Kinnane v Beattie

In the Supreme Court of the Australian Capital Territory, the appellant, Damien Kinnane, appeals against the sentence imposed on Shay Michelle Beattie by the Galambany Court. The appeal is brought pursuant to s 219B(1)(f) of the Magistrates Court Act 1930 (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.

The respondent was driving with a prescribed drug in her oral fluid contrary to s 20(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). 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. The respondent 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.

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 involved the Galambany Court established by Ch 4C of the Magistrates Court Act 1930 (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) 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 magistrate gave reasons for the order which were directed largely 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].

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 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.

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.

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” encompasses strength 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.

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.

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 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