk that, in establishing specialist courts which deal with a narrow range of matters, the jurisprudence of those courts becomes an interpretive backwater. That is, unorthodox interpretations are adopted and accepted in the environment of a specialist jurisdiction that would not be adopted or accepted in a more general jurisdiction. However, subject to what follows, I do not consider that taking into account strength of character is beyond the scope of “character” in the CS Act. A successful struggle against childhood adversity so as to make progress in the world is an aspect of character. An examination of a person’s character in the context of the whole of their life is a legitimate exercise, although it must not be done to the exclusion of consideration of the central consideration of whether the person has demonstrated good or bad character.
Two points can be made about this approach to character in this case:
(a)Even if the magistrate was wrong in taking into account the strength of character which he discerned from the respondent’s life history and trajectory under s 17(3)(a) because “character” was not broad enough to include that aspect of her subjective circumstances, strength of character can, if it is relevant, be taken into account pursuant to s 17(4).
(b)While the focus on strength of character tended to divert the magistrate from consideration of the evidence of poor character disclosed by the criminal history, the magistrate was clearly aware of that adverse criminal history even if only limited weight was placed upon it.
Seriousness of the offence
The seriousness of the offence was not the subject of specific complaint by the appellant. There was no evidence that the offender’s driving was in any way affected by the presence of THC or methylamphetamine. The evidence was that any ingestion of methylamphetamine had occurred three days prior to the driving occurring. There was no evidence as to when the ingestion of cannabis occurred. The RTAD Act does not compel any conclusion that a positive result from oral fluid testing is necessarily indicative of any impairment of driving ability (although it must be assumed that the legislature considered that within the pool of people who produce a positive result will be a subset of people whose driving was impaired). There was no evidence that the respondent’s driving was impaired. It is not a matter of which judicial notice may be taken.
Therefore, while the offence itself is identified by the legislature as serious enough to warrant a maximum penalty of imprisonment and a mandatory period of disqualification, the offending in the present case did not involve any aggravation arising from the manner of driving. It did, however, involve two rather than one prescribed drugs. For that reason, it could not be characterised as being at the lowest end of objective seriousness for the offence.
Extenuating circumstances
It is clear that the magistrate treated the death of the respondent’s mother, in the context of the respondent’s traumatic upbringing and difficult relationship with her mother, as being an extenuating circumstance. The appellant’s contention was that because no direct link was established between those circumstances and the decision to drive (as opposed to the decision to take the drugs), there was no relevant causal connection which would allow the death of the respondent’s mother to be considered as an extenuating circumstance.
Accepting that a causal relationship between the extenuating circumstances and the offending is necessary, in my view it was open to the magistrate to treat the death of the respondent’s mother as an extenuating circumstance. That is because, although the timeline was not precise, the evidence was sufficient to allow an inference that it was the death of the respondent’s mother which led her to revert to using methylamphetamine. It is true that the decision to use methylamphetamine is distinct from the decision to drive a vehicle. However, in circumstances where there was no evidence or inference available that the respondent was intoxicated or that her driving was otherwise adversely affected by the presence of methylamphetamine in her body to an extent sufficient to be detected in her oral fluid, and a number of days had passed since the use of methylamphetamine, the substantive effect of the offence for which she was being sentenced was to punish the ingestion of the methylamphetamine. A causal connection between the death of her mother and the ingestion of methylamphetamine was, in those circumstances, sufficient to allow the death of her mother to be taken into account as an extenuating circumstance.
Other matters
There was evidence that the leadership role that the respondent had been playing in the programs at Cuppacumbalong in relation to getting participants to the program would not be possible if she did not have a driver licence. There was evidence that her employment at Cuppacumbalong would be made more difficult if she was disqualified from holding a driver licence. The location of Cuppacumbalong was a matter of which the magistrate was entitled to take judicial notice. He was also told that there was no public transport. It is true that in most cases where the legislation requires the imposition of a period of disqualification, difficulties with transport and employment will be matters given only limited weight by courts: see the discussion in Bennett at [54]. However, that general approach does not preclude the taking into account of the consequences of a conviction when considering whether or not to make an order under s 17.
Conclusion
It is clear that the magistrate accepted the genuineness of the desire of the respondent to rehabilitate herself. It is clear that the elders who questioned her and made the recommendation to the magistrate also accepted what she said. That was consistent with acceptance of the extremely positive reference from Mr Judd who described her as standing out amongst users of drugs and alcohol who he had dealt with over 20 years. Further, at least one of the elders had previous contact with and hence knowledge of the respondent which may have been significant in assessing her motivation for and prospects of rehabilitation. (I note that at no stage has any issue been raised about that prior contact and knowledge.)
It is very clear that the magistrate placed principal reliance upon the desirability of the respondent achieving rehabilitation. In that way, despite her history of offending, the community would be protected. In adopting such an approach, the sentence imposed by the magistrate involved giving only very limited weight to the sentencing purposes of general and specific deterrence. However, sentencing is a discretionary exercise and the various purposes of sentencing will usually pull in different directions. Which purposes of sentencing will predominate in any particular matter will be dependent upon the facts and the exercise of discretion by the sentencer. In the present case, there was a reasonable foundation in the evidence for a conclusion that, despite her personal history and criminal record, the respondent was on a positive trajectory. Further, consistently with what appears in the transcript, the magistrate had a strong recommendation from the Aboriginal elders participating in the process that the respondent should be extended leniency. Hope and mercy, although sometimes unfashionable in the discourse around sentencing, are not prohibited by the CS Act.
Although the disposition was a very lenient one, it is not one which was manifestly inadequate. There was evidence available to the magistrate which, if accepted, would provide a basis for such a lenient disposition. Having regard to the discretionary nature of the sentencing exercise and the reposing in the Galambany Court of that discretion, it is not possible to find that the conclusion reached by the magistrate necessarily discloses that an error has occurred in the sentencing process.
In those circumstances, it is not necessary to consider any residual discretion. The residual discretion here is the discretion arising in certain Crown appeals to decline to intervene even where error is shown. The applicable statutory provision in this case is s 219F(5). The appellant relied upon the description by Refshauge J in Hall v CL at [15] that s 219F(5) of the Magistrates Court Act is “an express application of the ‘residual discretion’” in order to suggest that the same principles were applicable. In circumstances where the appeal is to be dismissed in any event, it is not necessary to consider whether this approach was correct and whether, having regard to the statutory language of s 219F(5), it is appropriate to adopt the same approach as has been adopted in Crown appeals under general appellate provisions such as s 37O of the Supreme Court Act 1933 (ACT).
Order
The order of the Court is:
The appeal is dismissed
| I certify that the preceding seventy-six [76] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop Associate: Date: 30 September 2022 |
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