Ledson v Taylor

Case [2010] ACTSC 42

CRAIG DUKE FARRELL LEDSON v CHRISTOPHER RICHARD TAYLOR, MARK PATRICK ROBISON AND LUKE JAMES BROWN
[2010] ACTSC 42 (17 May 2010)

CRIMINAL LAW – Appeal from Magistrates Court of the ACT – section 208(1)(e)(i) Magistrates Court Act 1930 (ACT) – principles to conduct appeals.

CRIMINAL LAW –Appeal – Special burden of total sentence when released – impact of sentence on appellant’s employment.
CRIMINAL LAW – Appeal – appellant sentenced to ‘rising of the court’.

CRIMINAL LAW – Repeat driving offences – pattern of disregard for traffic laws.

Road Transport (General) Act 1999 (ACT), ss 16, 29(2), 44, 51, 62, 63, 64
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 32, 33, 34
Road Transport (Driver Licensing) Act 1999 (ACT), ss 16, 18(3), Div 2.3
Crimes (Sentencing) Act 2005 (ACT), s 10, 12(3), 35(4), 63(3), 103 Pts 3.2, 4.2

Magistrates Court Act 1930 (ACT), ss 208(1)(e)(i), 216, Pt 3.10

Crimes (Sentence Administration) Act 2005 (ACT)

Encyclopaedic Australian Legal Dictionary (LexisNexus)
Schurr, B Criminal Procedure (NSW) (Thomson LBC Information Services:  Sydney 1996), looseleaf, at 28-2051 [28.630]

Veen v The Queen [No 2] (1988) 164 CLR 465
Maxwell v The Queen (1995) 184 CLR 501
R v Gomez (2007) 1 ACTLR 145
Cotter v Corvisy (2008) 1 ACTLR 299
White v Brown [2003] NTSC 51
Knight v Birch (1992) 106 FLR 109
Rowley v Hollis [1977] WAR 42
R v Griggs [2006] ACTCA 3
Harriss v Walker (1996) 89 A Crim R 257
State v Weaver 11 Neb. 163
Travini v Starczewski [2009] ACTSC 123
Watling v Watson, Ex parte Watson [1966] QWN 41
Mill v The Queen (1988) 166 CLR 59
R v Hallocoglu (1992) 29 NSWLR 67
Douar v The Queen (2005) 159 A Crim R 154
R v Schodde (2003) 142 A Crim R 307

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 33 of 2009

Judge:               Refshauge J
Supreme Court of the ACT

Date:                 17 May 2010  

IN THE SUPREME COURT OF THE     )
  )          No. SCA 33 of 2009
AUSTRALIAN CAPITAL TERRITORY           )          

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:CRAIG DUKE FARRELL LEDSON

Appellant

AND:CHRISTOPHER RICHARD TAYLOR, MARK PATRICK ROBISON AND LUKE JAMES BROWN

Respondents

ORDER

Judge:  Refshauge J
Date:  17 May 2010
Place:  Canberra

THE COURT ORDERS THAT:

1.  The appeal is dismissed.

2.  The parties be heard on the proposed orders.

  1. The facts that have been disclosed on this appeal, while showing serious and persistent breaches of the law by the Appellant, give some comfort to the courts that there is a regime of enforcement of court orders relating to the disqualification or supervision of licences and that, as sometimes might be thought, breaches of such orders do not by any means necessarily go undetected.

Appeal

  1. The Appellant, Craig Duke Farrell Ledson, has a long and unenviable criminal record which will be referred to below.

  1. In particular, on 15 January 2008, he was convicted of unlawful possession of stolen property and sentenced to…

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AGLC
Ledson v Taylor [2010] ACTSC 42
Case
[2010] ACTSC 42
Decision Date

CaseChat Overview and Summary

In the case of Ledson v Taylor, the appellant, Mr Ledson, appealed against the severity of the sentence imposed by the Magistrates Court of the ACT. The appeal was based on the argument that the sentence was manifestly excessive. The court considered the legal issues regarding the principles of sentencing, the appellant's antecedent criminal history, and the special burden of the total sentence on his employment. The court also examined whether there were exceptional circumstances to mitigate the offences and if the appellant's criminal history showed a pattern of continuing disobedience to the law.

The court determined that the sentence imposed was not manifestly excessive, noting that the appellant had a history of criminal behaviour, including multiple traffic offences and other serious crimes. The court held that the appellant's criminal history was relevant to the sentencing, as it demonstrated a continuing attitude of disobedience of the law. Additionally, the court found that the sentence for the cannabis charge, which was a sentence to the rising of the court, was appropriate given the circumstances. The court also noted that the technical oddity in the imposition of the sentences did not warrant interference with the overall outcome.

The appeal was ultimately dismissed, and the court directed that the parties be heard on the proposed orders. The decision highlighted the importance of considering the appellant's criminal history in sentencing and underscored the court's discretion in imposing a sentence of the rising of the court.

Orders

Orders of the court

1. The appeal is dismissed.

2. The parties be heard on the proposed orders.

Background

Background to the litigation

It is this sentence from which Mr Ledson appeals. His appeal, which he prepared himself, was specified to be “severity of sentence”. I take that to be, in more conventional legal terms, that he submits that the sentence was manifestly excessive. This certainly is how it was put by Mr M O’Brien, who appeared for him on the appeal.The facts and background of the Appellant The facts of the driving offences were not particularly remarkable. On 4 December 2008, police officers and officers of the ACT Road Transport Authority were conducting a “Traffic Targeting Task” in Monash. The monitoring system they were using detected the motor vehicle, in which Mr Ledson was driving, as a motor vehicle the owner of which was a suspended driver. He was directed to stop and produced a Medicare Card and a Centrelink Health Card as identification. When police checked, they said to him, “Is there anything that I need to know about your licence?” and Mr Ledson admitted that he thought it was suspended. He was informed he would receive a summons for the offence. It is good for the courts to know that such monitoring takes place to ensure that court and other orders withdrawing the privilege of driving are able to be detected other than only when a further offence is committed. On 2 April 2009, police officers saw Mr Ledson driving another car and recognised him. They approached him when the vehicle stopped and he again produced a Medicare Card and a Centrelink Health Card as identification. His possessions were searched and a clear plastic packet that measured about 10mm by 5mm square containing green cannabis was located. Mr Ledson was arrested. Mr Ledson said the vehicle was owned by his partner. On 26 May 2009, police officers saw the same vehicle as had been driven on 2 April 2009. It was being driven at what they considered to be an excessive speed for the corner being negotiated and, concerned at the manner of driving, they directed it to stop. Mr Ledson was the driver. He admitted that his licence had been suspended. He was arrested, but was polite and co-operative with police. Mr Ledson has an unenviable criminal record. It occupied six pages in the Appeal Book. It included many traffic offences, including three drink-driving offences, though the last one was in 1997. He has served terms of imprisonment for robbery with violence and possessing a traffickable quantity of drugs for supply and his record includes convictions for other drug offences and dishonesty offences. Of course, he is not to be sentenced again for the offences on this record and the relevance in sentencing is emitted and proscribed. It is, however, relevant. As the plurality said in Veen v The Queen [No 2] (1988) 164 CLR 465 (at 477-8), in a passage worth quoting as a reminder of what was there held:... the antecedent criminal history of an offender is a factor which may be taken into account in determining the sentence to be imposed, but it cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the instant offence. To do so would be to impose a fresh penalty for past offences: Director of Public Prosecutions v Ottewell [1970] AC 642, at p 650. The antecedent criminal history is relevant, however, to show whether the instant offence is an uncharacteristic aberration or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience of the law. In the latter case, retribution, deterrence and protection of society may all indicate that a more severe penalty is warranted. It is legitimate to take account of the antecedent criminal history when it illuminates the moral culpability of the offender in the instant case, or shows his dangerous propensity or shows a need to impose condign punishment to deter the offender and other offenders from committing further offences of a like kind. Counsel for the applicant submitted that antecedent criminal history was relevant only to a prisoner’s claim for leniency. That is not and has never been the approach of the courts in this country and it would be at odds with the community’s understanding of what is relevant to the assessment of criminal penalties.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Ms Begley submitted that there were no exceptional circumstances to mitigate the offences and that Mr Ledson’s appalling record showed that these were not aberrant offences, but ones of continuing disobedience to the law. The history denied Mr Ledson lenience.Consideration An oddity in the sentence imposed by the learned Sentencing Magistrate was that the sentence imposed as a result of the breach of the good behaviour order made, as required, when the suspended sentence was made was actually imposed by his Honour as the first sentence and, if the schedule annexed to his Honour’s reasons was accurate, formally prior to his Honour’s recording the conviction for the offence which constituted the breach. Strictly, no occasion for that sentence had arisen until the latter conviction was recorded. In this case, however, that latter offence (conviction for which constituted the breach) did not attract a sentence of imprisonment and the sentence imposed for it was not accumulated upon the sentence imposed as a result of the breach of the good behaviour order. Thus, in this case, nothing particular may turn on this oddity, but the fact is that until Mr Ledson was convicted of the charge of driving as a repeat offender whilst suspended on 4 December 2008, he was not in breach of his good behaviour order imposed with the suspended sentence, and so, could not technically be re-sentenced as a result. Neither party raised this issue and, in the result, the actual sentencing dispositions on each matter (as opposed to the form by which the imprisonment was to be served) was not challenged by Mr Ledson. I would, as will be seen, not have altered the individual sentences and so the ultimate result would have been the same. Thus, no interference with the sentence is warranted on this account. I also note that on the cannabis charge, Mr Ledson was sentenced to the rising of the Court. This has been defined by the Encyclopaedic Australian Legal Dictionary (LexisNexis) as:A sentence of imprisonment imposed on an offender for the period of the sitting of the court in which the sentence has been passed. Very often after imposing the sentence the court indicates that for the purpose of the sentence it shall be taken as having risen and thereby the offender is immediately released from the custody of the court. It is a sentence of imprisonment: White v Brown [2003] NTSC 51 (at [19]). It is a nominal punishment, almost never appropriate for serious offences: Knight v Birch (1992) 106 FLR 109 (at 119). Such sentences have to be treated with some care. In Rowley v Hollis [1977] WAR 42, the Court there held that there was no power to make such an order in the particular statutory context there relevant. In this Territory, however, s 63(3) of the Crimes (Sentencing) Act 2005 (ACT) suggests that such an order is within power. It certainly has high authority as being an available sentence in this Territory: R v Griggs [2006] ACTCA 3. Nevertheless, the court must be clear about when it rises. As was said in Schurr, B, Criminal Procedure (NSW) (Thomson LBC Information Services: Sydney, 1996), looseleaf, at 28-2051 [28.630]:A court may sentence an offender to the rising of the court. This is a common law power used in 3 per cent of local court cases and 1 per cent of higher court cases: New South Wales Law Reform Commission, Sentencing: Community Based Sentences, Discussion Paper (Sydney, 1996). The sentence usually only lasts seconds – until the words are pronounced that “You are sentenced to the rising of the court and for that purpose the court has now risen”.